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Czarnecki v. Volkswagen of America12/31/1991
Mackay and Dr. Mendelsohn testified, in most cases a Chance fracture will not result in any spinal cord damage.
But if in the typical situation with a Chance fracture there is no spinal cord damage, by definition, a typical situation also has nontypical situations which can and do occur.
You remember when Dr. Dugan was testifying, I asked him whether in the past he had had patients that had suffered spinal fractures, Chance fractures is what I asked him. And he testified that in the past he has had people as his patients who have had Chance fractures. All of his patients are paraplegics, or even worse, quadriplegics. You can't read articles and say that a Chance fracture does not result and never results in paraplegia.
Although it clearly was not its primary theory of the case, VW did introduce evidence and did argue from that evidence that Chance fractures can result in paraplegia. If the jury accepted both Czarnecki's theory that he suffered a Chance fracture followed by a compressive load from the defective seat back and VW's theory that a Chance fracture can cause neurological damage, Czarnecki's paraplegia would no longer be divisible.
In this regard, however, VW argues that any error in the court's failure to give Czarnecki's proposed apportionment instructions is harmless because, under the instructions given, Czarnecki was entitled to recover if the defective design was any cause of Czarnecki's paraplegia. We agree with Czarnecki that this argument misses the point. The instruction given provided that Czarnecki would satisfy his burden of proof if the design defect was "a" cause of his paraplegia. Although he would be entitled to recover even if the jury accepted both his theory and VW's second theory because the defective seat back would be "a" cause of his paraplegia,
he would nevertheless be unable to prove the degree to which the second impact enhanced his damages over those caused by the first impact. Consequently, Czarnecki's proposed instructions would be necessary to place the burden of apportionment of damages on VW as called for in Holtz.
B. Instructions on Misuse
Although contributory negligence is not a defense in a product liability case, misuse as articulated in A.R.S. § 12-683(3) is a defense because it "focuses on whether the use of the product was reasonably foreseeable." Gosewisch v. American Honda Motor Co., 153 Ariz. 400, 407, 737 P.2d 376, 383 (1987). A.R.S. § 12-683(3) provides:
The proximate cause of the incident giving rise to the action was a use or consumption of the product which was for a purpose, in a manner or in an activity other than that which was reasonably foreseeable or was contrary to any express and adequate instructions or warnings appearing on or attached to the product or on its original container or wrapping, if the injured person knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings.
In connection with VW's misuse defense, the trial court gave the following instruction:
Defendant contends that the defense of misuse is applicable. Defendant has the burden of proving this defense.
If you find that:
(1) The product was used for a purpose, in a manner, or in an activity not reasonably foreseeable by defendant; and
(2) The only cause of plaintiff's injury was such misuse of the product;
then your verdict must be for the defendant.
Czarnecki does not contend that the court erred in
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