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Czarnecki v. Volkswagen of America12/31/1991
igence into VW's misuse defense. Gosewisch; Durnin v. Karber Air Conditioning Co., 161 Ariz. 416, 419, 778 P.2d 1312, 1315 (App.1989) (test of propriety of offered instruction is whether the jury would be misled as to the proper rule of law).
VW argues, however, that any error in the instruction was harmless, not reversible, error. Although it is academic because we are remanding this case on the apportionment issue, we agree with VW that the error was harmless. The misuse instruction directed the jury to find for VW if (1) the use of the product was not reasonably foreseeable by VW, and (2) the only cause of Czarnecki's injury was such misuse. Notwithstanding any error in the definition of "reasonably foreseeable use," experts on both sides testified that it was reasonably foreseeable that a spare tire would be carried in the hatchback area. More importantly, the jury would have had to have found that the only cause of Czarnecki's paraplegia was the transporting of the loose tire. As discussed above in some detail, each party vigorously argued its respective theories as to the cause of Czarnecki's paraplegia, and neither party ever insinuated that the spare tire was even a remote cause, much less the only one. Given the way this case was presented, we simply do not believe that a reasonable jury would have found that carrying the loose tire was the only cause of Czarnecki's paraplegia. Hence, any error in the instruction defining "reasonably foreseeable use" would have been harmless. McFarlin v. Hall, 127 Ariz. 220, 225, 619 P.2d 729, 734 (1980).
C. RAJI Product Liability: Hindsight and Consumer Expectation Instructions
Czarnecki argues that the trial court erred in failing to give the following hindsight and consumer expectation instructions contained in RAJI Product Liability 2B:
A manufacturer or seller is presumed to have known at all relevant times the facts that this accident and this trial have revealed about the harmful characteristics or consequences of the product's design, whether or not the manufacturer or seller actually knew those facts. If you find that it would not be reasonable for a manufacturer or seller, with such presumed knowledge, to have put this product on the market without changing the design, then the product is defective and unreasonably dangerous because of a design defect.
A product is [also] defective and unreasonably dangerous because of a design defect if it fails to perform as safely as an ordinary consumer would expect when the product is used in a reasonably foreseeable manner.
VW argues that Czarnecki waived this issue on appeal by failing to make a specific objection to the court's failure to give the instructions.
During argument on jury instructions, Czarnecki contended that the requested instructions be given because they were in RAJI 2B, which was based on Dart v. Wiebe Manufacturing, Inc., 147 Ariz. 242, 709 P.2d 876 (1985), and because there were no facts in this case "to distinguish it from the case that the RAJI committee had in mind." He later reurged generally that the instructions be given, but did not argue further the basis for his request.
Rule 51(a), Arizona Rules of Civil Procedure, provides in part:
No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.
By re
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