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Published on September 22, 2003

Avoid two-tire sale-due to liability

My activities in the tire industry have been quite varied over the past 47 years. For the past 18 years, I have been involved in tire product liability issues that, time after time, have addressed certain dealer actions.

A common allegation these days is brought against a dealer who has not installed a full set of tires onto a customer's vehicle. The situation arises when a customer comes in and asks that his/her tires be ``safety checked'' so as to determine if new tires are required.

As a dealer you often see that two of the tires require replacement based on tread remaining, and two still have a serviceable amount of original tread. You inform the customer that only two tires require replacement. You then suggest-or the customer insists-which axle the new tires should be put on and where to place the two worn tires. The customer is happy, you have done what was requested...subject closed, right? WRONG!

Months or perhaps years later, you get a letter informing you that there has been a traffic accident and the plaintiff's lawyer is alleging it was caused by your incorrect inspection of the remaining original tires or by your mounting the two new tires on the wrong axle. The lawyer then quotes a placement opinion of some hired tire expert.

The allegations would be that the two new tires purchased and placed on the ``wrong'' axle contributed to the driver's loss of control and/or that a tire you should have replaced failed. In other words ``you allowed the two older tires to remain on a vehicle and didn't anticipate that one was eventually going to fail.''

The plaintiff's lawyer may claim the act of your using the older tire(s) was an implied ``safety inspection.'' Your most inexperienced people could be called to testify and be held to a forensic tire failure standard even though it is sometimes difficult to recognize certain types of abuse or internal damage without hours of painstaking examination.

For the two-tire purchaser, your paranoia antenna should go up immediately. Often this is the same person who does not maintain or rotate his/her tires on an older front-wheel-drive vehicle and brags about having 80,000 plus miles on the rears with a lot of tread still remaining.

The need for any mechanical correction of the vehicle such as alignment or safety-related worn parts along with your recommendations should be noted on the sales slip. It can be an important part of your record.

Most tire manufacturers do not make an absolute safety warning as to the proper axle placement for two newly purchased tires. Some companies make suggestions. Some do not.

Most importantly, the industry as a whole, acting through the Rubber Manufacturers Association (RMA), does not make an absolute safety demand because each service variable requires a customized solution between the motorist and the dealer.

Another legal action resulting from a two-tire sale could involve an accident caused by hydroplaning or a wet-skid loss of control with the allegation again that you put the two newer ``higher-traction'' tires on the wrong axle.

Always present strong technical facts to convince the customer that a four-tire replacement is in his/her best interest for overall vehicle handling and reliability. Let them know that 80 percent of tire disablements occur within the last 20 percent of tread life. Older tires are damaged more easily when impacted. Often this damage is internal.

Your sales staff may need additional education and compelling information in order to convince customers that safety and reliability are the most important parts of their tire purchase.

Gear your advertising to the four-tire sale with incentives such as free valves, free balancing, free rotation, discounted alignment or special financing. If the two-tire purchase still is demanded, have the customer initial the sales slip (including the position[s] where he/she wants the two older tires placed). Your sales slip must say that you cannot guarantee the safety of older tires with their unknown history.

When you look at the tires on a vehicle, never ever call it or imply it to be a tire safety inspection unless the tires are actually demounted, and highly trained service people look for external and internal tire damage, signs of underinflation, heat, improper repairs or other signs of abuse.

If your check-off list says ``tire safety inspection,'' make sure that's what you mean. A tire safety inspection does not involve merely airing up the tires or measuring tread depth. A true tire safety inspection requires removal, time, skill and thoroughness.

When you do make your four-tire sale and now have two partially worn tires, don't put them in the racks for resale as used tires. The few added dollars you may make will not compensate for exposing your business to potential liability and additional aggravation.

Used tires require very special inspection techniques to assure their safety, and you probably don't have the time or possibly the expertise to do this in a manner that would satisfy a jury. By not reselling used tires, you may irritate a few environmentalists, but it is not worth exposing your business to a costly risk.

During demounting or mounting, extra care must be taken to not tear the more tender-aged bead toe. If the toe is found to be torn, the tire must be scrapped. Inner liner splits and plug repairs also must be on your ``to-be-scrapped'' tire list.

When a tire is deemed unserviceable and taken out of service, it must be slashed in order to prevent reuse. I had a case in which a non-slashed, internally separated, out-of-balance, worn-out scrap tire was stolen from the dealer's fenced in, secured scrap pile.

A high-speed car accident left the thief a quadriplegic, and the tire manufacturer was sued for a defective product.

These examples are just the tip of the iceberg. Nevertheless, they should be sufficient to encourage you to review your staff's expertise to give the customer the best reliability package. You must also take the time to review and upgrade shop practices and record retention procedures.

Never allow improper plug repairs (even as a temporary, emergency, good Samaritan procedure). With tires, temporary often is forgotten and the repair considered permanent since the tire does not lose pressure.

Another important step in avoiding potential liability is to educate your customers. An informed customer will be more reasonable insofar as product care and expectations are concerned.

Use your waiting areas to educate your precious and captive customers. Put out reading material supplied by the RMA, which can be reached by telephone at (800) 220-7622 or (202) 682-4800. Run an educational tire video instead of allowing customers to waste time watching a ridiculous soap opera or game show on television.

Talk to tire suppliers and ask them for safety related or informational tire videos. Most companies have them.

Whatever you do, be assured that being in the tire business, someone will probably be trying to sue you. An automobile is little more than a lawsuit on wheels.

There are times when plaintiffs' allegations have a good scientific basis and a lawsuit has merit. The jury must base its decision on legitimate tire science that is accepted by the tire technology community as the final arbiter.

If jury members are presented with good information, with their unique collective intelligence, they have tremendous capability to separate fact from fiction. When it comes time to defend your business before a jury, all actions (or inaction) will be noted.

Mr. Herzlich worked in research and development for the former Pirelli Armstrong Tire Corp. He is president of Herzlich Consulting Inc. in Las Vegas.

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