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Alcala v. Vazmar Corporation
Filed October 17, 2008, Second District, Div. One
Cite as 2008 SOS 5752


Refusal to Instruct Jury on Negligence per se, Not an Error

Andrew Alcala (Andrew) met a fatal collision accident with another vehicle.

Prior to said accident, Vazmar Corporation (Vazmar) doing business as Earthbound Tire Center (Earthbound) had been servicing Andrew’s vehicle. In fact, Andrew made two-service occasions with them.

On the first occasion, it installed four new wheels and tires. On the second occasion, it made tire rotation and alignment on Andrew’s car. It noted that the two front tires were badly damaged extending to the secondary rubber and nearly to the steel.

Due to Andrew’s death, Richard and Angie Alcala (parents) filed a case for wrongful death against Earthbound due to its negligence.

His parents premised their claim on Vehicle Code §§27465 and 27501. Both provisions were concerned with the minimum allowable tread depth of 1/32 inch on tires sold, installed, or used.

His parents also requested the court to instruct the jury on negligence per se based on Section 27465.

After trial, the court ruled that that the foregoing laws were inapplicable. Hence, declined said request.

The jury, on its part, found Earthbound not negligent.

Upon appeal, the appeal court reversed the trial court’s ruling but held that the latter did not err in declining the instruction for negligence per se. The ruling was based on the following:

  • Vehicle Code Secs. 27465 and 27501 precluding “dealers and retail sellers of tires from installing certain worn tires and prevent any person from using such tires” did not suggest that the word “install” may only be limited to tire installations incidental to sale of tires

  • Said provisions should be construed in the light of the amendment which was to protect emergency roadside operators who removed and remounted another tire that was below the minimum requirements

  • Said construction was dictated by common sense

Otherwise, a different interpretation would mean that the repair shops would be prevented from performing routine service jobs that required removing and reinstalling tires.


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