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Last Reviewed / Modified On 04 Feb 2016.

ARIZONA PRODUCT LIABILITY RESOURCES

Defect in Design – the feasibility of alternative designs and consumer expectations


To succeed in a products liability lawsuit based upon a design defect claim, a plaintiff must establish that:
(1) the defendant manufactured or sold a product,
(2) the product was defective in its design and unreasonably dangerous,
(3) the defect existed at the time the product left the defendant's control,
(4) the defective condition proximately caused the plaintiff's injury, and
(5) the plaintiff suffered damages as a result. Anderson v. Nissei ASB Mach. Co., 197 Ariz. 168, 172 (Ct. App. 1999).

The courts have developed two models of inquiry to determine whether a product was defective in its design and unreasonably dangerous: the “risk/benefit analysis” and the “consumer expectation test.” Caterpillar Tractor Corp., 23 Ariz.App. 409, 411 (1975).

Under the “risk/benefit analysis” the fact-finder decides, in light of relevant factors, whether the benefits of a challenged design outweigh the risk of danger inherent in the design. If not, the product was defective in its design and unreasonably dangerous. Golonka v. Gen. Motors Corp., 204 Ariz. 575, 581 (Ct. App. 2003)

With regard to the risk-benefit test, Revised Arizona Jury Instruction (RAJI) Product Liability Instruction number 3 states as follows:

PRODUCT LIABILITY 3 Defect and Unreasonable Danger Defined (Design Defect)
[Name of plaintiff] claims that the product contains a design defect.

A product is defective and unreasonably dangerous because of a design defect if the harmful characteristics or consequences of its design outweigh the benefits of the design.

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.

Under the “consumer expectation test,” the fact-finder determines whether the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonable manner. If so, the product was defective in its design and unreasonably dangerous. Golonka v. Gen. Motors Corp., 204 Ariz. 575, 581 (Ct. App. 2003).

With regard to the consumer expectation test, Revised Arizona Jury Instruction (RAJI) Product Liability Instruction number 3 states as follows:


[Name of plaintiff] claims that the product contains a design defect.

A product is 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.

Misuse of Products


Arizona recognizes two affirmative defenses in products liability that, if proven, bar a plaintiff's recovery: assumption of risk and product misuse. Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399, 402 (1995). However, along with most if not all other courts, Arizona has rejected contributory negligence as a products liability defense. Id. The differences between contributory negligence, assumption of risk, and misuse are that: failure to discover a defect in the product which the plaintiff should have discovered, if he was reasonably diligent, is contributory negligence; despite the discovery of such a defect, if the plaintiff nevertheless uses the product it is assumption of risk; and the plaintiff’s use of the product for certain purposes or in a manner not reasonably foreseen by the manufacturer is misuse. O. S. Stapley Co. v. Miller, 103 Ariz. 556, 561, (1968).

A defendant is not liable in any product liability action if the defendant proves that the proximate cause of the incident giving rise to the action was a use or consumption of the product that 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 intended customer knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings.


Ariz. Rev. Stat. Ann. § 12-683(3).

With regard to the affirmative defense of misuse, Revised Arizona Jury Instruction (RAJI) Product Liability Instruction number 9 states as follows:.

[Name of defendant] claims that [name of plaintiff] was at fault for [using] [consuming]1 the product [in an unforeseeable manner] [or] [contrary to [instructions] [warnings]].2


On this claim, [name of defendant] must prove:

1) The product was [used] [consumed] [for a purpose, in a manner or in an activity which was not reasonably foreseeable] [or] [contrary to any express and adequate [instructions] [warnings] appearing on or attached to the product, or on its original container or wrapping, and [name of plaintiff] knew, or with the exercise of reasonable and diligent care should have known, of the [warnings] [instructions]]; and

2) Such [use] [consumption] of the product was a cause of [name of plaintiff]'s injury.

Unanticipated, Unforeseeable, or Unintended Use of Products


Please see the comments with respect to misuse and modification of a product. It is a complete defense if the defendant proves that the proximate cause of the incident giving rise to the action was an unanticipated, unforeseeable, or unintended use of the product. Ariz. Rev. Stat. Ann. § 12-683.

Alteration of Products


In most circumstances, the burden and costs of defending products are placed on their manufacturers. Desert Golf Cars v. Yamaha Motor Co., 198 Ariz. 103, 106, (Ct. App. 2000). But when a person other than the manufacturer modifies the product and that modification substantially causes the incident in question, then that person steps into the shoes of the manufacturer as being the one best situated to detect, control or prevent the putative defect. Id.

A defendant is not liable in any product liability action if the defendant proves that the proximate cause of the incident giving rise to the action was an alteration or modification of the product that was not reasonably foreseeable, made by a person other than the defendant and subsequent to the time the product was first sold by the defendant. Ariz. Rev. Stat. Ann. § 12-683(2).

With regard to the affirmative defense of modification, Revised Arizona Jury Instruction (RAJI) Product Liability Instruction number 8 states as follows:

[Name of defendant] claims that [name of plaintiff] [a third party]1 was at fault for modifying or altering the product.


On this claim, [name of defendant] must prove:

1 [Name of plaintiff] [Third party] altered or modified the product after the product was manufactured or sold by [name of defendant];

2 The alteration or modification was not reasonably foreseeable; and

3 The alteration or modification of the product was a cause of [name of plaintiff]'s injury.

Unavoidably Unsafe Products


Please see the comments with respect to duty to warn – dangerous or obviously unsafe conditions. Whether a product is “unreasonably dangerous” because of a failure to warn depends on foreseeability, seriousness and cost of preventing. Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 434 (Ct. App. 1978).

Duty to Warn - Dangerous or Obviously Unsafe Conditions


Manufacturers have a duty to produce products with appropriate warning instructions. Wilson v. U.S. Elevator Corp., 193 Ariz. 251, 253-54, (Ct. App. 1998). A product faultlessly made may be deemed defective if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning. Id.

With regard to the duty to warn, Revised Arizona Jury Instruction (RAJI) Product Liability Instruction number 4 states as follows:

[Name of plaintiff] claims that there was not (an) adequate [warning] [instruction] on/with the product. A product, even if faultlessly made, is defective and unreasonably dangerous if it would be unreasonably dangerous for use in a reasonably foreseeable manner without (an) adequate [warning(s)] [instruction(s)].


[A product is defective and unreasonably dangerous if a manufacturer or seller who knows or should know, in light of the generally recognized and prevailing scientific/technical/medical knowledge available at the time of the product's distribution, that a foreseeable use of the product may be unreasonably dangerous does not provide adequate [warning(s) of the danger] [instruction(s) for reasonably safe use].]

State of the Art Defenses


A defendant is not liable in any product liability action if the defendant proves that the defect in the product is alleged to result from inadequate design or fabrication, and if the plans or designs for the product or the methods and techniques of manufacturing, inspecting, testing and labeling the product conformed with the state of the art at the time the product was first sold by the defendant. Ariz. Rev. Stat. Ann. § 12-683(1).

With regard to the affirmative defense of state of the art, Revised Arizona Jury Instruction (RAJI) Product Liability Instruction number 7 states as follows:

[Name of defendant] claims that a state of the art defense is applicable to [name of plaintiff]'s claim that the product contains a [manufacturing] [design] defect.


[Name of defendant] is not at fault if [name of defendant] proves that [the plans or designs for the product] [or] [the methods and techniques of manufacturing, inspecting, testing, and labeling] the product conformed with the state of the art at the time the product was first sold by [name of defendant].

“State of the art” means the technical, mechanical, and scientific knowledge of manufacturing, designing, testing, or labeling the same or similar products which was in existence and reasonably feasible for use at the time of manufacture.

Government Contractor Defense


The federal “government contractor’s defense” precludes state tort law from imposing a duty of care on a federal contractor that is precisely contrary to the duty imposed by the Government contract in circumstances involving “uniquely federal interests.” Lohse v. Faultner, 176 Ariz. 253, 258 (Ct. App. 1992) citing Boyle v. United Technologies, 487 U.S. 500, 509 (1988).

Statutes of Limitation and of Repose

       
Arizona requires a product liability action to be commenced and prosecuted within two years after the cause of action accrues. Ariz. Rev. Stat. Ann. § 12-551.

Arizona does not have a statue of repose for product liability. The statute of repose was found to be unconstitutional. See Hazine v. Montgomery Elevator Co., 176 Ariz. 340 (1993).

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