United States District Court, W.D. Wisconsin
JOSHUA J. BELOW, by his guardian, DEBRA BELOW, CHARLIE ELIZABETH BELOW, a minor by her Guardian ad Litem, DANIEL A. ROTTIER, and PATRICK JOSHUA BELOW, a minor by his Guardian ad Litem, DANIEL A. ROTTIER, Plaintiffs,
YOKOHAMA TIRE CORPORATION, et al., Defendants. and DEAN HEALTH PLAN, INC., Involuntary Plaintiff, and STAR BLUE BELOW-KOPF, by her Guardian ad Litem, TERESA K. KOBELT, Intervening Plaintiff,
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
products liability lawsuit arises out of a single vehicle
accident on Interstate 94 near Lincoln, Wisconsin, that
injured plaintiff Joshua Below on September 14, 2013.
Plaintiffs allege that the accident was caused by a tread
separating on a defective tire manufactured by defendants
(collectively, “Yokohama”). Now before the court
is defendants' motion for partial summary judgment on
plaintiffs' failure to warn claim.(Dkt. #53.) For
the reasons explained below, defendants' motion will be
granted in part and reserved in part.
September 14, 2013, plaintiff Joshua Below was driving a 2005
GMC Sierra pickup truck on Interstate 94 near Lincoln,
Wisconsin, when the tread of his right rear tire detached,
causing him to lose control of his vehicle and crash. The
tire that failed was a “Geolandar H/T-S, ” which
was manufactured by Yokohama in 2006 and has a size of
LT285/75R16 (“the tire”).
purchased the pickup truck used from a local automobile
dealer in September of 2007, without knowing when the
allegedly defective tire was purchased, from whom it was
purchased, or who installed it. Plaintiffs now contend that
the tire was installed in 2007 by Huston Motors in Florida,
but they offer no admissible evidence in support.
parties agree that: (1) the tire was mounted on a rim that
was too narrow for its size; and (2) Yokohama warned
consumers against mounting tires on rims that are not
approved for the size of the tire. Nevertheless, plaintiffs
contend that Yokohama had a duty to warn that if the tire
is mounted on a rim that is too narrow, then the
tire should be inflated to a lower pressure. Plaintiffs also
argue that Yokohama had a duty to warn that the tire does not
fit on most, if not all, original equipment wheels. The court
addresses both of plaintiffs' failure to warn theories
purpose of summary judgment is to determine “whether
there is the need for a trial -- whether, in other words,
there are any genuine factual disputes that properly can be
resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary
judgment is appropriate when the evidence, viewed in a light
most favorable to the non-moving party, shows that there is
“no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Cattrett, 477 U.S. 317, 322 (1986). “Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no
‘genuine issue for trial.'” Armato v.
Grounds, 766 F.3d 713, 719 (7th Cir. 2014) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).
manufacturer has a duty to warn about dangers it knows or
should know are associated with its products. See
Lemmerman v. Blue Cross Blue Shield of Wis., 713
F.Supp.2d 791, 811 (E.D. Wis. 2010). To prevail on their
failure to warn claim, whether under a strict liability or
negligence theory, plaintiffs must establish four elements:
“(1) existence of a duty to warn; (2) proof of a
failure to warn adequately; (3) proof of causation injury;
and (4) actual damages resulted from the injury.”
Id. at 810-11 (citing Kessel v. Stansfield
Vending, Inc., 2006 WI.App. 68, ¶ 15, 291 Wis.2d
504, 714 N.W.2d 206 (Ct. App. 2006)). Typically, the question
whether a warning was adequate is for the jury, but
“the court can find a warning was adequate where
‘no reasonable jury, properly instructed, could find
[defendants] [were] negligent.'”
Lemmerman, 715 F.Supp. at 811 (quoting Kurer v.
Parke, Davis & Co., 2004 WI.App. 74, ¶ 24, 272
Wis.2d 390, 679 N.W.2d 867 (Ct. App. 2004)).
Lower PSI for Narrow Rims
Adequacy of Warning
argues that plaintiffs cannot satisfy the second element of
their failure to warn claim because it expressly warned
against mounting the tire to a rim that is narrower than
prescribed. Specifically, Yokohama provides safety warnings
on the sidewall of its tires, as well as in its published
“Fitment Guide.” (Defs.' Reply PFOF (dkt.
#65) ¶ 11.) Yokohama's 2005 Fitment Guide states as
follows: “Warning: Never mount a tire
on a rim width that is not approved!” (Aff. of James J.
Kriva Ex. J (dkt. #57-10) at ECF 10 (emphasis in original).)
It also states: “Always stay within the approved rim
width range for a tire.” (Id. at ECF 13.) The
Fitment Guide further provides a reason for the warnings by
way of an example:
For example, a P255/50R16 tire is approved to be mounted on
wheels ranging from 7.0” to 9.0”. Past experience
and engineering practice has shown that wheel widths
outside theseranges will stress the tire in a
manner that ...