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Czarnecki v. Volkswagen of America12/31/1991
giving this instruction, which by itself is a correct statement of the defense as approved in Gosewisch. Czarnecki contends the error arises in giving this instruction in connection with the following definition of "reasonably foreseeable use," taken virtually verbatim from A.R.S. ยง 12-681(4):
The term "reasonably foreseeable use" means use of the product which would be expected of an ordinary and prudent user and which an ordinary and prudent manufacturer should have anticipated.
Czarnecki argues that this instruction, when read in connection with the misuse instruction, precluded his recovery if the jury found the use of the product was a negligent one, even though such use was reasonably foreseeable by VW. Such instructions, Czarnecki contends, contravene Gosewisch's holding that recovery is not barred by the misuse defense "if the plaintiff uses the product in a foreseeable manner, regardless of whether such use was negligent." 153 Ariz. at 407, 737 P.2d at 383.
Initially, we note that these instructions are somewhat unclear as to the issue of which "product" they refer. "Product" is defined in an earlier instruction as the VW Rabbit. Thus, Czarnecki argues this issue on appeal in terms of Clark's negligent driving of the car. However, this issue was presented both to the trial court during argument on jury instructions and to the jury during closing argument in terms of the loose spare tire in the hatchback portion of the car, not Clark's driving. As Czarnecki's counsel explained to the jury:
Now, you'll get an instruction on misuse, and misuse does not refer to the driving, because they are -- the manufacturer is expected to anticipate there will be some negligent driving. There will be foreseeable collisions. They are supposed to protect against that, and the Court's instruction will be, do not concern yourselves with the cause of the accident.
The reason you'll get an instruction on misuse is because of their claim that the spare tire should have been tied down and that a prudent owner or whoever would have tied it down, and it shouldn't have been left in that condition . . . .
Consequently, we analyze these instructions as requiring the jury to determine whether leaving a spare tire loose in the hatchback of the Rabbit was reasonably foreseeable by VW.
Under the instruction of "reasonably foreseeable use," a manufacturer need only foresee use that would be expected of an "ordinary and prudent user." Czarnecki's primary quarrel with this definition is that a jury could interpret an "ordinary and prudent user" to mean a "non-negligent user." We agree. In an ordinary negligence action, "ordinary" and "prudent" are both adjectives that have been used to describe the person against whom the conduct of one who owes a duty of care is measured. See, e.g., Bell v. Maricopa Med. Center, 157 Ariz. 192, 194, 755 P.2d 1180, 1182 (App.1988) (the standard imposed upon one who owes a duty of care is "that of the conduct of a reasonably prudent man under the circumstances"); Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849 (1964) (standard is that degree of care that a "reasonable" or "ordinary" person would exercise in the same situation). When the instruction defining "reasonably foreseeable use" tracks language similar to that used by courts in defining negligence, it at least suggests that VW need not have foreseen a negligent use of the product. Consequently, we believe the instruction erroneously introduced the defense of contributory negl
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