business and the economy have succeeded
to a fault (pun intended).
There is a solution, which would bring
the pendulum down to dead center.
The solution would in fact mostly reconcile the incompatibility of product quality
vs. conduct. It would in most cases further
the original goals of strict products liability
law while at the same time ultimately hold
parties accountable for their relative degrees
The solution: Reinstate joint and several
liability and the chain of distribution theory
while preserving the fault analysis for apportionment of fault among parties and non-parties. Such a change in the law would in
most cases result in each party ultimately
paying only its fair share of the loss according to its percentage of fault. At the same
time, injured consumers would not be left
holding the bag when a culpable party
could not be sued, or was judgment-proof.
Injured consumers would be permitted
to sue and collect all of their judgment
against any entity in the chain of distribution. At the same time, more culpable entities could be brought to the party in a contribution action. Consumers would still
have to prove fault by some entity in the
chain, but any one entity could be found
liable vicariously for the fault of others.
Ultimately, however, the liability would be
divided among those responsible according to their proportionate share of fault.
Yes, there will be situations where a
defendant will have to pay more than its
fair share. However, between the individual unsuspecting consumer who has paid
for the product expecting it to be safe, and
those entities establishing business relationships with manufacturers and sellers so
that they all can profit from the sale of the
product, who is best suited to bear this
risk? In fairness, who ought to bear it?
Twenty-five years ago our courts recognized that along with the profits to be
made by mass-produced products in an
industrialized society came risks to those
least able to bear them—individual consumers. The courts saw strict products liability law as the answer.
Since that time, in the name of protecting business and promoting the economy,
our Legislature has virtually extinguished
the “strict” from products liability law in
Arizona. Particularly in our current economic crisis it is not hard to find supporters for this swing of the pendulum. By the
same token, the argument that it has
swung too far and that there is a more reasonable middle ground is compelling.
Amendment of UCATA to allow for joint
and several liability and a revival of chain-of-distribution liability would bring the
pendulum to rest right in the middle. AZ AT
1. RESTATEMENT (SECOND) OF TORTS § 402A (1965).
2.Colvin v. Superior Equip. Co., 392 P.2d 778 (Ariz. 1964); See
Nalbandian v. Byron Jackson Pumps, Inc., 399 P.2d 681 (Ariz.
1965) (Lockwood, J., concurring) (interpreting Colvin as adopting
the legal concept of a manufacturer’s strict liability in tort with
regard to its manufactured products); O.S. Stapley Co. v. Miller,
447 P.2d 248 (Ariz. 1968) (adopting RESTATEMENT (SECOND) OF
TORTS § 402A).
3. RESTATEMENT (SECOND) OF TORTS § 402A (1965); See Bailey v.
Montgomery Ward & Co., 431 P.2d 108 (Ariz. Ct. App. 1967).
4. See A.R.S. § 12-2506 (1987).
5. See Powers v. Taser Int’l, Inc., 174 P.3d 777 (Ariz. Ct. App. 2007).
6. See Adams v. Pacific Cycle, L.L.C., 2009 WL 532629 (Ariz. App.
Div. 1 2009).
7. Dart v. Wiebe Mf’g, Inc., 709 P.2d 876, 880 (Ariz. 1985).
8. RAJI (Civil) PLI 1 (4th ed.).
9. For further discussion regarding the consumer expectation test and
the risk/utility test, see Dart, 709 P.2d at 876.
10. Id. at 881.
11. Natseway v. City of Tempe, 909 P.2d 441, 444 (Ariz. Ct. App.
1995) (holding that cases “reflect a recognition of the legislature’s
strong desire to ensure that comparative fault principles are applied
in most cases where the actions of more than one party combine
to cause harm”).
12. See State Farm Ins. Co. v. Premier Manufactured Sys., Inc., 172
P.3d 410, 413 (Ariz. 2007).
13. A.R.S. § 12-2506(A) (1987) (emphasis added).
14. Joint and several liability will be allowed if ( 1) the party and the
other person were acting in concert; ( 2) the other person was acting as an agent or servant of the party; or ( 3) the party’s liability
for the fault of another person arises out of a duty created by the
federal employers liability act. Id. § 12-2506(D).
15. Premier Manufactured Sys., 172 P.3d at 410; Jimenez v. Sears,
16. Dietz v. General Elec. Co., 821 P.2d 166 (Ariz. 1991); See
Jimenez, 904 P.2d at 869 (“Moreover, the comparative fault
statute apportions fault, even at the expense of the plaintiff); see,
e.g., Rosner v. Denim & Diamonds, Inc., 937 P.2d 353 (Ariz.
1997) (holding that jury was allowed to apportion fault to
assailants in a bar fight that could not be identified or found);
Thomas v. First Interstate Bank, 930 P.2d 1002 (Ariz. Ct. App.
1996) (allowing apportionment of fault to an the unidentified
murderer of a guard in wrongful death suit); Smith v. Johnson,
899 P.2d 199, 206 (Ariz. Ct. App. 1995) (allowing apportionment of fault to an unidentified driver of a Mercedes Benz who
might have been the cause of a car accident); Ocotillo West Joint
Venture v. Superior Court, 844 P.2d 653 (Ariz. Ct. App. 1992)
(allowing apportionment of fault to an identified, but not civilly
liable, good Samaritan).
17. Premier Manufactured Sys., 172 P.3d at 410.
18. See, e.g., id.
19. 709 P.2d 876 (Ariz. 1985).
20. Id. at 880.
21. Id. at 881 n. 2 (“We do not reach the issue of whether a ‘
hindsight test’ is to be applied to strict liability cases involving failure
to warn or those involving unavoidably unsafe product.”).
22. 174 P.3d 777 (Ariz. Ct. App. 2007).
23. Id. at 783.
24. See Pacific Cycle, 2009 WL 532629.
25. O. S. Stapley, 447 P.2d at 253; RESTATEMENT (SECOND) OF TORTS
§ 402A, cmt. n (1965); A.R.S. § 12-2505.
26. Gosewisch v. American Honda Motor Co., 737 P.2d 376, 383
(Ariz. 1987) (interpreting A.R.S. § 12-2505 to apply only if
plaintiff’s misuse of product was the sole cause of injury).
27. O.S. Stapley, 447 P.2d at 253.