Readenour v. Marion Power Shovel, a Div. of Dresser Industries, Inc.

• Decision Date: 12 May 1986
• Docket Number: No. 18224-PR,18224-PR
• Citation: 149 Ariz. 442,719 P.2d 1058
• Parties: , Prod.Liab.Rep. (CCH) P 11,012 Robert READENOUR and Catherine Readenour, husband and wife, Plaintiffs/Appellees, v. MARION POWER SHOVEL, a DIVISION OF DRESSER INDUSTRIES, INC., a Delaware corporation, Defendant/Appellant.
• Court: Arizona Supreme Court

Page 1058

719 P.2d 1058

149 Ariz. 442, Prod.Liab.Rep. (CCH) P 11,012

Robert READENOUR and Catherine Readenour, husband and wife, Plaintiffs/Appellees, v. MARION POWER SHOVEL, a DIVISION OF DRESSER INDUSTRIES, INC., a Delaware corporation, Defendant/Appellant.

No. 18224-PR.

Supreme Court of Arizona.

May 12, 1986.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Larry L. Smith, Richard Shannon, Jolyon Grant, Scott E. Boehm, Phoenix, for plaintiffs/appellees.

Fennemore, Craig, von Ammon, Udall & Powers by Calvin H. Udall, Ruth V. McGregor, J. Gregory Osborne, Phoenix, for defendant/appellant.

Haralson, Kinerk & Morey, P.C. by Dale Haralson, Paul A. Smith, Tucson, for amicus curiae, Ariz. Trial Lawyers Assn.

FELDMAN, Justice

Robert and Catherine Readenour (plaintiffs) petition us to review a decision of the court of appeals which reversed a judgment entered in plaintiffs' favor and against Marion Power Shovel, a division of Dresser Industries, Inc. (defendant). Readenour v. Marion Power Shovel, 149 Ariz. 454, 719 P.2d 1070 (App.1985).

We concur in the result reached by the court of appeals but granted review because we disagree with its conclusions concerning the construction and application of A.R.S. § 12-686, which limits the admission of evidence of post-sale modification in a product liability action. Because this is a matter of first impression, we granted review. 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.

The facts necessary to resolve the issues on review are few. Mr. Readenour's arm was amputated after an accident in which he came into contact with high voltage conductors on a huge, electrically powered mining shovel manufactured by defendant. The shovel was complex, very expensive and had only a limited market--at the time of trial there were approximately 120 of these shovels in the world. The conductors, known as collector rings, may have been inadequately guarded. The legal issues before us are very narrow and concern only the admission of evidence of the product's design and safety history--primarily that relating to post-sale product changes.

The shovel was designed and manufactured by defendant or its predecessor and was placed in service by plaintiff's employer in 1968. Plaintiff was injured in 1979. Between those dates, defendant had modified the design of the guards to make the collector rings less accessible. It had also provided warning signs for mounting on the guards of shovels previously sold. These signs fit some of the shovels, but not the one on which plaintiff was injured; as a consequence, the sign for that shovel was placed on a different part of the housing, near some electrical cables. At trial, the court allowed plaintiffs to adduce evidence of these post-sale, pre-accident modifications of the product. The court of appeals indicated that evidence of post-sale changes in the size or configuration of the collector ring guard was inadmissible under A.R.S. § 12-686(2) and that as a whole the "admission of the subsequent change evidence was prejudicial and requires reversal." (149 Ariz. at 457, 719 P.2d 1073.)

Plaintiffs argue both that § 12-686(2) is an unconstitutional infringement on this court's rule-making powers and that, if it is constitutional, the statute was inapplicable to the evidence in question. Thus, plaintiffs contend, the evidence of change had either general or limited admissibility. Defendant argues the evidence was at most admissible for limited purposes and that the trial court erred either in admitting the evidence of change or in refusing a requested instruction on its limited use.

THE ADMISSIBILITY OF EVIDENCE OF CHANGE

1. Statutory Interpretation

The admissibility of evidence of post-sale change is covered by both A.R.S. § 12-686(2) ¹ and Rule 407, Ariz.R.Evid., 17A A.R.S. ² The power to make procedural rules is granted to this court by art. 6, § 5(5) of the Arizona Constitution. Rules of evidence are promulgated under our constitutional grant of power and are ordinarily considered procedural in nature. State ex rel. Collins v. Seidel, 142 Ariz. 587, 591, 691 P.2d 678, 682 (1984). The doctrine of separation of powers prevents the legislature from assuming judicial functions. Id.

The statute forbids the admission of evidence of post-sale changes "as direct evidence of a defect", while Rule 407 ³ forbids the admission and use of post-injury remedial measures as "evidence of negligence or culpable conduct." Plaintiffs contend that evidence of the modification was admissible under Rule 407 because the modification was post-sale but pre-injury. Thus, they argue, the statute conflicts with the rule and is void. We have previously held that we will recognize statutory evidentiary rules when they are "reasonable and workable", supplementing rather than contradicting the rules which the court has promulgated. Seidel, 142 Ariz. at 591, 691 P.2d at 682.

Does the statute supplement or contradict? It appears to diverge from Rule 407 in two ways. Most importantly, the statute forbids admission of changes as "direct evidence of defect", while the rule forbids admission of such evidence "to prove ... culpable conduct", but permits it if used for any other relevant purpose. Evidence of both post-sale and post-accident product changes is obviously very relevant on a number of issues in a product liability action. ⁴ We believe that an absolute prohibition against admission of evidence of post-sale change (which, of course, would include post-injury change) would conflict with both the general policy of the Rules of Evidence to admit all relevant evidence (see Rule 402) and the specific provisions of Rule 407, which permits some uses. We cannot, therefore, consistent with our rule-making power, view the statute as a complete proscription of evidence of remedial changes in the product.

We have held that it is our duty to save a statute, if possible, by construing it so that it does not violate the constitution. Arizona Downs v. Arizona Horsemen's Foundation, 130 Ariz. 550, 554, 637 P.2d 1053, 1057 (1981). We cannot interpret a statute in such a way as to do violence to the words or the legislature's intent. By using the word "direct" to modify the phrase "evidence of a defect," the legislature obviously intended to allow some uses of such evidence--those that were relevant to proof of matters other than mere existence of a defect. The interpretation which we give to the statute does not torture the words or conflict with the legislature's intent. We believe A.R.S. § 12-686 can be saved if its prohibition against admission as "direct evidence of a defect" is interpreted in the same manner as the prohibition against admission as "evidence of negligence or culpable conduct" of Rule 407. This interpretation is appropriate because, as the court of appeals mentioned, the same policy considerations support both the statute and the rule. (149 Ariz. at 457, 719 P.2d at 1073.)

We turn next to the chronological problem. Rule 407 prohibits admission of evidence of post-injury change; the statute extends the prohibition to include evidence of post-sale change. We do not view this as a conflict between the statute and the rule. First, the policy of the rule was to encourage remedial measures by freeing the defendant from concern that such steps might be used against him as an admission by conduct. McCORMICK, EVIDENCE § 77 at 159 (1954); 2 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE p 407 at 407-10 (1985). Another important factor to be considered is that although there is an evidentiary basis for such use, the probative value of the evidence is not high; post-accident changes often are motivated by many factors other than consciousness of fault. M. UDALL & J. LIVERMORE, LAW OF EVIDENCE § 87 at 194 (2d ed.1982). The probative value of post-sale, pre-accident changes is obviously more attenuated, especially if not accompanied by evidence of other accidents. Thus, the statutory post-sale, pre-injury bar does not interfere with highly probative evidence.

Next, the extension of the prohibition to include pre-accident changes fosters the same policy as that embodied in rule 407. It encourages change which presumably will have the effect of decreasing the danger of future accidents. Finally, the question of remedial changes or measures is not, in our view, either a purely evidentiary or purely procedural question. Rule 407 is found in article 4 of the Rules of Evidence, which deals with "Relevancy and its Limits." The limitation provided by Rule 407 is not based so much upon a lack of relevancy as it is upon the policy decision to promote changes which decrease accidents. Under our constitutional rule-making power we cannot let the legislature define what is relevant; however, when it is appropriate we may defer to legislative decisions regarding the use or exclusion of relevant evidence to promote substantive goals of public policy such as accident prevention. In fact, one commentator suggests that the remedial measure exclusion is not truly a rule of evidence but one which should be "classified as a [rule] of privilege." McCORMICK, supra, § 77 at 159 (1954); see also McCORMICK, EVIDENCE § 275 at 668-69 (2d ed. 1972). Privilege statutes prohibit the use of highly relevant evidence in order to further policy goals such as physician-patient confidentiality. We believe A.R.S. § 12-686(2) is similar to a privilege statute, having both procedural and substantive aspects.

For the foregoing reasons, we conclude that the extension of the prohibition to include post-sale changes does not conflict with but, rather, supplements the provisions of Rule 407. Therefore, we hold that the statute is to be interpreted as forbidding, in a product liability action, the use of evidence of post-sale, pre-injury modification to prove a "defect" resulting from either negligent conduct or...