Petition for Writ of Certiorari — Firestone Tire & Rubber Co. v. Cousineau
Supreme Court brief1985
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VUPICIIS OVUM, Vite |
85-4 82- | FIDEDB |
SEP 21 1985
JOSEPH F. SPANIOL, JR.
No. CLE v*%
|
~ee
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1985
THE FIRESTONE TIRE & RUBBER COMPANY,
Petitioner,
Vv.
THELMA COUSINEAU, PERSONAL REPRESENTATIVE OF THE
ESTATE OF MARK COUSINEAU,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE MICHIGAN COURT OF APPEALS
BUTZEL LONG GUST KLEIN & VAN ZILE
A Professional Corporation
By: Xhafer Orhan (Counsel of Record)
Daniel Patrick Malone
William J. Champion III
Carey A. DeWitt
188i First National Building
Detroit, Michigan 48226
Telephone: (313) 963-8142
Counsel for Petitioner, The
Firestone Tire & Rubber Company
Of Counsel:
John P. Palumbo
Assistant General Counsel
The Firestone Tire & Rubber Company
THE AMERICAN PRINTING COMPANY
1200 WEST FORT STREET, DETROIT, MICHIGAN 48226 — (313) 963-9310
i
QUESTION PRESENTED
May a State Constitutionally Impose Tort Liability on Mem-
bers of an Industry for Their Joint Activity in Petitioning an
Agency of the United States Government for Adoption of a
Safety Standard?
li
TABLE OF CONTENTS
Question Presented ........... cece cece eee eee eeees
Table of Authorities 2.0.5. ccscesneusscseuaseeewese
Proceedings Below ............ eee cceeneeeenseeees
Jurie@ictiom oo. uvacs0c008505508 eee
Constitutional Provisions Involved ...............+5:
Statement Of The Case ......cccsscscccnssatecsnss
Reasons For Granting The Writ ............-..0005:
Petitioner's Participation In A Joint Campaign To
Persuade OSHA To Adopt An Industry Safety Stan-
dard May Not Be The Basis Oi A Tortious “Con-
cert Of Action” Claim ........cccccnsccscscseess
A. Petitioner’s Participation In A Joint Cam-
paign To Persuade OSHA To Adopt An
Industry Safety Standard Was Protected
First Amendment Activity ............-5.
B. The Decision Of The Michigan Court Of
Appeals Constitutes A Clear Infringement
Upon Petitioner's First Amendment Right To
Petition ......s«)ss0see ee eee ees
C. The Michigan Court’s Distinction Between
The Imposition Of Liability For First
Amendment Activity Itself And A Finding
That Such Activity May “Be Interpreted As
A Cooperative Effort To Avoid Respon-
sibility” For Risks Completely Ignores The
Very Protected Nature Of Such A “Cooper-
ative Effort.” ...cscccuepenbeeseeeeeanaes
D. The Michigan Court of Appeals’s January 2,
1985 Amendments To Its August 9, !984
Opinion Constitute An Impermissible Pre-
textual Afterthought .........cccceeceeess
i4
18
S.
Conclusion
TABLE OF CONTENTS—(Cont’d)
Page
In Any Event, The Court of Appeals’s
Amendments Relating To Exchange of Chart
Information As Concerted Activity Clearly
Failed To Eliminate The Decision’s Constitu-
tional Infirmity Because The Record Is
Totally Devoid Of Any Evidence That This
Accident Involved A Mismatching Of More
Than One Manufacturer's Components ....
So a ee eee S CES SC RARE OK OA we Kas uA id
iv
TABLE OF AUTHORITIES
Cases Page
Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164,
cert. Gented, V5 S. Ct. 12S GRO) 2 ccccccaccscsss 6, 15
Alma Society, Inc. v. Mellon, 601 F.2d 1225 (2d Cir.),
corte. Getied, GAG UB. DoS CHP TEe oo uc ccc secsccenes 25
California Motor Transport Co. v. Trucking Uniimited,
OE Bee ee Ec 6s Ra hb dnnsenbbareveceseuss 12, 18
Cleveland Board of Education v. LaFleur, 414 U.S.
632 (1974) ...... SSaWecbeescausaecsasenecsensess mo™me
Cousineau v. Ford Motor Co., 140 Mich. App. 19, 363
i * & at | eee eT eee re ee passim
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)
Cruz v. Beto, 405 U.S. 319 (per curiam, 1972) ...... 12
Eastern Railroad President's Conference v. Noerr
Motor Freight, Inc., 365 U.S. 127 (1961) 6, 8, 12, 18, 20
Edwards v. South Carolina, 372 U.S. 229 (1963) .... 12
First Natl. Bank of Omaha v. Marquette Natl. Bank
of Minneapolis, 482 F. Supp. 514, (D. Minn. 1979),
aff'd, 636 F.2d 195 (8th Cir. 1980), cert. denied, 450
OD... See COED s ose canea cea ERRASEA | CXR DERKE eee 13
Gay Student Services v. Texas A&M University, 737
F.2d 1317 (Sth Cir.), cert. denied and app. dismissed,
2 See fee Tere erry 25
Greenwood Utilities v. Mississippi Power Co., 751 F.2d
tf, Ge B . weer Perr ce ery Tree re 26
Havoco of America Limited v. Hollowbow, 702 F.2d
ee Come Ge I ip oo os 0b nae cc kcan ses canetares ss 12
Ottensmeyer v. Chesapeake & Potomac Tel. Co., 756
Pe ee ED I UD a hxc cane cece ceaveccctsenes 13
Pennwalt Corp. v. Zenith Laboratories, Inc., 472. F.
Supp. 413 (E.D. Mich. 1979), appeal dismissed, 615
6 Be Fee Brrr rer rete 13
Searle v. Johnson, 646 P.2d 682 (Utah 1982)........ 13
\ v
TABLE OF AUTHORITIES — Continued
Cases Page
_ Sherrard v. Hull, 53 Md. App. 553, 456 A.2d 59, affd,
296 Md. 189, 460 A.2d 601 (1983)................. 13
Sierra Club v. Butz, 349 F. Supp. 934 (N.D. Cal. 1972) 13
Southland Corp. v. Keating, 465 U.S. 1 (1984) ...... lI
State of Missouri v. National Organization For
Women, Inc., 467 F. Supp 289 (W.D. Mo. 1979),
aff'd, 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S.
eee N40 500.5445 k0 4556455 See eee ee 12-13
Stern v. United States Gypsum, Inc., 547 F.2d 1329
(7th Cir.), cert. denied, 434 U.S 975 (1977) ........ 12
Thomas v. Collins, 323 U.S. 516 (1945).........0.... lI
United Mine Workers v. Pennington, 381 U.S. 657
CRUE 64 0:05-4.5 09:5404440-0%0604 5 eee 6, 8, 12
United Mine Workers of America, Dist. 12 v. Illinois
State Bar Assn., 389 U.S. 217 (1967) ............. li
United States v. Cruikshank, 92 U.S. 542 (1876) .... 12
Webb v. Fury, 282 S.E.2d 28 (W. Va. 1981) ......... 13
Young v. American Mini Theaters, 427 U.S. 50 (1976) 25
United States Constitution:
PEE © ha 640554045 behancdee lee 3
RE SE kk nbn skaibankvcersbecepueee 3
United States Statutes:
Se a ok. bia os beck eet ee eee 2
Miscellaneous:
45 Fed. Reg. No. 20 (January 29, 1980), pp. 6713-17
(effective April 28, 1980) .... 0... cc cw caccccccee 5, 16
49 Fed. Reg. No. 24 (February 3, 1984), p. 4341 ..... 5
Fischel, Anti-trust Liability for Attempts to Influence
Government Action: The Basis and Limits of the
Noerr-Pennington Doctrine, 45 U. Chi. L. Rev. 80
TED os xedves caectetebbenedacekeeealoeae 13-14
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
THE FIRESTONE Tire & RUBBER COMPANY,
Petitioner.
V.
THELMA COUSINEAU, PERSONAL REPRESENTATIVE OF THE
ESTATE OF MARK COUSINEAU,
Rejpondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE MICHIGAN COURT OF APPEALS
THE FIRESTONE TIRE & RUBBER COMPANY. Peti-
tioner herein, prays that a Writ of Certiorari issue to the
Michigan Court of Appeals to review whether Petitioner's
protected first amendment joint petitioning activity may con-
stitute the basis of a “concert of action” tort claim.
PROCEEDINGS BELOW
Respondent commenced this action in the Circuit Court
for the County of Wayne, Michigan on October 29, 1980. On
December 10, 1982, the trial court entered an Order,
attached as Appendix A, granting Petitioner's Motion for
Summary Judgment. Plaintiff-Respondent appealed the trial
court’s decision of right to the Michigan Court of Appeals.
On August 9, 1984, the Michigan Court of Appeals, in
an unpublished per curiam opinion (hereinafter “first Opin-
ion”), attached as Appendix B, reversed the trial court's
entry of summary judgment in favor of Petitioner and
2
remanded the case, solely on the issue of tortious concert of
action, as to four defendants,' to the trial court.
On December 26, 1984, Petitioner applied to the Michi-
gan Supreme Court for Leave to Appeal the decision of the
Michigan Court of Appeals.-
On January 2. 1985, the Michigan Court of Appeals
released to the parties an “Amended Opinion” (hereinafter
“Amended Opinion”), attached as Appendix C, p. 17a, 140
Mich. App. 19, 363 N.W.2d 721 (1985). On fanuary 22, 1985,
Petitioner filed a Supplemental Brief t its December 26.
1984 Application for Leave to Appeal, ac iressing the issues
raised by the Michigan Court of Appeals’s “Amended
Opinion.”
On June 24, 1985, the Michigan Supreme Court issued
an Order, attached as Appendix D, denying Petitioner's
Application for Leave to Appeal the decision of the Michi-
gan Court of Appeals.
JURISDICTION
The Michigan Supreme Court denied Petitioner's
Application for Leave to Appeal the decision of the Michi-
gan Court of Appeals on June 24, 1985. This Petition for
Certiorari is thus being filed within 90 days after the Order
of the Michigan Supreme Court denying Petitioner's
Application for Leave to Appeal.
The jurisdiction of this Court is invoked under 28
U.S.C. § 1257(3).
' The Defendants in the action in the trial court had been Petitioner
(Firestone). International Harvester Company. Goodyear Tire and Rubber
Company. Kelsey Hayes Corporation, Budd Corporation, Fruehauf Cor-
poration, and AMF. Inc. The Michigan Court of Appeals reversed only as
to Firestone, Goodyear. Kelsey Hayes, and Budd.
2? Petitioner (Firestone). Budd Corporation, and Goodyear applied to
the Michigan Supreme Court for Leave to Appeal. All such applications
were denied.
3
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution, Amendment I:
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof:
or abridging the freedom of speech, or of the press: or
the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
United States Constitution, Amendment XIV. Section |:
All persons born or naturalized in the United States.
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law: nor deny
to any person within its jurisdiction the equal protection
of the laws.
STATEMENT OF THE CASE
This products hability, wrongful death action arose out
of a tube-type truck tire and multi-piece truck wheel assem-
bly? accident that occurred on May 8, 1979. Plaintiff-
Respondent does not now have, and has never had, posses-
sion of the component parts of the tube-type tire and multi-
’ The Court may find helpful a brief description of tube-type tire
multi-piece truck wheels. The photographs attached as Appendix E,
provided in lower court proceedings as. e.g., attachment C to Petitioner's
Application for Leave to Appeai to the Michigan Supreme Court, depict a
tube-type tire three-piece truck wheel in two stages of assembly: com-
pletely disassembled and completely assembled. Essentially, the wheel is
designed as “multi-piece” because of the stiffness and construction of
tube-type tires of the size here involved, i.e.. the wheel must be made to
come apart so that the tire can be mounted on it and the assembly can be
used on a truck. As of the date of this Petition for Certiorari, Petitioner
knows of no wheel manufacturer in the world that has invented a single
piece wheel (such as is used for passenger car tires) upon which a tube-
type truck tire of the size involved in this case can physically be mounted
and operated on the type of truck involved.
(Footnote continued on next page)
4
piece wheel assembly involved in her decedent's accident,
nor any other evidence from which the type of components
or their manufacturer(s) could be ascertained. The wheel
components were misplaced or destroyed after the accident.
See Cousineau v. Ford Motor Co., Appendix C, p 17a, 140
Mich App. 19, 24, 363 N.W.2d 721, 725 (1985). Respondent
concedes that no one will ever be able to identify the lost
“accident wheel” assembly or the manufacturer(s) of its
component parts. /d. at p. 19a, 140 Mich. App. at 25, 363
N.W.2d at 725.
Respondent's inability to identify the multi-piece wheel
components involved in this case or their manufacturer(s)
would have proved fatal to recovery under traditional prod-
ucts liability law. Thus. Respondent selected and sued some
(but not all) manufacturers of multi-piece wheel compo-
nents, including Petitioner, alleging. inter alia, a claim based
upon Petitioner and its Co-Defendants’ purported tortious
“concerted” activity.
The only alleged “concerted activity” identified by
Respondent took place during the period 1976 through 1980
and consisted of the activities of certain named wheel com-
ponent manufacturers. including Petitioner, in petitioning a
United States Government agency. the Occupational Safety
and Health Administration. for the adoption of an OSHA
(Footnote continued from previous page)
A tube-type truck tire muiti-piece wheel design employs a tongue and
groove technology. In a three-piece wheel the tongue or “heel” of a “lock
ring” (see Appendix E. Photograph B) is seated in a groove on the “rim
base.” Metal interference retains the “lock ring” and “side ring” (flange)
in place when the force produced by inflation pressure in the tire tube
clamps the components firmly together. The result is a metal-to-metal
interference fit or geometric wedging of the components.
Once the decision to use a tube-type tire of the size involved is made
by the truck manufacture:. the ultimate consumer. or the user of the
truck. a multi-piece wheel is required. Because the tire cannot be cut in
half and still hold the tube and restrain the enormous force generated at
80 pounds of inflation (force on the magnitude of 24.000 pounds and
higher) the wheel. made of steel. must be capable of coming apart and
being reassembled about the tire. The wheel assembly therefore neces-
sarily consists of more than one piece or component. Thus. the tube-type
tire “multi-piece wheel” was created.
Si PhD eC LE ene: eo
5
work-place safety standard governing the servicing of multi-
piece wheels. OSHA in fact adopted such a safety standard,
effective April 28. 1980, for “servicing multi-piece wheels.”
See Appendix F,4 p. 37a, 45 Fed. Reg. No. 20 (Jan. 29, 1980),
pp. 6713-17 (eff. April 28, 1980).
Following extensive discovery, Petitioner and certain Co-
Defendants, see supra, footnote 1, moved for entry of sum-
mary judgment in their favor pursuant to Michigan General
Court Rule 1963, 117. On December 10. 1982, after first
granting Respondent additional time to conduct discovery
for the purpose of identification of the product(s) and its/
their manufacturer(s) and obtaining the consensus of all par-
ties, including Respondent, that such identification could
never be made, the trial court granted Petitioner and its
moving Co-Defendants’ motions for summary judgment on
Respondent's First and Second Amended Complaints. which
had sought recovery on the basis of alternative liability and
concerted action. See attached Appendix A.
Respondent filed Notice and Claim of Appeal with the
Michigan Court of Appeals on January 28. 1983 and. on July
12. 1983, filed her Appeal Brief. Respondent argued that the
trial court had improperly entered summary judgment.
Petitioner filed its Brief with the Michigan Court of
Appeals on September 20, 1983. arguing that reversal of the
trial court’s entry of summary judgment for Petitioner would
be improper. Among other arguments, Petitioner contended
that its participation with other members of the industry in
a campaign to persuade OSHA to adopt a safety standard
for servicing multi-piece rims could not be considered tor-
tious because the first amendment to the United States Con-
stitution protected that activity. See Petitioner's Brief on
4+ The OSHA safety standard has been extremely effective in prevent-
ing accidents: “A review of the injury producing accidents investigated by
OSHA since promulgating the multi-piece rim wheel servicing standard
indicates that there has been a 70 to 80 percent reduction in multi-piece
rim wheel servicing injuries.” See Appendix G, 49 Fed. Reg. No. 24. Feb.
3, 1984. p. 4341.
6
Appeal to the Michigan Court of Appeals, pp. 25, 27-28.
Specifically, Petitioner argued in its Brief that this Court's
decisions in Eastern Railroad President's Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United
Mine Workers v. Penningion, 381 U.S. 657 (1965), recognized
the protected nature of Petitioner's petitioning activity. Brief
at pp. 27-28; see also id., p. 25, footnote 7 (“If recognized.
Plaintiff's allegations would amount to no more or less than
imposition of liability for exercise of sacred first amendment
rights of citizens. individually or collectively, to petition
their government).
On August 9, 1984, the Michigan Court of Appeals. in
an unpublished per curiam opinion (Appendix B). affirmed
the trial court’s entry of summary judgment in favor of those
defendants that manufactured vehicles and Defendant AMF.
Inc.. one of the wheel manufacturer defendants. The court
of appeals reversed. however, the trial court’s entry of sum-
mary judgment in favor of the remaining wheel manufacturer
Defendants. including Petitioner. insofar as Plaintiff-Respon-
dent sought recovery on a “concert of action” theory. In
doing so. the court relied heavily on the Michigan Supreme
Court’s decision in Abel v. Eli Lilly & Co., 418 Mich, 31}.
343 N.W.2d 164. cert. denied, 105 S. Ct. 123 (1984).
In reaching its decision, the court of appeals determined:
(1) Plaintiff had no idea who manufactured the accident
wheel components at issue. See Appendix B. at
4a-Sa:
(2) Plaintiff had no idea when the accident wheel com-
ponents were manufactured. See id.;
(3) The multi-piece wheel components at issue did not
disappear; nor were their sources rendered uniden-
tifiable by Defendants’ conduct. Jd. at 9a:
(4) Unlike medication, which is irretrievable as evidence
after use. the wheel components at issue were kept
dee lS
7
for some tit * ater the accident and could have been
identified it available. /d.;
(5) Plaintiff had not joined all of the wheel component
manufacturers who could have made one or more of
the accident components. /d. at Sa:
(6) AMF was one of the major manufacturers of three-
piece type rim components. /d.;
(7) Plaintiff made no claim and submitted no evidence to
connect AMF [or any non-defendant manufacturer(s)
of three-piece rim components] or the Defendant
vehicle manufacturers to the OSHA petition cam-
paign at issue. /d. at 7a;
(8) A petition campaign directed at the enactment of an
OSHA work-place standard was engaged in by the
remaining rim component manufacturer Defendants
between 1976 and 1980. /d. at 6a;
(9) The joint petitioning activities of Defendants were
not, in and of themselves, tortious, but instead were
constitutionally protected activities. Jd. at I3a: see
also Cousineau v. Ford Motor Co., Appendix C, p.
27a n.2, 140 Mich. App. at 34 n.2, 363 N.W.2d at 729
n.2;
(10) Concert of action cannot exist independently of an
underlying tortious act. Appendix B at 15a.
Notwithstanding these determinations, the court of
appeals held, inter alia, that Plaintiff-Respondent could pro-
ceed on a concerted action theory against the remaining
wheel manufacturer Defendants. The court did so in the face
of the following facts: (1) Plaintiff-Respondent was admit-
tedly unable to prove either that she had sued the actual
wrongdoer(s) or that the named Defendants had acted tor-
tiously in concert with the actual wrongdoer(s); (2) the acci-
dent components could have been manufactured either by
AMF, which the court of appeals expressly held did not act
8
in concert with the remaining Defendants, or by some
unnamed wheel manufacturer that had not acted tortiously
in concert with the remaining Defendants; (3) the alleged
joint undertakings of Defendants were not tortious, but
instead were constitutionally protected activities; and (4)
Plaintiff-Respondent could not prove that the alleged tor-
tious concerted activity by Defendants in any way prox-
imately caused her decedent's injuries.
Petitioner and others filed timely Applications for
Rehearing as to the Michigan Court of Appeals’s decision on
Respondent’s concerted action claims. Petitioner argued
once again in its Brief that it could not be found liable in
tort for its protected first amendment petitioning activity.
See Brief. pp. 20-21 and footnote 8. The Michigan Court of
Appeals denied Petitioner's Application for Rehearing on
November 29, 1984. See attached Appendix H.
On December 26, 1984, Petitioner filed with the Michi-
gan Supreme Court an Application for Leave to Appeal the
decision of the Michigan Court of Appeals as stated in the
court of appeals’s first Opinion of August 9, 1984 and the
court of appeals’ss November 29, 1984 Order denying
Application for Rehearing insofar as the decisions related to
Plaintiff-Respondent’s “concert of action” claim. Petitioner
once again argued that its petitioning activity in concert
with other industry members was protected under the first
amendment as construed in this Court’s decisions in Noerr,
supra, and Pennington, supra. See Brief in Support of
Application for Leave to Appeal, pp. 13-17. Petitioner con-
cluded this argument by stating:
As it presently stands, this Opinion violates the ‘“‘Noerr/
Pennington doctrine” enunciated by the United States
Supreme Court because, other than a general reference
to the “petition campaign’, the only referenced coa-
certed activity by Defendants was a 1976 meeting which
itself concerned the organization of an OSHA petition
campaign.
Id. at 17.
ne, aah ll
9
On January 2, 1985, the cour. of appeals entered, sua
sponte, an Order (see Appendix 1), indicating:
(1) The court intended to publish its August 9, 1984
opinion:
(2) The August 9. 1984 per curiam opinion would be
published as authored by Judge Roman S. Gribbs:
and
(3) Although the result of the opinion would remain the
same, the opinion would be corrected for publication.
The court of appeals attached to this Order a new opinion
labeled as the court's “Amended Opinion” (Appendix C).
The January 2, 1985 “Amended Opinion” substantially modi-
fied the “concert of action” section of the Michigan Court
of Appeals’s first Opinion.
On January 22, 1985, Petitioner filed a Supplemental
Brief with the Michigan Supreme Court in which Petitioner
argued, inter alia, that the Michigan Court of Appeals’s Jan-
uary 2, 1985 Amended Opinion, having been released after
Petitioner's Application for Leave to Appeal to the Michigan
Supreme Court, also acted to unconstitutionally infringe
upon Petitioner's first amendment petitioning rights. See
Supplemental Brief, p. 12.
On June 24, 1985, Petitioner’s Application for Leave to
Appeal to the Michigan Supreme Court was denied. See
attached copy of Order (Appendix D).
REASONS FOR GRANTING THE WRIT
PETITIONER’S PARTICIPATION IN A JOINT CAM-
PAIGN TO PERSUADE OSHA TO ADOPT AN INDUS-
TRY SAFETY STANDARD MAY NOT BE THE BASIS
OF A TORTIOUS “CONCERT OF ACTION” CLAIM.
The Michigan Court of Appeals found that Petitioner's
protected petitioning activity could be the basis for imposi-
tion of liability on a “concert of action” tort claim. This
10
decision cannot be reconciled with the first and fourteenth
amendments to the United States Constitution. In the bal-
ance of this Petition, Petitioner will articulate why this is so.
First, Petitioner will demonstrate that its activity in peti-
tioning, along with other entities, the Occupational Safety
and Health Administration of the United States Government
was protected first amendment conduct.
Second, Petitioner will show that the Michigan Court of
Appeals’s conclusion that Respondent could base a claim of
tortious concert of action on such activity constituted an
infringement of Petitioner's constitutional rights.
Third, Petitioner will demonstrate that the court's
attempt to resolve the constitutional issue by finding that
Petitioner's protected first amendment activity could con-
stitute a tortious “cooperative effort to avoid responsibility”
only underscored the constitutional infirmity of the court's
decision.
Fourth, Petitioner will show that the Michigan Court of
Appeals’s “amendments” to its first opinion—such amend-
ments being made after Petitioner had applied for Leave to
Appeal to the Michigan Supreme Court from the court of
appeals’ first Opinion—were merely a pretextual after-
thought and in any event did not change the court’s imper-
missible reliance upon Petitioner’s protected conduct.
Finally, Petitioner will demonstrate that the purported
alternative tortious concerted activity described by the court
of appeals (i.e., exchange of information to compose match-
ing charts), which was first identified as tortious conduct in
the Amended Opinion, has absolutely no factual
applicability to this action in any event.
Petitioner will show that the only conduct on which
Respondent may purportedly base her tortious concert of
action claim is protected first amendment conduct. Because
this Court should not allow such a fundamental, glaring
sani Nase iene Sable kine
ee ote le
11
error in the sensitive area of first amendment rights to go
unreviewed,* this Court should grant The Firestone Tire &
Rubber Company’s Petition for Certiorar!.
A. Petitioner’s Participation In A Joint Campaign To Per-
suade OSHA To Adopt An Industry Safety Standard
Was Protected First Amendment Activity.
The right to petition the government for redress of griev-
ances is “among the most precious of the liberties safe-
guarded by the Bill of Rights.” United Mine Workers of
America, District 12 v. Illinois State Bar Association, 389
U.S. 217, 222 (1967). Given the “preferred place” accorded
in our system to petitioning rights, such rights having “a
sanctity and a sanction not permitting dubious intrusions,”
this Court has long been vigilant with respect to possible
violations of such rights. Thomas v. Collins, 323 U.S. 516,
530 (1945). Rightly so, of course, since “the right to petition
* Under this Court’s decision in Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975), the decision of the Michigan Supreme Court denying
Petitioner's Application for Leave to Appeal the decision of the Michigan
Court of Appeals is a “final decision” as to the constitutional question
presented herein. Under the Cox Broadcasting rule. “judgments of state
courts that finally decide a federal issue are immediately appealable when
‘the party seeking review here might prevail [in the state court] on the
merits on nonfederal grounds, thus rendering unnecessary review of the
federal issue by this Court. and where reversal of the state court on the
federal issue would be preclusive of any further litigation on the relevant
cause of action...” Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct.
852. 856 (1984) (quoting Cox, supra). In such circumstances, the question
is whether failure to provide immediate review “might seriously erode
federal policy.” /d. Here, a critical, never before resolved issue is pre-
sented to this Court in circumsiances in which a state court has seen fit
to countenance a violation of the first amendment right to petition. There
is thus no doubt that failure to provide review now might seriously erode
federal policy. Moreover, “(|wJithout immediate review.” there may be no
opportunity to pass on the federal issue and as a result “there would
remain in effect the unreviewed decision of” the Michigan Court of
Appeals approving of such a constitutional violation. /d. This published
decision of the Michigan Court of Appeals, see 140 Mich. App. 19. 363
N.W.2d 721 (1985), if left uncorrected, could influence, aside ‘from
unknown and future cases, many current products liability actions in
which this precise issue may well arise. Thus, immediate review is appro-
priate here.
12
is logically implicit in and fundamental to the very idea of a
republican form of governance.” Stern v. United States
Gypsum, Inc., 547 F.2d 1329, 1342 (7th Cir.) (citing United
States v. Cruikshank, 92 U.S. 542, 552 (1876)). cert. denied,
434 U.S. 975 (1977).
It is also well established that a state entity may not
deny a person the above described right to petition. See
U.S. Const., Am. XIV, § 1; Edwards v. South Carolina, 372
U.S. 229 (1963): Cruz v. Beto, 405 U.S. 319, 321 (per
curiam, 1972). Thus, if it is demonstrated here that Michigan
courts have run afoul of the first amendment by denying
Petitioner its right to petition, federal authority may act to
protect the Petitioner.
Some of the most well known applications of the first
amendment clause guaranteeing the right to petition have
occurred in the antitrust context. The so called “Noerr-Pen-
nington” first amendment petitioning doctrine, as outlined
by this Court, shields from antitrust liability joint petitioning
activity by businesses. See Eastern Railroad President's
Conference v. Noerr Motor Freight, Inc., 365 U.S. 127
(1961): United Mine Workers v. Pennington, 381 U.S. 657
(1965). This doctrine clearly applies with respect to “all
departments of the government.” including, of course, the
federal Occupational Safety and Health Administration. See
California Motor Transport Co. v. Trucking Unlimited, 404
U.S. 508, 510 (1972).
Although this Court has never addressed the question, it
seems clear that the first amendment rationale of the Noerr-
Pennington doctrine, see, e.g., Noerr, 365 U.S. at 137: Cal-
ifornia Transport, 404 U.S. at 510, extends to non-artitrust
contexts. Many lower courts have recognized that the doc-
trine stands generally for the proposition that genuine first
amendment petitioning activity is immune from common law
tort liability. See, e.g., Havoco of America Limited v. Hol-
lowbow, 702 F.2d 643, 649 (7th Cir. 1983): State of Missouri
v. National Organization For Women, Inc., 467 F. Supp.
Re eR canee ae Sa pet eI: wt She
13
289, 305 (W.D. Mo. 1979), aff'd, 620 F.2d 1301 (8th Cir.),
cert. denied, 449 U.S. 842 (1980); First National Bank of
Omaha v. Marquette National Bank of Minneapolis, 482 F.
Supp. 514, 524 (D. Minn. 1979), aff'd, 636 F.2d 195 (8th Cir.
1980), cert. denied, 450 U.S. 1042 (1981); Pennwalt Corp. v.
Zenith Laboratories, Inc., 472 F. Supp. 413, 424 (E.D.
Mich. 1979), appeal dismissed, 615 F.2d 1362 (6th Cir. 1980);
Sherrard v. Hull, 53 Md. App. 553, 456 A.2d 59, 65-66,
aff d, 296 Md. 189, 460 A.2d 601 (1983); Sierra Club v. Butz,
349 F. Supp. 934, 936 (N.D. Cal. 1972): Webb v. Fury, 282
S.E.2d 28, 37 (W. Va. 1981) (doctrine applies “regardless of
the underlying cause of action appealed”): Searle v.
Johnson, 646 P.2d 682, 689 (Utah 1982).
Clearly, the policies underlying the Noerr-Pennington
doctrine support its application in the present circum-
stances. As the Fourth Circuit very recently noted,
[t]he policies behind the Noerr-Pennington doctrine
include preserving an individual's first amendment right
to petition government officials and encouraging the free
flow of ideas to political bodies in order to ensure intel-
ligent decisionmaking.
Ottensmever v. Chesapeake & Potomac Tel. Co., 756 F.2d
986. 996 (4th Cir. 1985).
The commentators are in accord with this view:
A primary purpose of freedom of speech is to ensure
that the electorate has the information necessary to
properly discharge its self-governing responsibilities. T/e
right to petition the government is a necessary adjunct
to freedom of speech under the first amendment qua
guarantor of informed self-government because most
important public questions are resolved by representa-
tives in government, not plebiscites. The Noerr doctrine
preserves the rights of businessmen to press the govern-
ment for resolution of certain legal, economic, and social
problems. This advocacy properly includes presentation
of facts and opinions.
14
* *
Of course, the right to petition does more than
ensure that government officials are apprised of the opin-
ions held and the facts known by the citizenry. It also
promotes confidence that the government is accessible
and answerable to the people. That the petitioning
activity is of no value to the government does not mean
that the petitioning is of nu legitimate value to the peti-
tioner and his co-citizens.
Fischel, Anti-trust Liability for Attempts to Influence Gov-
ernment Action: The Basis and Limits of the Noerr-Pen-
nington Doctrine, 45 U. Chi. L. Rev. 80, 100-01 (1977)
(emphasis added) (footnote omitted).
Here, just as in the antitrust context, there is a great
value associated with petitioning activity: ensuring the
proper, informed operation of representative government. As
a result, the policy basis of the first amendment extends to
the present case, and petitioning activity should be found by
this Court to be protected from “concert of action” tort
liability as well as antitrust liability. Because such activity is
protected, any attempt to impose liability on Petitioner for
participating in a joint compaign to persuade OSHA to
adopt a safety standard violates the first amendment.
B. The Decision Of The Michigan Court Of Appeals Con-
stitutes A Clear Infringement Upon Petitioner's First
Amendment Right To Petition.
For the sole purpose of allowing this Court to evaluate
the constitutional permissibility of the Michigan Court of
Appeals’s finding that Petitioner’s protected activity could be
the basis of a viable tort claim, Petitioner will briefly
describe the essential characteristic of a “concert of action”
tort claim in Michigan. For the purposes of this Petition,
Petitioner concedes that the Michigan Court of Appeals has
it ede
PO eee itty Coie 2 UM ew
2 ME Car Ris mane PR Bw
he INT 0h ODE ig Wale te A ig,
15
stated accurately such characteristic in its January 2, 1985
Amended Opinion in this case:
‘Even if defendant caused no harm himself, he is tiable
for the harm caused by his fellows because all acted
jointly.” Abel [v. Eli Lilly], 94 Mich. App. [59] at 73
[1979]. ‘[T]o state a cause of action, a plaintiff need only
allege that the defendants were jointly engaged in tor-
tious activity as a result of which the plaintiff was
harmed.’
Cousineau v. Ford Motor Co., see Appendix C, p. 25a, 140
Mich. App. i9, 32, 363 N.W.2d 721, 728 (1985) (emphasis
added) (quoting Abe/ v. Eli Lilly & Co., 418 Mich. 311, 338,
343 N.W.2d 164, 176, cert. denied, 105 S. Ct. 123 (1984)). The
Michigan Court of Appeals thus emphasized that the sine
qua non of a concert of action tort claim in Michigan is joint
tortious activity on the part of the defendants:
[Plaintiff] can prove tortious activity pursuant to a com-
mon design if she establishes that the wheel manufac-
turers acting jointly breached their duty to warn of the
danger posed by their products. See Smith v E.R.
Squibb & Sons, inc, 405 Mich 79; 273 NW2d 476 (1979).
She can also recover if she can prove that the wheel
manufacturers, acting jointly, manufactured and/or mar-
keted an unreasonably dangerous product. See Owens v
Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372
(1982); Moning v Alfono, 400 Mich 425; 254 NW2d 759
(1977). A showing by plaintiff that there is some evi-
dence supporting these claims would preclude summary
judgment. Rizzo, supra.
Plaintiff made a sufficient showing that defendant -
wheel manufacturers acted jointly in failing to warn of a
danger in their products to survive their summary judg-
ment motion.
Appendix C, pp. 26a-27a, 140 Mich. App. at 33, 363 N.W.2d
at 729 (emphasis added).
16
The above quoted language makes it clear that without
proof of joint tortious activity, a plaintiff absolutely cannot
recover on a concert of action tort claim in Michigan. With
this background, the crucial nature of Petitioner's participa-
tion in joint petitioning activity—in a campaign to persuade
OSHA to adopt an indusiry safety standard on multi-piece
rims—comes into focus. The Michigan Court of Appeals
based its finding that the joint tortious activity required for a
concert of action claim had potentially occurred in this case
primarily. if not exclusively, on Petitioner's protected first
amendment conduct.® Essentially. the court of appeals held
that because Petitioner and its co-defendants had jointly and
concertedly petitioned the United States Government, Plain-
tiff-Respondent had stated a claim of tortious concert of
action. On this basis, the court of appeals reversed the trial
court’s grant of summary judgment to Petitioner.
The Amended Opinion of the Michigan Court of Appeals
is replete with statements demonstrating its finding that Peti-
tioner could be liable for tortious “concert of action”
because of its protected activity. The court of appeals initi-
ated its application of the law to Plaintiff-Respondent’s
theory that Petitioner had jointly. with its co-defendants,
® The Amended Opinion (see Appendix C. p. 17a) also refers to
Defendants’ exchange of information to compose “matching charts” as a
factual basis for PlaintiffRespondent’s concert of action claim. As the
name indicates. “matching charts” provide information to prevent the
“mismatching” of various manufacturers’ components (e.g.. combining a
Goodyear rim base with a Firestone side ring and a Budd lock ring. see
Appendix E). OSHA requires the use of these charts. See Appendix F.
pp. 43a-4Sa. 45 Fed. Reg. No. 20 Jan. 29, 1980). pp. 6707-08. In this case.
however. Respondent has admitted that she can never prove that such a
“mismatching” occurred. Absent this factual predicate. Respondent can
never prove that the exchanging of charts to avoid rim component mis-
matching could have been a proximate cause of Respondent's decedent's
injuries. This critical oversight by the court of appeals in its Amended
Opinion is discussed more fully in this Brief at Section E, infra, and
results ‘= Petitioner's OSHA petitioning activities being the sole alleged
conceted activity upon which Respondent and the Michigan Court of
Appeals might rely.
A os al Oh oath stony 54
17
failed to warn about multi-piece rim danger with the follow-
ing sweeping statement:
By engaging in the joint OSHA petition campaign,
the wheel manufacturers arguably proposed a govern-
ment role to re“eve themselves of their duty to warn
those working with the multi-piece rims.
Appendix C, p. 27a, 140 Mich. App. at 34, 363 N.W.2d at
729 (emphasis added) (footnote omitted: see discussion
infra, Section C, regarding footnote 2 of Amended Opinion).
Thus, in the court of appeals’s view. when Petitioner sought,
with other defendants, to “propose” a government role in
wheel safety, it was acting jointly, and, presumably,
tortiously.
The court of appeals made this point clear with its treat-
ment of Petitioner's co-defendant, AMF. As the record
establishes, AMF was the on/y wheel manufacturer in the
case that had no? participated in the joint petitioning cam-
paign to persuade OSHA to establish a rim service safety
standard and was the only whee! manufacturer to be dis-
missed. See Appendix C, pp. 2la, 28a-29a, 140 Mich. App. at
27, 35. 363 N.W.2d at 726, 730. It is clear that because
AMF had not participated in the joint OSHA campaign, the
court of appeals did not consider that AMF had engaged in
the requisite “joint action,” see supra, essential for a con-
cert of action tort claim:
Although plaintiff made a sufficient showing to sur-
vive a motion for summary judgment on her concert of
action claim against the wheel manufacturers, she did
not do so with respect to AMF. There was no indication
that defendant AMF acted pursuant to a common
design of the other defendants prior to sale of its wheel
manufacturing division in 1959. Thus, the trial court was
correct as to AMF but erred in granting summary judg-
ment pursuant to GCR 1963, 117.2(3) in favor of the
other wheel manufacturers.
18
Appendix C, pp. 28a-29a, 140 Mich. App. at 35, 363 N.W.2d
at 730 (emphasis added). On the other hand, according to
the court of appeals, because Petitioner and the remaining
wheel manufacturer co-defendants had petitioned the United
States Government for redress, they were subject to liability
as joint tortfeasors.
The Michigan Court of Appeals ran afoul of the first
amendment by finding that Petitioner could be liable for
tortious concert of action because of its participation in the
“joint OSHA petition campaign,” Appendix C, p. 27a, 140
Mich. App. at 34, 363 N.W.2d at 729, and by excusing from
such liability the only named whee! manufacturer that had
not so jointly petitioned the government. As noted above,
this Court’s Noerr-Pennington doctrine protects Petitioner
from liability for engaging in protected first amendment peti-
tioning activity. It is undeniable that Petitioner engaged in
such activity. It is further undeniable that the effect of the
court of appeals’s opinion is that such activity is the basis of
a tort claim. The Constitution requires, however, that Peti-
tioner not be subject to liability for engaging in such pro-
tected conduct. See Noerr, supra, 365 U.S. at 138:
California Motor Transport, supra, 404 U.S. at 510. As a
result, the Michigan Court of Appeals’s action in this case
violates the first amendment: and this Court should review
and overturn that court’s decision.
C. The Michigan Court’s Distinction Between The Imposi-
tion Of Liability For First Amendment Activity Itself
And A Finding That Suck Activity May “Be Inter-
preted As A Cooperative Effort To Avoid Respon-
sibility’? For Risks Completely Ignores The Very
Protected Nature Of Such A “Cooperative Effort.”
In an attempt to sidestep the constitutional issue that
Petitioner now wishes to bring before this Court, the Michi-
gan Court of Appeals commented as follows:
Defendants [including Petitioner] are correct insofar
as the OSHA petition campaign cannot be viewed as
ae plik ee UNS kre Ait VneRatelt s+
Ae 2 Lh tn Co a tan TNR tt Wa Md EI OR me A
PN ee eh ee
19
tortious activity. Nonetheless, the same activity indicates
an awareness of the wheel industry as a whole of the
gravity of the problem and could be interpreted as a
cooperative effort to avoid responsibility for the risks
posed by multi-piece rims.
Appendix C, p. 27a n.2, 140 Mich. App. at 34 n.2, 363
N.W.2d at 729 n.2 (emphasis and parenthetical added).
Far from saving the court of appeals’s decision from con-
stitutional infirmity, this footnote serves to underscore the
impermissibility of the court’s position. The Michigan Court
of Appeals apparently is of the opinion that a constitu-
tionally cognizable distinction exists between a finding that
Petitioner can be subject to tort liability for participating in
the “OSHA petition campaign’—a finding properly rejected
by the court of appeals—and that court’s finding that Peti-
tioner may be subject to tort liability because “the same”
constitutionally protected petitioning “activity . . . could be
interpreted as a cooperative effort to avoid responsibility for
the risks posed by multipiece rims.”? Appendix C, p. 27a
n.2, 140 Mich. App. at 34 n.2, 363 N.W.2d at 729 n.2
(emphasis added). The court of appeals is wrong.
The effect of the Michigan Court of Appealss decision is
that Plaintiff-Respondent may establish tortious concert of
action because Petitioner’s protected petitioning conduct can
itself be “interpreted” as tortious concerted activity. Under
Noerr-Pennington, Petitioner cannot be subject to liability
for this conduct. See supra. Yet the court of appeals’s hold-
7 That such protected petitioning activity might indicate an
“awareness” of the industry. see supra, Appendix C. p. 27a n.2. 140 Mich.
App. at 34 n.2, 363 N.W.2d at 729 n.2, is irrelevant for purposes of a -
concert of action claim because what is required for tortious concert of
action, as the court of appeals itself repeatedly emphasized. is
“joinft] . . . activity.” Appendix C. pp. 2Sa-26a, 140 Mich. App. at 32-33.
363 N.W.2d at 728, 729. In any event. that court found that such conduct
both indicated an awareness “and™ could “be interpreted as the required
“cooperative effort” for concert of action purposes. /d., p. 27a n.2. 140
Mich. App. at 34 n.2. 363 N.W.2d at 729 n.2. Hence. the court of appeals
clearly found that it could independently impose liability for the protected
conduct itself.
20
ing that Petitioner's joint conduct in petitioning OSHA
“could be interpreted as a cooperative effort” sufficient to
establish tortious concert of action does precisely that.
When the Michigan Court of Appeals concluded that Peti-
tioner’s protected conduct could constitute concerted action
on which Petitioner might be found liable, it exceeded the
bounds of the first amendment.®
D. The Michigan Court Of Appeals’s January 2, 1985
Amendments To Its August 9, 1984 Opinion Constitute
An Impermissible Pretextual Afterthought.
The Michigan Court of Appeals “amended,” sua sponte,
its earlier opinion in this case. See Appendices C, I. These
amendments, however, only make more ob -ious the consti-
tutionally impermissible basis for the court’s finding on
Respondent's concert of action claim and, in any event,
should not, even on their face, be found to save the court's
decision from reversal.
* The Michigan Court of Appeals’s further comment that Petitioner's
acts might have been an “effort to avoid responsibility” for the risk posed
by multi-piece rims does not cause. even if such comment were accurate.
Petitioners conduct to be any less protected under the first amendment.
Aside from the fact that OSHA found considerable merit in Petitioner's
efforts and indeed adopted a safety standard as requested. see supra
footnote 4 and accompanying text. the court’s opinion that Petitioner's
effort was less than altruistic is immaterial since the first amendment
protects, and indeed anticipates, the most selfish of petitioning activity
by businesses: “[I]t is quite probably people with just such a hope of
personal advantage who provide much of the information upon which
governments must act.” Noerr, 365 U.S. at 139. Thus, it is equally sensi-
ble to find here that a
construction . . . that would disqualify people from taking a pub-
lic position on matters in which they are financially interested
would . . . deprive the gevermment of a valuable source of informa-
tion and, at the same time. deprive the people of their righi to peti-
tion in the very instances in which that right may be of the most
importance to them.
Id. Clearly. the existence of a standing precedent that “manufacturers
[that] through [an association]. ... campaigned for promulgation of
federal standards,’ Appendix C,. p. 20a. 140 Mich. App. at 26. 363
N.W.2d at 726, may effectively be liable in tort for such activity may well
have a “chilling effect” on the exercise of such entities’ first amendment
rights.
Satie dasicie it Tawa ch nscale tie. nasil eomeaemalieallll
ee eee ote mer rt Mee nee. Seo ee
21
After Petitioner applied for Leave to Appeal to the
Michigan Supreme Court, Petitioner's Brief having reas-
serted and re-emphasized the constitutional defect of the
Michigan Court of Appeals’s decision, the court of appeals
released its Amended Opinion, which “corrected for pub-
lication” the court's first Opinion. See Order of January 2,
1985 (Appendix I). In the Amended Opinion, the court of
appeals attempted to insert an alternative basis for finding
the joint activity required for Respondent's concert of action
claim. See Section E, infra. The court of appeals also com-
pletely excised two sentences emphasizing the importance,
to the concert of action claim, of Petitioner's protected first
amendment activity. The relevant portion of the Michigan
Court of Appeals’s first Opinion read as follows:
Plaintiff also submitted proof to show the defendant
wheel manufacturers acted jointly, pursuant to a com-
mon design. First, although defendants are correct inso-
far as the OSHA petition campaign cannot be viewed as
tortious activity, the same activity evidences an
awareness on the part of the wheel industry as a whole
of the gravity of the problem. Moreover, if it was feasible
for employers to warn and train their employees as to
the danger of multi-piece wheels, then it would have
_ been equally feasible for the wheel manufacturers to
assist in doing the same. Instead, they proposed a gov-
ernment role in the process to relieve themselves of the
burden. /t is noteworthy that the decedent's accident
occurred a short time before OSHA finally promulgated
the regulation urged by defendants. Furthermore, the
adequacy of the manufacturers’ warnings is a question of
fact for the jury. Dunn, supra, p 80. Here, it is not clear
from the record whether plaintiff had any warning what-
soever from the manufacturer of the wheel, or that any
of the defendant wheel manufacturers were in the prac-
tice of supplying warnings to those affected by the use
of their products.
Second, plaintiff provided evidence that the defend-
ant wheel manufacturers were aware of the dangers
22
posed by mismatch of component parts. Rather than
change the design of the components themselves, they
composed charts to show which products were safely
interchangeable and which were not. Again, there was
no indication that such a chart found its way into the
decedent’s hands.
Third, plaintiff might submit proofs at trial that all
three-piece rims pose risks which are “unreasonable in
light of the foreseeable injuries”. Owens v_ Allis-Chal-
mers Corp, 414 Mich 413, 425; 326 NW2d 372 (1982). The
OSHA petition activity was, arguably, a cooperative
effort by the wheel manufacturers to create a regulatory
buffer and avoid responsibility for those risks. The ven-
ture indicates a tacit understanding and mutual encour-
agement to refrain from taking more direct steps to
prevent this danger.
See attached Appendix B, pp. 13a-l4a (emphasis added:
bold face indicates emphasis in original).
The court’s later, “Amended Opinion” reads in relevant
part as follows:
By engaging in the joint OSHA petition campaign, the
wheel manufacturers arguably proposed a government
role to relieve themselves of their duty to warn those
working with the multi-piece rims.
Plaintiff provided documentation showing that the
multi-piece rims manufactured and/or marketed by the
wheel manufacturers were dangerous and that the man-
ufactuers knew of the danger posed by their products
and the mismatch of components of their products.
Plaintiff might submit proofs at trial that all three-piece
rims posed risks “unreasonabie in light of the foreseea-
ble injuries’. Ownes [sic], supra, p 425. Plaintiff also
showed that, rather than change the design of the rims
or the rim components, the wheel manufacturers acted
jointly in exchanging information and composing charts
LOA RM SLM ta tee Bah PE F i
ee eed
Abner Fei Ye Ae
IOWA TIRE Hela DA WANA D 1p ses Manet. adeeb ciaoly slit.
23
to show which products were safely interchangeable and
which were not. This conduct, as well as the OSHA
petition campaign, could indicate a tacit understanding
and mutual encouragement to refrain from taking more
reasonable steps to prevent the danger posed by the
multi-piece wheel rims.
See January 2, 1985 Amended Opinion, Appendix C, pp.
27a-28a, 140 Mich. App. at 34, 363 N.W.2d at 729 (emphasis
added) (footnote omitted, see supra).
The Michigan Court of Appeals’s Amended Opinion is
notable first because of what it does not contain. The
Amended Opinion completely excised a statement that “[iJt
is noteworthy that the decedent's accident occurred a short
time before OSHA finally promulgated the regulation urged
by defendants.” See August 9, 1984 Opinion, Appendix B,
p. 13a (emphasis added). Further, the Amended Opinion
omits a reference to the substance of the proposed regula-
tion. The Amended Opinion acknowiedges that the proposed
regulation would have established an “employer” obligation
to assure rim service safety. See Appendix C, p. 20a, 140
Mich. App. at 26, 363 N.W.2d at 726. The first Opinion had
seized upon this fact, stating:
Moreover, if it was feasible for emplovers to warn and
train their employees as to the danger of multi-piece
wheels, then it would have been equallv feasible for the
wheel manufacturers to assist in doing the same.
Instead, they proposed a government role in the process
to relieve themselves of the burden.
Appendix B, p. I3a (emphasis added). Because this state-
ment had followed a statement that itself emphasized the
OSHA petitioning activity, see id., the statement as to the
court’s impression of what Petitioner might have done to
warn, judging from its protected conduct, Clearly itself
_ related to such protected conduct.
The court of appeals also belatedly attempted to correct
the first Opinion’s constitutional deficiency by adding and
24
modifying certain language. Most significant is the amend-
ment of the bottom of the only full paragraph now found at
Appendix C, 27a-28a, 140 Mich. App. at 34, 363 N.W.2d at
729:
Plaintiff also showed that, rather than change the design
of the rims or the rim components, the wheel manufac-
turers acted jointly in exchanging information and com-
posing charts to show which products were safely
interchangeable and which were not. This conduct, as
well as the OSHA petition campaign, could indicate a
tacit understanding and mutual encouragement to refrain
from taking more reasonable steps to prevent the danger
posed by the multi-piece wheel rims.
(emphasis added)
The first Opinion had been significantly different on this
point:
Second, plaintiff provided evidence that the defend-
ant wheel manufacturers were aware of the dangers
posed by mismatch of component parts. Rather than
change the design of the components themselves, they
composed charts to show which products were safely
interchangeable and which were not. Again, there was
no indication that such a chart found its way into the
decedent’s hands.
Appendix B, p. 13a (emphasis added).
While it is obvious that the court's first Opinion made
reference to the composition of charts, in no way did the
first Opinion indicate that such composition could be joint
activity sufficient for a concert of action claim. Unlike the
Amended Opinion, which stated that such composition was
joint action, see Appendix C, pp. 27a-28a, 140 Mich. App. at
34, 363 N.W.2d at 729, the first Opinion merely found that
such composition indicated “‘aware[ness].” The critical point
here is that mere “awareness” is not, and would not have
been, the “join[t] ... action” that the court itself repeat-
a aa ies
25
edly emphasized was essential for a concert of action claim.
See Appendix C, pp. 25a-26a, 140 Mich. App. at 32-33, 363
N.W.2d at 728, 729. The Amended Opinion apparently
attempted to convert composition of charts, which there-
tofore had indicated only the insufficient (for concert of
action purposes) “awareness,” into joint action that purpor-
tedly could itself sustain a concert of action claim in the
event the court’s reliance on protected joint petitioning
activity were found to be unconstitutional.
The irony of this case, however, is that the amendments
of the court’s Opinion, far from serving to avoid the first
amendment problem, actually highlighted the court’s imper-
missible reliance upon Petitioner’s protected conduct in
reversing the trial court’s entry of summary judgment in
favor of Petitioner.
If the basis of the court’s decision were shown to be that
Petitioner's protected conduct constituted tortious “concert
of action,” the Noerr-Pennington doctrine would require
reversal of the court’s opinion on this constitutional issue.
See supra, Argument Sections A, B. It is beyond peradven-
ture that constitutional adjudication will scrutinize the sub-
stance of an alleged government infringement of citizens
rights—no matter what gloss or description government may
put on or employ with respect to such an infringement.
Indeed, this Court will countenance the interposition by
government of no “pretext for suppressing” precious first
amendment rights. Young v. American Mini Theatres, 427
U.S. 50, 84 (1976) (Powell, J., concurring); see also Gay
Student Services v. Texas A&M University, 737 F.2d 1317,
1322 & n.7 (Sth Cir.) (university’s asserted justification for
infringing first amendment associational rights is “an after- -
thought”), cert. denied and app. dismissed, 105 S. Ct. 1860
(1985); Alma Society, Inc. v. Mellon, 601 F.2d 1225, 1235 (2d
Cir.) (“we must be sure the rationale advanced” in an equal
protection case “is not simply an afterthought supplied
purely by hindsight”) (citing Cleveland Board of Education
v. LaFleur, 414 U.S. 632, 653 (1974) (Powell, J., concurring)
26
(“‘after-the-fact rationalizations” in equal protection case
“unsupported in the records’)), cert. denied, 444 U.S. 995
(1979).
Here, the Michigan Court of Appeals’s subsequent modi-
fications of its Opinion merely offered an after-the-fact
rationalization or pretext for its earlier conclusion. The lan-
guage of the court's first Opinion, relying exclusively on
protected activity to find that Petitioner could be subject to
tortious concert of action liability, reveals the basis of the
court’s decision. Hence, this Court should act to protect
Petitioner from this improper attempt to rationalize on alter-
native grounds what can only be found to be a violation of
Petitioner's first amendment rights.
Even the court’s “Amended Opinion.”’ however, makes it
obvious that the court based its finding as to the main-
tainability of Respondent’s concert of action claim primarily
upon Petitioner's protected conduct. The Amended Opinion
did not change the court's initial and sustained emphasis on
Petitioner's protected activity. See Appendix C, pp. 27a-28a,
140 Mich. App. at 34, 363 N.W.2d at 721. Nor did the
Amended Opinion abolish the distinction between AMF, the
only wheel manufacturer that did not engage in protected
activity, and the other wheel manufacturers, all of whom
petitioned the government and all of whom were found to be
subject to a tortious concert of action claim. /d. at 2la.
28a-29a, 140 Mich. App. at 27, 35, 363 N.W.2d at 726, 730.
Thus, even if this Court were to ignore the apparent pur-
poses of the Michigan Court of Appeals’s amendments of its
Opinion, that court’s continued, almost exclusive stated
reliance upon protected activity renders its decision consti-
tutionally unacceptable. Cf, Greenwood Utilities v. Mis-
sissippi Power Co., 751 Fd 1484, 1503 (Sth Cir. 1985)
(expert testimony that might have been sufficient io prevent
summary judgment may not do so where such experts
“relied almost exclusively on conduct that we have deter-
mined to be protected under the Noerr-Pennington doctrine
in reaching their conclusions .. .”).
1b TE WIT Rp art ie wal
WA Si panied Wiese: tr AMEN ta Li NEI Sete EH ie Oa Bo oe
27
E. In Any Event, The Court of Appeals’s Amendments
Relating To Exchange of Chart Information As Con-
certed Activity Clearly Failed To Eliminate The Deci-
sion’s Constitutional Infirmity Because The Record Is
Totally Devoid Of Any Evidence That This Accident
Invclved A Mismatching Of More Than One Manufac-
turer’s Components.
A final critical fact is that the only wnprotected pur-
ported concerted activity identified by the Michigan Court
of Appeals—Petitioner’s exchange of information to com-
pose charts for safe multi-piece wheel assembly with its co-
defendants—can never be found to support a tortious con-
cert of action claim on the admitted facts of this case. As
noted above, see supra, footnote 3, the multi-piece wheels
in question are composed of three components. See also
photos attached as Appendix E. The sole purpose of the
manufacturers’ exchange of chart information described by
the court of appeals, see Amended Opinion, Appendix C, p.
28a, 140 Mich. App. at 34, 363 N.W.2d at 729, was the
prevention of mismatching of various manufacturers’ wheel
components. The court of appeals undeniably acknowledged
this fact, stating that Petitioner's co-defendant, the Budd
Corporation, “noted that, while some rim components man-
ufactured by different companies were interchangeable, in
some cases ‘mixed side rings are a definite safety hazard.’”
See id., p. 20a, 140 Mich. App. at 27, 363 N.W.2d at 726
(emphasis added). Immediately following this quotation, the
court itself explicitly found that ‘‘[t]he manufacturers
exchanged information on part interchangeability so that
charts could be formulated to guide mechanics on [the part
mismatch] problem.” /d. at 20a-2la, 140 Mich. App. at 27,
363 N.W.2d at 726.
This fact is significant because Respondent has une-
quivocally admitted that she “could not identify the specific
manufacturer of the subject wheel or the vehicle from which
it came.” /d. at p. 19a, 140 Mich. App. at 25, 363 N.W.2d at
725. Thus, Respondent has admitted that she does not know
whether the parts of different wheel manufacturers were
28
involved in the multi-piece wheel accident in question or
whether the accident wheel consisted of components man-
ufactured by the same company, which components
explosively disengaged because, for example, they were mis-
assembled. As indicated above, the exchange of matching
chart information could be relevant only if parts from dif-
ferent wheel manufacturers were involved. In light of
Respondent's admission that she can never factually prove
that the accident at issue involved a mismatching of more
than one manufacturer's components, the exchanging of
chart information to avoid rim component mismatches can
in no event be a proximate cause of her decedent's injuries.
At best, as the court of appeals indicated, Respondent can
prove only that her decedent's injuries were proximately
caused by a multi-piece wheel having three components.
Because the exchange of matching chart information
cannot be a proximate cause of Respondent's decedent's
injuries, Respondent clearly cannot, using evidence of such
exchange. satisfy the requirements of a tortious concert of
action claim: “join|t] engage|[ment] in a tortious activity as a
result of which plaintiff was harmed.” See Appendix C, p.
25a, 140 Mich. App. at 32, 363 N.W.2d at 728. Yet the only
other concerted activity identified by the court was Peti-
tioner and its co-defendants’ petitioning of OSHA. Thus, on
the facts of this case as admitted, the only “concerted
activity” that arguably can be relevant to the rim accident is
Petitioner's protected first amendment activity. Therefore,
the effect of the Michigan Court of Appeais’s decision is to
improperly permit liability to flow exclusively from Peti-
tioner’s protected first amendment activity.
29
CONCLUSION
This Court should take this opportunity to examine the
application of the Noerr-Pennington doctrine in a non-anti-
trust context. The danger to our governmental system and to
our society due to infringements upon first amendment peti-
tioning rights is as great where tort liability may be imposed
tor such activity as it is where antitrust liability may be so
imposed. In particular, this Court should act to correct the
constitutionally indefensible finding by the Michigan Court
of Appeals that Petitioner's protected petitioning activity
may constitute the basis for “concert of action” tort liability.
Petitioner therefore requests that this Court grant its
Petition for a Writ of Certiorari.
Respectfully submitted,
Xhafer Orhan (Counsel of Record)
Daniel Patrick Malone
William J. Champion Ill
Carey A. DeWitt
BUTZEL LONG GUST KLEIN & VAN ZILE
A Professional Corporation
i881 First National Building
Detroit, Michigan 48226
Telephone: (313) 963-8142
Counsel for Petitioner, The
Firestone Tire & Rubber Company
Of Counsel:
John P. Palumbo
Assistant General Counsel
The Firestone Tire &
Rubber Company
Dated: September 20, 1985
No.
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1985
THE FIRESTONE TikRE & RUBBER COMPANY,
Petitioner.
V.
THELMA COUSINEAU, PERSONAL REPRESENTATIVE OF THE
ESTATE OF MARK COUSINEAU,
Respondent.
APPENDIX
BUTZEL LONG GUST KLEIN & VAN ZILE
A Professional Corporation
By: Xhafer Orhan (Counsel of Record)
Daniel Patrick Malone
William J. Champion III
Carey A. DeWitt
I881 First National Building
Detroit, Michigan 48226
Telephone: (313) 963-8142
Counsel for Petitioner, The
Firestone Tire & Rubber Company
Of Counsel:
John P. Palumbo
Assistant General Counsel
The Firestone Tire & Rubber Company
THE AMERICAN PRINTING COMPANY
1200 WEST FORT STREET, DETROIT, MICHIGAN 48226 — (313) 963-9310
INDEX TO APPENDICES
Appendix Page
A
Wayne County Circuit Court Order, dated
December 10, 1982, granting Petitioner's Motion for
ED NE ano seule eheee bE ERS ope nee la
Michigan Court of Appeals’s unpublished per
curiam opinion (first Opinion), dated August 9,
1984, reversing the trial court’s entry of Summary
Judgment and remanding the case on the issue of
GOURIOUS COMGOTE GE ROTOR nn ccc ccc ccccwccevcnn 3a
Michigan Court of Appeals’s published Amended
Opinion, dated January 2, 1985 ................. 17a
Michigan Supreme Court Order, dated June 24,
1985, denying Application for Leave to Appeal .. 32a
Photographs A and B, depicting tube-type tire
SE PE IE iene wc ckccdnccebecenne 34a
45 Federal Register No. 20 (Jan. 28, 1980), pp.
GF Er Ge IE A FUE 0 oc 60 8 sic occ 60-0 ces cs 36a
49 Federal Register No. 24 (February 3, 1984), p.
RR eee yevieca Siyhasienceeekecneuness 75a
Michigan Court of Appeals’s Order, dated
November 29, 1984, denying Petitioner's Applica-
ee cas ers aevedaseeee ee 133a
Michigan Court of Appeals’s sua sponte Order,
dated January 2, 1985, stating the court’s intention
to “correct” its August 9, 1984 per curiam opinion
I co Ca aaaie inane s ue Saeko een 135a
APPENDIX A
la
Appendix A
Order Granting Defendants’
Motions for Summary Judgment
STATE OF MICHIGAN
IN THE CIRCUIT COURT
FOR THE COUNTY OF WAYNE
THELMA COUSINEAU, Personal
Representative of the Estate
of Mark Cousineau, Deceased,
Plaintiff, HON. IRWIN BURDICK
No. 80-039185-NP
VS.
Forp Motor ComPANY, a foreign corpor-
poration, INTERNATIONAL HARVESTER
ComPANy, a foreign corporation,
GOODYEAR TIRE & RUBBER COMPANY, a
foreign corporation, KELSEY Hayes
CORPORATION, a foreign corporation,
Bubp CorRPORATION, a foreign corpor-
ation, THE FIRESTONE TIRE & RUBBER
ComMPANY, a foreign corporation,
FRUEHAUF CORPORATION, a foreign
corporation, and AMF, INc., a for-
eign corporation,
Defendants.
ORDER GRANTING DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT
At a session of said Court, held in the City
County Building, City of Detroit, County of
Wayne, State of Michigan, on Dec 10 1982
(s) HON. IRWIN H. BURDICK
Circuit Court Judge
This matter having come before the Court on defendants’
Motions for Summary Judgment pursuant to Michigan GCR
2a
Appendix A
Order Granting Defendanis’
Motions for Summary Judgment
117.2(1) & (3); and the Court having reviewed the matter and
having heard oral arguments on July 23, 1982 and December
10, 1982, and being otherwise advised in the premises;
IT IS HEREBY ORDERED that, for the reasons set
forth on the December 10, 1982 record, each of defendants’
Motions for Summary Judgment pursuant to GCR 117.2(1) &
(3) shall be, and hereby is, GRANTED.
(s) HON. IRWIN BURDICK
Date:
APPENDIX B
a idles
3a
Appendix B
Opinion
OPINION
STATE OF MICHIGAN COURT OF APPEALS
THELMA COUSINEAU, Personal Representative
of the Estate of MARK COUSINEAU,
Plaintiff-Appellant, [Aug 09 1984]
Vv No. 69363
Forp Motor Company, a foreign corporation,
INTERNATIONAL HARVESTER COMPANY, a foreign
corporation, GOODYEAR TirRE & RUBBER COMPANY,
a foreign corporation, Ke_tseEY Hayes
CORPORATION, a foreign corporation,
Bupp CorpPorRATION, a foreign corporation,
FIRESTONE TirE & RUBBER COMPANY, a foreign
corporation, FRUEHAUF CORPORATION, a
foreign corporation, and AMF, INc., a
foreign corporation,
Defendants-Appellees.
Before: R.S. Gribbs, P.J., H. Hood and R.M. Maher, JJ.
PER CURIAM
Plaintiff appeals by right from an order granting sum-
mary judgment for defendants on her wrongful death claim,
and a subsequent order denying her motion for reconsidera-
tion and denying her leave to amend her complaint. We
affirm in part and reverse in part.
Plaintiff brought suit on October 29, 1980, alleging her
soi, Mark Cousineau (decedent), was killed on May 8, 1979,
while repairing a truck tire mounted on a three-piece wheel.
Decedent was an employee of Jaeger Brothers Construction
Co, which owned several trucks, including four or five made
by Ford, two by International Harvester, and at least one
Fruehauf Trailer. In addition, Jaeger Brothers had numerous
tires and wheels collected from other trucks at the work-
4a
Appendix B
Opinion
place. On May 8, 1979, decedent, who had only been
employed for two days, was assigned to repair truck tires.
While decedent was working on a three-piece rim, the whee!
explosively disengaged, striking and killing decedent. Ronald
Jaeger found a three-piece rim held together by a saiety
chain at the accident site. The tire was still intact and was
subsequently used. The rim parts were at first kept separate,
but were later mixed with the gencral rim stock of the busi-
ness, rendering identification of the rim involved in the acci-
dent impossible.
Plaintiff sued wheel manufacturers Goodyear, Kelsey
Hayes, Budd and Firestone, and vehicle manufacturers Ford
and International Harvester. Plaintiff claimed decedent's
injuries resulted from negligent wheel design, failure to ade-
quately warn, and failure to provide safety devices by the
wheel manufacturers. She further alleged that the defendant
vehicle manufacturers negligently produced and sold vehi-
cles which required and/or utilized multi-piece wheels.
Plaintiffs complaint also contained an allegation of breach
of implied warranty.
Goodyear and Kelsey Hayes moved for a more definite
Statement of the claim, stating that plaintiff ““must be
required to identify the manufacturer of the wheel and rim”
involved in the accident, and “must be ordered to identify
one vehicle manufacturer”.
Plaintiff filed an amended complaint and added Fruehauf
(vehicle manufacturer) and AMF (wheel manufacturer) as
defendants. In the amended complaint, plaintiff set forth
claims of alternative liability and concert of action.
All defendants except AMF and Fruehauf moved for
summary judgment pursuant to GCR 1963, 117.2(1) and (3),
based on plaintiff's inability to attribute the wheel in ques-
tion to a particular wheel or vehicle manufacturer. Plaintiff
Sa
Appendix B
Opinion
admitted, then as now, that she could not identify the spe-
cific manufacturer of the subject wheel or the vehicle from
which it came. Attached to the wheel manufacturers’
motions were affidavits of their employees, each of whom
averred that defendants’ products are identifiable, since they
are stamped with a part number and name of the manufac-
turer. In addition, the affiants for Firestone and Budd stated
that truck rims are distinguishable from one another
because of the multiplicity of rim designs. International Har-
vester submitted an affidavit and company records showing
that the International Harvester truck owned by decedent's
employer was originally equipped with two-piece rims.
After two adjournments of the motion for summary judg-
ment to permit discovery, plaintiff filed a response to the
motions. She asserted that the named defendants included
“the only major manufacturers” of three-piece wheels “sim-
ilar to the one that plaintiff's decedent was handling at the
time of his injury”. Regarding the identification issue, plain-
tiff argued that the manufacturer’s stamp “is subject to
wear, rust and corrosion” which “obliterates the identifica-
tion”. Plaintiff contended that truck rims made by various
defendants are “very similar in size and configuration”, that
“there was no one design that could be identified with one
specific manufacturer”, and that “the wheels are essentially
of a generic design”. Plaintiff also stated that the manufac-
turer of a wheel assembly could not be determined “without
the closest of examination”.
In support of her alternative liability and concert of
action claims, plaintiff submitted numerous documents
obtained through discovery. The pertinent matter in the
exhibits is summarized as follows:
The manufacturers of three-piece rims were made aware,
through accident reports, of the problems arising from their
products, but ascribed the problems to improper “shop
6a
Appendix B
Opinion
practices”. These practices included non-compliance with
the manufacturers’ recommended procedures for assembly,
disassembly, and maintenance and safety precautions. Fire-
stone urged vehicle manufacturers to print warning materials
in the vehicle owner manual. However, the wheel manufac-
turers felt that printed warnings on the rim components
themselves could be ineffective since they would be covered
by corrosion. In a letter to Budd dated May II, 1976, an
attorney for Firestone denigrated the effectiveness of such
warnings and further stated, “I would hate to be confronted
by a plaintiff's lawyer with auother company’s warning if my
product did not have one”. The same letter proposed an
industry meeting and urged that the different manufacturers
not take varying positions on the warning issue.
Beginning in 1976, the wheel manufacturers, through the
“Rubber Manufacturers Association” and “Multipiece Rim
Manufacturers” organizations, campaigned for promulgation
of federal OSHA standards governing work with multi-piece
rims. Their goal was “to remove all of the burden from the
Wheel and Rim manufacturers” and to place responsibility
for safety precautions “on the only person in practical posi-
tion to discharge such responsibility, i.e. the employer”. In
April of 1980, OSHA promulgated a regulation requiring the
posting of information and warnings in truck tire mainte-
nance facilities, and training of mechanics working with
multi-piece wheels.
A Budd document dated February 2, 1976, noted the
tendency of “standardization” in the truck rim industry and
the dangers posed by the similarity of different products. It
noted that, while some rim components manufactured by
different companies were interchangeable, in some cases
“mixed side rings are a definite safety hazard”. The man-
ufacturers exchanged information on part interchangeability
so that charts could be formulated to guide mechanics on
this problem.
7a
Appendix B
Opinion
The defendant vehicle manufacturers purchased substan-
tial numbers of multi-piece rims for use as original equip-
ment. The petition to OSHA indicates that 98% of all multi-
piece rims sold are used as original equipment. However,
there is no evidence in the record that vehicle manufac-
turers, as opposed to wheel manufcturers, were involved in
the OSHA petition campaign. References to defendant
wheel manufacturer AMF were also absent from plaintiff's
documents, since AMF sold its truck rim subsidiary
(“Cleveland Welding Division”) to Budd in 1959.
At the December 10, 1982, hearing on the motion for
summary judgment, plaintiff argued that summary judgment
would be premature, since discovery was not complete.
Counsel for Goodyear replied that no amount of discovery
would disclose the identity of the manufacturer of the wheel
involved in the accident. In granting the motion in favor of
defendants, the trial judge stated, “We're not talking about a
generic product that cannot be identified”. Rather, the court
concluded, “This is a case where the wheel that we're talk-
ing about disappeared”.
Prior to the grant of summary judgment, plaintiff moved
for leave to amend her complaint. She submitted a proposed
third amended complaint containing an allegation of civil
conspiracy, and a fourth amended complaint which
advanced a claim of “enterprise liability”. Hall v E. 1.
DuPont De Nemours & Co, 345 F Supp 353 (E D NY 1972).
At the hearing on the motions to amend, plaintiff conceded
“there’s no cause of action for conspiracy unless you've got
an underlying cause”. Plaintiff also requested reconsidera-
tion of the grant for summary judgment.
The trial judge denied leave to amend the complaint
without comment. He also denied the motion for recon-
sideration. distinguishing Abel v Eli Lilly & Co, 94 Mich
App 59; 289 NW2d 20 (1979), aff'd 418 Mich 311; 343 NW2d
164 (1984).
8a
Appendix B
Opinion
Alternative Liability
Plaintiff first contests the granting of the summary judg-
ment for defendants on plaintiff's alternative liability claim.
She argues that the theory of alternative liability applies
where a plaintiff, through no fault of his own, cannot iden-
tify the specific defendant responsible for his injuries.
The trial court did not specify the court rule underlying
its grant of summary judgment. It granted summary judg-
ment because the wheel would be identifiable if it were
available, basing this conclusion on plaintiff's admission and
defendant's affidavit. Since the court went beyond the plead-
ings in reaching its decision, the judgment will be reviewed
as granted pursuant to GCR 1963, 117.2(3). Under this court
rule, the nonmoving party must establish that he has a case
on the law and that there are some evidentiary proofs to
support his allegation as to any material fact. Durant v
Stahlin, 375 Mich 628, 638; 135 NW2d 392 (1965).
Substantial guidance is provided by the receni decision
in Abel, in which the Supreme Court expressed formal
approval of the theory of alternative liability. 418 Mich 329.
As noted by this Court in Greene v Union Optical Center,
95 Mich App 167, 171; 290 NW2d 111 (1980), “[iJn certain
situations, a plaintiff's burden of proof may be shifted to the
defendants where more than one defendant has been negli-
gent and the plaintiff is unable to prove which of the two
defendants caused his injury”. Prerequisite to such a shift,
plaintiff must show, first that all defendants acted tortiously;
second, that plaintiff was harmed by one of the defendants:
and, third, that plaintiff, “through no fault of [his or her]
own, [is] unable to identify which actor caused the injury.
Abel, 418 Mich 331-332. Plaintiff fastens her argument onto
the latter language, ignoring the policy underlying alternative
9a
Appendix B
Opinion
liability theory. That policy was clearly stated by the Court
in the Abel opinion:
“(The] reason for the exception to traditional rules is
to prevent the injustice of allowing proved wrongdoers to
escape liability for an injury inflicted upon an innocent
plaintiff ‘merely because the nature of their conduct
and the resulting harm made it difficult or impossible to
prove which of them has caused the harm.’ ” 418 Mich
327, citing 2 Restatement Torts, 2nd, §433B, Comment f,
p 446 (emphasis added).
In Abel, the plaintiffs alleged they were harmed by their
consumption of synthetic estrogens. 418 Mich 318. Their
inability to identify the specific manufacturer which caused
the harm resulted from the inherent nature of the product.
Once ingested, the medication was irretriveable for use as
evidence. Also, plaintiffs alleged that defendants used “a
generic marketing scheme to promote the product”. 418
Mich 336. In its decision in Abel, this Court noted the diffi-
culties posed by the number of defendants and by the length
of time between the ingestion of the allegedly defective drug
and the appearance of the damages. 94 Mich App 76. In this
case, the wheel assembly which gave rise to the injury did
not disappear, nor was its source rendered unidentifiable by
the defendants’ conduct. It remained available for use as
evidence and was, in fact, kept separate from the wheel
inventory of decedent’s employer for quite some time. Plain-
tiff argues that the similarity of three-piece rims renders
them unidentifiable, but admits the wheel could be identified
if it were available. The interchange of parts between wheel
rim manufacturers indicates only that more than one man-
ufacturer may have made the components in question, not
that the parts could not be identified. Plaintiff further con-
tends that the identifying stamp on the product was proba-
bly obscured by dirt and corrosion, so the decedent could
not read it. This is sheer speculation, given the unavailability
of the evidence.
10a
Appendix B
Opinion
As to the vehicle manufacturers, plaintiffs claim of alter-
native liability is insufficient as well. Trucks are not generic
products posing identification difficulties. Plaintiff admits
she cannot identify the particular vehicle which was
equipped with the subject wheel assembly. In addition, she
cannot prove that the wheel was used as original equipment
on any of the trucks at decedent’s work place. The defend-
ant vehicle manufacturers are not in the business of making
three-piece rims. Though a vehicle manufacturer may be
hela liable for damages caused by defective component
parts supplied by another entity, Comstock v General
Motors Corp, 358 Mich 163; 99 NW2d 627 (1959), this duty
has not yet been extended to component parts added to a
vehicle subsequent to distribution. Assuming the existence
of a defect, plaintiff must “trace that defect in the hands” of
the defendant. Caldwell v Fox, 394 Mich 401, 410; 231
NW2d 46 (1975). “The threshold requirement of any product
liability action is identification of the injury-causing product
and its manufacturer.” Abel, 418 Mich 327. Failure of a com-
ponent not supplied by the manufacturer does not give rise
to liability on the manufacturer’s part. Antcliff v State
Employees Credit Union, 95 Mich App 224, 231-233; 290
NW2d 420 (1980), aff'd 414 Mich 624; 327 NW2d 814 (1982).
Concert of Action
Plaintiff next argues that the trial court erred in granting
summary judgment in favor of defendants on plaintiff's con-
cert of action claim. Plaintiff argues that she submitted doc-
umentary evidence of the joint efforts and conscious
parallelism in the wheel industry, and that defendants acted
to direct government inquiry away from themselves.
Because the trial court relied on affidavits outside the
pleadings in granting summary judgment, we again review
the summary judgment as one granted pursuant to GCR
1963, 117.2(3). A motion for summary judgment pursuant to
{
i
:
3
lla
Appendix B
Opinion
this court rule should not be granted unless it is impossible
for the claim asserted to be supported by evidence at trial.
Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973).
A plaintiff may proceed on the theory of concert of
action if he can prove “that all defendants acted tortiously
pursuant to ~ common design’. Abel, 418 Mich 338.
“Express agreement is not necessary, and all that is
required is that there be a tacit understanding.” Prosser,
Torts (4th ed), §46, p 292. “A concert of action case does
not require that the plaintiff be unable to identify the spe-
cific defendant who caused his injury.” Abel, 418 Mich 338.
Rather, each defendant “is jointly and severally liable for
the entire amount of damages. although he may be entitled
to contribution from his fellow tort feasors.” Abel, 94 Mich
App 73. “Even if defendant caused no harm himself, he is
liable for the harm caused by his fellows because all acted
jointly.” 94 Mich App 73. “. . . [T]o state a cause of action,
a plaintiff need only allege that the defendants were jointly
engaged in tortious activity as a result of which the plaintiff
was harmed.” Abel, 418 Mich 338, citing Walters v Sargent,
390 Mich 775; 210 NW2d 315 (1973), adopting partial dissent
in Walters v Sargent, 46 Mich App 379, 384; 208 NW2d 207
(1973).
In this case, the trial court did not give this claim the
individual consideration it deserved, but disposed of it on
the same basis as the alternative liability claim—failure to
identify the source of the » heel. As noted above, the identi-
fication problem is not a sine qua non of a concert of action
claim. Each defendant who acted jointly and tortiousiy is
liable, even though his conduct was not the disect cause of
the injury. Thus, in the context of this case, we hold that it
does not matter if the party causing the injury in fact is not
joined in the concert of action claim, since all those acting
l2a
Appendix B
Opinion
in concert, named and unnamed defendants, are jointly and
severally liable for the entire harm. Abel, 94 Mich App 73.!
As discussed below, plaintiff is entitled to recover on a
concert of action theory if she can prove that all three-piece
truck wheel assemblies are defective, or that the defendant
wheel manufacturers breached their duty to warn of a dan-
ger posed by their products, and that defendants acted
jointly in marketing defective products and/or failing to ade-
quately warn those in contact with them. Evidence support-
ing her claim would preclude summary judgment. Rizzo,
supra.
In order to prove her concert of action claim against the
wheel manufacturers, plaintiff must first show that they
acted negligently. “It is now established that the manufac-
turer and wholesaler of a product, by marketing it, owe a
legal! duty to those affected by its use.” Moning v Alfono,
400 Mich 425, 433; 254 NW2d 759 (1977). A manufacturer’s
duty also includes dissemination of warnings or instructions
“appropriate for the safe use of its products”. Antcliff, 414
Mich 638. Defendants in this case had this duty towards
those in contact with three-piece wheels.
Plaintiff submitted an affidavit and other proof to prove
the wheels defective and that defendants were aware of the
numerous incidences of death and injury resulting from
wheel explosions. The defendants argued that their products
are safe when used properly, and that they took measures to
warn those working with the wheels. These arguments relat-
ing to the reasonableness of defendants’ conduct are for the
! Although each defendant tortfeasor who acts in concert is jointly
and severally liable, the plaintiff may join others in tne suit who also
engaged in such conduct, GCR 1963, 206.1, and defendants may seek
contribution after judgment. MCL 600.2925a; MSA 27A.2925(1); Abel. 94
Mich App 73. The defendant may also implead nonjoined tortfeasors as
third party defendants and seek contribution. GCR 1963, 204.
l3a
Appendix B
Opinion
trier of fact. Smith v E.R. Squibb & Sons, 405 Mich 79,
88-90; 273 NW2d 476 (1979); Dunn v Lederle Laboratories,
121 Mich App 73, 79-80; 328 NW2d 576 (1982), lv den 417
Mich 1098 (1983).
Plaintiff also submitted proof to show the defendant
wheel manufacturers acted jointly, pursuant to a common
design. First, although defendants are correct insofar as the
OSHA petition campaign cannot be viewed as tortious
activity, the same activity evidences an awareness on the
part of the wheel industry as a whole of the gravity of the
problem. Moreover, if it was feasible for employers to warn
and train their employees as to the danger of multi-piece
wheels, then it would have been equally feasible for the
wheel manufacturers to assist in doing the same. Instead,
they proposed a government role in the process to relieve
themselves of the burden. It is noteworthy that the dece-
dent’s accident occured a short time before OSHA finally
promulgated the regulation urged by defendants. Further-
more, the adquacy of the manufacturers’ warnings is a ques-
tion of fact for the jury. Dunn, supra, p 80. Here, it is not
clear from the record whether plaintiff had any warning
whatsoever from the manufacturer of the wheel, or that any
of the defendant wheel manufacturers were in the practice
of supplying warnings to those affected by the use of their
products.
Second, plaintiff provided evidence that the defendant
wheel manufacturers were aware of the dangers posed by
mismatch of component parts. Rather than change the
design of the components themselves, they composed charts
to show which products were safely interchangable and
which were not. Again, there was no indication that such a
chart found its way into the decedent’s hands.
Third, plaintiff might submit proofs at trial that a// three-
piece rims pose risks which are “unreasonable in light of
l4a
Appendix B
Opinion
the foreseeable injuries”. Owens v Allis-Chalmers Corp, 414
Mich 413, 425; 326 NW2d 372 (1982). The OSHA petition
activity was, arguably, a cooperative effort by the wheel
manufacturers to create a regulatory buffer and avoid
responsibility for those risks. The venture indicates a tacit
understanding and mutual encouragement to refrain from
taking more direct steps to prevent the danger.
Although plaintiff submitted sufficient proof to survive a
motion for summary judgment on her concert of action
claim against the wheel manufacturers, she did not do so
with respect to AMF. There was no proof that defendant
AMF acted pursuant to a common design of the other
defendants prior to sale of its wheel manufacturing division
in 1959. Thus, the trial court was correct as to AMF, but
erred in granting summary judgment pursuant to GCR 1963,
117.2(3), in favor of the other wheel manufacturers.
Plaintiff's concert of action claim against the vehicle
manufacturers is not supported by evidence showing they
acted jointly with the wheel manufacturers. The purchase of
wheels for use as original equipment on their vehicle is not
sufficient for a finding of concert of action. “One who inno-
cently, and carefully, does an act which furthers the tortious
purpose of another is not acting in concert with him.”
Prosser, supra, p 292. Thus, the grant of summary judgment
for defendant vehicle manufacturers was proper.
Leave to Amend
Plaintiff finally argues that the trial court erred by deny-
ing plaintiff leave to amend her complaint. In her proposed
third amended complaint, plaintiff sought to add allegations
of civil conspiracy. Plaintiff also submitted a proposed
fourth amended complaint, alleging “enterprise liability”.
Leave to amend a complaint “shail be freely given when
justice requires”. GCR 1963, 118.1; Midura v Lincoln Con-
1Sa
Appendix B
Opinion
solidated Schools, \11 Mich App 568, 562; 314 NW2d 691
(1981). The grant or denial of the motion to amend is within
the discretion of the trial court. McCalla v Richard Ellis,
129 Mich App 452; 341 NW2d 525 (1983). Furthermore, sum-
mary judgment does not preclude amendment of the com-
plaint. Midura, supra, p 56. However, failure to grant leave
to amend is not reversible error where the pleadings as
sought to be amended still fail to state a claim. Zimmerman
v Stahlin, 374 Mich 93, 96; 130 NW2d 915 (1964); Crosby v
City of Detroit, 123 Mich App 213, 223; 333 NW2d 557
(1983).
Conspiracy
“A conspiracy is a combination of two or more persons,
by some concerted action, to accomplish a criminal or
unlawful purpose, or to accomplish a purpose not unlawful
by criminal or unlawful means.” Fenestra v Gulf American
Land Corp, 377 Mich 565, 593; 141 NW2d 36 (1966) (empha-
sis added). An allegation of civil conspiracy, standing alone,
is not actionable, Magid v Oak Park Racquet Club Assocs,
Limited, 84 Mich App 522, 529; 269 NW2d 661, /v den 404
Mich 805 (1978).
In this case, plaintiff's proposed third amended com-
plaint contained no allegation that defendants employed
unlawful methods to attain a lawful end. The group activities
listed by plaintiff were entirely lawful. On the other hand,
the unlawful purposes alleged were largely polemic restate-
ments of plaintiff's concert of action allegations. Plaintiff's
conspiracy claim boiled down to the allegation that the
defendants “conspired to act in concert”. This claim lacks
meaning without an underlying tortious or criminal activity.
“Concert of action” cannot be the tort or unlawful action
underlying a conspiracy claim. Concert of action is itself a
claim which, like conspiracy, cannot exist independently of
an underlying tortious act.
l6a
Appendix B
Opinion
Furthermore, of the specific allegations in the proposed
pleadings, only one, defendants’ inhibition of product inden-
tification, approached the level of intent or agreement requi-
site to a conspiracy claim. Conspiracy entails ‘‘an
agreement, or preconceived plan, to do an unlawful act”.
Bahr v Miller Bros Creamery, 365 Mich 415, 427; 112 NW2d
463 (1961). However, plaintiffs allegation of an agreement to
inhibit product indentification suffers from the absence of an
unlawful purpose. Plaintiff does not specify why it is
unlawful to inhibit product identification in the absence of a
statute requiring clear identifying marks on a product. It is
not enough that plaintiff simply asserts a conclusion. Pre-
lesnik v Esquina, 132 Mich App 341; NW2d
(1984). Thus, the proposed pleading is legally insufficient on
its face. Fyke & Sons v Gunter Co, 390 Mich 649, 660; 213
NW2d 134 (1973).
We find that the tiiai court did not abuse its discretion
by refusing plaintiff leave to file her third amended com-
plaint containing the conspiracy claim.
Enterprise Liability
Also, the trial court correctly denied leave to file the
proposed fourth amended complaint, since enterprise lia-
bility is not recognized in Michigan. Abel, 418 Mich 336-337.
The amended complaint would still have failed to state a
claim. Zimmerman, supra.
This case is reversed and remanded for trial of plaintiff's
concert of action claim against the wheel manufacturers,
except defendant AMF. In all other respects, the judgment
is affirmed. |
Affirmed in part, reversed and remanded in part.
/s/ Roman S. Gribbs
/s/ Harold Hood
/s/ Richard M. Maher
APPENDIX C
17a
Appendix C
Amended Opinion
AMENDE® UPINION
STATE OF MICHIGAN
COURT OF APPEALS
THELMA COUSINEAU, Personal Representative
of the Estate of MARK COUSINEAU,
Plaintiff-Appellant, (JAN 2 1985]
ing es 2 Amended Opinion
ad No. 69363
Forp Motor Company, a foreign corporation,
INTERNATIONAL HARVESTER COMPANY, a foreign
corporation, GOODYEAR TiRE & RUBBER COMPANY,
a foreign corporation, KELSEY Hayes
CORPORATION, a foreign corporation,
Bupp CorporaTION, a foreign corporation,
FIRESTONE Tire & RUBBER COMPANY, a foreign
corporation, FRUEHAUF CORPORATION, a
foreign corporation, and AMF, INnc., a
foreign corporation,
Defendants-Appellees.
—Before: R.S. Gribbs, P.J., H. Hood and R.M. Maher, JJ.
R. S. Gribbs,. J.
Plaintiff appeals as of right from an order granting sum-
mary judgment for defendants on her wrongful death claim,
and a subsequent order denying her motion for reconsidera-
tion and denying her leave to amend her complaint. We
affirm in part and reverse in part.
Plaintiff brought suit on October 29, 1980, alleging her
son, Mark Cousineau (decedent), was killed on May 8, 1979,
while repairing a truck tire mounted on a three-piece wheel.
Decedent was an employee of Jaeger Brothers Construction
Co, which owned several trucks, including four or five made
by Ford, two by International Harvester, and at least one
Fruehauf Trailer. In addition, Jaeger Brothers had numerous
18a
Appendix C
Amended Opinion
tires and wheels collected from other trucks at the work-
place. On May 8, 1979, decedent, who had only been
employed for two days, was assigned to repair truck tires.
While decedent was working on a three-piece rim, the wheel
explosively disengaged, striking and killing decedent. Ronald
Jaeger found a three-piece rim held together by a safety
chain at the accident site. The tire was still intact and was
subsequently used. The rim parts were at first kept separate,
but were later mixed with the general rim stock of the busi-
ness, rendering identification of the rim involved in the acci-
dent impossible.
Plaintiff sued wheel manufacturers Goodyear, Kelsey
Hayes, Budd and Firestone, and vehicle manufacturers Ford
and International Harvester. Plaintiff claimed decedent's
injuries resulted from negligent wheel design, failure to ade-
quately warn, and failure to provide safety devices by the
wheel manufacturers. She further alleged that the defendant
vehicle manufacturers negligently produced and sold vehi-
cles which required and/or utilized multi-piece wheels.
Plaintiff's complaint also contained an allegation of breach
of implied warranty.
Goodyear and Kelsey Hayes moved for a more definite
statement of the claim, stating that plaintiff ““must be
required to identify the manufacturer of the wheel and rim”
involved in the accident, and “must be ordered to identify
one vehicle manufacturer”.
Plaintiff filed an amended complaint and added Fruehauf
(vehicle manufacturer) and AMF (wheel manufacturer) as
defendants. In the amended complaint, plaintiff set forth
claims of alternative liability and concert of action.
All defendants except AMF and Fruehauf moved for
summary judgment pursuant to GCR 1963, 117.2(1) and (3),
based on plaintiff's inability to attribute the wheel in ques-
—
‘
i
3
:
19a
Appendix C
Amended Opinion
tion to a particular wheel or vehicle manufacturer. Plaintiff
admitted, then as now, that she could not identify the spe-
cific manufacturer of the subject wheel or the vehicle from
which it came. Attached to the wheel manufacturers’
motions were affidavits of their employees, each of whom
averred that defendants’ products are identifiable since they
are stamped with a part number and name of the manufac-
turer. In addition, the affiants for Firestone and Budd stated
that truck rims are distinguishable from one another
because of the multiplicity of rim designs. International Har-
vester submitted an affidavit and company records showing
that the International Harvester truck owned by decedent's
employer was originally equipped with two-piece rims.
After two adjournments of the motion for summary judg-
ment to permit discovery, plaintiff filed a response to the
motions. She asserted that the named defendants included
“the only major manufacturers” of three-piece wheels “sim-
ilar to the one that plaintiff's decedent was handling at the
time of his injury”. Regarding the identification issue, plain-
tiff argued that the manufacturer’s stamp “is subject to
wear, rust and corrosion” which “obliterates the identifica-
tion’. Plaintiff contended that truck rims made by various
defendants are “very similar in size and configuration”, that
“there was no one design that could be identified with one
specific manufacturer’, and that “the wheels are essentially
of a generic design”. Plaintiff also stated that the manufac-
turer of a wheel assembly could not be determined “without
the closest of examination”.
In support of her alternative liability and concert of
action claims, plaintiff submitted numerous documents
obtained through discovery. The pertinent matter is summar-
ized as follows:
The manufacturers cf three-piece rims were made aware,
through accident reports, of the problems arising from their
20a
Appendix C
Amended Opinion
products, but ascribed the problems to improper “shop
practices”. These practices included non-compliance with
the manufacturers’ recommended procedures for assembly,
disassembly, and maintenance and safety precautions. Fire-
stone urged vehicle manufacturers to print warning materials
in the vehicle owner manual. However, the wheel manufac-
turers felt that printed warnings on the rim components
themselves could be ineffective since they would be covered
by corrosion. In a letter to Budd dated May Ii, 1976, an
attorney for Firestone denigrated the effectiveness of such
warnings and further stated, “I would hate to be confronted
by a plaintiff's lawyer with another company’s warning if my
product did not have one”. The same letter proposed an
industry meeting and urged that the different manufacturers
not take varying positions on the warning issue.
Beginning in 1976, the wheel manufacturers, through the
“Rubber Manufacturers Association” and “Multipiece Rim
Manufacturers” organizations, campaigned for promulgation
of federal OSHA standards governing work with multi-piece
rims. Their goal was “to remove all of the burden from the
Wheel and Rim manufacturers” and to place responsibility
for safety precautions “on the only person in practical posi-
tion to discharge such responsibility, i.e. the employer’. In
April of 1980, OSHA promulgated a regulation requiring the
posting of information and warnings in truck tire mainte-
nance facilities, and the training of mechanics working with
multi-piece wheels.
A Budd document dated February 2, 1976, noted the
tendency of “standardization” in the truck rim industry and
the dangers posed by the similarity of different products. It
noted that, while some rim components manufactured by
different companies were interchangeable, in some cases
“mixed side rings are a definite safety hazard”. The man-
2la
Appendix C
Amended Opinion
ufacturers exchanged information on part interchangeability
so that charts could be formulated to guide mechanics on
this problem.
The defendant vehicle manufacturers purchased substan-
tial numbers of multi-piece rims for use as original equip-
ment. The petition to OSHA indicates that 98% of all multi-
piece rims sold are used as original equipment. However,
there is nothing in the record to show that vehicle manufac-
turers, as opposed to wheel manufacturers, were involved in
the OSHA petition campaign. References to defendant
wheel manufacturer AMF were also absent from plaintiff's
documents, since AMF sold its truck rim subsidiary
(“Cleveland Welding Division”) to Budd in 1959.
At the December 10, 1982, hearing on the motion for
summary judgment, plaintiff argued that summary judgment
would be premature, since discovery was not complete.
Counsel for Goodyear replied that no amount of discovery
would disclose the identity of the manufacturer of the wheei
involved in the accident. In granting the motion in favor of
defendants, the trial court stated, “We're not talking about a
generic product that cannot be identified”. Rather, the court
concluded, “This is a case where the wheel that we're talk-
ing about disappeared”.
Prior to the grant of summary judgment, plaintiff moved
for leave to amend her complaint. She submitted a proposed
third amended complaint containing an allegation of civil
conspiracy, and a fourth amended complaint which
advanced a claim of “enterprise liability’. Hall v E 1
DuPont DeNemours & Co, 314 F Supp 353 (E D NY 1972).
At the hearing on the motions to amend, plaintiff conceded
“there’s no cause of action for conspiracy unless you've got
an underlying cause”. Plaintiff also requested reconsidera-
tion of the grant for summary judgment.
22a
Appendix C
Amended Opinion
The trial court denied leave to amend the compiaint
without comment. It also denied the motion for reconsidera-
tion, distinguishing Abel v Eli Lilly & Co, 94 Mich App 59;
289 NW2d 20 (1979), aff'd 418 Mich 311; 343 NW2d 164
(1984).
Alternative Liability
Plaintiff first contests the granting of the summary judg-
ment for defendants on plaintiff's alternative liability claim.
She argues that the theory of alternative liability applies
where a plaintiff, through no fault of his own, cannot iden-
tify the specific defendant responsible for his injuries.
The trial court did not specify the court rule underlying
its grant of summary judgment. It granted summary judg-
ment because the wheel would be identifiable if it were
available, basing this conclusion on plaintiff's admission and
defendant's affidavit. Since the court went beyond the plead-
ings in reaching its decision, the judgment will be reviewed
as granted pursuant to GCR 1963, 117.2(3). Under this court
rule, the nonmoving party must establish that it has a case
on the law and that there are some evidentiary proofs to
support its allegation as to any material fact. Durant v
Stahlin, 375 Mich 628, 638: 135 NW2d 392 (1965).
Substantial guidance is provided by the recent decision
in Abel, in which the Supreme “ourt expressed formal
approval of the theory of alternative liability. 418 Mich 329.
As noted by this Court in Greene v Union Optical Center,
95 Mich App 167, 171; 290 NW2d III (1980), “[iJn certain
situations, a plaintiffs burden of proof may be shifted to the
defendants where more than one defendant has been negli-
gent and the plaintiff is unable to prove which of the two
defendants caused his injury”. Prerequisite to such a shift,
plaintiff must show, first, that all defendants acted tor-
tiously; second, that plaintiff was harmed by one of the
na NA il lh yt tts ia
a
AN Ay stn A” a hl ne are
oe
23a
Appendix C
Amended Opinion
defendants; and, third, that plaintiff, “through no fault of
{his or her] own, [is] unable to identify which actor caused
the injury”. Abel, 418 Mich 331-332. Plaintiff fastens her
argument onto the latter language, ignoring iiie policy under-
lying alternative liability theory. That policy was clearly
stated by the Court in the Abel opinion:
“(The] reason for the exception to traditional rules is
to prevent the injustice of allowing proved wrongdoers to
escape liability for an injury inflicted upon an innocent
plaintiff ‘merely because the nature of their conduct
and the resulting harm made it difficult or impossible to
prove which of them has caused the harm.’ ” 418 Mich
327, citing 2 Restatement Torts, 2nd, §433B, Comment f,
p 446 (emphasis added).
In Abel, the plaintiffs alleged they were harmed by their
consumption of synthetic estrogens. 418 Mich 318. Their
inability to identify the specific manufacturer which caused
the harm resulted from the inherent nature of the product.
Once ingested, the medication was irretrievable for use as
evidence. Also, plaintiffs alleged that defendants used “a
generic marketing scheme to promote the product”. 418
Mich 336. In its decision in Abel, this Court noted the diffi-
culties posed by the number of defendants and by the length
of time between the ingestion of the allegedly defective drug
and the appearance of the damages. 94 Mich App 76.
In this case, however, the wheel assembly which gave
rise to the injury did not disappear, nor was its source ren-
dered unidentifiable by the defendants’ conduct. It remained
available for use as evidence and was, in fact, kept separate
from the wheel inventory of decedent’s employer for quite
some time. Plaintiff argues that the similarity of three-piece
rims renders them unidentifiable, but admits the wheel could
be identified if it were available. The interchange of parts
24a
Appendix C
Amended Opinion
between wheel rim manufacturers indicates only that more
than one manufacturer may have made the components in
question, not that the parts could not be identified. Plaintiff
further contends that the identifying stamp on the product
was probably obscured by dirt and corrosion, so the dece-
dent could not read it. This is sheer speculation, given the
‘unavailability of the evidence.
As to the vehicle manufacturers, plaintiff's claim of alter-
native liability is insufficient as well. Trucks are not generic
products posing identification difficulties. Plaintiff admits
she cannot identify the particular vehicle which was
equipped with the subject wheel assembly. In addition, she
cannot prove that the wheel was used as original equipment
on any of the trucks at decedent’s work place. The defend-
ant vehicle manufacturers are not in the business of making
three-piecé rims. Though a vehicle manufacturer may be
held liable for damages caused by defective component
parts supplied by another entity, Comstock v General
Motors Corp, 358 Mich 163; 99 NW2d 627 (1959), this duty
has not yet been extended to component parts added to a
vehicle subsequent to distribution. Assuming the existence
of a defect, plaintiff must “trace that defect in the hands” of
the defendant. Caldwell v Fox, 394 Mich 401, 410; 231
NW2d 46 (1975). “The threshold requirement of any product
liability action is identification of the injury-causing product
and its manufacturer.” Abel, 418 Mich 327. Failure of a com-
ponent not supplied by the manufacturer does not give rise
to liability on the manufacturer’s part. Antcliff v State
Employees Credit Union, 95 Mich App 224, 231-233; 290
NW2d 420 (1980), aff'd 414 Mich 624; 327 NW2d 814 (1982).
Concert of Action
Plaintiff next argues that the trial court erred in granting
summery judgment in favor of defendants on plaintiff's con-
cert of action claim. Plaintiff argues that she submitted doc-
25a
Appendix C
Amended Opinion
umentary evidence of the joint efforts and conscious
parallelism in the wheel industry, and that defendants acted
to direct government inquiry away from themselves.
Because the trial court relied on affidavits outside the
pleadings in granting summary judgment, we again review
the summary judgment as one granted pursuant to GCR
1963, 117.2(3). A motion for summary judgment pursuant to
this court rule should not be granted unless it is impossible
for the claim asserted to be supported by evidence at trial.
Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973).
The data which the trial court considers in ruling on the
motion are “affidavits, together with the pleadings, deposi-
tions, admissions and documentary evidence then filed in
the action or submitted by the parties’. GCR 1963, 117.3:
Rizzo, supra, p 373.
A plaintiff may proceed on the theory of concert of
action if he or she can prove “that all defendants acted
tortiously pursuant to a common design”. Abe/, 418 Mich
338. “Express agreement is not necessary, and all that is
required is that there be a tacit understanding.” Prosser,
Torts (4th ed), $46, p 292. “A concert of action case does
not require that the plaintiff be unable to identify the spe-
cific defendant who caused his injury.” Abel, 418 Mich 338.
Rather, each defendant “is jointly and severally liable for
the entire amount of damages, although he may be entitled
to contribution from his fellow tort feasors.” Abel, 94 Mich
App 73. “Even if defendant caused no harm himself, he is
liable for the harm caused by his fellows because all acted
jointly.” 94 Mich App 73. “. . . [T]Jo state a cause of action,
a plaintiff need only allege that the defendants were jointly
engaged in tortious activity as a result of which the plaintiff
was harmed.” Abel, 418 Mich 338, citing Walters v Sargent,
390 Mich 775; 210 NW2d 315 (1973), adopting partia! dissent
in Walters v Sargent, 46 Mich App 379, 384; 208 NW2d 207
(1973).
26a
Appendix C
Amended Opinion
in this case, the trial court did not give this claim the
individual consideration it deserved, but disposed of it on
the same basis as the alternative liability claim—failure to
identify the source of the wheel. As noted above, the identi-
fication problem is not a sine qua non of a concert of action
claim. Each defendant who acted jointly and tortiously is
liable, even though his conduct was not the direct cause of
the injury. Thus, in the context of this case, we hold that it
does not matter if the party causing the injury in fact is not
joined in the concert of action claim, since all those acting
in concert, named and unnamed defendants, are jointly and
severally liable for the entire harm. Abel, 94 Mich App 73.!
As discussed below, plaintiff is entitled to recover from
defendant wheel manufacturers on a concert of action the-
ory if she can prove that they acted tortiously pursuant to a
common design and that such action proximately caused the
injury. She can prove tortious activity pursuant to a common
design if she establishes that the wheel manufacturers, act-
ing jointly, breached their duty to warn of the danger posed
by their products (negligence or breach of implied warranty
theory). See Smith v E R Squibb & Sons, 405 Mich 79; 273
NW2d 476 (1979). She can also recover if she can prove that
the wheel manufacturers, acting jointly, manufactured/mar-
keted an unreasonably dangerous product (negligence or
negligent design theory). See Owens v Allis-Chalmers Corp,
414 Mich 413; 326 NW2d 327 (1982); Moning v Alfono, 400
Mich 425; 254 NW2d 759 (1977). A showing by plaintiff that
there is some evidence supporting these claims would pre-
clude summary judgment. Rizzo, supra.
!Although each defendant tortfeasor who acts in concert is jointly
and severally liable, the plaintiff may join others in the suit who also
engaged in such « sduct, GCR 1963, 206.1, and defendants may seek
contribution after juugment. MCL 600.2925a; MSA 27A.2925(1); Abel, 94
Mich App 73. The defendant may also implead nonjoined tortfeasors as
third party defendants and seek contribution. GCR 1963, 204.
27a
Appendix C
Amended Opinion
Plaintiff made a sufficient showing that defendant wheel
manufacturers acted jointly in failing to warn of a danger in
their products to survive their summary judgment motion.
Plaintiff submitted an affidavit and other data to show that
the wheels and the mismatch of wheel components posed a
danger, and that the defendants were aware of the numerous
incidences of death and injury resulting from wheel explo-
sions. The record does not establish that plaintiff had any
warning whatsoever from the wheel manufacturers, or that
any of these manufacturers were in the practice of supplying
warnings to those affected by the use of their products.
Although defendants argue that their products are safe when
used properly, and that they took adequate measures to
warn those working with the wheels, these arguments relat-
ing to the reasonableness of their conduct are for the trier of
fact. Smith, supra, pp 88-90; Dunn v Lederle Laboratories,
121 Mich App 73, 79-80; 328 NW2d 576 (1982), lv den 417
Mich 1098 (1983). By engaging in the joint OSHA petition
campaign, the wheel manufacturers arguably proposed a
government role to relieve themselves of their duty to warn
those working with the multi-piece rims.
Plaintiff provided documentation showing that the multi-
piece rims manufactured/marketed by the wheel manufac-
turers were dangerous, and that the manufacturers knew of
the danger posed by their products and the mismatch of
components of their products. Plaintiff might submit proofs
at trial that all three-piece rims posed risks “unreasonable
in light of the foreseeable injuries’. Owens, supra, p 425.
Plaintiff also showed that, rather than change the design of
2Defendants are correct insofar as the OSHA petition campaign can-
not be viewed as tortious activity. Nonetheless, the same activity indi-
cates an awareness of the wheel industry as a whole of the gravity of the
problem and could be interpreted as a cooperative effort to avoid respon-
sibility for the :.sks posed by multi-piece rims.
28a
Appendix C
Amended Opinion
the rims or the rim components, the wheel manufacturers
acted jointly in exchanging information and composing
charts to show which products were safely interchangeable
and which were not. This conduct, as well as the OSHA
petition campaign, could indicate a tacit understanding and
mutual encouragement to refrain from taking more reason-
able steps to prevent the danger posed by the multi-piece
wheel rims.
In addition, plaintiff would have to establish that the
above alleged tortious activity engaged in by the wheel man-
ufacturers proximately caused the injury. Although the
explosion of the multi-piece rim caused decedent’s death in
fact, the question of proximate cause is whether or not the
conduct of the wheel manufacturers was so significant and
important a cause that they should be legally responsible.
Moning, supra, p 438. Although proximate cause is a ques-
tion of law where there are no factual disputes, Moning,
supra, pp 438-439, in a negligence action (which is essen-
tially the underlying tortious activity of plaintiff's concert of
action claim), any doubts about the relationship between
cause and effect should be resolved by the trier of fact.
Fiser v City of Ann Arbor, 417 Mich 461, 475; 339 NW2d 413
(1983). Summary judgment can only be granted if reasonable
persons could not differ in finding that the wheel manufac-
turers’ conduct was not a proximate cause of the injury.
Fiser, supra, p 470; Davis v Thornton, 384 Mich 138,
142-146; 180 NW2d 11 (1970). Because summary judgment for
deiendant wheel manufacturers was not granted on this
ground, we leave this question for the trial court.
Although plaintiff made a sufficient showing to survive a
motion for summary judgment on her concert of action
claim against the wheel manufacturers, she did not do so
with respect to AMF. There was no indication that defend-
ant AMF acted pursuant to a common design of the other
29a
Appendix C
Amended Opinion
defendants prior to sale of its wheel manufacturing division
in 1959. Thus, the trial court was correct as to AMF, but
erred in granting summary judgment pursuant to GCR 1963,
117.2(3), in favor of the other wheel manufacturers.
Plaintiff's concert of action claim against the vehicle
manufacturers is not supported by any showing that they
acted jointly with the wheel manufacturers. The purchase of
wheels for use as original equipment on their vehicle is not
sufficient for a finding of concert of action. ““One who inno-
cently, and carefully, does an act which furthers the tortious
purpose of another is not acting in concert with him.” Pros-
ser, supra, p 292. Thus, the grant of summary judgment for
defendant vehicle manufacturers was proper.
Leave to Amend
Plaintiff finally argues that the trial court erred by deny-
ing plaintiff leave to amend her complaint. In her proposed
third amended complaint, plaintiff sought to add allegations
of civil conspiracy. Plaintiff also submitted a proposed
fourth amended complaint, alleging “enterprise liability”.
Leave to amend a complaint “shall be freely given when
justice requires”. GCR 1963, 118.1; Midura v Lincoln Con-
solidated Schools, \11 Mich App 558, 562; 314 NW2d 691
(1981). The grant or denial of the motion to amend is within
the discretion of the trial court. McCalla v Richard Ellis,
129 Mich App 452; 341 NW2d 525 (1983). Furthermore, sum-
mary judgment does not preclude amendment of the com-
plaint. Midura, supra, p 56. However, failure to grant leave
to amend is not reversible error where the pleadings as
sought to be amended still fail to state a claim. Zimmerman
v Stahlin, 374 Mich 93, 96; 130 NW2d 915 (1964); Crosby v
City of Detroit, 123 Mich App 213, 223; 333 NW2d 557
(1983).
30a
Appendix C
Amended Opinion
Conspiracy
“A conspiracy is a combination of two or more persons,
by some concerted action, to accomplish a criminal or
unlawful purpose, or to accomplish a purpose not unlawful
by criminal or unlawful means.” Fenestra v Gulf American
Land Corp, 377 Mich 565, 593; 141 NW2d 36 (1966) (empha-
sis added). An allegation of civil conspiracy, standing alone,
is not actionable; Magid v Oak Park Racquet Club Assocs,
Limited, 84 Mich App 522, 529; 269 NW2d 661, /v den 404
Mich 805 (1978).
In this case, plaintiff's proposed third amended com-
plaint contained no allegation that defendants employed
unlawful methods to attain a lawful end. The group activities
listed by plaintiff were entirely lawful. On the other hand,
the unlawful purposes alleged were largely polemic restate-
ments of plaintiff's concert of action allegations. Plaintiff's
conspiracy claim boiled down to the allegation that the
defendants “conspired to act in concert”. This claim lacks
meaning without an underlying tortious or ciminal activity.
“Concert of action” cannot be the tort or unlawful action
underlying a conspiracy claim. Concert of action is itself a
claim which, like conspiracy, cannot exist independently of
an underlying tortious act.
Furthermore, of the specific allegations in the proposed
pleadings, only one, defendants’ inhibition of product identi-
fication, approached the level of intent or agreement requi-
site to a conspiracy claim. Conspiracy entails ‘‘an
agreement, or preconceived plan, to do an unlawful act”.
Bahr v Miller Bros Creamery, 365 Mich 415, 427; 112 NW2d
463 (1961). However, plaintiff's allegation of an agreement to
inhibit product identification suffers from the absence of an
unlawful purpose. Plaintiff does not specify why it is
unlawful to inhibit product identification in the absence of a
statute requiring clear identifying marks on a product. It is
3la
Appendix C
Amended Opinion
not enough that plaintiff simply asserts a conclusion. Pre-
lesnik v Esquina, 132 Mich App 341; 347 NW2d 226 (1984).
Thus, the proposed pleading is lega!ly insufficient on its
face. Fyke & Sons v Gunter Co, 390 Mich 649, 660; 213
NW2d 134 (1973).
We find that the trial court did not abuse its discretion
by refusing plaintiff leave to file her third amended com-
plaint containing the conspiracy claim.
Enterprise Liability
¢ so the trial court correctly denied leave to file the
proposed fourth amended complaint, since enterprise lia-
bility is not recognized in Michigan. Abel, 418 Mich 336-337.
The amended complaint would still have failed to state a
claim. Zimmerman, supra.
This case is reversed and remanded for trial of plaintiff's
concert of action claim against the wheel manufacturers,
except defendant AMF. In all other respects, the judgment
is affirmed.
Afiirmed in part, reversed and remanded in part.
/s/ Roman S. Gribbs
/s/ Harold Hood
/s/ Richard M. Maher
APPENDIX D
32a
Appendix D
Order
ORDER
AT A SESSION OF THE SUPREME COURT OF THE
STATE OF MICHIGAN, Held at the Supreme Court Room,
in the City of Lansing, on the 24th day of June in the year
of our Lord one thousand nine hundred and eighty-five.
Present the Honorable
G. MENNEN WILLIAMS,
Chief Justice
CHARLES L. LEVIN,
JAMES L. RYAN,
canes JAMES H. BRICKLEY.
15734 MICHAEL F. CAVANAGH,
PATRICIA J. BOYLE,
DOROTHY COMSTOCK RILEY,
Associate Justices
THELMA CousiNneAu, Personal
Representative of the Estate
of MARK COUSINEAU,
Plaintiff-Appellee, SC: 75652, 75653, 75734
COA: 69363
Vv LC: 80-939-185-NP
Forp Moror Company, a foreign
corporation, INTERNATIONAL
HARVESTER COMPANY, a foreign
corporation, Ke_sey Haves
CORPORATION, a foreign
corporation, FRUEHAUF
CORPORATION, a foreign
corporation, and AMF, INnc.,
a foreign corporation,
Defendanis,
and
Goopyvear Tire & RusBer Company,
a foreign corporation, THE Bupp
COMPANY, a foreign corporation,
and Firestone Tire & RUBBER
CompPANyY, a foreign corporation,
Defendants-Appellants.
33a
Appendix D
Order
On order of the Court, the applications for leave to
appeal are considered, and they are DENIED, because we
are not persuaded that the questions presented should now
be reviewed by this Court.
STATE OF MICHIGAN — ss.
I, CORBIN R. DAVIS, Clerk of the Supreme Court of
the State of Michigan, do hereby certify that the foregoing is
a true and correct copy of an order entered in said court in
said cause: that I have compared the same with the original,
and that it is a true transcript therefrom, and the whole of
said original order.
IN TESTIMONY WHEREOF, I have here-
unto set my hand and affixed the seal of
said Supreme Court at Lansing this 24th
day of June in the year of our Lord one
thousand nine hundred and eighty-five.
(s) Jacqueline B. MacKinnon
Deputy Clerk
APPENDIX E
34a
Appendix E
Rim Photos
a
RIM BASE LOCK RING
SIDE RING
PHOTO A
35a
Appendix E
Rim Photos
LOCK
RING
RIM BASE
PHOTO B
APPENDIX F
36a
Appendix F
Federal Register — Rules and Regulations
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Tuesday
January 29, 1980
Part IV
Department of Labor
Occupational Safety and Health
Administration
Servicing Multi-Piece Rim Wheels;
Procedures
37a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
FEDERAL REGISTER — RULES AND REGULATIONS
(JANUARY 29, 1980)
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1910
Servicing Multi-Piece Rim Wheels
AGENCY: Occupational Safety and Health Administration,
U.S. Department of Labor.
ACTION: Final standard.
SUMMARY: By this final standard the Occupational Safety
and Health Administration (OSHA) establishes procedures
for the servicing of multi-piece rim wheels fitted on vehicles
used on and off highways. Multi-piece rim wheets consist of
two or more detachable rim components, one of which is a
side or locking ring designed to hold the tire on the rim
base when the tire is inflated. These wheels are used on
motor vehicles, such as trucks, trailers, buses and motor
homes, for either on-highway or off-highway usage. The
major hazard in servicing multi-piece rim wheels is the pos-
sibility of an employee being struck by a wheel component
which has been thrown from an inflated wheel during an
unintended explosive separation. This standard includes
requirements for training of all tire servicing employees,
establishment of a safe practice procedure for servicing
multi-piece rim wheels, use of restraining devices and crite-
ria for interchangeability of rim components.
EFFECTIVE DATE: This standard will become effective
April 28, 1980.
FOR FURTHER INFORMATION CONTACT: William
Simms, Occupational Safety and Health Administration,
Room N-3106, U.S. Department of Labor, Washington, D.C.
20210, Telephone: (202) 523-8126.
38a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
SUPPLEMENTARY INFORMATION: For additional copies
of this regulation contact: OSHA Office of Publications,
U.S. Department of Labor, Room S-1212, Washington, D.C.
20210, Telephone: 202-523-8677.
A. Background
1. Multi-piece Rims
Multi-piece rims are used in conjunction with tube-type
tires, most frequentiy on trucks, tractors, buses, trailers,
campers and off-highway type vehicles. Multi-piece rims
consist of two or more components which, when assembled
and the tire is inflated, are held together by the force of the
air pressure in the tire. Multi-piece rims may consist of up
to five or six components on large wheels for off-the-road
vehicles.
A multi-piece rim consists of a rim base, the largest part
of the metal structure supporting the tire, and one or more
detachable side rings serving as a flange to keep the inflated
tire on the rim base. The rim base, side ring, lock rings, and
tire are collectively referred to as a “wheel.”
For multi-piece rims, the rim base and the side or lock-
ing rings are the primary components which support the
tire’s bead. This is referred to as a split side ring in two
piece assemblies and a solid side ring and split lock ring in
three piece assemblies. In the case of two piece assemblies,
the circumferentially continuous outer small component is
termed a side ring. (See Society of Automotive Engineers,
SAE J393, which defined rim terminology.)
There are basically four multi-piece wheel designs. In
the first design (exemplified by Goodyear’s “KW” type rim)
the rim base is split radially and the side ring is circum-
ferentially continuous. In the second design (exemplified by
Firestone’s, Kelsey’s and Budd’s “RHS5S°” and “KL” rims)
both the rim base and the side ring are circumferentially
39a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
continuous. The third type rim (exemplified by Goodyear’s
“LW” type rim) is a two piece assembly composed of a
demountable rim base and a split side ring. The fourth
design in the larger sizes (exemplified by Firestone’s “Com-
mander 5°” rim) is a three piece assembly composed of rim
base, a side and a lock ring.
2. History of the Regulation
OSHA concern for developing a standard to protect
employees engaged in servicing multi-piece rim wheels was
initiated by an internal report of “Hazards Not Covered by
a Standard” from OSHA field personnel in the Louisville,
Kentucky office. This was followed by a similar report from
OSHA field personnel in Columbus, Ohio.
Since these reports were received, OSHA has monitored
reports of accidents and injuries related to multi-piece rim
wheels. In addition, petitions for the promulgation of a stan-
dard relating to the servicing of multi-piece rim wheels were
submitted to OSHA in 1976 by the Rubber Manufacturers
Association (RMA) and the Firestone Tire and Rubber Com-
pany. The National Highway Traffic Safety Administration
(NHTSA), U.S. Department of Transportation (DOT), stated
its support for the promulgation of such a standard and has,
by writen request, urged OSHA to regulate the servicing of
multi-piece rim wheels in the workplace.
NHTSA is currently investigating the safety hazards
associated with the use of multi-piece rims. It issued an
advance notice of proposed rulemaking on March 5, 1979
(44 FR 12072) to determine whether to require certain per-
formance levels for tire and rim component retention and
whether to ban the production of multi-piece rims.
NHTSA’s actions are not directed at working conditions of
employees and therefore are not an exercise of statutory
authority by a federal agency under Section 4(b)(1) of the
40a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
Occupational Safety and Health Act which would preempt
action by OSHA.
NHTSA does not intend that its regulations displace
OSHA’s coverage of tire servicing personnel. NHTSA has
articulated this intent by that agency’s recognition that
numerous accidents occur because of improper servicing,
coupled with NHTSA’s formal request that OSHA promul-
gate a standard for servicing of multi-piece rims in the
workplace [Ex. 2: (30-17)].
On April 24, 1979, after a review of the available data,
OSHA published a proposed permanent standard for the
servicing of multi-piece rim wheels (44 FR 24252). The pro-
posal contained requirements for training of all tire servicing
employees, establishment of safe operating procedures for
servicing multi-piece rim wheels, use of restraining devices
and criteria for serviceability and interchangeability of rim
components. A period for receipt of written comments on
the proposed standard and issues raised therein was estab-
lished, extending through July 6, 1979.
To assist participants in preparing their written com-
ments and to give interested persons an opportunity to
obtain clarification of the proposal, OSHA scheduled a pub-
lic meeting for June 19, 1979, more than two weeks prior to
the end of the comment period. During the meeting several
participants submitted further comments on the proposed
standard. A transcript of the meeting was prepared and is
part of the record of this rulemaking.
Fifty-nine written comments were received by the end of
the comment period. Most of the comments favored the
adoption of the proposed standard in principle. A number of
comments offered recommendations for minor modification
of certain of the ‘isions of the proposal. There were no
requests for a hea ing under section 6(b)(3) of the OSHA
Act.
4la
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
A Regulatory Assessment was prepared in accordance
with Executive Order 12044 (43 FR 12661. March 24, 1978),
and was made available to the public, as noted in the pream-
ble to the proposed standard (44 FR 24246). (See Section D,
Regulatory Assessment, below). Opportunity was given to
interested persons to comment on the subject matter and
contents of that report.
This final standard on servicing of multi-piece rim
wheels is based on a full consideration of the entire record
of the rulemaking proceeding including the materials relied
on in the proposal, the transcript of the public meeting, and
ail written comments and exhibits received. All materials in
the record are available for public review and copying at the
OSHA Docket Office. Room $6212, U.S. Department of
Labor, 3rd Street and Constitution Avenue, NW., Wash-
ington, D.C. 20210, telephone (202) 523-7894.
3. Hazards
Although accidents may occur at any time when han-
dling multi-piece rims, the primary danger arises during the
process of inflating the tire. An inflated tire is a high pres-
sure vessel; for example, a popular size 10.00 x 20 tire
when inflated at 105 pounds per square inch gauge (psig)
(7.38 kg/cm?) creates a force in excess of 40,000 pounds
(18,144 kg) against the rim flange. This force, according to
test data provided by the Insurance Institute for Highway
Safety (IIHS), accelerated a locking ring to 130 mph (209
km/hr) and raised a 215 pound (97.5 kg) anthropomorphic
dummy 10 feet (3.05 m) upward from a wheel resting hori-
zontally on the pavement.
The principal hazard in mounting, installing, storing, and
handling multi-piece rim wheels arises when they are
assembled together and the unit is inflated to its required
pressure or beyond. If a component is not set or seated in
42a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
its proper position in relation to the other components, the
rings or the removable flanges may separate violently from
the assembly. Such separation may cause lock rings, or
other components to be hurled violently through the air,
with the likelihood of striking a person and causing serious
injury or death. Such accidents are most likely to occur
while a tire that has ,ust been mounted on a rim is being
inflated or immediately after it has been inflated.
Accidents that have caused the greatest number of inju-
ries appear to have been due to improper mounting, use of
damaged parts, or mismatch of component parts. Accidents
may also occur because of overinflating the tire or striking
the lock rings or rims with a hammer. Many accidents
appear to have resulted from a iack of knowledge on the
part of the employee servicing the tire as to proper handling
techniques and the dangers involved in servicing multi-piece
rim wheels. In written comments, the State of North Car-
olina said, “A large portion of the accidents, injuries, and
fatalities related to multi-piece rim wheels are traceable to
untrained, inadequately trained, or improperly trained per-
sonnel.” [Ex. 3: (21)]
4. Accident Data
Incidents which result in a serious or fatal injury to a
mechanic engaged in servicing a multi-piece rim wheel often
are only reported locally. Therefore, the data available is
believed to be limited to only a portion of the total injuries
and fatalities which occur. The May 1974 issue of “Learn
and Live,” a monthly publication of the Industrial Safety
Division of the Florida Department of Commerce, reported
that the fatality toll in Florida from servicing multi-piece
rims had risen to eleven over a period of ten and one half
years. By the end of 1978, the toll had risen to fifteen.
43a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
On September 28, 1973, NHTSA’s Office of Defects
Investigation issued a report on its investigation of multi-
piece rim failures (ODI Case No. 215). This report covered
29 accidents due to improper assembly procedures that
resulted in serious injury or a fatality, involving KB and KW
type wheels. The report indicated that many of the shop
personnel who worked with the multi-piece rims in question
may not have been aware of all the safety precautions to be
followed when mounting or demounting these wheels.
On December 21, 1973, NHTSA issued a report on its
investigation of RH5° wheel failures (ODI Case No. 150) that
included investigation of 81 incidents which resulted in
serious injury or fatality to employees engaged in servicing
these wheels. This report recommended several courses of
action which included discontinuance of the manufacture of
this type of wheel; development and distribution of a poster
illustrating the safety precautions to be used during multi-
—~ piece rim wheel assembly; and development and distribution
of a matching chart showing the compatibility of parts of
multi-piece rim wheels produced by different manufacturers.
(NHTSA developed a safety precautions chart, and multi-
piece rim wheel matching chart, after their report was
issued. The contents of these charts are utilized by OSHA
in the training and servicing provisions of this final
standard.)
In addition to the pre-1973 accident reports supplied in
the NHTSA investigations OSHA’s Office of Management
Data Systems and Statistical Coordination received reports
of 10 fatal accidents involving servicing of multi-piece rim
wheels which occurred during 1976 and 1977. These data
were compiled from workers’ compensation reports from 10
states.
Data supplied by RMA which are listed in Table 3-2 of
the Regulatory Assessment indicate that 13% of all multi-
piece rim accidents result in fatalities, 63% result in injuries
and property damage, and no-injury accidents constitute the
\ 44a
Appendix F
Feder..! Register — Rules and Regulations
(January 29, 1980)
remaining 24% of the 165 cases reported for the years
1972-1975. Similarly, IIHS data indicate that fatalities con-
stitute 18%, injuries 67% and property damage and no-injury
accidents represent the remaining 15% of the 241 cases
reported for the years 1968-1977. Neither data base is con-
sidered totally representative of the nation because the
actual number of split-rim accidents is not ascertainable. nor
can the annual frequency of occurrence be predicted with a
high degree of accuracy. Since the reported accidents do not
represent a statistical sampling, but are only cases known to
each organization, these numbers are considered to repre-
sent a lower limit of accident experience.
A review of accident descriptions provided by ITHS indi-
cates that 53% of accidents under OSHA jurisdiction have
occurred while the tire was being mounted/demounted, 31%
while the wheel was being installed/removed and the
remainder (16%) when the wheel was being handled or
moved. Five of the 241 accidents that were evaluated.
occurred while a safety cage or restraint was being used. A
breakdown of the 16% category of accidents which occurred
during handling indicates that numerous accidents occurred
while moving an inflated tire in the service area. measuring
tire pressure, removing the valve core or simply while an
inflated tire was stored at rest. In some cases. multi-piece
wheels being serviced expleded and either injured or killed
experienced tire service personnel. However, it would
appear that in many cases, these employees had never
received any training, nor had they ever been informed of
the inherent hazards and the safety practices to be followed.
Although the data presented may not be Statistically rep-
resentative of all multi-piece wheel accidents, they provide
an insight into the relative frequency of fatalities and inju-
ries. Injuries have not been classified into categories of
severity, but an examination of IIHS accident reports sug-
45a
Appendix F\
Federal Register — Rules and Regulations
(January 29, 1980)
gests the existence of a very high proportion of fatalities and
severe injuries, including many permanent disabilities.
Until now, there have been no specific OSHA general
industry standards that apply to the handling and servicing
of multi-piece rims. In the construction safety and health
standards, § 1926.600(a) requires that a tire rack, cage, or
equivalent protection be provided and used when inflating
tires on multi-piece rims. Section 1926.600 is not affected by
the standard being published today.
B. Summary and Explanation of the
Standard and Major Issues
The following section discusses the individual require-
ments of the multi-piece rim wheel standard, including anal-
ysis of the major issues raised during the proceeding, the
record evidence and the policy considerations underlying
the various provisions of the standard.
The final standard sets requirements for training of all
tire servicing employees, safe practice and procedures and
the use of restraining devices. These and other portions of
the standard, including those on criteria for interchange-
ability of rim components have been revised and clarified
from the proposal as described in detail below.
The language of the standard essentially follows that of
the proposal except for revisions based on OSHA’s review
of the entire rulemaking record, including written comments
and testimony submitted at the public meeting.
Virtually all persons who participated in the rulemaking
by submitting comments and/or appearing at the public
meeting agreed with OSHA’s determination that the prin-
cipal causes of accidents involving multi-piece rim wheel
separations could be eliminated by proper training of
employees, availability and utilization of restraining devices
and necessary tools and equipment and adherence to recom-
mended safe procedures.
46a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
(1) Scope-paragraph (a). This standard is intended pri-
marily to provide protection to employees engaged in servic-
ing of multi-piece rim wheels used on trucks, buses or other
large vehicles. It applies also to the servicing and mainte-
nance of all other multi-piece rim wheels, wherever they are
used. Workplaces covered by the construction industry stan-
dards are subject to § 1926.600, and are not intended to be
covered by the general industry standard published today.
The proposed standard would only have covered the ser-
vicing of rims 16 inches or greater in diameter. However, the
rulemaking record clearly indicates that the danger of an
unintended explosive separation of a multi-piece rim wheel
exists for rims less than 16 inches as well.
The Michigan Department of Labor reported one fatality
and three severe injuries which occurred when multi-piece
rim wheels less than 16 inches (40.6 cm) in diameter were
being serviced. [Ex. 3:(8)]. In addition, IIHS stated in its
comments regarding the scope of the proposal that
the concept that smaller multipiece [sic] rims are some-
what different, is generally not true. All multipiece [sic]
rims depend upon the same balance of interlocking
metal components. [Ex. 3: (23)]
Comments were submitted documenting the general use
of smaller, multi-piece rim wheels on trailer which transport
cars, livestock and furniture, as well as “bob-tailed” tractors
used to haul mobile homes. [Ex. 3:(13)]. Several manufac-
tures, including The National Wheel and Rim Association
and Firestone Tire and Rubber Company, also recommended
changes in the scope of the standard, based on the fact that
15 inch (38.1 cm) rims are used in significant numbers. [Ex.
3:(18); 3:(33); 3:(39)] Accordingly, the standard’s scope has
been modified to apply to the servicing of all multi-piece rim
wheels without regard to their size, as along as they contain
a lock ring or side ring. This provision reflects the deter-
47a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
mination that it is the assembly of multiple pieces and not
the size of the wheel which is relevant to the explosion
hazard.
Severs’ comments recommended that the scope of the
standard should include aircraft wheels, which consist of
more than one piece. [Ex. 3:(5); 3:(6)] However, a review of
manufactures’ descriptive rim and wheel material and field
visits to commercial and military airports have revealed that
aircraft wheels are not similar to the “‘multi-piece rim
wheels” covered by the standard. Aircraft wheels consist of
a two-piece disk design with mounting bolts to hold the two
halves together. [Ex. 3:(37)] They do not have locking rings,
and do not use the air pressure of the tire to hold the rim
components together. In addition, different tools and pro-
cedures are required for bolted wheels. Therefore, boited
wheels do not present the type or degree of explosion haz-
ard addressed by this standard. [Ex. 3:(44)] This standard
will only cover multi-piece rim wheels containing a lock
ring, or side ring and base. In order to clarify the scope in
this regard the proposed definition of multi-piece rim wheels
is being revised in the final standard. (See discussion of
paragraph (b) “Definitions”, below).
(2) Definitions-paragraph (b). The definitions are stated
as commonly used in the tire industry; however, some have
been modified slightly to accommodate the regulatory nature
of this standard.
Throughout the relevant literature, the term “mounting”
has two different meanings. In one case, “mounting” a tire
means assembling a tire with an appropriate rim anc tube,
while in the other case it means attaching a wheel to an
axle. A review of nationwide accident reports indicates that
the word “mounting” is used in both senses throughout the
United States. For the purposes of this standard, OSHA
uses the terms “mount and demount a tire” to mean the
assembly and disassembly of a wheel and its components.
48a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
“Install and remove a wheel” means to attach and remove
an assembled wheel to/from a vehicle axle hub. This choice
of definitions lessens the possibility of confusion associated
with the “demounting a tire” vs. “dismounting a wheel”
usage, while still conforming to NHSTA and tire manufac-
turer terminology. The term “dismounting” is not used in
this standard, but is replaced with “removal.”
In order to clarify the scope of the standard, as noted
above, the proposed definition of a multi-piece rim wheel is
being changed. As defined in the proposal, a multi-piece rim
wheel is a vehicle wheel rim consisting of two or more
parts, at least one of which is detachable, designed to hold
the tire in place on the rim. To clarify that this standard
does not cover the types of multi-piece rim wheels that are
bolted together, [Ex. 3:(4); 3:(37)], this definition is revised
in the final standard to read as follows:
“Multi-piece rim” means a vehicle wheel rim con-
sisting of two or more parts, one of which is a side or
locking ring designed to hold the tire on the rim by
interlocking components when the tube is inflated.
regardless of the sizes of the component parts.
The proposed definition of a “rim manual” is being clar-
ified and amended to provide that any manual which con-
tains appropriate instructions and safety precautions from
the manufacturer or other qualified organization is accept-
able as a rim manual. OSHA agrees with the comments
which stated that the definition in the proposal was too
restrictive, since it might have been interpreted as being
limited to a publication supplied directly by the
manufacturer.
The term “charts” is used in the final standard instead of
the term “wall charts” because of the many formats in
which the necessary information may be found. In addition,
because multi-piece rim wheels are serviced frequently at
49a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
remote locations away from the employer's premises, the use
of the term “wall charts” might be confusing in instances
where there are no “walls” in the service area.
The proposed definition of “wall charts” was limited to
the DOT wall charts on matching rim components and on
safety precautions, and other publications containing the
same instructions as these two charts. The definition is
revised in the final standard to clarify that the term includes
all publications, whether or not published by DOT, which
contain at a minimum the same instructions as the DOT
publications, for the type of multi-piece rim wheel being
serviced.
Several comments stated that the proposed definition of
the “service area” was too narrow, in that it did not take
into account the remote locations (away from the employer's
premises) where multi-piece rim wheels are routinely and
frequentiy serviced. OSHA recognizes that the servicing
activity at these remote locations is at least as hazardous as
at the employer’s premises, that the operations conducted
are essentially the same, and that the same training, tools
and procedures are applicable. In view of the above, the
final standard has been modified to define a service area as
any location where a multi-piece rim wheei is serviced.
OSHA recognizes that this change in the definition of serv-
ice area may create a greater demand for portable restrain-
ing devices. However, such devices are readily available.
[Ex. 2:(3); 3:(21); 3:(59)] (See Regulatory Assessment pp.
19-23.)
The term “trajectory path” has been redefined. A review
of the accident reports has revealed that because of the
nature of an explosive separation of a wheel, the direction
of the separated rim components is not entirely predictable.
Therefore, the proposed definition has been changed to indi-
cate that the trajectory is the potential path a component
may be expected to follow and that it may deviate from the
50a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
perpendicular. Likewise Appendix A has been changed to
reflect possible trajectories but in no way is meant to limit
the trajectory to those illustrated.
The term “trajectory path” is being revised to “trajec-
tory,” since the added word “path” would be redundant.
(3) Training—paragraph (c). The standard requires every
employee who services multi-piece rim wheels to be trained
by the employer in proper techniques and practices applica-
ble to the type of wheel being serviced. Training is required
because many tire mechanics do not understand the poten-
tial danger involved in servicing multi-piece rim wheels, and
because of the need to remind employees of the hazards and
appropriate measures. The need for training is substantiated
by a review of accident cases in which there appears to be a
lack of knowledge of safe operating practices.
Firestone Tire and Rubber Company said, “In our view,
training is the only method to ensure the safety of those
who will be working with truck and bus \tires and rims.”
[Ex. 3:(33)]
OSHA considers that training, in conjunction with the
use of a restraining device and clip-on chuck, can contribute
significantly to a reduction of accidents.
This standard does not specify the details of the training
program, but simply requires the development and mainte-
nance of employee proficiency in given elements of servic-
ing. A mechanic’s levei of proficiency can be established by
demonstration of his familiarity with and ability to use the
information contained in the charts and in this standard.
The training provisions of the standard are stated in per-
formance language, allowing the employer flexibility in com-
plying with the requirement for training. This places the
burden of providing adequate training and the responsibility
for evaluating the employee’s proficiency solely on the
employer. Employees are adequately trained if they have
Sla
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
thorough knowledge of and can apply the information con-
tained in the charts and in this standard.
The proposal contained no explicit requirement that an
employee who demonstrates his ability to service multi-
piece rim wheels must maintain that ability. This omission is
remedied in the final standard. It is clear that an employee
must maintain his ability to service multi-piece rim wheels
as long as he is involved in this work.
Virtually all of the comments concurred that proper
training of employees is a necessary prerequisite to a safe
operation. Goodyear Tire and Rubber Company stated that
nroper and thorough training is essential toward achiev-
ing a reduction in the rate of accidents. In view of the
consequences of improper handling and technique, this
training must be as specific as possible, and should be
embodied within a weli-defined procedure. [Ex. 3:(40)]
Others commented that specific training criteria be
developed. Suggestions included on-the-job training: requir-
ing a refresher course once a year; maintaining a record of
training for each employee; and having employees sign a
statement acknowledging receipt of this training. [Ex. 3:(18);
3:(21); 3:(25)]
OSHA has considered the fact that some employees may
need relatively little training and practical experience to
grasp the proper methods, techniques and practices and
would need little or no periodic refresher training. Others
may require additional initial training and periodic refresher
training to retain their knowledge of safe methods and
procedures.
In the final standard, the training requirement has been
revised to assure that an employee receives sufficient train-
ing to enable him to safely perform the tasks which are
involved in servicing multi-piece rim wheels. In addition to
the initial training required in the proposal, the final. stan-
S2a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
dard places a continuing obligation on the employer to eval-
uate the capability of his employee and conduct additional
training as necessary to assure that the employee maintains
his competence at servicing multi-piece rim wheels. This not
only insures that the initial training was effective, but also
provides a means of determining the need for remedial or
refresher training.
(4) Tire servicing equipment—paragraph (d). The unin-
tended explosive separation of multi-piece rim wheel com-
ponents is the primary cause of most occupational accidents
associated with these wheels. A majority of the accidents
under OSHA jurisdiction have occurred while the tire was
being inflated following assembly. Accordingly, a significant
reduction of injuries can be attained through use of a
restraining device, such as a cage, specifically designed to
protect employees from lethal airborne wheel components.
An accepted practice for employee protection is to use a
cage surrounding the wheel in such a manner as to prevent
any wheel component from being hurled beyond the cage
boundaries. The standard requires use of a restraining
device while inflating a tire off the vehicle, except that a tire
may be infiated to 3 psig (.21 kg/cm?) without a restraining
device for the sole purpose of seating the wheel compo-
nents. (See discussion on safe operating procedures, para-
graph (f)).
Due to the magnitude of forces associated with a wheel
separation, strength requirements for restraining devices are
necessary. Specifying these requirements necessitates know-
ing the amount of potential energy stored in the compressed
air of a tire that will be transferred to the restraining device
during a separation. For example, an analysis of high speed
film in which the rim base gutter cone angle was machined
to favor an explosive separation indicated that 8,200 ft.-Ibs.
(11,119 Joules) of energy was released when a 10.00 x 20 test
tire was inflated to 105 psig (9.38 kg/cm2). Calculations of
S3a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
the total pneumatic energy in the tire indicated 75,000 ft.-
Ibs. (101,700 Joules) of available potential energy. After the
energy transfer is determined for a particular size wheel,
selection of an appropriate factor of safety will lead to a
properly-designed restraining device for use with that wheel.
OSHA proposed that the generally accepted minimum
factor of safety, 1.5 for machinery, be used for the largest
wheel that a restraining device could hold. Several com-
ments recommended that such design details for speci'c
restraining devices be certified by professional engineet .
[Ex. 3: (10); 3: (35); 3: (40);]. Another comment recom-
mended that the design be specified only by the perfor-
mance objective rather than by detailed design specifica-
tions which may become obsolete as technology changes.
[Ex. 3: (47)]
The proposed requirement for restraining devices to be
capabie of withstanding a force of 150% of the maximum tire
size that the device can hold is revised in the final standard.
Although a safety factor is necessary, it does not appear
practical to require an employer to have a cage designed to
withstand an impact several orders of magnitude beyond
that which would ever be encountered during its use. Some
restraining devices are built so that their capacity (the size
of tire capable of being held) is greater than the size tire
actually used in the device. This is usually done to ease the
job of manuai tire handling by providing extra room within
the device. If the device had to be strong enough to restrain
the explosive force of any tire capable of being held in the
device, as required in the proposal, the device might be
unnecessarily heavy, thereby exposing the employee to other
hazards during its manual handling. Since the device can be
rated for a maximum size tire which provides a margin of
safety, the final standard has been written to provide that the
restraining device must be able to withstand at a minimum
150% of the force of an unexpected wheel separation for the
\
S4a
Appendix F
Federal Register — Rules and Regulations
(January 29, 1980)
tire being handled, whether or not that wheel is the max-
imum size the device can hold. This provides the same mar-
gin of safety (1.5) as proposed, but more accurately reflects
the actual usage of the restraining device in applying that
margin.
In its proposal OSHA proposed to permit use of
machinery or equipment other than cages as restraining
devices. At that time the agency solicited information as to
the availability and effectiveness of such other types of
restraining devices.
Several comments supported the effectiveness of the
cage type restraining device, including the portable cages
currently available, but stressed that the standard should not
restrict technology in developing other methods of restrai:it.
[Ex. 3: (18); 3: (33)]
Ten comments were received on the issue of whether
hydraulic lift rails are adequate restraining devices. Four
were totally opposed to the use of hoist rails, whereas the
others stated that they could be used under certain limited
circumstances.
Those that were opposed stated that the use of hoists for
this purpose is not safe, and that a hoist rail would have to
be extensively modified to be used effectively
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