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Courtney v. Big O Tires12/23/2003
2003 Opinion No. 128
The judgment of the district court is affirmed.
This is an appeal by the plaintiff challenging a jury instruction providing that if the jury found that certain evidence had been deliberately or negligently lost by one of the defendants, the jury could infer that the evidence was unfavorable to that defendant. We affirm the judgment of the district court.
I. FACTS AND PROCEDURAL HISTORY
In 1991, the plaintiff-appellant Wayne Courtney purchased four new tires in Twin Falls, Idaho, from defendant-respondent Terry's Big O Tires (Terry's), a local franchisee of the defendant-respondent Big O Tires, Inc. (Big O Tires). Terry's installed the tires on Mr. Courtney's GMC Suburban. The defendant-respondent Continental General Tire, Inc., (Continental) manufactured the tires.
In June 1998, Mr. Courtney had another Big O Tires store in Twin Falls rotate and inspect the tires. One week later he drove the Suburban from Twin Falls to Sacramento, California, while pulling an eighteen-foot trailer so that he could help his daughter move. After packing her belongings into the trailer, Mr. Courtney drove to Burns, Oregon, accompanied by his daughter who was driving her car.
While driving through Oregon, Mr. Courtney stopped three times because he felt the Suburban vibrating. He inspected the tires each time, but did not see anything wrong. As he continued driving, the Suburban's left front tire shook violently three times and then blew out, causing the Suburban to veer off the road into a ditch.
Mr. Courtney placed the blown-out tire in the Suburban and had the vehicle towed to Burns, where it was repaired. Once he returned to Twin Falls, he took the tire to Terry's, who gave him a replacement tire and then shipped the blown-out tire to a Big O Tires warehouse in Boise, where it was lost.
On April 30, 1999, Mr. Courtney filed this action against Terry's, Big O Tires , and Continental seeking to recover damages based upon the theories of strict liability, breach of implied and express warranties, breach of contract, and negligence. On September 18, 2001, Mr. Courtney moved for partial summary judgment seeking to have liability established based upon the loss of the blown-out tire. The district court denied the motion. The case was tried to a jury, who returned a special verdict finding no liability on any of the theories alleged in the complaint. Mr. Courtney then filed this appeal.
II. ISSUES ON APPEAL
A. Did the district court err in denying the motion for partial summary judgment?
B. Did the district court commit reversible error when instructing the jury on the spoliation of evidence?
C. Is Big O Tires , Inc., entitled to an award of attorney fees on appeal?
III. ANALYSIS
A. Did the District Court Err in Denying the Motion for Partial Summary Judgment?
Mr. Courtney asks us to overturn the district court's denial of his motion for partial summary judgment. An order denying a motion for summary judgment is neither a final order that can be directly appealed nor is it an order that can be reviewed on an appeal from a final judgment in the action. Hunter v. State, Dept. of Corrections, 138 Idaho 44, 57 P.3d 755 (2002). Therefore, we will not consider this issue.
B. Did the District Court Commit Reversible Error When Instructing the Jury on the Spoliation of Evidence?
The Quality Assurance Representative at the Big O Tires Service Center in Boise explained the loss of the tire. The Big O Tires warranty covers tires that are damaged by road hazards and tires that fail due to manu
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