Gibbs v. O'Malley Lumber Co. , 177 Ariz. 342 ( 1994 )

OPINION

NOYES, Judge.

Appellants O’Malley Lumber Co. (O’Malley) and Olympia Tools, Inc. (Olympia) appeal from a 1.35 million dollar jury verdict in favor of Appellees Gibbs in this product liability case. We have jurisdiction pursuant to Arizona Revised Statutes Annotated (A.R.S.) sections 12-120.21(A)(1) (1992) and -2101(B) (Supp.1993).

I.

The product at issue was a thirty-six inch “bungee” cord, an elastieized cord with metal hooks on each end. A few days before his injury, Michael Gibbs had purchased the cord from O’Malley, who had purchased it from Olympia, who had imported it from Taiwan. The injury occurred when Michael was stretching the cord across the bed of a pickup truck to secure a load of building material. He had anchored one hook on the pipe rack in the bed of the truck and was stretching the cord to the other side of the truck. Suddenly, the hook being pulled against straightened out and the cord fired the straightened hook into Michael’s right eye. The eye had to be surgically removed.

Appellees Gibbs argued at trial that the cord was defective and unreasonably dangerous because, during normal use, the hooks would fail long before the cord reached its limit of elasticity. They also argued that the cord was defective and unreasonably dangerous because there were no instructions or warnings concerning the relative weakness of the hooks. Appellees presented expert testimony that the cord would fail at about one hundred pounds of load, that the hooks would fail at less than fifty pounds of load, and that the load capacities of the cord and the hooks would be equalized if the diameter of the hooks was increased by .6 millimeter.

Olympia’s product catalog claimed that its bungee cords could be stretched to “twice their lengths,” which would be seventy-two inches for the cord in this case. The bed of Michael’s truck was sixty-nine inches wide. Appellants’ misuse theory was based on testimony from Michael that suggested to Appellants that Michael had kept a slack of one foot of cord while stretching the other two feet of cord across five feet of truck bed. Appellants do not argue that Michael misused the cord by stretching it across the truck bed; they argue that he misused the cord by stretching a portion of it well beyond its limit of elasticity and well beyond twice its length.

Appellants O’Malley and Olympia argue on appeal that the trial court erred by refusing to instruct the jury on comparative fault and by admitting evidence of Olympia’s and others’ knowledge regarding the product. By cross assignment of error, Michael Gibbs and his wife Vicky (Appellees) argue that the trial court erred by instructing the jury on the affirmative defense of product misuse. We conclude that misuse is still an all-or-nothing defense in Arizona, and that there was no error in jury instructions or in the admission of evidence.

II.

A

Appellants O’Malley and Olympia argue that the trial court erred by refusing to instruct the jury on comparative fault. Over the objection of O’Malley and Olympia, the trial court gave the jury the following misuse instruction, a non-comparative fault instruction that is a modified version of Recommended Arizona Jury Instructions (Civil) 2d, Product Liability 9:

Defendants are not at fault if defendants prove each of the following:

(1) The product was used by the plaintiffs for purposes or in a manner not reasonably foreseen by the defendants;

(2) The only cause of plaintiffs’ injuries was such use or consumption of the product.

This instruction is based on A.R.S. section 12-683(3) as interpreted by the Arizona Supreme Court in Gosewisch v. American Honda Motor Company, 153 Ariz. 400, 737 P.2d 376 (1987). Section 12-683(3) provides that a defendant in a product liability action shall not be liable if defendant proves that “[t]he 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----” AR.S. § 12-683(3) (1992). Gosewisch held that the statute provided an all-or-nothing defense:

We interpret AR.S. § 12-683(3) to bar recovery if “the" proximate cause, meaning the sole proximate cause, of the incident giving rise to the injury was either of the actions listed in the statute. The statute does not bar recovery if the circumstances described is “a proximate cause” or “one of the proximate causes” of the incident---Instead, A.R.S. § 12-683(3) bars recovery if the only proximate cause is one of the circumstances listed.

Gosewisch, 153 Ariz. at 407, 737 P.2d at 383 (emphasis added).

Appellants argue that Gosewisch is no longer controlling because A.R.S. section 12-2506, which abolished joint and several liability effective January 1, 1988, now requires the trier of fact to determine the relative degrees of fault of all parties. See AR.S. § 12-2506 (Supp.1992). That statute defines fault as “an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including ... products liability and misuse, modification or abuse of a product.” A.R.S. § 12-2506(F)(2) (Supp.1992).

Olympia argues that section 12-2506 overrules Gosewisch and amends section 12-683(3) by implication. O’Malley argues that section 12-2506 creates a new misuse defense, and that, although the section 12-683(3) misuse defense is an all-or-nothing defense because of Gosewisch, the misuse defense created by section 12-2506 is a comparative defense.

It has been observed that “perhaps the most difficult tort question facing courts in recent years has been how to reconcile [the doctrines of strict product liability and comparative negligence] when neither was developed with the other in mind.” Mark E. Roszkowski & Robert A. Prentice, Reconciling Comparative Negligence and Strict Liability: A Public Policy Analysis, 33 St. Louis Univ.LJ. 19, 21 (1988). Courts across the country are divided on whether comparative negligence principles should be applied in strict liability actions. See generally id. at 32-47 (describing the various approaches taken by courts to reconcile comparative negligence and strict liability); Randy R. Koenders, Annotation, Products Liability: Product Misuse Defense, 65 AL.RAth 263, 291-97 (1988 & Supp.1993) (listing jurisdictions that do and do not apply comparative negligence principles to the misuse defense); Romualdo P. Eclavea, Annotation, Applicability of Comparative Negligence Doctrine to Actions Based on Strict Liability in Tort, 9 A.L.R.4th 633, 641-49 (1981 & Supp.1993) (listing jurisdiction that do and do not apply comparative negligence principles in product liability actions).

In deciding whether A.R.S. section 12-2506 overrules Gosewisch, amends A.R.S. section 12-683(3), or creates a new kind of misuse defense, we apply the following principles of statutory construction:

First, repeal of statutes by implication is not favored in the law. In State ex rel. Larson v. Farley, 106 Ariz. 119, 471 P.2d 731 (1970), we held that if it is reasonably practical, a statute should be explained in conjunction with other statutes to the end that they may be harmonious and consistent; and, if statutes relate to the same subject and are thus in pari materia, they should be construed together with other related statutes as though they constituted one law. Unless a statute, from its language or effect, clearly requires the conclusion that the legislature must have intended it to supersede or impliedly repeal an earlier statute, courts will not presume such an intent. State v. Jaastad, 43 Ariz. 458, 32 P.2d 799 (1934). Also, when reconciling two or more statutes, courts should construe and interpret them, whenever possible, in such a way so as to give effect to all the statutes involved. Ordway v. Pickrell, 112 Ariz. 456, 543 P.2d 444 (1975); State Land Dept. v. Tucson Rock & Sand Co., 107 Ariz. 74, 481 P.2d 867 (1971).

Pima County v. Maya Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988).

We conclude that A.R.S. section 12-2506 does not overrule Gosewisch, that it does not amend A.R.S. section 12-683(3), and that it does not create a new kind of misuse defense. The holding of Gosewisch is so clear and direct that, surely, if the legislature had ever intended to change either section 12-683(3) or the supreme court’s interpretation of that statute, it would have done so explicitly, not by implication. We agree with the trial court’s observation that “if the Legislature really intended to change products liability law ... they would have done it in [section] 12-683 not in [section] 12-2506.” The text of section 12-683 has not been changed since Gosewisch was decided in 1987.

Another reason why the legislature did not intend section 12-2506 to overrule Gosewisch is that the statute was enacted before the case was published. Section 12-2506 was enacted by Senate Bill 1036, which was filed in the Office of the Secretary of State on February 13,1987. See 1987 Ariz.Sess.Laws ch. 1. Gosewisch was filed by the Clerk of the Supreme Court on April 23, 1987.

Our holding does not render section 12-2506 meaningless regarding product liability law, nor does it create a conflict between sections 12-2506 and -683(3). The inclusion of “misuse of a product” in section 12-2506(F)(2) has significance apart from, and not inconsistent with, section 12-683(3). Section 12-2509(B) provides that “[i]f an action involves claims for relief alleging both negligence and strict liability in tort,” then comparative fault principles apply to the strict liability claims as well, with some exceptions. In this case, section 12-2509 was inapplicable because there were no negligence claims, only strict liability claims. The trial court properly refused to instruct on comparative fault.

B.

Appellees Gibbs argue that there was insufficient evidence for a misuse instruction. This is a close question on the facts here, and recognized as such by the trial court. The misuse defense is available only for uses that are not “reasonably foreseeable.” A.R.S. § 12-683(3) (1992). A reasonably foreseeable use is one “which would be expected of an ordinary and prudent purchaser, user or consumer and which an ordinary and prudent manufacturer should have anticipated.” AR.S. § 12-681(4) (1992).

We recall what this Court stated in Kavanaugh v. Kavanaugh, 131 Ariz. 344, 641 P.2d 258 (App.1982): “[S]ome abnormal, or unintended uses will not constitute a legal misuse of the product, if they are reasonably foreseeable. This is ordinarily a question of fact for the jury, unless reasonable minds could not differ.” 131 Ariz. at 349, 641 P.2d at 263 (quoting W. Kimble & R. Lesher, Products Liability § 244, at 279 (1979)).

A bungee cord is not useful as such unless it is stretched. A strong argument can be made that an ordinary and prudent manufacturer should anticipate that an unwarned cord user might stretch the cord past failure point of the hooks, if the hooks will fail at half the load the cord will withstand. A strong argument can be made that said manufacturer should anticipate that an ordinary and prudent cord user might stretch the cord, or a portion of the cord, beyond twice its length. Nevertheless, we conclude that the trial court did not err in instructing the jury on the affirmative defense of product misuse. The trial court has a duty to instruct the jury on all legal theories supported by the evidence. Newell v. Town of Oro Valley, 163 Ariz. 527, 528, 789 P.2d 394, 395 (App.1990). On appeal, we must view the evidence to support the theory of the party requesting the jury instruction. Id. Viewed in this light, Appellants presented sufficient evidence, discussed in Section I of this Opinion, to get to the jury on their theory that a portion of the cord was stretched far beyond its limit of elasticity, far beyond the point that any ordinary and prudent user would have stretched it, and that the hooks, weak as they were in relation to the cord, were adequate to withstand any reasonably anticipated use of the cord. See Boy v. I.T.T. Grinnell Corp., 150 Ariz. 526, 534, 724 P.2d 612, 620 (App.1986) (approving misuse instruction on evidence that the product, a cast-iron pipe fitting, would not have broken unless exposed to four times the amount of proper force).

C.

Olympia contends that, because Appellees made strict liability claims and did not make any negligence claims, evidence of Olympia’s knowledge and conduct regarding the cord was irrelevant. The purported erroneous admission of evidence took place during Appellees’ cross-examination of the Olympia representative. Counsel asked the representative whether Olympia imposed any quality control standards on the manufacture and production of the bungee cords, whether he knew what the manufacturer’s quality control was, and whether Olympia required its manufacturers to perform their own quality control tests. The representative also was asked about his expectations regarding the strength of the hooks and whether, if Olympia had known of the strength capacities, it would have modified the hooks. In addition, he was asked questions regarding how consumers would use the cords, what their expectations would be, and how far they would stretch the cords. Because many of the representative’s answers alluded to Olympia’s lack of knowledge about the product, Olympia argues that the evidence was unfairly prejudicial. Olympia claims that Appellees “wanted the jury to believe that Olympia either knew about the risk and did not care or was ignorant of the risk and therefore acted incompetently.”

In Dart v. Wiebe Manufacturing, Inc., 147 Adz. 242, 709 P.2d 876 (1985), the supreme court discussed the tension between negligence and strict liability theories in design defect cases. 147 Ariz. at 246-48, 709 P.2d at 880-82. The court observed that the focus in negligence cases is the conduct of the manufacturer or seller, whereas the focus in strict liability eases is the quality of the product. Id. at 246, 709 P.2d at 880. However, the court noted:

The quality of the product may be measured not only by the information available to the manufacturer at the time of the design, but also by the information available to the trier of fact at the time of the trial. In Byrns v. Riddell, 113 Ariz. 264, 550 P.2d 1065 (1976) we quoted with approval

“[t]he following test of “unreasonable danger”: “whether a reasonable manufacturer would continue to market his product in the same condition as he sold it to the plaintiff with knowledge of the potential dangerous consequences the trial has just revealed.’ ”

This “hindsight” test is generally recommended by the commentators, and by precedent, if the case is to be pursued in strict liability.

The hindsight test has been described as a “prudent manufacturer test” because the factfinder must evaluate the reasonableness of the manufacturer’s conduct. However, the test actually concerns itself with the quality of the product.

Id. at 247, 709 P.2d at 881 (citations and footnote omitted).

Based on Dart, the objected-to testimony was relevant to the question whether the product was defective and unreasonably dangerous. Moreover, the objected-to testimony was relevant to the foreseeability issue; AR.S. section 12-683(3) provides that reasonably foreseeable misuse is not a defense.

We conclude that the trial court did. not abuse its discretion in finding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See Ariz.R.Evid. 403; Readenour v. Marion Power Shovel, 149 Ariz. 442, 449-50, 719 P.2d 1058, 1065-66 (1986) (applying an abuse of discretion standard and holding that an appellate court may not “substitute its judgment for that of the trial court and utilize Rule 403 to exclude evidence after the trial judge has presumably weighed the factors and decided in favor of admissibility”). The trial court correctly instructed the jury, and we presume that the jury followed the instructions given and did not use the evidence for other than its proper purposes. See State v. Reynolds, 125 Ariz. 530, 532, 611 P.2d 117, 119 (App.1980) (“Jurors are presumed to do their duty.”).

D.

Olympia claims that counsel for Appellees violated a pre-trial ruling by 'questioning Olympia’s representative about the knowledge and conduct of the foreign corporation that manufactured the cord. The pre-trial ruling prohibited evidence regarding elastic strap products other than the cord involved in this case. The complained-of questions about the foreign manufacturer, however, related to the cord at issue in this case. Moreover, Olympia did not object to the questions as being violative of the pre-trial ruling, and, as discussed previously, the questions were relevant to the design defect claim.

Counsel for Appellees did ask one question that violated the pre-trial ruling. Appellants made a timely objection, the objection was sustained, the question was not answered, and the court gave the jury a cautionary instruction that cured the error caused by the question.

III.

In conclusion, AR.S. section 12-2506 does not make misuse a comparative defense in a strict product liability case, Gosewisch has not been overruled, and AR.S. section 12-683(3) has not been amended. Product misuse is still an all-or-nothing defense in Arizona, the evidence supported a misuse instruction, and there was no error in jury instructions or in the admission of evidence.

The judgment is affirmed.

GRANT, P.J., concurs.