Gibbs v. O'Malley Lumber Co.

• Decision Date: 01 February 1994
• Docket Number: CA-CV,No. 1,1
• Citation: 868 P.2d 355,177 Ariz. 342
• Parties: , Prod.Liab.Rep. (CCH) P 13,868 Michael Todd GIBBS and Vicky Gibbs, husband and wife, Plaintiffs-Appellees, v. The O'MALLEY LUMBER COMPANY, an Arizona corporation; Olympia Tools, Inc., a foreign corporation, Defendants-Appellants. 91-0312.
• Court: Arizona Court of Appeals

Page 355

868 P.2d 355

177 Ariz. 342, Prod.Liab.Rep. (CCH) P 13,868

Michael Todd GIBBS and Vicky Gibbs, husband and wife, Plaintiffs-Appellees, v. The O'MALLEY LUMBER COMPANY, an Arizona corporation; Olympia Tools, Inc., a foreign corporation, Defendants-Appellants.

No. 1 CA-CV 91-0312.

Court of Appeals of Arizona Division 1, Department B.

Feb. 1, 1994.

[177 Ariz. 343] Law Offices of Michael E. Bradford by Michael E. Bradford, Phoenix, for plaintiffs-appellees.

Jennings, Strouss & Salmon by John A. Micheals, James M. Ackerman and John J. Egbert, Phoenix, for defendant-appellant O'Malley Lumber Co.

Thomas, Burke & Phillips, P.C. by Benjamin C. Thomas, Phoenix, for defendant-appellant Olympia Tools.

Bess & Dysart, P.C. by Donald R. Kunz and Brad K. Keogh, Phoenix, for defendant-appellant Olympia Tools, Inc.

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 elasticized 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...." A.R.S. § 12-683(3) (1992). Gosewisch held that the statute provided an all-or-nothing defense:

We interpret A.R.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 A.R.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.L.J. 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 A.L.R.4th 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...