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Gibbs v. O''Malley Lumber Co.2/1/1994
NOYES, Judge
Appellants O'Malley Lumber Co. (O'Malley) and Olympia Tools, Inc. (Olympia) appeal from a 1.35 million dollar jury verdict in favor of Appellees Gibbs in this product liability case. We have jurisdiction pursuant to Arizona Revised Statutes Annotated (A.R.S.) sections 12-120.21 (A)(1) (1992) and -2101(B) (Supp. 1993).
I.
The product at issue was a thirty-six inch "bungee" cord, an elasticized cord with metal hooks on each end. A few days before his injury , Michael Gibbs had purchased the cord from O'Malley, who had purchased it from Olympia, who had imported it from Taiwan. The injury occurred when Michael was stretching the cord across the bed of a pickup truck to secure a load of building material. He had anchored one hook on the pipe rack in the bed of the truck and was stretching the cord to the other side of the truck. Suddenly, the hook being pulled against straightened out and the cord fired the straightened hook into Michael's right eye. The eye had to be surgically removed.
Appellees Gibbs argued at trial that the cord was defective and unreasonably dangerous because, during normal use, the hooks would fail long before the cord reached its limit of elasticity. They also argued that the cord was defective and unreasonably dangerous because there were no instructions or warnings concerning the relative weakness of the hooks. Appellees presented expert testimony that the cord would fail at about one hundred pounds of load, that the hooks would fail at less than fifty pounds of load, and that the load capacities of the cord and the hooks would be equalized if the diameter of the hooks was increased by .6 millimeter.
Olympia's product catalog claimed that its bungee cords could be stretched to "twice their lengths," which would be seventy-two inches for the cord in this case. The bed of Michael's truck was sixty-nine inches wide. Appellants' misuse theory was based on testimony from Michael that suggested to Appellants that Michael had kept a slack of one foot of cord while stretching the other two feet of cord across five feet of truck bed. Appellants do not argue that Michael misused the cord by stretching it across the truck bed; they argue that he misused the cord by stretching a portion of it well beyond its limit of elasticity and well beyond twice its length.
Appellants O'Malley and Olympia argue on appeal that the trial court erred by refusing to instruct the jury on comparative fault and by admitting evidence of Olympia's and others' knowledge regarding the product. By cross assignment of error, Michael Gibbs and his wife Vicky (Appellees) argue that the trial court erred by instructing the jury on the affirmative defense of product misuse. We conclude that misuse is still an all-or-nothing defense in Arizona, and that there was no error in jury instructions or in the admission of evidence. II.
A.
Appellants O'Malley and Olympia argue that the trial court erred by refusing to instruct the jury on comparative fault. Over the objection of O'Malley and Olympia, the trial court gave the jury the following misuse instruction, a non-comparative fault instruction that is a modified version of Recommended Arizona Jury Instructions (Civil) 2d, Product Liability 9:
Defendants are not at fault if defendants prove each of the following:
(1) The product was used by the plaintiffs for purposes or in a manner not reasonably foreseen by the defendants;
(2) The only cause of plaintiffs' injuries was such use or consumption of the product.
This instruction is based on A.R.S. section 12-683(3) as inter
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