Richard Lopez JIMENEZ and Amanda Q. Jimenez, husband and wife, Plaintiffs/Appellees, v. SEARS, ROEBUCK AND COMPANY, a foreign corporation, Defendant/Appellant.
No. CV-94-0273-PR
Supreme Court of Arizona, En Banc.
Oct. 17, 1995.
904 P.2d 861 | 183 Ariz. 399
Snell & Wilmer by Timothy G. O‘Neill, Martha E. Gibbs, Phoenix, for Defendant/Appellant.
O‘Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Scott A. Salmon, Troy B. Froderman, Christopher Robbins, Phoenix, for Amicus Curiae Arizona Association of Defense Counsel.
The Langerman Law Offices by Amy G. Langerman, Richard W. Langerman, Phoenix, for Amicus Curiae Arizona Trial Lawyers Association.
FELDMAN, Chief Justice.
Richard and Amanda Jimenez (Plaintiffs) brought this products liability action against Sears, Roebuck & Co. (Defendant), alleging it sold them a defective and unreasonably dangerous power tool. Defendant asserted the defense of product misuse and asked the trial court to instruct the jury according to the principles of comparative fault contained in
We have jurisdiction pursuant to
Richard Jimenez bought a hand-held electric disc grinder from Defendant. Before operating it, Richard read the owner‘s manual, checked that the disc was tightly attached, connected the power cord, and briefly tested the grinder to see that it ran properly. He then used the tool to smooth down a steel weld on the top, flat part of a trailer tongue, stopping every several minutes to avoid overheating the machine. After about 45 minutes’ use, the disc shattered, sending fragments into Richard‘s body and causing serious injury.
Plaintiffs filed a tort action, alleging that the grinder Defendant sold was defective and unreasonably dangerous and proximately caused Richard‘s injury and Amanda‘s loss of consortium. Defendant argued that Richard misused the grinder by failing to wear a protective apron while operating the tool, as recommended in the owner‘s manual, and by positioning the grinder so that the safety guard did not fully shield his body from the spinning grinding disc.
Richard was retired when he bought the hand grinder. Before retirement, he had regularly used hand-held power tools at his job, where he had been instructed on the proper use of grinders. In preparing to use the tool that injured him, Richard followed his habit of wearing a heavy-duty shirt, jeans, hard-toe shoes, gloves, face shield, and cap to protect himself from the sparks and debris that fly off the grinding disc. Although the owner‘s manual also recommended a protective apron to guard against “flying abrasive particles and sparks,” Richard did not wear one because a leather apron would have cost more than the tool. He also did not believe an apron was necessary because he had never been given one at work and had never before seen or heard of a grinding disc shattering.
While grinding a welding spot on the trailer, Richard used the grinder in several different positions. Defendant claims that Richard used the tool improperly by reaching too far across the trailer tongue and turning the safety guard away from him. Richard denies that he held the grinder too far from his body for proper control and claims that the guard was partially facing him when the disc exploded.
Upon submitting the case to the jury, the trial judge instructed the jury on the defense of product misuse. In pertinent part, the instructions read:
Defendant is not at fault if defendant proves the following:
(1) The product was used ... for a purpose, in a manner or in an activity not reasonably foreseeable by defendant, or contrary to any express and adequate instructions or warnings appearing on or attached to the product, or on its original container or wrapping, and plaintiff knew, or with the exercise of reasonable and diligent care should have known, of the warnings or instructions; and
(2) Such use ... was the only cause of plaintiff‘s injury.
(Emphasis added.) This instruction followed our interpretation of
The jury awarded Plaintiffs $112,000 in total damages. After the trial court denied its motion for a new trial, Defendant appealed, arguing, inter alia, that the trial judge erred by failing to give the comparative fault instructions. Relying on the dissent in Gibbs v. O‘Malley Lumber Co., 177 Ariz. 342, 348, 868 P.2d 355, 361 (App.1994), the court of appeals agreed with Defendant, reversed the judgment, and remanded for a new trial. Jimenez v. Sears, Roebuck & Co., 180 Ariz. 432, 885 P.2d 120 (App.1994). Plaintiffs petitioned for review, raising the following issue:
Whether comparative fault principles are applicable to the misuse defense in a strict products liability action.
We granted review because the court of appeals’ opinions in Gibbs and the present case conflict on this important issue of law. See
DISCUSSION
A. Does comparative negligence apply when Defendant raises the defense of misuse in a products liability action?
We first consider whether applying the rules of comparative fault to product misuse confuses that defense with a form of contributory negligence or whether the misuse defense is a different “species.” We begin by distinguishing misuse from contributory negligence and assumption of the risk, defenses that have been subject to the rules of comparative fault since UCATA‘s original enactment in 1984. See
1. Misuse, contributory negligence, and assumption of risk
Arizona adopted the doctrine of strict products liability to address the problem of consumer injury caused by unreasonably dangerous products, allocating the risk of loss to the manufacturers and sellers of these products. See Torres v. Goodyear Tire & Rubber Co., 163 Ariz. 88, 91, 786 P.2d 939, 942 (1990). A prima facie case of strict products liability is established by showing that when the product left the defendant‘s control, it was in a defective condition that made it unreasonably dangerous and the defect was a proximate cause of plaintiff‘s injuries. Gosewisch, 153 Ariz. at 403, 737 P.2d at 379; see also O.S. Stapley Co. v. Miller, 103 Ariz. 556, 559-60, 447 P.2d 248, 251-52 (1968) (adopting strict liability rule of RESTATEMENT (SECOND) OF TORTS § 402A (1965), hereinafter RESTATEMENT).
We have recognized two affirmative defenses in products liability that, if proven, bar a plaintiff‘s recovery: assumption of risk and product misuse. O.S. Stapley, 103 Ariz. at 561, 447 P.2d at 253. However, along with most if not all other courts, we have rejected contributory negligence as a products liability defense. Id.; see also Gary D. Spivey, Annotation, Products Liability: Contributory Negligence or Assumption of Risk as Defense Under Doctrine of Strict Liability in Tort, 46 A.L.R.3D 240 (1972 & Supp.1994). In O.S. Stapley we explained the differences between contributory negligence, assumption of risk, and misuse: (1) “[F]ailure to discover a defect in the product which the plaintiff should, if he was reasonably diligent, have discovered” is contributory negligence; (2) “notwithstanding the discovery of such a defect, [if] the plaintiff nevertheless uses the article” it is assumption of risk; and (3) the plaintiff‘s use of the product “for certain purposes or in a manner not reasonably foreseen by the manufacturer” is misuse. 103 Ariz. at 561, 447 P.2d at 253.
Contributory negligence is not applicable to strict liability because, under the doctrine of strict liability, “no duty rests upon the ultimate consumer or user to search for or guard against the possibility of product defects.” Id. On the other hand, a plaintiff who voluntarily and unreasonably encounters a known danger has assumed the risk and cannot recover on a strict liability claim. Id. (quoting RESTATEMENT § 402A cmt. n). Misuse differs from assumption of risk in that
At common law, misuse was intervening conduct so rare and unusual, and thus unforeseeable, that it was treated as a superseding cause to the product defect. W. PAGE KEETON, ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 102, at 711 (5th ed.1984). Because of the extraordinary nature of such conduct, courts tended to view unforeseeable misuse as breaking the chain of causation between the defect and injury. Id. Thus, and perhaps counterintuitively, misuse was a superseding cause that, if proved, barred recovery because the defendant‘s fault in distributing a defective product did not cause the plaintiff‘s injuries. Id.3 As with assumption of the risk, misuse was an absolute defense to liability.
In 1978, the legislature codified the common-law defense of misuse under
In Gosewisch, we held that under
Under the comparative fault rules of the 1987 version of UCATA, however, a jury can reduce a plaintiff‘s damages in an amount proportionate to the relative degree of the plaintiff‘s fault that proximately caused the injury.
2. Does the statute contemplate applying comparative fault to misuse?
The 1987 UCATA amendments both abolished joint-and-several liability and apparently broadened the scope of torts subject to the rules of comparative fault. Section
“Fault” means an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all of its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability and misuse, modification or abuse of a product.
(Emphasis added.) Defendant claims that the inclusion of the emphasized language in the 1987 UCATA definition of fault is a clear legislative mandate to make misuse as described in
Plaintiffs contend that absent a specific legislative pronouncement abolishing the common-law and statutory rule, misuse must continue to be an all-or-nothing defense. They argue that the inclusion of misuse in the “laundry list” of defenses in the UCATA definition of fault does not by itself sufficiently show a change in the legislative policy. They suggest that we ignore those portions of UCATA that refer to the product liability defenses contained in
Although we agree with Plaintiffs that we should not conjure up legislative intent without some clear pronouncement from the legislature, we reject the suggestion that we should give no effect to the explicit text of a statute that modifies our interpretation of a different but earlier statute dealing with the same matter. Even if the text of the later statute is not clear, in determining whether a statute modifies or repeals another statute, a well-established and most important principle of statutory construction dictates that we interpret a statute “in such a way as to achieve the general legislative goals that can be adduced from the body of legislation in question.” Dietz v. General Elec. Co., 169 Ariz. 505, 510, 821 P.2d 166, 171 (1991). We have recognized that the general goal of the present version of UCATA is to make each tortfeasor responsible for only its share of fault. Id. at 510, 821 P.2d at 171.
It is true that making misuse a comparative defense when it is not the sole proximate cause of the accident contradicts our interpretation of
Moreover,
Such an interpretation furthers the general legislative goal embodied in UCATA of allocating fault and thus arguably promoting a tort system fair to both plaintiffs and defendants. See Shelby v. Action Scaffolding, Inc., 171 Ariz. 1, 6, 827 P.2d 462, 467 (1992). Under
In so concluding, we are supported by substantial authority. Our state is not alone in applying comparative fault principles to strict liability defenses. The drafters of the third revision of the RESTATEMENT OF TORTS recommend that defenses against product liability plaintiffs be subject to the apportionment rules in jurisdictions that have adopted the comparative responsibility rules. RESTATEMENT (THIRD) OF TORTS § 10, at 261, and § 12, at 300 (Tentative Draft No. 2, 1995). Despite some theoretical criticism of applying comparative fault to strict liability claims,5 many courts have used comparative fault in strict products liability cases. See RESTATEMENT § 12, Reporters’ Note at 304-08; Romualdo P. Eclavea, Annotation, Applicability of Comparative Negligence Doctrine to Actions Based on Strict Liability in Tort, 9 A.L.R.4TH 633 (1981 & Supp.1994); but see Koenders, supra, A.L.R.4TH at 273, 291-97 (1988) (stating that majority of courts have held that misuse operates as a complete bar to recovery but not squarely addressing comparative fault issue).
Plaintiffs argue that misuse is subject to comparative fault only if both negligence and strict liability theories are advanced in the same action, but not if only strict liability is claimed. This argument is based on the interpretation given
If an action involves claims for relief alleging both negligence and strict liability in tort, and if
§ 12-2505 [comparative negligence] is applied with respect to the negligence claims for relief, the reduction in damages under§ 12-2505 shall be applied to the damages awarded against all defendants, except that contributory negligence, as distinguished from assumption of risk, is not a defense to a claim alleging strict liability in tort, including any product liability action, as defined in§ 12-681 , except claims alleging negligence.
Because the plaintiff alleged strict products liability but not negligence, the Gibbs majority concluded that comparative fault for misuse did not apply and held that the trial court did not err in refusing to give comparative misuse instructions. 177 Ariz. at 346, 868 P.2d at 359.
We do not agree with this interpretation of
B. May the legislature constitutionally apply comparative fault to misuse cases?
The amicus Arizona Trial Lawyers Association (ATLA) submits that applying comparative fault principles to the common-law defense of product misuse violates article 2, section 31 of the Arizona Constitution, which provides, “No law shall be enacted in this State limiting the amount of damages to be recovered for causing the death or injury of any person.” ATLA argues that because at common law misuse was a defense only if found to be the sole proximate cause of injury, applying comparative fault principles to reduce damages when the misuse is only a concurrent cause reduces the recovery and abrogates plaintiff‘s common-law right of action, thus violating
As ATLA recognizes, this argument also implicates the constitutionality of UCATA‘s abolition of joint-and-several liability, accomplished by adoption of
Until now, our cases and those from the court of appeals have skirted these issues. In Hall, for instance, we upheld the comparative negligence statute,
No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person.
(Emphasis added.)10
Pragmatically, it is true that
Finally, in Smith v. Myers, 181 Ariz. 11, 887 P.2d 541 (1994), we recently held that the periodic payment statute,
We go only so far as to state the following: neither article 2, section 31 nor article 18, section 6 of our constitution is offended by the imposition of a statutory regime that recognizes defenses existing at common law and subjects them to a comparative fault analysis, thereby limiting each defendant‘s liability to the amount of damages attributable to that defendant‘s causal contribution. Thus, both the change in the misuse statute and the abolition of joint-and-several liability pass constitutional muster.
C. Under the facts of this case, did the trial court err in refusing a comparative fault instruction?
If the facts did not warrant an instruction on comparative fault, then, of course, refusing that instruction would not have been error.13 As indicated earlier, we believe, as does Justice Zlaket, that there is a difference between contributory negligence, which is not a defense in a strict product liability action, and misuse, which is a defense. See Special Concurrence by Zlaket, J., Op. at 409, 904 P.2d at 871. Whether theoretically correct or internally contradictory, the misuse doctrine was based on the concept that the purpose to which the product was put was not only unforeseeable but broke the chain of causation. Obviously, therefore, not every improper use of a product will constitute misuse rather than contributory negligence.14 Careless and thus improper handling or operation of the product is negligent use but not misuse. Contrary to the statement made in the last sentence of Justice Martone‘s special concurrence, we do not hold that foreseeable misuse or contributory negligence is a defense in a strict products case. The facts in this case may not qualify as misuse. We note, however, that until we asked for supplemental briefs on this issue, Plaintiffs did not object to the misuse instruction on the theory that it was unwarranted by the facts but only on the statutory interpretation grounds discussed in part A(2) above. We therefore believe that the issue is not before us and, for purposes of this appeal, assume that the instruction was factually warranted.
CONCLUSION
We conclude that
We vacate that part of the court of appeals’ opinion addressing the issues considered in this opinion and remand to the superior court for further action consistent with this opinion.
MOELLER, V.C.J., and CORCORAN, J., concur.
I agree that the legislature can and has, in
I write separately only to emphasize that the definition of “misuse” remains essentially unchanged and, in my view, quite limited. It is, by statute in Arizona,
a use or consumption of the product which was for a purpose, in a manner or in an activity other than that which was reasonably foreseeable or was contrary to any express and adequate instructions or warnings appearing on or attached to the product or on its original container or wrapping, if the injured person knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings.
I agree with Justice Martone that the statutes in question are anything but clear, but for several reasons cannot subscribe to his conclusion that contributory negligence has1 now become a viable defense in this type of case. First,
Second,
Finally, while the language of
MARTONE, Justice, concurring in the judgment.
Because the issues of misuse and contributory negligence are conceptually difficult, and the majority‘s opinion is contradictory,1 I write to express my understanding of what
Even before Gosewisch v. American Honda Motor Company, 153 Ariz. 400, 737 P.2d 376 (1987), misuse occurred when the plaintiff used a product in a way that was unforeseeable. Thus, by definition, whenever there is misuse, the defendant can never proximately cause the injury because it is unforeseeable. Gosewisch only made this concept explicit when it said that the misuse statute bars recovery only if misuse is “the only proximate cause.” 153 Ariz. at 407, 737 P.2d at 383. Thus, conduct that is genuinely misuse will, by definition, always be the sole proximate cause. It is for this reason that misuse is an all or nothing defense. Because misuse is the sole proximate cause, the product‘s defect plays no role in causation and therefore, “a defendant shall not be liable.”
Let me illustrate. Suppose a handgun has a defect in it. Suppose further that plaintiff uses the handgun as a hammer to drive a nail rather than for the purpose for which it was intended. As the handle of the weapon strikes the nail, it fires and the plaintiff is injured. This is product misuse. This is not contributory negligence. Under these facts, the defendant is not liable as a matter of law. On the other hand, suppose plaintiff mishandles the gun at a firing range. He is not careful about where he points it but the safety is on. Suppose further that because of a product defect, the safety does not work and he is injured. Plaintiff‘s conduct is contributory negligence, which is not a defense to a strict liability case. Up to this point, there is both conceptual and doctrinal clarity.
The problem arises because misuse is included within the definition of “fault” under
Consider the case before us. This is simply not a case of misuse. Jimenez was using the grinder for the purpose for which it was intended. The defendant argued that he “misused the grinder by failing to wear a protective apron while operating the tool.” Ante, at 401, 904 P.2d at 863. But this would be contributory negligence, not misuse of the product. To be sure, a grinder could be misused. For example, if the plaintiff used the grinder as a substitute submergible bilge pump for his boat and electrocuted himself, the grinder would have been misused, and would have been the sole cause of the injury.
Because I do not see how a foreseeable misuse (and thus a concurring cause) could be anything other than contributory negligence, if today‘s decision is to have any practical effect, it means that some form of contributory negligence is a comparative defense to a strict products liability case. This would be compatible with
While all of this may muddy up the conceptual clarity of the former distinction between misuse and contributory negligence, it may well be that the practical effect will be beneficial. For example, Prosser & Keaton note that “[p]erhaps if comparative negligence had preceded the development of strict liability, contributory negligence would have been recognized as a defense.” W. Page Keeton et al., Prosser and Keaton on the Law of Torts § 102, at 712 (5th ed. 1984).
To summarize, true misuse (unforeseeable, sole cause) continues to be an all or nothing defense under
Notes
In any product liability action, a defendant shall not be liable if the defendant proves that any of the following apply:
3. The proximate cause of the incident giving rise to the action was a use or consumption of the product which was for a purpose, in a manner or in an activity other than that which was reasonably foreseeable or was contrary to any express and adequate instructions or warnings appearing on or attached to the product or on its original container or wrapping, if the injured person knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings.
Compare ante, at 403, 904 P.2d at 865 (“this of course recognizes the misuse defense in cases in which it is a contributing cause rather than the sole cause of injury“) with ante, at 408, 904 P.2d at 870 (“we do not hold that foreseeable misuse or contributory negligence is a defense in a strict products case.“) If the latter is true, to what does the opinion apply?