The opinion of the court was delivered by: Bifferato
VINCENT A. BIFFERATO, ASSOCIATE JUDGE
This is an action for personal injury and property damage alleged to have been caused by the negligent installation of a rear wheel and brake drum by Goodyear Tire & Rubber Company, a corporation of the State of Ohio. The case is before the Court on defendant's Motion for Summary Judgment.
On or about November 3, 1966, plaintiff, Leslie Lloyd, had his automobile repaired by the defendant, Goodyear Tire & Rubber Company. The repair consisted of the installation of new brakes. After the installation of the new brakes, plaintiff incurred problems with his brakes and returned his automobile to defendant's shop on four separate occasions for adjustments.
A few days prior to the accident plaintiff travelled from his home in Wilmington to Baltimore, Maryland. On this trip to Baltimore plaintiff experienced difficulty with his left rear wheel and stopped to have it checked at a gas station. The left rear tire was replaced with the plaintiff's spare tire. Plaintiff did not experience any further trouble during the balance of his trip to and from Baltimore, Maryland.
On November 8, 1966, while plaintiff was returning home from work he again experienced trouble with his left rear wheel. He stopped his automobile and tightened his lug bolts on his left rear wheel and in so doing one lug was broken off. Plaintiff stopped several more times to tighten the lug bolts before he reached home. When plaintiff reached heme, he phoned defendant's shop and spoke to the manager. The manager told plaintiff that no one could pick up his automobile that evening and, if he wanted it repaired, he would have to drive it himself to the shop and to tighten the lug bolts if he experienced any difficulty. Plaintiff's father warned plaintiff that the wheel could come off and he or someone else could be injured. Plaintiff himself knew that the wheel could come off and that someone could be injured and his car damaged.
On the way to the defendant's shop plaintiff stopped nine times to tighten the lug bolts. On one stop he broke another lug off. During the trip, the rear of the car would shake and make a noise sounding like the rear wheel was loose. Shortly after the ninth stop, the car began shaking again and the rear wheel making noise; plaintiff was then approaching a traffic light and had hoped to make the green light and cross the intersection. Defendant's shop was only a short distance from this intersection. However, the wheel came off and the car began to turn, and plaintiff was knocked unconscious.
For the purpose of this Motion, it is assumed that defendant negligently installed the left rear wheel on plaintiff's automobile.
Defendant claims plaintiff was contributorily negligent and/or assumed the risk of driving an automobile he knew had a defective wheel.
If one knows of the existence of a risk, appreciates the danger of it, and nevertheless does not avoid it, he will be held to have assumed the risk and may not recover for his injuries. Franklin v. Salminen, 222 A.2d 261 (1966)
Aside from plaintiff's own testimony, the facts clearly indicate he knew of the risk that the wheel could come off. He stopped several times before be reached home after work; he was warned by his father not to drive the automobile and he stopped nine times to tighten the lug bolts prior to the accident. During the course of the nine stops prior to the accident, he certainly must have been aware of the danger and should not have continued to drive the automobile; he could not at this point claim he was relying on defendant shop manager's suggestion to drive the automobile to the shop.
Plaintiff stated that he was aware that damage or injury could occur if the wheel came off on the trip to the defendant's shop.
With knowledge of the risk that the wheel could come off and cause injury or damage, plaintiff nevertheless decided to drive his automobile to defendant's shop. Only one Conclusion can be drawn or inferred from these facts, and that is plaintiff assumed the risk of being injured while driving his automobile with a known defective left rear wheel.
Plaintiff claims that it was not a voluntary assumption of the risk because he needed his automobile the next day for work. This assertion of need is too remote and does not justify the ...