On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-4162-96.
Before Judges Newman, Carchman and Landau.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 14, 2002
Plaintiff Ronald Becker appeals from a judgment entered in accordance with a jury verdict dismissing his complaint against defendant Roadway Express, Inc., (Roadway) for injuries sustained in an automobile accident and from an order denying his motion for judgment notwithstanding the verdict, or in the alternative, a new trial on damages only or a new trial on all issues. We affirm.
These are the relevant facts derived from the trial testimony. On June 30, 1995, Becker went out to eat with Christopher Vitalone *fn1 and three other friends. The group met at the Brookside Tavern in Morristown where they had dinner around 9:00 p.m. Becker specifically recalled drinking two bottles of beer, some red dinner wine and an after-dinner cordial while at the tavern.
Becker left the tavern around 11:30 p.m. to take Vitalone to a friend's house. He was driving his white and red Corvette convertible northbound on Interstate 287 at speeds of up to eighty miles per hour when he came up behind a Roadway tractor-trailer in the right lane. According to Becker and Vitalone, they heard a loud bang and saw a piece of debris fly out from underneath the left side of the trailer. The debris became lodged in the Corvette's front-left tire well and Becker lost control of the vehicle. The Corvette turned perpendicular to the roadway, traveled forward until it impacted the rear of the trailer and then slid onto the shoulder, rebounded, hit the tractor near its gas tank, and spun to a stop. Vitalone struck his head on the passenger side window support and had to be pulled out of the vehicle by Becker. Both men were transported to the hospital in ambulances.
Becker was released from the hospital after three hours. He was driven to the scene of the accident where he saw pieces of his car in the roadway, skid marks, and a tire fragment sitting on the shoulder nearby. Later that afternoon, Becker returned and took photographs of the area. At some subsequent date, which he did not specify, Becker again returned and picked up the tire fragment, which he gave to his attorney.
Gary A. Derian, a mechanical engineer, testified on behalf of plaintiffs as an expert in tire design and tire failure analysis. Derian examined the tire fragment that Becker provided and determined that it had been retreaded twice. The first retread bore a Roadway brand. The second retread was not done by Roadway, but rather was the product of a "Bandag" process.
Bandag is a patented retreading method that is licensed to authorized dealerships which perform the actual retreading work. Bandag is an Iowa corporation, which markets the rights to employ the Bandag method by granting franchises to independent business organizations. See Bandag of Springfield, Inc. v. Bandag, Inc., 662 S.W. 2d 546, 549 (Mo. Ct. App. 1983). Although the Bandag process was clearly identified by branding on the tire sidewall and the tread pattern, there was no way to determine which Bandag dealership actually made the retread. As of 1997, Bandag had approximately 510 franchisees in various parts of the country. See Boyer v. Bandag, Inc., 943 S.W. 2d 760, 762 (Mo. Ct. App. 1997). Derian was also unable to discover the identity of the tire's original manufacturer.
Derian explained that all radial tires have steel belts that are bonded to the carcass of the tire and remain with the tire for its entire life. When a tire is retreaded, the tread is replaced but the original belts are not. Over the course of tens of thousands of miles, separations can occur between the belts in a tire carcass. A tire carcass in which the belts have separated should never be retreaded.
Based upon his observations of a large area of separation between the belts and polishing between the plies, Derian concluded that the failure of the tire in question was caused by a belt separation. Due to the large amount of tread remaining on the tire, he determined that the failure occurred very shortly after the second retreading. He could find no other cause for the blow-out as the tire fragment showed no evidence of a puncture or impact break.
According to Derian, the original tire wore out and was retreaded using a Roadway retread. There was no problem with the Roadway retread; it was done properly. By the time the first retread wore out, the tire had developed separations between the belts. Because Roadway no longer operated retreading facilities, the tire was sent to a Bandag dealership for retreading. Before a tire is retreaded, it must be inspected carefully for belt separations using either x-rays or holographic imaging. However, the Bandag dealership failed to detect the separations in the tire and retreaded it. When the retread was placed on the trailer, the weight of the new rubber increased the forces within the tire and the weakened belts blew apart within a short time.
Derian testified that Roadway is very knowledgeable about the retreading process and had a responsibility to ensure that the retreading company that it used followed good procedures and made a quality retread. He admitted that there were no industry standards or governmental regulations that required Roadway to inspect the tires it received from the Bandag dealership. In fact, he stated that "[o]nce a tire is back in Roadway's hands after being recapped, there's nothing they can do to that. Roadway wouldn't have the facilities to inspect it." Notwith-standing, Derian opined that Roadway could examine a tire before sending it for retreading to look for an uneven wear pattern on the tread or cracks between the belt and the tread.
George Tessitore testified that he was driving the Roadway tractor-trailer that was involved in the accident. Before leaving the Tannersville, Pennsylvania garage that night, he performed a routine safety check on his vehicle and did not notice any problems. Between 11:30 p.m. and 12:00 a.m., he was driving northbound on Interstate 287 at about fifty miles per hour when he was suddenly struck in the right rear by Becker's car. He had not seen the Corvette prior to feeling the force of the collision.
After Becker and Vitalone were taken from the scene, Tessitore made a visual inspection of the tractor-trailer accompanied by a state trooper. They spent about fifteen minutes walking around the vehicle and kicking the tires. He did not notice that any tire was flat or missing tread. Tessitore explained that if tread had come off his tire as Becker claimed, it would have damaged his mud flap, fender, and turn signal. He observed no such damage to the left rear of the trailer. He was confident that he did not have a blow-out that night. He was also sure that he did not run over anything in the roadway immediately prior to the accident.
Tessitore drove the tractor-trailer away from the scene and stopped at a diner. After finishing his meal, he discovered that one of the tires on the right rear of the truck was flat. When the tire was changed, Tessitore noticed that it was not missing any tread.
Officer Joseph Torres of the New Jersey State Police testified that he arrived at the scene of the accident at around 12:15 a.m. When asked what happened, Becker stated, "I was in the right lane when I heard a big bang, I lost control. I really can't remember what happened next." Torres observed skid marks on the roadway and a tire fragment on the right shoulder, two-tenths of a mile behind the accident scene. He took a quick walk around the tractor-trailer to make sure that it could be driven safely away from the scene. Other than damage from the impact in the extreme rear of the trailer and on the right side of the tractor near the gas tank, he did not see anything out of the ordinary. He had no recollection of seeing anything unusual about the tires.
Torres subsequently interviewed Becker at the hospital. Becker was excited, his eyes were bloodshot and he had an odor of alcohol on his breath. A blood sample was drawn for a blood alcohol test.
James L. Barnhard testified that he is an independent trucker who was driving his tractor-trailer on northbound Interstate 287 on the night of the accident. He did not know any of the parties to the lawsuit and had never worked for Roadway. Immediately prior to the accident, he saw a car in his side-view mirror that was traveling "inordinately fast." At first, Barnhard believed that the car was a police vehicle because it was traveling so fast and he continued to watch it. The car passed another truck that was behind Barnhard and cut across the lane in front of it. The car then cut abruptly from the left lane to the center lane, then back to the left lane and passed Barnhard at a high rate of speed. Barnhard estimated that the car was traveling at 100 miles per hour when it passed him. After passing Barnhard, the car "made a sharp right cut across the two lanes into the far right lane." At that point, Barnhard used his amateur radio to contact the State Police and report the car for reckless driving. As Barnhard continued to watch the car, it suddenly began to spin out. He did not see the car hit anything before it went out of control. The car struck the right side of a Roadway tractor-trailer immediately in front of it, continued careening in a circle, and finally came to rest on the center concrete divider.
Barnhard stopped to see if he could render any assistance. When he got to the Corvette, the passenger had a gaping wound in his forehead and there was a smell of alcohol in the vehicle. Becker told him that a tire blew out on the tractor-trailer and caused him to lose control, prompting Barnhard to look around for a piece of tread laying on the roadway. He did not see any tire debris in the vicinity of the accident. Tessitore was visibly shaken by the accident, so Barnhard walked around the tractor-trailer with his flashlight inspecting the tires. He bumped all of the tires with his flashlight and found that they were all intact. He did not notice any tread separation on any of the tires on the tractor-trailer.
Dr. John Brick testified on behalf of defendants as an expert in biological psychology with a specialty in alcohol pharmacology and the behavioral effects of alcohol. The blood sample taken from Becker at the hospital revealed a blood alcohol content of .10. In order to get that test result, Brick calculated that Becker would have had to consume eighty-seven ounces of beer, or just over seven standard drinks, while at the tavern. At the time the blood sample was drawn, Becker's blood alcohol content was descending. At the time of the accident, Brick calculated that Becker's blood alcohol level would have been .10 and ascending.
Brick explained that "[t]he primary way in which alcohol impairs behavior is by impairing divided attention, the ability to divide your attention among many different variables." Based upon Becker's erratic driving, inability to control his motor vehicle, and slow and slurred speech after the accident, Brick concluded that alcohol had intoxicated and impaired Becker's functioning on the night of the accident.
"[H]e drank more alcohol than he alleged and he was, in fact, intoxicated and impaired by alcohol at the time that he lost control of his vehicle and crashed, and ... his intoxication was a significant contributing risk factor to the happening of this accident."
John Desch, a civil engineer, testified on behalf of defendants as an expert in accident reconstruction. Reviewing photographs of the skid marks made by Becker and using specialized instruments to measure the coefficient of friction of the roadway, Desch calculated that Becker's speed at the time the ...