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Perez v. Southern Pacific Transportation Co.12/21/1993
nt onto a totally unrelated legal theory. Without authority to support such an argument, we decline to rule that the "hindsight" test is applicable to a claim for strict liability for abnormally dangerous activity.
In the present case, then, the determination of whether an activity is abnormally dangerous under Restatement § 520 must be related to the time at which Southern Pacific engaged in the activity being analyzed.
The liability arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity. It is founded upon a policy of law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur. The defendant's enterprise, in other words, is required to pay its way by compensating for the harm it causes, because of its special, abnormal and dangerous character.
Restatement (Second) of Torts § 519 cmt. d.
We believe the court erred as a matter of law in applying the Dart hindsight test and therefore reverse and remand. Further proceedings must be based upon the Restatement test.
CROSS-APPEAL
Products Liability, Statute of Repose
Perez argues that the court erred in applying A.R.S. § 12-551, the statute of repose, to bar the wrongful death claim for products liability when there was no evidence that the product was older than 12 years and that, in any case, A.R.S. § 12-551 is unconstitutional.
Our supreme court has very recently held that § 12-551 is unconstitutional. Hazine v. Montgomery Elevator Co., 150 Ariz. Adv. Rep. 14 (October 21, 1993). Thus, Perez's right to sue on a products liability theory is no longer barred by the statute of repose.
Southern Pacific argues that even if the statute is unconstitutional and the action is not barred, there is no evidence that it was ever a manufacturer or a seller of a defective product that caused injury after being placed in the stream of commerce. We disagree.
A review of the record reveals that although there was some conflicting testimony regarding Southern Pacific's involvement in the design and manufacture of its steam locomotives, the court entered no factual findings on the issue. We will not weigh conflicting evidence on review; that is for the trier of fact. Imperial Litho-Graphics v. M J Enterprises, 152 Ariz. 68, 730 P.2d 245 (App. 1986). We therefore reverse and remand on that issue as well.
LLOYD FERNANDEZ, Judge
CONCURRING:
JOSEPH M. LIVERMORE, Presiding Judge
MICHAEL A. LACAGNINA, Judge
Page 1 2 3 Arizona Personal Injury Attorneys
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