June 25, 2010
Crash victim learns lube job doesn't include a tire check
By ANDREW BERGH
Special to the Journal

Got worn tires on your car?

If your answer is “I don't know,” you might want to check your tread real soon because as Bryant Diaz learned, you can't expect your mechanic to always inspect your tires whenever your car is in the shop.

In late October 2004, Diaz took his parents' Volvo to a Jiffy Lube in Mesa, Ariz., for an oil change. Although this service included a tire pressure check, it didn't include a full-blown tire inspection, which was available for an extra fee. Moreover, Diaz apparently didn't ask the Jiffy Lube staff to perform any work on the Volvo's tires or inspect their condition.

About three weeks later, Diaz was seriously hurt while driving the Volvo in Phoenix on a rainy day. He lost control when the car hit a wet portion of the roadway, and then careened off the street and rolled over. Sadly, Diaz was partially paralyzed in the solo crash.

In June 2005, Diaz filed a products liability suit in Maricopa County Superior Court against several entities, including Volvo Cars of North America. His parents' car had design flaws, Diaz claimed, including a “known handling problem” resulting in “dangerous wear patterns” on the rear tires of certain Volvo models, which in turn caused poor traction on wet roads.

The lawsuit also sought damages from a local Discount Tire store, which had replaced the Volvo's rear tires earlier in 2004 before the accident. The claim against this defendant? That if they had conducted a proper inspection, the Discount Tire employees would've realized the excessive tread wear was consistent with a possible defect — and warned the Diazes accordingly.

Jiffy Lube wound up in the lawsuit in a roundabout way.

Early on, Discount Tire pointed the finger at a local Volvo dealership that had twice serviced the Diazes' car within eight weeks of the accident. Since it was being accused of negligently inspecting the car, the car dealership returned the favor by implicating Jiffy Lube. To avoid a so-called “empty chair” defense, Diaz amended his complaint to add Jiffy Lube as a defendant.

While changing the oil, the Jiffy Lube technician had stood underneath the Volvo while it was parked over the service bay. According to Diaz, this is when the employee should've performed the safety inspection of the tires and afterward warned him about the dangerous tread wear.

But Jiffy Lube denied any wrongdoing and later moved for summary judgment. The suit should be dismissed, the company argued, because it didn't owe Diaz any duty to inspect the tread of the Volvo's tires. When the trial court agreed, a final judgment in Jiffy Lube's favor was entered in January 2009.

Diaz is now 0-for-2, thanks to an adverse ruling last month by an Arizona appeals court.

According to the appeals court, the “primary issue” was whether Jiffy Lube owed a legal duty to Diaz with regard to the allegedly worn tires. This, in turn, required an evaluation of two factors: (1) the relationship between the parties, and (2) public policy considerations.

On the first score, Diaz argued that the parties' contractual relationship gave rise to a duty to inspect.

More specifically, Diaz contended that since Jiffy Lube technicians could view portions of the rear tires while working underneath the Volvo to change the oil, and since the oil change contract included a tire pressure check, Jiffy Lube had impliedly agreed to inspect the condition of the tires.

But the appeals court nixed this argument. The contract nowhere obligated Jiffy Lube to inspect the “degree and pattern of tire wear,” said the court, so an expansion of its duty beyond the contractually agreed services was “not warranted.”

The appeals court also rejected the notion that a duty to inspect arose from public policy considerations.

There is a big distinction, the court observed, between creating a risk and only failing to discover a risk. Here, Jiffy Lube's actions hadn't created the risk resulting from the allegedly worn tires. So combined with its “limited undertaking,” the court ultimately concluded that public policy didn't support the imposition of a duty to inspect.

Fortunately, although Diaz lost his case against Jiffy Lube, he had previously settled with the other defendants for a confidential sum.

At my end, I think I'll pay a few extra bucks for a tire inspection the next time my car gets serviced.