GEORGE HEALEY, JR., RESPONDENT, v. THE FIRESTONE TIRE & RUBBER COMPANY, &C.,
APPELLANT, AND ALL-INN TRUCKING, INC., DEFENDANT.
87 N.Y.2d 596, 663 N.E.2d 901, 640 N.Y.S.2d 860 (1996).
February 15, 1996
1 No. 30(1996 NY Int. 29)
Decided February 15, 1996
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Susan T. Dwyer, for Appellant.
Martin H. Weisfuse, for Respondent.
Product Liability Advisory Council, Inc., amicus curiae.
LEVINE, J.:
Plaintiff was severely injured when struck in the head by a part of a
multi-piece truck tire rim which explosively separated when the tire
which had just been inflated on it was dropped by an employee of
defendant All-Inn Trucking, Inc. The accident occurred September l7,
l99l. Pre-suit discovery orders were granted on behalf of plaintiff,
as well as a temporary order requiring All-Inn to preserve all of its
truck tire rims on its vehicles and at its premises. Pursuant to the
discovery orders, the deposition of Joseph Biassi, president of
All-Inn, was taken October 2l, 1921, Carl J. Lange, plaintiff's
expert, examined and inventoried rims on All-Inn trucks and at its
premises on October 26, l99l and plaintiff's expert O.J. Hahn examined
the rims on all l0 of All-Inn's trucks and those stored on its
premises on December 7, l99l. Hahn identified three rims, all
manufactured and designed by defendants Firestone Tire & Rubber
Company and Bridgestone/Firestone, Inc. (collectively referred to as
"Firestone"), as being the only rims of All-Inn that could have been
involved in the accident. This theory was based on the assertion that
the rims evidenced signs of substantial "chording", i.e., being
distorted and out of round, which Hahn opined was the cause of the
explosive separation of the rim involved in plaintiff's accident.
According to plaintiff, the three rims were marked for identification
and left in the custody of All-Inn's expert pursuant to an
understanding with the trucking company's insurance carrier that they
would be preserved.
Plaintiff commenced this action against Firestone and All-Inn in June
l992. The causes of action against Firestone were grounded in
SNIPPETS:
Plaintiff was severely injured when struck in the head by a part of a multi-piece truck tire
l99l.
Pre-suit discovery orders were granted on behalf of plaintiff, as well as a temporary order
Pursuant to the discovery orders, the deposition of Joseph Biassi, president of All-Inn, was
Hahn identified three rims, all manufactured and designed by defendants Firestone Tire &
This theory was based on the assertion that the rims evidenced signs of substantial
The causes of action against Firestone were grounded in negligence and strict products
Firestone then moved for summary judgment, asserting that it was undisputed that the
Supreme Court denied Firestone's motion, concluding that there was sufficient circumstantial
A majority at the Appellate Division agreed with Supreme Court that plaintiff had submitted
The parties agree that the certified question presents two issues: whether there was
Moreover, circumstantial evidence may sufficiently demonstrate the maker's identity,
Biassi, who was on the All-Inn premises when the accident occurred, testified at his pre-suit
Indeed, in a subsequent affidavit Biassi averred that tires and rims on the All-Inn trucks
The foregoing evidentiary gap was not filled by the affidavit of Lange, plaintiff's expert,
The foregoing was the only evidence relevant to the identification of Firestone as the
|
