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Gibbs v. O''Malley Lumber Co.2/1/1994
g., Mark E. Roszkowski and Robert A. Prentice, Reconciling Comparative Negligence and Strict Liability: A Public Policy Analysis, 33 St. Louis Univ. L.J. 19 (1988); Smith v. Smith, 278 N.W.2d 155 (S.D. 1979); Daly v. General Motors Corp., 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (Cal. 1978) (dissenting opinions). Nevertheless, it seems a majority of jurisdictions considering this issue have applied comparative negligence or comparative fault principles to strict products liability actions. See, e.g., Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 454 N.E.2d 197, 73 Ill. Dec. 337 (Ill. 1983).
Given that the purpose of a comparative fault scheme such as Arizona's is to apportion the loss according to the contributory conduct of the actors, I agree with Olympia and O'Malley that, in enacting A.R.S. section 12-2506, the legislature intended to amend the all-or-nothing nature of the misuse defense as described in A.R.S. section 12-683(3). The defense of misuse is therefore not only available when the misuse was the sole proximate cause of the plaintiff's injuries, but should be applied according to comparative principles. Where an unreasonably defective product and a plaintiff's misuse of that product were concurrent proximate causes of the plaintiff's injuries, the jury should be permitted to apportion some percentage of the fault to the plaintiff pursuant to A.R.S. section 12-2506, and the plaintiff's recovery should be limited to that portion of his or her damages equal to the percentage of the cause contributed by the product defect. See Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1303 (Utah 1981) (stating that where misuse of plaintiff and defect of product unite as a proximate cause of an injury , both faults should be considered by the jury in determining the relative burden each should bear for the injury). This must be what the legislature intended when it expressly included "misuse of a product" in its definition of fault to be determined and apportioned by the trier of fact. A.R.S. ยง 12-2506(F)(2). This result also best achieves the legislative goals inherent in a comparative fault system without frustrating the underlying purpose behind strict products liability. As one court noted:
The manufacturer's liability remains strict; only its responsibility for damages is lessened by the extent the trier of fact finds the consumer's conduct contributed to the injuries . . . . Further, the risk associated with the product defect is still spread among all consumers. Only that portion due to plaintiff's own conduct or fault is borne by the plaintiff. Where the allocation of losses properly can be apportioned, we see no reason to spread the cost of the loss resulting from plaintiff's own fault on to the consuming public.
Coney, 454 N.E.2d at 202.
Gibbs argues that the application of comparative fault is limited to contributory negligence and assumption of risk pursuant to A.R.S. sections 12-2505 and 12-2509. Although A.R.S. section 12-2505 generally states that the existence of contributory negligence and assumption of risk should reduce a plaintiff's damages rather than completely bar a plaintiff's right to recover, I disagree that the statute prohibits apportioning of a plaintiff's fault due to misuse. A.R.S. section 12-2505 does not limit the type of conduct by a plaintiff that may be compared to assumption of risk and contributory negligence. Where assumption of risk and misuse have both been recognized in Arizona as defenses to products liability actions, I fail to understand why the legislat
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