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Gibbs v. O''Malley Lumber Co.2/1/1994
ure would have intended that assumption of risk be a comparative defense, but misuse a defense only if the misuse was the sole cause of the plaintiff's injuries. Indeed, the inclusion of misuse in the definition of fault contained in A.R.S. section 12-2506(F)(2) contradicts Gibbs's argument that the legislature intended to limit the comparative defenses to contributory negligence and assumption of risk.
Gibbs also argues that the historical note following A.R.S. section 12-2506, stating that "nothing in this act shall be construed to create a cause of action or to eliminate or diminish any defenses or immunities which currently exist, except as expressly provided," supports his argument that misuse is not a comparative defense. However, the result I reach neither creates a cause of action nor diminishes an existing defense or immunity. Rather, I argue that unforeseeable misuse, a defense which existed prior to A.R.S. section 12-2506, may be a comparative defense pursuant to that statute.
Because misuse is a comparative defense, the trial court in this case erred in instructing the jury that misuse was to be considered a defense only if the misuse was the sole proximate cause of Gibbs's injuries and in refusing to give comparative fault instructions with respect to the misuse defense. "Where the challenged instructions cut to the very heart of the case and misapply the applicable legal theories, the error must be considered prejudicial." Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 250, 709 P.2d 876, 884 (1985). In this case, the jury could have found that Gibbs's misuse of the strap was a contributing cause of his injuries, but refused to apply the defense because it was not the sole cause of the injuries. I would therefore reverse the trial court's judgment and remand for a new trial.
EDWARD C. VOSS, Judge
Dissent Footnotes
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