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Winsor v. Glasswerks PHX2/4/2003
ael D. Green, Successor Liability:
The Superiority of Statutory Reform to Protect Product Liability Claimants, 72 CORNELL L. REV. 17 (1986) (recommending a statutory solution to the problem by requiring dissolving corporations to provide potential products-liability plaintiffs with adequate protection). Without considering whether such a proposal is or is not appropriate, this proposal addresses the core problem but does not modify fundamental principles of liability. This, however, is an avenue of relief that the court is simply unable to provide; it is one clearly left for legislative consideration. More importantly, it is an example of why the policy of successor liability in Arizona should not be determined by an evaluation of one case presented for judicial review, but by a thorough consideration of the broader social policies and costs that is entrusted to the legislature in its representative capacity. See Ariz. Const. art. 4, pt. 1, ยง 1 ("The legislative authority of the State shall be vested in the Legislature . . ."); Adams v. Bolin, 74 Ariz. 269, 247 P.2d 617 (1952).
(ii). Predictability in our Commerce.
Another reason that courts have deferred to legislatures is the "drastic departure from traditional corporate law" that the exceptions represent. Johnston, 830 P.2d at 1144; see also Polius v. Clark Equip. Co., 802 F.2d 75, 83 (3d Cir. 1986, V.I.) ("Predictability is vital in the corporate field."). Our jurisprudence also expressly recognizes giving consideration to "the predictability that an orderly commerce requires." Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 492, 66, 38 P.3d 12, 30 (2002) (quoting Southwest Sav. & Loan Ass'n. v. SunAmp Sys. Inc., 172 Ariz. 553, 558, 838 P.2d 1314, 1319 (App. 1992)). Thus, this too is a factor in our determination that this matter is best left to the legislature, giving ample opportunity for all interests to be heard on this issue. (iii).
The Proposed Exceptions Modify or Minimize Fundamental Principles of Tort Liability.
We recognize, of course, that the doctrine of products liability in Arizona had its origin in the courts. O.S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968); Colvin v. Superior Equip. Co., 96 Ariz. 113, 392 P.2d 778 (1964). As one writer recently noted, " f the Arizona legislature were to repeal the entire roduct iability hapter, one could still bring a product liability lawsuit in Arizona." Ann Larimer Robertson, When Worlds Collide, ARIZONA ATTORNEY, April 2002 at 38, 40. Notwithstanding the judicial origins of product liability in Arizona, we agree that any change in successor liability laws is best left to the legislature where the liability sought extends beyond the fundamental principles upon which tort liability is based.
Since Arizona first recognized products liability actions, the causal connection between the chain of distribution and the responsibility to compensate those injured by a product has been fundamental. Without embarking on a full-scale tour of Arizona's products liability cases, we note that, historically, the concept of products liability was first adopted in Arizona in Colvin. 96 Ariz. at 113, 392 P.2d at 778. See O.S. Stapley Co., 103 Ariz. at 559, 447 P.2d at 251 ("In the recent case of Colvin v. Superior Equipment Company . . . this court adopted the modern legal concept of the manufacturer's strict liability and tort with regard to its manufactured products.") (quoting Nalbandian v. Byron Jackson Pumps, 97 Ariz. 280, 287, 399 P.2d 681, 686 (1965)) (Lockwood J., concurring). Justice Lockwood's concurrence in Nalbandian emphasized that "a manufacturer
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