Monday, October 20, 2008
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Court Rules Remounting Worn Tires Not Negligence Per Se
By STEVEN M. ELLIS, Staff Writer
State law precluding the installation of worn tires on a vehicle does not apply to dealers and retail sellers who merely rotate them, this district’s Court of Appeal held Friday.
Ruling that Vehicle Code Secs. 27465 and 27501 require an installation in connection with a sale, Div. One held that a trial court did not err when it declined to instruct a jury on negligence per se in a family’s action against a tire dealer who had remounted worn tires on the vehicle their son was driving when he died in a collision.
The parents of Andrew Alcala brought the wrongful death suit against the Vazmar Corporation, doing business as Earthbound Tire Center, after their 18-year-old son sustained fatal injuries in November of 2002 when he lost control of his P.T. Cruiser in the rain and collided with another vehicle going the opposite direction on Sierra Highway in Santa Clarita.
Extensive Wear
Alcala’s parents alleged that Earthbound and its owner, Vic Minassian, had negligently serviced the vehicle two weeks before the collision when Minassian rotated two extensively worn front tires to the back of the vehicle and advised Alcala’s mother that she needed to replace the tires without warning her of the danger of driving on them.
The plaintiffs claimed they had paid Minassian to replace all four of the tires and perform a front-end alignment some six months before the accident, but Minassian disputed this account, testifying at trial that Alcala’s father had elected not to proceed with the alignment at the time.
Minassian further testified that when the Alcalas brought the vehicle back in November because the replaced front tires had suffered significant wear, he moved the worn tires to the rear despite a belief that they posed a danger to the vehicle’s occupants, and possibly to the public.
But, the Alcalas disputed Minassian’s claim that he had informed them during the second visit of the need to replace the tires, testifying that Minassian never warned them of the danger of not doing so.
Expert Testimony
At trial, the Alcalas offered expert testimony that the collision had resulted from the placement of the worn tires, while Earthbound offered expert testimony that Alcala’s excessive speed over the wet roadway was the cause.
The plaintiffs also requested a jury instruction on negligence per se for Earthbound’s alleged violation of Secs. 27465 and 27501, which preclude the sale or installation of tires with less than one thirty-second of an inch tread depth in any two adjacent grooves.
Under the negligence per se doctrine, negligence may be presumed if a plaintiff shows that a death or injury resulted from the defendant’s violation of a law or rule, that the harm resulted from an occurrence the law or rule was designed to prevent, and that the person suffering the harm was within the class of persons the law or rule was intended to protect.
However, Los Angeles Superior Court Judge Melvin Sandvig denied the request, holding that neither statute was applicable because both required an installation in connection with a sale, and the jury unanimously found that Earthbound was not negligent.
On appeal, the Alcalas contended that a tire rotation was no different than an “installation,” but Retired Justice J. Gary Hastings of this district’s Div. Four, sitting by assignment, agreed with the defendant that the statutes were not intended to apply to tires that had been removed and remounted in a tire rotation.
Examining the statutes’ legislative history, he explained:
“This construction is consistent with the intent of the 1971 amendment to protect emergency roadside service operators who remove a failed tire and replace it with a spare tire which does not meet the minimum requirements of the sections.
“And such a construction reflects common sense. Any other interpretation would prevent repair shops (that happen to sell tires) from performing routine service jobs that require the removal and reinstallation of tires (e.g., replacing worn brakes) on any vehicles with tires less than the required tread depth. Such a result certainly does not comport with the Legislature’s stated purpose of increasing road safety.”
New Trial Ordered
In an unpublished portion of the opinion, Hastings similarly rejected the Alcala’s contention that the jury’s finding was not supported by substantial evidence, but agreed with their claim that Sandvig committed prejudicial error when he declined to admit a printout from Earthbound’s website containing a statement that “new tires go on the rear” and returned the matter for a new trial.
“Had the jury been able to hear evidence that [Minassian] did not follow his own recommendation on the website, it is reasonably probable the jury would have disbelieved [his] testimony and concluded he acted negligently by placing the worn tires on the rear,” Hastings wrote.
Presiding Justice Robert M. Mallano and Justice Frances Rothschild joined Hastings in his opinion.
The case is Alcala v. Vazmar Corporation, B191514.
Copyright 2008, Metropolitan News Company