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Davis v. Cessna Aircraft Corp.9/20/1994
nores the fact that it had successfully obtained the admission of the NTSB report four days earlier, while the jury was excused during a recess in the cross-examination of Cessna's expert. Although plaintiffs were the first to refer to the NTSB report after it was admitted, the reference was an effort by plaintiffs to draw the sting from the damage already done by the trial court's erroneous ruling. Plaintiffs were entitled to attempt to blunt the prejudicial effect of the admission of the NTSB's Conclusion that pilot error caused the crash. Charles T. McCormick, McCormick on Evidence ยง 57 (John W. Strong ed., 4th ed. 1992); see also Tucker v. Reil, 51 Ariz. 357, 369-70, 77 P.2d 203 (1938) (party whose valid objection to incompetent evidence is overruled does not waive error by cross-examination about objectionable testimony); Inspiration Consol. Copper Co. v. Bryan, 31 Ariz. 302, 309, 252 P. 1012, 1015 (1927) (party may counteract hearsay evidence improperly admitted by offering another hearsay document from same source). Thus, the fact that plaintiffs referred to the report after it was admitted does not justify the trial court's initial error in admitting it.
2. Statute of Repose
Before trial, Cessna moved to dismiss plaintiffs' strict liability claim on the ground that it was barred by Arizona's statute of repose, A.R.S. section 12-551. That section provides, in part:
No product liability action may be commenced and prosecuted if the cause of action accrues more than twelve years after the product was first sold for use or consumption, unless the cause of action is based upon the negligence of the manufacturer or seller or a breach of an express warranty provided by the manufacturer or seller.
Cessna argued that plaintiffs' claim was barred because it was brought more than twelve years after the Davis's Cessna T210 was first sold. The trial court agreed with Cessna and dismissed plaintiffs' claim.
After the briefs were filed in this case, our supreme court held A.R.S. section 12-551 unconstitutional. See Hazine, 176 Ariz. at 343-44, 861 P.2d 628-29. This court then ordered the parties to file supplemental briefs on the issue of whether Hazine applied retroactively to this case. After reviewing the supplemental briefs and the applicable law, we hold that Hazine does apply retroactively. Consequently, we conclude that the trial court erred by finding that plaintiffs' strict products liability claim against Cessna was barred by A.R.S. section 12-551.
Cessna argues that Hazine does not apply retroactively because retroactive application would deprive it of a vested, substantive right to assert the defense provided in A.R.S. section 12-551. Because, in Arizona, any opinion is presumed to apply retroactively unless it states otherwise, we need not address this argument. Zavala v. Arizona State Personnel Bd., 159 Ariz. 256, 264-65, 766 P.2d 608, 616-17, 757 P.2d 94 (App. 1988) (supp. opinion) ("' Unless otherwise specified, Arizona appellate opinions in civil cases operate both retroactively and prospectively.'") (quoting Law v. Superior Court, 157 Ariz. 147, 160, 755 P.2d 1135, 1148 (1988) (supp. opinion)). The effect of the presumption is that it places the responsibility of deciding whether an opinion shall have retroactive application on the issuing court. Because the supreme court did not expressly limit Hazine to prospective application, we conclude that it does apply to
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