J. Smith and J. Smith vs. Kent H.; Grand Auto Stores, Inc.; TBC Corporation; and Denman Tire Corporation – Hayward
PLAINTIFF ATTORNEY: Luke Ellis and Andrew Gillin
PRODUCT LIABILITY (DEFECTIVE TIRE) – INJURIES AND DEATH – MINOR
Plaintiffs in this case were Ms. J. Smith, a 35-year-old nurse’s aide, and Mr. J. Smith, a 35-year-old carpenter, of Hayward, the parents of S. Smith, four-years-old at the time of her death.
In September, plaintiff’s mother was injured and her daughter suffered fatal injuries at the time of the car accident. H’s left front tire blew out and his vehicle swerved to the left, crossed a raised median strip, and crashed head-on into plaintiff mother’s auto.
Defendant driver was driving a Chevrolet Blazer with oversized tires and suspension lifts in the front and rear, so that the Blazer was raised nine inches above its normal center of gravity. A previous owner of the vehicle purchased the tires from defendant Grand Auto two years before the subject accident. Defendant Denman Tire of Warren, Ohio, manufactured the tires and defendant TBC Corporation of Memphis, Tennessee, distributed them.
Plaintiff father sued for loss of consortium. Plaintiff mother sued for her own injuries and Dillon v. Legg emotional distress, and both plaintiffs sued for the wrongful death of their daughter.
Plaintiffs contended that the automotive defendants designed, manufactured, distributed, and sold a defective tire; that no vehicle manufacturer recommended these monster tires, which could only be used on highly modified vehicles, for use of any vehicle; that the subject was stamped with a recommended inflation pressure of 45 pounds per square inch (PSI), while the guidelines of the Tire and Rim Association recommended no more than 30 PSI for the size and category of the subject tire; and that the 50% over inflation of the tire, combined with its history of off-road use, made it dangerously rupture prone.
Experts for both plaintiffs and defendants agreed that the defective tire suffered rupture damage sometime before the night of the actual blowout.
During discovery, plaintiffs obtained a 10-year-old memorandum signed by defendant distributor’s president and sent to tire distributors, including Grand Auto, stating that the use of a tire size not recommended by a vehicle manufacturer could lead to instability of the vehicle and possible accidents.
Plaintiffs did extensive testing of modified and unmodified vehicles to determine how such tires affected loss of control after a blowout, but a modified vehicle with the subject tires could not be controlled. Plaintiffs also obtained a court order allowing them to close the roadway at the accident scene to film a nighttime recreation of the car accident.
Automotive defendants contended that the use of the subject tires was safe and proper; that the 45-PSI recommended air pressure stamped on the tire was proper and would not lead to tire failure; that the guidelines of the Tire and Rim Association were only recommendations; and that the subject accident was due to defendant driver’s failure to maintain his vehicle properly.
INJURIES: Mrs. Smith – Plaintiff suffered a fractured femur and patella as well as Dillon v. Legg emotional distress. Mr. Smith – Plaintiff claimed loss of consortium and emotional distress.
SPECIALS: Mrs. Smith – Medical $54,630. Wage Loss $26,208.
Sencera Smith – Medical and Burial $26,360.
RESULT: The case settled for a structure with a lifetime payout of $10,800,000; present cash value $4,200,000).
The following article appeared in a local newspaper:
$10.6 Million Settlement – Wrongful Death
by Michael Taylor
Attorneys agreed yesterday to a $10.6 million settlement of a lawsuit over a car crash in which a 4-year-old girl died while her seriously injured mother lay helplessly pinned in the same car, trying to calm her dying daughter.
The settlement award went to Judy and Joe Smith, a Hayward couple whose daughter Sencera was killed in September, when a Chevrolet Blazer driven by Kent Haskovec blew one of its huge, over-sized tires and crashed into the Smiths’ Ford Pinto, demolishing it.
According to Berkeley attorney Luke Ellis, who represented the Smith family, the three-foot-tall tire was mislabeled and “could not be used on any vehicle without first making dangerous modifications – raising the car’s center of gravity about 30 percent, rendering the car highly unstable.”
Ellis reached the settlement with Denman Tire Corp., of Warren, Ohio, the firm that made the tire; Tire and Battery Corp., of Memphis, Tenn.; and Grand Auto, the auto supply chain that sold it.
Hugh Doucette, assistant to Denman’s president, defended the company’s product and said “it’s one of the best on the market. And it’s safe, if not misused.”
Alameda County Superior Court Judge Richard Hodge, who oversaw the settlement, said that “what made this case unusual is that the parent was confined in the car while the child was dying, and experienced the agonies that the child experienced.”
Ellis said the accident happened when the two vehicles were each traveling at about 40 miles per hour on Mission Boulevard in Hayward.
The Blazer began to shimmy and then its left-front tire blew out. Haskovec lost control and collided head-on with the Smith car, the lawyer said.
Judy Smith was knocked unconscious. When she came around, she said later in a deposition, “it was dark and I was calling for Sencera to answer me, and I was telling her that it was OK, that I was there, for her not to be afraid, and that I was calling out to her: ‘Sencera, please answer me. Sencera, this is Mom. This is Mommy. Please answer. And… she wouldn’t answer me. I reached out with my hand, as much as I could, and it was so dark I couldn’t find her.”
The girl was crushed when the Blazer hit her mother’s car and she died two days later.
Andy Gillin received his Bachelor’s Degree from the University of California at Berkeley and his law degree from the University of Chicago. He is the managing partner of GJEL Accident Attorneys and has written and lectured in the field of plaintiffs’ personal injury law for numerous organizations. Andy is a highly recognized wrongful death lawyer in California.