Gosewisch v. American Honda Motor Co., Inc.

• Decision Date: 23 April 1987
• Docket Number: No. 18249-PR,18249-PR
• Citation: Gosewisch v. American Honda Motor Co., Inc., 737 P.2d 376, 153 Ariz. 400 (Ariz. 1987)
• Parties: , 83 A.L.R.4th 53, Prod.Liab.Rep. (CCH) P 11,531 Mitchell GOSEWISCH and Nora Gosewisch, husband and wife, Plaintiffs/Appellants, v. AMERICAN HONDA MOTOR CO., INC., Honda Motor Co., Ltd. and Honda Research and Development Co., Ltd., Defendants/Appellees.
• Court: Arizona Supreme Court

Page 376

737 P.2d 376

153 Ariz. 400, 83 A.L.R.4th 53, Prod.Liab.Rep. (CCH) P 11,531

Mitchell GOSEWISCH and Nora Gosewisch, husband and wife, Plaintiffs/Appellants, v. AMERICAN HONDA MOTOR CO., INC., Honda Motor Co., Ltd. and Honda Research and Development Co., Ltd., Defendants/Appellees.

No. 18249-PR.

Supreme Court of Arizona.

April 23, 1987.

Reconsideration Denied June 16, 1987.

Supplemental Opinion June 17, 1987.

Molloy, Jones, Donahue, Trachta, Childers & Mallamo by John F. Molloy, David A. McEvoy, Rowland & Durazzo, P.C. by Patric E. Durazzo, Tucson, for plaintiffs/appellants.

Bowman and Brooke by Jeffrey R. Brooke, Paul G. Cereghini, David C. Auther, Phoenix, Richard A. Bowman, Minneapolis, Minn., Somers, Hall & Verrastro by Steven A. Hall, Los Angeles, Cal., for defendants/appellees.

Langerman, Begam, Lewis and Marks by Richard W. Langerman, Amy G. Langerman, Phoenix, for amicus curiae Arizona Trial Lawyers Ass'n.

Jones, Skelton & Hochuli by Georgia A. Staton, Larry J. Cohen, Phoenix, for amicus curiae Phoenix Ass'n of Defense Counsel.

GORDON, Chief Justice.

Plaintiffs Mitchell and Nora Gosewisch (Gosewisch) petition this court to review a court of appeals decision affirming a verdict in favor of defendants American Honda Motor Co., Inc., et al. (Honda). See Gosewisch v. American Honda Motor Co., Inc., 153 Ariz. 389, 737 P.2d 365 (Ct.App.1985).

We granted review to address issues regarding the court's treatment of Gosewisch's requested failure-to-warn instruction and whether a jury instruction given pursuant to A.R.S. § 12-683(3) violates article 18, § 5 of the Arizona Constitution. Rule 23, Ariz.R.Civ.App.P., 17A A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

Mitchell Gosewisch was injured while riding a three-wheeled Honda All Terrain Cycle (ATC). Gosewisch purchased the 1981 Honda 185S ATC from his cousin approximately two weeks before his accident. At that time, the ATC was approximately three months old and, unbeknownst to Gosewisch, had been in an accident which bent the front forks. Gosewisch was an experienced motorcycle rider and had previously ridden ATCs. In the two weeks before his accident, Gosewisch rode his ATC every day.

On June 14, 1981, Gosewisch and a friend were riding ATCs in the Pantano Wash in Tucson. While the cause of the accident was hotly disputed at trial, evidence indicated that Gosewisch was involved in a one-vehicle accident after he hit a mound of sand and was thrown from the ATC. Gosewisch was rendered a quadriplegic.

Gosewisch contended that the ATC had a hidden propensity to flip forward unexpectedly. At trial he claimed this hazard was the result of several design defects, including 1) very low tire pressure (2.2 psi); 2) lack of mechanical suspension; 3) inherent instability of three-wheeled vehicles due to their high center of gravity; 4) weak front forks; and 5) a front wheel brake vulnerable to being accidentally engaged. In his complaint, Gosewisch also alleged that Honda was grossly negligent in failing to warn of the unstable propensities of its ATCs. However, at trial Gosewisch characterized the case as a strict products liability action. After a seven-week trial, the jury returned a verdict in favor of the defendants.

I. FAILURE-TO-WARN INSTRUCTION

The trial court instructed the jury on the manufacturer's duty to give adequate instructions for use of a product. However, the trial court refused to give an instruction on failure to warn. ¹ Although no court reporter was present when jury instructions were being settled, the trial court later allowed counsel to note objections on the record. We have voiced strong disapproval to motions argued in chambers without the benefit of court reporters. See State v. Bay, 150 Ariz. 112, 722 P.2d 280 (1986). Jury instructions should always be settled in the presence of a court reporter.

We view this issue as whether Gosewisch presented a prima facie failure-to-warn case that would have entitled him to an instruction. The court of appeals viewed the issue differently and held: "Because plaintiffs here did not contend at trial that the ATC was faultlessly manufactured and designed--their sole contention being that the vehicle had design defects--there was no error in failing to give the instruction." Gosewisch v. American Honda Motor Co., Inc., at 737 P.2d at 368. The court relied exclusively on Embry v. General Motors Corp., 115 Ariz. 433, 436, 565 P.2d 1294, 1297 (App.1977) because it was "[s]ingularly appropriate." Maj. op. at 392, 737 [153 Ariz. 403] P.2d at 368. We disagree with the reasoning of the court of appeals.

A plaintiff is not required to make an election between pursuing a case on a strict products liability theory of either design defect or failure to warn. A plaintiff may proceed with both theories if both are viable. Plaintiffs are allowed to plead theories in the alternative, Rule 8(f)(2), Ariz.R.Civ.P., 16 A.R.S., and the same set of facts may present more than one theory of recovery. See, e.g., Schneider v. Cessna Aircraft Co., 150 Ariz. 153, 722 P.2d 321 (App.1985) (plaintiffs proceeded simultaneously with theories of defective design, improper instructions, and failure to warn); Brown v. Sears Roebuck & Co., 136 Ariz. 556, 667 P.2d 750 (App.1983) (genuine issue of material fact concerning both alleged design defect and failure to warn). Therefore, the court of appeals' decisions in this case and Embry are overruled to the extent they preclude plaintiffs from proceeding simultaneously with causes of action in strict liability for failure to warn and design defects.

A jury instruction is justified if it relates to a legal theory within the issues raised in the case and if it is supported by the evidence. See Sparks v. Republic National Life Ins. Co., 132 Ariz. 529, 539, 647 P.2d 1127, 1137, cert. denied, 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982); Kauffman v. Schroeder, 116 Ariz. 104, 106, 568 P.2d 411, 413 (1977) (duty of court to instruct jury on all phases of law applicable to facts developed at trial). Therefore, resolution of the question of whether Gosewisch was entitled to a failure-to-warn jury instruction turns on the sufficiency of the evidence presented at trial.

In order to establish a prima facie case of strict products liability, the plaintiff must show that the product is in a defective condition and unreasonably dangerous, the defective condition existed at the time the product left the defendant's control, and the defective condition is the proximate cause of the plaintiff's injury. Rocky Mountain Fire and Casualty Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 292, 640 P.2d 851, 854 (1982); Amburgery v. Holan Division of Ohio Brass Co., 124 Ariz. 531, 532, 606 P.2d 21, 22 (1980); see also Readenour v. Marion Power Shovel, 149 Ariz. 442, 447, 719 P.2d 1058, 1063 (1986); Byrns v. Riddell, Inc., 113 Ariz. 264, 550 P.2d 1065 (1976). Three types of defects can result in an unreasonably dangerous product: (1) design defects, (2) manufacturing defects, and (3) informational defects encompassing instructions and warnings. See Brown, 136 Ariz. at 562, 667 P.2d at 756; Henderson, "Strict Products Liability and Design Defects in Arizona," 26 Ariz.L.Rev. 261, 262-65 (1984); Phillips, "The Standard for Determining Defectiveness in Products Liability," 46 U.Cin.L.Rev. 101 (1977). Thus, to establish a prima facie case of strict products liability based on an informational defect, Gosewisch had the burden of proving that Honda had a duty to warn of the alleged propensity of the ATC to flip; that lack of an adequate warning made the ATC defective and unreasonably dangerous; that the ATC lacked adequate warnings when it left Honda's control; and that the failure of Honda to give an adequate warning proximately caused his injuries. Failure to prove any one of these elements is fatal.

We focus our inquiry on the last element--causation. ² "[A] plaintiff may show that the injury proximately resulted from the failure to warn, or from an inadequate warning, by evidence that had a proper warning been given, he would not have used the product in the manner which resulted in his injury, or by evidence that certain precautions would have been taken that would have avoided the accident." W. Kimble & R. Lesher, Products Liability § 257, at 296 (1979) (footnotes omitted); see also Keeton, "Products Liability--Inadequacy of Information," 48 Tex.L.Rev. 398, 414 (1970); accord Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 492-93 (3rd Cir.1985).

At trial, the warning labels affixed to Gosewisch's ATC were introduced. These stated: READ OWNER'S MANUAL CAREFULLY; REMEMBER: PRESERVE NATURE, ALWAYS WEAR A HELMET, THINK SAFETY; WARNING--OPERATOR ONLY--NO PASSENGERS. The owner's manual, which contained more than fifty pages of information, riding techniques and safety cautions, was also introduced. The manual instructs riders to perform a pre-ride safety check, to check the tire pressure before riding, to drive cautiously in unfamiliar terrain, and to be aware that "a strong possibility of severe personal injury or loss of life" is possible if instructions are not followed. The manual also warns that the safe operation is largely dependent upon the operator's proper judgment.

Although evidence of the warnings and instructions provided by Honda were introduced, Gosewisch did not establish the causal relationship between Honda's alleged failure to warn of the ATC's propensity to flip and his injury. Gosewisch testified at trial, but he was never asked about warnings or instructions. Neither he nor any other witnesses testified that Gosewisch would have altered his behavior to avoid injury had he been appropriately warned. There was no testimony that different warnings would have influenced Gosewisch's conduct in purchasing or riding his ATC.

Ordinarily, what constitutes the proximate cause of an injury is a question of fact. However, the...