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08/13/97 CHRISTOPHER M. OVERBECK v. WILLIAM CATES

August 13, 1997

CHRISTOPHER M. OVERBECK, APPELLANT
v.
WILLIAM CATES AND ROY WIDENER MOTOR LINES, APPELLEES



Appeal from the Order of the Court of Common Pleas of Monroe County, Civil Division at No. 1638 CIVIL 1995. Before VICAN, J.

Before: Beck, Popovich and Montemuro,* JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

FILED AUG 13 1997

This is an appeal from an order of the Court of Common Pleas of Monroe County granting summary judgment in favor of William Cates (Cates) and Roy Widener Motor Lines in an action for personal injuries sustained by appellant. The lower court's order was based on its belief that there was insufficient evidence to conclude that under Restatement (Second) of Torts § 388 Cates had a duty to warn appellant of the dangerous condition of a tire appellant was repairing for Cates. Therefore, the lower court concluded that Cates was not negligent in failing to warn appellant of the tire's condition. On appeal, appellant contends that the lower court erred in granting summary judgment since there was sufficient evidence to establish that Cates had a duty to inform appellant that the tire was dangerous or of the facts which made it likely to be dangerous. We affirm.

Our scope of review is plenary when reviewing the propriety of a lower court's entry of summary judgment. Schriver v. Mazziotti, 432 Pa. Super. 276, 638 A.2d 224, 225 (1994), alloc. denied, 539 Pa. 638, 650 A.2d 52 (1994). We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Chrysler Credit Corp. v. Smith, 434 Pa. Super. 429, 643 A.2d 1098, 1100 (1994). We will only reverse the lower court's grant of summary judgment if there is a manifest abuse of discretion. Accu-Weather Inc. v. Prospect Communications, Inc., 435 Pa. Super. 93, 644 A.2d 1251 (1994). Pursuant to Pennsylvania Rule of Civil Procedure 1035 (b), summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." *fn1

Viewing the record in the light most favorable to appellant, the non-moving party, the record reveals the following pertinent facts: On November 9, 1993, appellant was injured when the tractor trailer tire he was repairing exploded. The tire was brought to the American Falcon Pocono Auto Truck Plaza (American Falcon) by Cates, an employee of Roy Widener Motor Lines. As a result of the incident, on July 15, 1995, appellant filed a civil complaint, alleging that Cates was negligent in failing to warn him of the tire's dangerous condition. Therefore, under Restatement (Second) of Torts § 388, appellant alleged that Cates was liable for his injuries. *fn2 On June 28, 1996, Cates filed a motion for summary judgment alleging that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law.

In deposition, Cates testified as follows: On November 9, 1993, he conducted a pre-ride examination of his tractor trailer before he began his haul from Conowingo, Maryland to Philadelphia, Pennsylvania. The examination revealed that all of the tractor trailer's tires had a pressure of 100 PSI, the normal running weight for tractor trailer tires. After delivering his load to Philadelphia, he traveled to Wind Gap, Pennsylvania. Upon arrival in Wind Gap, he inspected his truck's tires. He performed this inspection by "bumping" the tires with a hammer to determine whether they were inflated properly. He noticed that one of the tires was underinflated. Utilizing a coin operated air pump, he inserted approximately forty pounds of air pressure into the tire, thereby raising the tire's pressure from 60 PSI to 100 PSI. After increasing the tire's pressure in Wind Gap, Cates traveled to Water Gap, Pennsylvania and then to Bartonsville, Pennsylvania. While he was in Bartonsville, he stopped at the American Falcon. There, he ate dinner and then took a nap. After sleeping for approximately five hours, he inspected the tire again. He determined that the tire was "super low," and that it needed to be repaired. He then drove his tractor trailer a short distance to the American Falcon's garage and spoke with a supervisor about the cost of repair. There was no Discussion regarding the length of time or the conditions under which the tire lost pressure. After he gave the garage permission to fix the tire, he left the tractor trailer so that the proper repairs could be made.

The record reveals that after Cates left the tractor trailer, appellant, a mechanic, was instructed to repair the tractor trailer's tire. Appellant mounted the tire on a tire restraining machine and began repairing the tire. At some point, the tire violently exploded. The explosion was the result of the tire separating, thereby releasing air and creating a "zipper" tear along the interior sidewall of the tire. Robert Neu, the parts manager on duty, heard the tire explode, ran into the tire changing room and discovered appellant's bloody, unconscious body lying on the floor. The tire and its rim were still mounted on the tire changing machine with a large "zipper" split along the sidewall. Neu dialed 911 and appellant was taken to the emergency room. Appellant remained in a coma for four days and suffered serious, permanent injuries as a result of the incident. He has no memory of the events surrounding the incident. Particularly, he has no memory of reinflating the tire or of the tire exploding.

The lower court granted Cates' motion for summary judgment, thereby determining that there was insufficient evidence to prove that Cates owed appellant a duty to warn him of the tire's dangerous condition. Specifically, the lower court concluded that there was insufficient evidence to establish that Cates knew or had reason to know that the tire was dangerous or that he had reason to believe that appellant would not realize the tire's dangerous condition. This appeal followed.

"Section 388 . . . imposes liability for damages caused by suppliers of chattel who fail to use reasonable care to inform likely users of the chattel's dangerous conditions." Binder v. Jones v. Laughlin Steel Corp., 360 Pa. Super. 390, 520 A.2d 863, 866 (1987). Our supreme court has held that this duty extends to bailments for repair. Lambert v. Pittsburgh Bridge and Iron Works, 463 Pa. 237, 344 A.2d 810 (1975).

Section 388 provides the following:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for ...


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