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Zuern v. Ford Motor Co.12/19/1996
s of causation. Although causation (or physical contribution to the injury) is a necessary condition precedent to consideration of a person's fault - i.e., the fault must have "proximately caused or contributed" to the claimant's injuries to be considered, A.R.S. § 12-2506(F)(2) - once causation is found the trier of fact must determine and apportion "the relative degrees of fault" of all parties and nonparties. § 12-2506(C). See Standard Chartered PLC v. Price Waterhouse, 1996 Ariz. App. LEXIS 243, 229 Ariz. Adv. Rep. 26, 48 (Ct. App. November 7, 1996) ("the parties' relative contribution to causation is best left for the jury to determine as an element in apportioning relative degrees of fault"); William L. Prosser, Comparative Negligence, 51 Mich. L. Rev. 465, 481 (1953); Victor E. Schwartz, Comparative Negligence, § 17-1(a) at 352 (3d ed. 1994) ("The process is not allocation of physical causation, which could be scientifically apportioned, but rather of allocating fault, which cannot be scientifically measured."). Accord, State v. Kaatz, 572 P.2d 775, 782 (Alaska 1977) ("What is to be compared is negligence, conduct, fault, culpability not causation, either physical or legal."); Day v. General Motors Corp., 345 N.W.2d 349 (N.D. 1984) (in analyzing comparative fault, jury should consider both accident-producing fault and injury-enhancing fault in crashworthiness case).
Thus, the trial court did not err in admitting evidence bearing on Ellisor's fault, including evidence of his intoxication and criminal conviction. Cf. Keltner v. Ford Motor Co., 748 F.2d 1265 (8th Cir. 1984) (trial court, applying Arkansas law, did not err in admitting evidence of plaintiff/motorist's drinking habits and odor of intoxicants in crashworthiness case); Hinkamp v. American Motors Corp., 735 F. Supp. 176 (E.D.N.C. 1989), aff'd, 900 F.2d 252 (4th Cir. 1990) (driver's intoxication considered relevant factor in crashworthiness case). That such evidence was prejudicial to plaintiffs, painted Ellisor as a wrongdoer and undoubtedly increased the chances of the jury assessing a sizeable percentage of fault to him did not make the evidence inadmissible. Moreover, we will not overturn the trial court's weighing of factors and determinations under Ariz. R. Evid. 403, 17A A.R.S., absent a manifest abuse of discretion, which we do not find here. Readenour v. Marion Power Shovel, 149 Ariz. 442, 449-50, 719 P.2d 1058, 1065-66 (1986).
Finally, that plaintiffs' strict liability theory was premised on the crashworthiness doctrine did not automatically limit the nature or scope of admissible evidence bearing on Ellisor's fault. See Whitehead v. Toyota Motor Corp., 897 S.W.2d 684, 693-94 (Tenn. 1995), and cases cited therein. As Ford correctly notes, in light of Arizona's comparative fault system, the relevance of evidence concerning Ellisor's conduct did not change simply because plaintiffs chose not to sue him or because Ford raised the issue of his fault under § 12-2506.
Affirmed.
JOHN PELANDER, Presiding Judge
Concurring
WILLIAM E. DRUKE, Chief Judge
JOSEPH M. LIVERMORE, Judge
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