C.A. Faults Judge for Granting Nonsuit Based on Failure of Plaintiff to Produce Evidence Court Had Barred

Wednesday, May 29, 2013

Page 3

C.A. Faults Judge for Granting Nonsuit Based on Failure of Plaintiff to Produce Evidence Court Had Barred

By a MetNews Staff Writer

The First District Court of Appeal has held that a judge erred in barring evidence reflecting industry knowledge that old tires, even if seemingly in good shape, can be dangerous—and then granting a nonsuit on the ground that the plaintiff failed to show such knowledge on the part of a tire maker.

Div. Three of the Bay Area appeals court, in an opinion by Justice Stuart R. Pollak, declared that Alameda Superior Court Judge Winifred Smith prejudicially erred in favor of Continental Tire North America in an action for personal injuries brought by a man whose legs were broken in an automobile collision resulting from a tire blowout.

The plaintiff, Alex Novak, was 81 at the time of the 2005 mishap and died during pendency of the appeal. His daughter, as administrator of the estate, was substituted as the plaintiff and appellant.

Novak had been a passenger in a 1993 automobile, and the tire was original to the car.

“Notice was directly relevant to the litigated claims. An element of the strict liability cause of action against Continental was that the tire had potential risks that were known or knowable in light of the scientific knowledge that was generally accepted in the scientific community at the time of sale and that Continental failed to adequately warn consumers of the potential risks….”

The jurist went on to say:

“The prejudice here is unmistakable. After having erroneously excluded competent evidence tending to show that Continental knew or should have known of the potential danger of old tires to rupture, the court granted nonsuit on plaintiff’s strict liability cause of action for failure to have presented that very evidence.”

Additionally, a jury found in favor of Continental, as well as the mechanic who serviced the car, on negligence theories. Pollak declared that the excluded evidence “was also highly relevant to plaintiff’s cause of action for negligence,” and the court reversed the judgment in its entirety.

The opinion, filed Friday, was not certified for publication.