Jones v. Pak-Mor Mfg. Co., PAK-MOR

• Decision Date: 17 January 1985
• Docket Number: No. 17412-PR,PAK-MOR,17412-PR
• Citation: 700 P.2d 819,145 Ariz. 121
• Parties: , 51 A.L.R.4th 1167, 53 USLW 2398 Jerry JONES and Sandra Jones, husband and wife, Plaintiffs/Appellees, v.MANUFACTURING COMPANY, Defendant/Appellant.
• Court: Arizona Supreme Court

Page 819

700 P.2d 819

145 Ariz. 121, 51 A.L.R.4th 1167, 53 USLW 2398

Jerry JONES and Sandra Jones, husband and wife, Plaintiffs/Appellees, v. PAK-MOR MANUFACTURING COMPANY, Defendant/Appellant.

No. 17412-PR.

Supreme Court of Arizona, In Banc.

Jan. 17, 1985.

Davis, Siegel & Gugino by Barry M. Davis, Tucson, for plaintiffs/appellees.

Kimble, Gothreau, Ryan, Nelson & Cannon, Jones, Dickerman, Nuckolls, Edwards & Smith by William W. Edwards and William Kimble, Tucson, for defendant/appellant.

FELDMAN, Justice.

Jerry Jones (plaintiff) was injured on January 27, 1979, while working on a machine manufactured by Pak-Mor Manufacturing Company (defendant). In the product liability action which followed, plaintiff alleged improper design and sought recovery on theories of negligence and strict liability. Before trial, plaintiff moved to exclude all evidence of the absence of prior, similar accidents. The trial court granted plaintiff's motion, ruling that such evidence was inadmissible under Arizona law. After verdict and judgment for plaintiff, defendant appealed, claiming, inter alia, that the exclusion ruling was in error. The court of appeals affirmed. Jones v. Pak-Mor Manufacturing Co., 145 Ariz. 132, 700 P.2d 830 (1984). Defendant petitioned this court for review. We have jurisdiction. Ariz. Const. art. 6 § 5(3); Rule 23, Ariz.R.Civ.App.P., 17A A.R.S. We accepted review only on the issue pertaining to admissibility of evidence of the absence of prior accidents.

FACTS

The facts of this case are set forth fully in the opinion of the court of appeals. We state here only those facts necessary for the determination of the issue upon which we granted review.

Plaintiff was employed by SCA Services of Arizona, Inc. On January 27, 1979, plaintiff was injured while working on a side-loading refuse compaction and collection machine on a route serviced by SCA. He had been hired only three days before and had received limited instructions for working on the rear-loading machine to which he was assigned for his first two days on the job. He received no instructions for working on the side-loading machine to which he was assigned on his third day of work. The driver of this vehicle also was newly hired.

The men began work at 6 a.m. The driver was given a map of the collection route, and he and plaintiff drove to an area outside Tucson where they began collecting garbage. Plaintiff was working as a helper on the driver's side of the machine, standing on the fender running board as the truck proceeded between pick-up points. Plaintiff rode with his body facing the machine. As plaintiff stood on the running board, his head was generally turned to the left, and he was looking toward the front of the machine while he held onto the grab iron attached to the side of the machine. Each side of the machine contained two doors which were open to receive the garbage collected at various points and emptied into the compactor.

Early in the morning, the truck entered an alley, stopped so that the helpers could pick up several cans of garbage, and then continued down the alley along a fence line. The alley was less than ten feet wide, while the truck was about eight feet wide. Plaintiff, riding on the running board, was not looking forward until just before the alley curved, when he looked up and saw the fence "coming toward" him. The driver turned the curve sharply, and plaintiff was caught between the fence and the vehicle. Plaintiff's left leg was seriously injured.

Plaintiff filed an action against his employer, a co-worker, the manufacturer of the truck to which the compactor was attached, and Pak-Mor, the company which built the compactor. Before trial, all claims against defendants other than Pak-Mor were settled or dismissed. Trial proceeded against Pak-Mor on counts of negligence and strict liability.

The evidence at trial indicated that the Pak-Mor garbage compacting machine comes in several series, differing mainly in the capacity of the compactor. The compactors are designed so that the workmen may jump off the truck, grab garbage cans, empty them into the compactor, and ride on the compactor itself as the truck pulls the machine between collection points. As they ride, the workmen stand on a running board on the side of the truck-compactor. The standing space for the worker is reduced by the cylindrical shape of the compactor, so that only three and one-half to four inches of space is available within the actual width of the compactor. A.R.S. § 28-1002(A) limits the outside width of any vehicle, including its load, to eight feet; therefore, the design of the running board and compaction machine forced plaintiff's body to "extend beyond the protected, lawful width of the vehicle." (Jones v. Pak-Mor, 145 Ariz. at 123, 700 P.2d at 821.)

The Pak-Mor compactor was originally designed in 1947. The machine on which plaintiff was riding at the time of the accident was a 1972 model. The parties disagree with respect to whether the redesign in 1972 changed the design in any way relevant to the case at bench. Because we consider the propriety of the exclusion of evidence offered by defendant, we view the record on this question in the light most favorable to admission of that evidence. Taken in that light, the evidence indicates that no material change in the design occurred and that the compactor on which plaintiff was riding was a model which had been used without relevant change for a period of twenty-six years.

At the beginning of trial, plaintiff moved to exclude any evidence that the machine had been in use for twenty-six years without report of similar accidents. In opposing the motion, defendant offered to prove that the product had been designed and put into use in 1947, that the relevant portion of the design had not been changed, that thousands of machines with the same design had been sold, that they had been used under widely varying conditions, and that there had been no report of claims to or against defendant based on any injury sustained in a manner similar to that alleged by plaintiff. Defendant was prepared to offer this evidence through the testimony of its president. It argued that the evidence was relevant to show that the design was not defective, that the product was not unreasonably dangerous, and that the defendant had no notice of any defect or danger.

While recognizing that there is authority from other jurisdictions supporting the admission of evidence relating to the absence of prior accidents in both negligence and strict liability actions, both the trial judge and the court of appeals correctly noted the existence of Arizona decisions "admit[ting] evidence of prior accidents, but exclud[ing] evidence of the absence of prior accidents." (Jones v. Pak-Mor, at 123, 700 P.2d at 821.) As the court of appeals further noted, in Arizona the rule is "applied mechanically." (Id.) Although the trial court has discretion to admit evidence of prior accidents, the rule relating to inadmissibility of evidence of the absence of prior accidents is a per se rule. Hlavaty v. Song, 107 Ariz. 606, 491 P.2d 460 (1971). Evidence of the absence of prior accidents under similar conditions is inadmissible to prove lack of defect, lack of danger, or similar issues. Id. But see Rayner v. Stauffer Chemical Co., 120 Ariz. 328, 585 P.2d 1240 (App.1978) (holding such evidence admissible to show characteristics of the product with respect to its capacity to cause certain types of injury).

The rule of per se inadmissibility was first adopted by this court in Fox Tucson Theaters Corp. v. Lindsay, 47 Ariz. 388, 56 P.2d 183 (1936). Defendant argues that Lindsay was not meant as a per se rule, that it is now a minority rule, that it is unsupported by logic, and that this court should reconsider it. Finding these arguments persuasive, we accepted review. Rule 23, Ariz.R.Civ.App.P., 17A A.R.S.

RELEVANCE

1. The Basis for Rejection

The reason given in Lindsay for the rule of inadmissibility was that

... it is apparent that such testimony, could the parties be prepared to meet it, might introduce into the case numerous collateral issues bearing only remotely on the main issue, which would tend to greatly protract the trial, distract the attention of the jury from the issues involved in the suit, and impose great and unnecessary expense on the parties.

Fox Tucson Theaters Corp. v. Lindsay, 47 Ariz. at 395, 56 P.2d at 186, quoting from the seminal case of Anderson v. Taft, 20 R.I. 362, 39 A. 191, 192 (1898). A second reason sometimes given for the per se rule of inadmissibility in some of the earlier literature was that

Litigants should be protected against surprise.... [S]afety-history evidence is not closely confined in time, and sometimes not in space. Therefore, opposing counsel may be unprepared to meet fraudulent, partial, or mistaken testimony about accidents other than the principal one, or about long periods of safe use.

Morris, Proof of Safety History in Negligence Cases, 61 Harv.L.Rev. 205, 210 (1948). A final consideration was that jurors would be misled or prejudiced by such evidence. Thus, jurors impressed by the defendant's good record might be swayed in his favor and fail to see that he had lowered his standards. Id. at 210-11.

While some of these objections may still be viable, recent cases indicate that the rule of per se inadmissibility is "manifestly incompatible with modern principles of evidence." Simon v. Town of Kennebunkport, 417 A.2d 982, 985 (Me.1980). In Simon the court rejected a per se rule of inadmissibility of evidence of other accidents and stated:

Whatever the continued vitality ... of an absolute prohibition against other-accident evidence, it is clear that such a rule did not survive the adoption of our new Rules of Evidence....

Id. at 986; see also Sturm v. Clark Equipment Co., 547 F.Supp. 144, 145 (W.D.Mo.1982), aff'd, 732 F.2d 161 (8th Cir.1984) (noting that under the Federal Rules of...