Jimenez v. Sears, Roebuck and Co.

• Decision Date: 17 October 1995
• Docket Number: No. CV-94-0273-PR,CV-94-0273-PR
• Citation: 904 P.2d 861,183 Ariz. 399
• Parties: , 64 USLW 2268, Prod.Liab.Rep. (CCH) P 14,382 Richard Lopez JIMENEZ and Amanda Q. Jimenez, husband and wife, Plaintiffs/Appellees, v. SEARS, ROEBUCK AND COMPANY, a foreign corporation, Defendant/Appellant.
• Court: Arizona Supreme Court

Page 861

904 P.2d 861

183 Ariz. 399, 64 USLW 2268, Prod.Liab.Rep. (CCH) P 14,382

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, In Banc.

Oct. 17, 1995.

[183 Ariz. 400] Hirsh, Davis & Piccarreta, P.C. by Carl A. Piccarreta, Tucson, for Plaintiffs/Appellees.

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.

OPINION

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 A.R.S. §§ 12-2501 to 12-2509, the Uniform Contribution Among Tortfeasors Act (UCATA), so that Plaintiffs' damages could be reduced in proportion to their degree of fault. The trial court refused to so instruct. On review, we must decide whether the 1987 version of UCATA changes misuse from an all-or-nothing defense to one of comparative fault, thus permitting reduction in damages. If so, we must also decide whether that change violates article 2, section 31 of the Arizona Constitution.

We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

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 A.R.S. § 12-683(3). ¹ See Gosewisch v. American Honda Motor Co., 153 Ariz. 400, 407, 737 P.2d 376, 383 (1987). It entitled Defendant to a verdict if Richard's misuse was the sole cause of the injury and allowed Plaintiffs full recovery of their damages if Richard's alleged misuse of the grinder was only a concurrent cause. The trial judge denied Defendant's request to give comparative fault instructions and a form of verdict that tracked UCATA and would have allowed the jury to allocate a percentage of fault to Richard--and the judge to then reduce Plaintiffs' damages--if the jury found that Richard's misuse was a concurrent cause of his injuries. ²

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 Ariz.R.Civ.App.P. 23(c)(4).

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 A.R.S. § 12-2505(A).

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.3 D 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 knowledge of a product's defect is not necessary to establish misuse but is essential for assumption of risk. Randy R. Koenders, Annotation, Products Liability: Product Misuse Defense, 65 A.L.R.4 TH 263 § 33, at 333 (1988). Misuse has been variously referred to as use for a purpose or in a manner that, from the manufacturer or seller's view, was unintended, unforeseeable, unanticipated, unexpected, non-customary, or abnormal. See id. These concepts distinguish misuse from contributory negligence, which involves careless use for a proper purpose. See RESTATEMENT § 402A cmt. n (1965); D.W. Noel, Defective Products: Abnormal Use, Contributory Negligence and Assumption of Risk, 25 VAND.L.REV. 93 (1972).

At common law, misuse was...