# prod.liab.rep.(cch)p 11,414 Peter Bishop, Cross-Appellee v. The Firestone Tire & Rubber Company, Cross-Appellant

> Court of Appeals for the Seventh Circuit · April 21, 1987 · 814 F.2d 437

URL: https://www.frixlaw.com/law-library/cases/9475951

## Case

- **Full name:** Peter BISHOP, Plaintiff-Appellant, Cross-Appellee, v. the FIRESTONE TIRE & RUBBER COMPANY, Defendant-Appellee, Cross-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** April 21, 1987
- **Citations:** 814 F.2d 437
- **Precedential status:** Published
- **Opinion:** Concurring in part by Cudahy
- **Judges:** Cudahy, Coffey, Grant
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475951

## Opinion text

CUDAHY, Circuit Judge,
concurring in part and dissenting in part:
Neither the district court nor the majority deals in a persuasive way with what seems to be the plaintiff’s main contention. The majority asserts that the evidence showed that a properly assembled multipiece tire rim was not dangerous, and that it | was obvious to an observer whether or not such a rim was properly assembled. Both the majority and the district court conclude that the gradually expanding “gap” in the lock ring constituted a “substantial change” in the ring and thus precluded recovery under the product liability statute. And the majority also determines that no duty to warn of the danger of an explosion arose because any such danger was open and obvious.
The plaintiff, however, argued that the gradually expanding “gap” in the lock ring occurred through normal use and resulted from a design defect. The expanding gap, according to evidence presented by plaintiff’s expert, could cause the lock ring to appear properly assembled when it actually was dangerously loose and could explode. Thus there appears to be a jury question on whether a design defect caused the lock ring to become unreasonably dangerous during normal use. In addition, the gradually expanding gap, if it resulted from the design of the lock ring, would not constitute a “substantial change” in condition defeating a design defect claim — if any defect existed it certainly existed at the time of manufacture. Finally, the essence of plaintiff’s failure to warn claim is that the gradually expanding gap was foreseeable to the manufacturer and resulted in a latent, gradually increasing danger. The question whether such a danger is “open and obvious” is normally fact specific and is a question as to which the evidence here was in conflict. See Corbin v. Coleco Indus., 748 F.2d 411, 417-18 (7th Cir.1984) (Indiana law); Hoffman v. E. W. Bliss Co., 448 N.E.2d 277, 285 (Ind.1983).
Nothing in the rulings of the district court or in the majority opinion persuades me that plaintiff's design defect theory should not have gone to the jury. Undoubtedly, the plaintiff here faced a daunting statute of limitations defense that may have prevailed, but the design defect theory itself seems to be the basis of a valid *449 claim. If, as the evidence appears to admit, the development of the gap was a gradual process tracing from a manufacturing defect, the jury could have awarded damages based on strict liability for a design defect. Even if the expanding gap was a foreseeable result of normal use, the jury might have found strict liability based on a failure to warn. I therefore respectfully dissent with respect to the direction of the verdict on this branch of the case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475951. Public record. Not legal advice.