"Strict" Product Liabilities Dead in Arizona?

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Torts—Products Liability—Apportion Fault
Adams v. Pacific Cycle, UNPUBLISHED, 1 CA-CV 07-0621 (App., Div I, March 3, 2009)(Justice Gemmill)

PRODUCTS LIABITITY—ADMISSIBILTY OF CPSC REGULATION COMPLIANCE IN SUPPORT OF STATE OF THE ART DEFENSE/COMPARATIVE FAULT OF PLAINTIFF'S ALCOHOL AND MARIJUNA USE NOT NECESSARILY A “EASONABLY FORSEEABLE USE.”

Plaintiff suffered a brain injury while riding his new Toys R Us Spitfire bike over a speed hump when the wheel came off the front fork. Plaintiff sued the seller Toys R Us and manufacturer Pacific Cycle. Toys R Us was dismissed out because there was no evidence of any fault by Toys R Us other than selling the product. The Arizona Products Liability statute ARS sec. 12-680 Et Seq. essentially eliminates strict products liability. We no longer hold any link in the chain of distribution strictly liable for plaintiff's damages. In fact, the ultimate seller may be dismissed on summary judgment if there is no evidence the seller was at “fault” in the design, manufacturer or sale of the product.

Secondly, evidence of compliance with Consumer Product Safety Commission regulations was admissible to show compliance with industry standards and in support of the defendant's “state of the art” defense under the Arizona statute (ARS sec. 683 (1) defendant cannot be liable for design defect if it is shown it conformed with the applicable state of the art.) This evidence would be admitted but not dispositive on the issue of liability. Plaintiff was free to elicit testimony from his expert that the regulation was a floor and not a ceiling on what the manufacturer could and should have designed to avoid a wheel separation.

Finally the court held that evidence the plaintiff had consumed alcohol and marijuana before his injury was admissible to establish the plaintiff's percentage of fault in the accident and was not a “reasonably foreseeable” use of the product as a matter of law. It would be for the jury to determine whether it was reasonably foreseeable to the defendant that users of its product might become intoxicated before using the product. Similarly, the plaintiff's failure to wear a helmet was admissible evidence on the question of causation and damages. The defendant's expert may testify that the degree of brain injury would have been reduced 60-70% if a helmet had been worn.

Schmidt, Sethi & Akmajian

Schmidt, Sethi & Akmajian is one of the most experienced, successful personal injury law firms in the Tucson area. Established in 1995, our firm has a long history of success, as seen in our many victories.

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