Retail

Guilty Until Proven Innocent

Kevin Rohlwing
Posted on October 29, 2015

If you asked a group of business owners what causes them to lose the most sleep at night, I’m willing to bet that a lot of them would say the fear of being named in a lawsuit is always in the back of their mind. Even though the company has insurance to cover the litigation costs, the thought of losing everything if the award exceeds the coverage is terrifying for an owner.

In most cases, the fear level depends on the state. Some states are definitely going to favor the plaintiff, while others have some built-in protections for the defendant. Either way, the chances of getting sued at some point in time are better than average.

As far as tire dealers and retreaders are concerned, no one is exempt from a legal term that defines the legal obligations for the seller of a product or service.

* standard of care n. the degree of attentiveness, caution and prudence that a reasonable person would exercise under the circumstances. Failure to meet the standard is negligence, and the person who fails to meet the standard is liable for any damages caused by such negligence. The standard is not subject to a precise definition and is judged on a case-by-case basis.

Before we go any further, I have to point out that I am not a lawyer and, therefore, I am not qualified to offer any legal advice. My sole purpose in writing this article is to help tire dealers and retreaders take an objective look at their operations to determine where the greatest risks for a lawsuit exist.

That being said, the term “standard of care” is completely subjective in the legal system, and in most cases the plaintiff’s definition of “reasonable” is completely opposite of what the defendant would consider reasonable. What makes it even scarier is there doesn’t have to be a defined statute that the plaintiff must claim was violated.

It’s as simple as something was purchased, something went wrong, someone was hurt or something was damaged, so businesses have to pay. One of the parties who always is on the hot seat is the company that sold the product or provided the service since its employees were the last ones to touch it.

In some cases, the standard of care is quite clear. For example, there is universal agreement on the proper procedures for puncture repairs on passenger, light truck and commercial truck tires. The tire and repair material manufacturers unanimously support taking the tire off the rim, removing the damage, filling the void with rubber, and patching the innerliner with a repair unit. Information put out by the Rubber Manufacturers Association (RMA) and the Tire Industry Association (TIA) is 100% consistent with those guidelines, in addition to the others like the position and size of the injury.

It’s perfectly reasonable to expect a tire dealer to follow the proper guidelines and procedures for repairing tires because there is a clear standard in the industry. Failing to follow an established industry practice would constitute negligence and prove that the defendant did not fulfill his duty under standard of care.

The plaintiff’s attorney will argue that if the defendant had fulfilled his duty and met the standard of care, the accident and injuries could have been avoided.
The plaintiff’s attorney will argue that if the defendant had fulfilled his duty and met the standard of care, the accident and injuries could have been avoided.

Again, the subjectivity of standard of care is what makes it so problematic for businesses. While there is a clear consensus and universal agreement on procedures for tire repair, other situations in the tire industry are not so cut and dried. Consider this chain of events from an actual legal case involving a major tire retailer:

* A customer brings a minivan into a drive-thru oil change shop where checking the tire pressure and tread depth is part of the basic package.

* The service provider records the tread depth on all four tires and they range from 3/32 to 5/32.

* Approximately 500 miles after the oil change, one of the rear tires separates at highway speed and the resulting accident causes serious and fatal injuries.

* There was localized spot wear on the inner shoulder of the separated tire that was worn to the belt edge.

* The plaintiff argued that the standard of care for checking the tread depth includes an inspection of the entire tread and if the defendant had fulfilled its duty, the accident would have been avoided.

* The case settled out of court.

In the event of a lawsuit, the process almost always uncovers some things that the defendant could have done better. One of the main points that the plaintiff made in the previous example was that the technician working under the minivan had a duty to visually inspect the rear tires.

The plaintiff also claimed the retailer’s procedure for checking tread depth did not meet a reasonable standard of care. Technicians were instructed to take one measurement in the middle of the tread. The plaintiff argued that it should be checked in all of the major grooves in a few spots around the tire.

There are no universal standards for how tread depth should be checked. Was it reasonable to expect the service provider to check the tread depth in more than one spot? Obviously, the plaintiff was contending that the duty to follow the standard of care for checking tread depth was breached.

The defense in the example was fairly simple. The service provider was offering the tread depth check as a courtesy and did not imply there would be an inspection of the tires. There are no universally accepted or recognized procedures for checking tread depth in the context of an oil change, so the “standard” does not exist at the time of service. And since it was a drive-thru oil change, the rear tires were still on the ground and not visible by the technician in the pit.

The localized wear on a 3-inch area of the inside shoulder could have been on the ground and not visible by anyone. The tread depth measurements around the tire would not have indicated a problem with the failed tire because they were relatively consistent around each major groove.

Most cases settle because neither side wants to incur the costs of a trial, which explains why this eventually settled.

Here’s another example of an actual lawsuit.

* A wholesaler sells a set of 20-inch custom wheels to a local tire dealer.

* The tire dealer installs them on an SUV with plus-size tires as part of a customer tire and wheel package.

* Shortly after installation, the SUV is involved in a violent rollover accident on a California freeway that seriously injures the driver and passengers.

* The tire size was found to be .12 inches over the 3% allowance.

* The plaintiff argued that the standard of care for selling custom wheels includes the duty to make sure the tires are eventually mounted and installed on the appropriate vehicle.

* The case settled.

Wholesalers out there right now are probably saying to themselves, “You’ve got to be kidding! It’s not reasonable for a tire or wheel wholesaler to qualify every purchase with the tire dealer who will eventually resell and install the product. The wholesale business is all about part numbers and logistics. What happens after the tires and wheels are delivered is entirely in the hands of the tire dealer who ordered them. We have no duty to verify anything when it comes to the application.”

The defendant has to prove the automotive service he provided met the appropriate standard of care and did not contribute to the accident.
The defendant has to prove the automotive service he provided met the appropriate standard of care and did not contribute to the accident.

While all of those statements are true, this was a perfect example of the “deep pockets” theory.

The dealer who installed the custom tire and wheel package that was .12 inches over the 3% allowance (more on that later) was a very small tire shop with virtually no insurance. With several young adults in need of long-term care, someone had to pay, so the plaintiff named every company that was connected to the purchase and the accident. The tire and wheel manufacturers were also named in the lawsuit, as was the manufacturer of the SUV.

Since every service that a dealer performs is subject to standard of care, the 3% allowance should not be ignored when plus-sizing tires. For those who are unaware of the rule, replacement tires should be within 3% of the diameter of the original equipment tire. In the previous example, the replacement tire was .12 inches over the maximum allowable diameter for the original equipment size.

Out in the real world, that .12 inches is one-tenth of an inch in tire diameter, which means the ride height of the vehicle was .06 inches above the maximum recommendation. In a courtroom, it might as well be a mile because over 3% is still over 3%.

Even though TIA recognizes the 3% rule, calling it a standard is not so cut and dried. It isn’t published in most of the current tire company data books or fitment guides, and the RMA doesn’t mention it at all when talking about plus-sizing. However, it existed in the past and exists to some degree in the present, so the best practice is to follow it when selecting a plus-size tire.

The commercial truck tire industry also is governed by standard of care, so dealers and retreaders must exercise reasonable discretion every time a tire is serviced or retreaded.

Consider a wheel-off accident. It’s reasonable to expect the installer to clean and inspect the components before tightening the fasteners with the recommended torque. Failure to complete those tasks would constitute negligence and violate the standard of care for installing wheels. Retreaders must consider the number of retreads, the number of repairs, and the application before retreading a tire. If a retread fails and results in an accident, all of those factors will be considered when determining if the standard of care was followed. The retreader also can expect a complete examination of the plant and the processes that are in place. If something is inadequate or inconsistent with industry practices, it can and probably will be considered as contributing to the accident.

Solutions to the standard of care issues for tire dealers and retreaders can be summed up in one simple statement: Everything must comply with industry standards and recommended practices. A courtroom is no place for owners or managers to declare they know more than the industry; they must be aware of the existing guidelines for every service that is provided.

All the plaintiff needs to do is prove that the defendant contributed in some way to the accident or could have done something to prevent it. The governing principle for standard of care is based on what is reasonable. Since “reasonable” is completely subjective, most cases settle because there is no such thing as an airtight defense. There is almost always something that could have been done better, which might be enough for the jury to vote for the injured or grieving plaintiff.

In order to follow the standard of care, the company must know and follow all of the guidelines and procedures that are established in the industry. Retail tire dealers should have access to the latest data books, service manuals or fitment guides from the brands that they sell. They should consult publications from the RMA and training materials from TIA when establishing policies and procedures at the counter and in the shop.

Every automotive maintenance service must be analyzed to ensure that they are being done in accordance with the recommendations set by the vehicle and equipment manufacturers. In other words, the more rules that are followed the better.

Commercial truck tire dealers must contend with Occupational Safety and Health Administration (OSHA) regulation 29 CFR 1910.177 before touching a tire or wheel. OSHA regulations are not guidelines or recommended practices, they are the law, and when laws are not followed, negligence is pretty easy to prove. Since OSHA requires training for service personnel, the employer must ensure that every employee is trained to follow 1910.177 and has the necessary equipment specified by the standard.

OSHA is the ultimate authority when it comes to establishing the standard of care for servicing truck tire and wheel assemblies.
OSHA is the ultimate authority when it comes to establishing the standard of care for servicing truck tire and wheel assemblies.

When OSHA violations exist, the plaintiff has a much better chance of proving negligence, even when the company wasn’t actually cited by OSHA. Data books, service manuals, RMA publications and TIA training materials also play an important role in shaping the policies and procedures, but OSHA is the ultimate authority when it comes to establishing the standard of care for servicing truck tire and wheel assemblies.

Most retreaders will be judged by how well they adhere to the guidelines of the tread rubber and equipment manufacturers. As far as standard of care is concerned, I believe the repair area probably has the most potential for creating a problem. Technology has turned the retread process from technician dependent to machine dependent. But the repair area still relies on the craftsmanship of technicians to properly remove the damage and repair the injury.

Any time the judgment of an employee plays a pivotal role in the service being provided, the plaintiff will question the qualifications of the employee. Even if it was done correctly, the lack of training or failure to follow the exact guidelines established by the manufacturer will contribute to the claim that the retreader failed in its duty to the customer.

There is no room for guessing in the tire business. You either know the rules and follow them or hope that pleading ignorance works in your favor. I’ve done my best to defend both, but can tell you that the former is much easier that the latter.

When tire dealers are following most of the industry standards and have trained employees, the plaintiff is forced to focus on a small number of details and prove that the defendant somehow contributed to or could have prevented the accident. On the other hand, when the service provider didn’t follow any industry guidelines and the training records are nonexistent, the plaintiff just paints an overall picture of general negligence and lack of knowledge that proves the defendant could not fulfill its duty to the customer.

I’ve seen some pretty proud and confident managers/owners get absolutely destroyed in a deposition because they either talked too much without knowing the rules or had to admit they didn’t know the rules at all.

The definition of standard of care varies, but as a concept, meeting it affects everything you do. Cases involving standard of care kind of remind me of the Terminator. “It can’t be bargained with. It can’t be reasoned with. It doesn’t feel pity, remorse, or fear. And it absolutely will not stop” — until you give up and pay, perhaps dearly.

You don’t bargain or reason with a plaintiff who has been injured, and the only pity, remorse or fear you need to worry about is in the mind of the jury (if it makes it that far).

And the threat will never stop. As long as you are in business, the specter of standard of care is waiting to make your company a target. The key to avoiding a termination order is not giving improper standard of care, like the Terminator, a reason to activate.   ■

Kevin Rohlwing is the Tire Industry Association’s senior vice president of training.

Related Topics: Kevin Rohlwing, lawsuits

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