A Product Liability Defendant Cannot Obtain Apportionment Of Fault When The Only Other “Party At Fault” Is The Plaintiff

Under the Uniform Contribution Among Tortfeasors Act (“UCATA”), each tortfeasor in a personal injury action is liable for his share of fault. UCATA expressly restricts the liability of each defendant to “the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault.” A.R.S. §12-2506(B) requires that “in assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury, death…” How must these statutes be construed in a case sounding in strict liability? How do these statutes affect a plaintiff’s right to recover when there are no other “parties at fault” beside the defendant and the plaintiff?

Under a theory of strict product liability, only two affirmative defenses are applicable: assumption of the risk and product misuse. Contributory negligence has been rejected as a products liability defense because “no duty rests upon the ultimate consumer or user to search for or guard against the possibility of product defects.” Without knowledge of the danger, there can be no assumption of the risk. Assumption of the risk occurs when a plaintiff voluntarily and unreasonably encounters a known danger. Id. Product misuse occurs when a plaintiff uses a product “for certain purposes or in a manner not reasonably foreseen by the manufacturer.”

Product Liability as Changed under UCATA

The misuse of a product by the plaintiff is a “species of comparative fault” for the purposes of a strict products liability action. In a strict products liability case, assumption of the risk is also a proper species of comparative fault for the trier of fact to consider. Contributory negligence, on the other hand, is an impermissible species of comparative fault for the trier of fact to consider in a strict products liability action. Id. Indeed, A.R.S. §12-2509(B) is read to be “a badly worded but successful attempt at preserving the common-law rule that contributory negligence is not a defense in strict liability.” Id.

What About Apportionment In A Crashworthiness Case?

A crashworthiness case is “one in which the alleged manufacturing or design defect does not cause the accident.” Rather, it is a case in which “the manufacturer is liable only for enhancement damages comprised of ‘that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact of collision absent the defective design’.”

In this type of case, the plaintiff does not allege that the defective seatbelt system or roof structure or fuel system caused the accident. Rather, plaintiff contends that due to the defective nature of the vehicle, she suffered much greater injury than she otherwise would have suffered from the accident.

In the case of crashworthiness, particularly for enhanced injury, assumption of the risk is inappropriate, as it requires the consumer to know of the risk of the enhanced injury presented by the design or manufacturing defect in any given vehicle. The average consumer has no such specialized knowledge, and has limited means at best to acquire it. Moreover, requiring the consumer to make such investigations would violate the doctrinal separation of contributory negligence and assumption of the risk. Requiring such an investigation would be placing a duty on the consumer to discover those defects that she could discover with reasonable diligence, and would be based on a theory of contributory negligence. This is to be contrasted with the consumer’s use of a product having discovered such a defect, which would be the consumer’s assumption of the risk. The consumer does not have a duty to search for defects, but must refrain from using a product on the chance discovery of such a defect or be found to assume the risk.

Misuse is Also Inapplicable

A mere collision of a vehicle or vehicles falls far short of vehicle misuse as defined in Jiminez. Indeed, car manufacturers design and implement safety items for just such occurrences, such as seatbelts, airbags, and the like.

“The manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily foresee and when it knows that the probability over the life of its product is high, that it will be involved in some type of injury-producing accident. . . . Collisions with or without fault of the user are clearly foreseeable by the manufacturer and are statistically inevitable.”

Moreover, “the misuse doctrine was based on the concept that the purpose to which the product was put was not only unforeseeable but broke the chain of causation.” “Obviously, therefore, not every improper use of a product will constitute misuse rather than contributory negligence. Careless and thus improper handling or operation of the product is negligent use but not misuse.”  As noted above, under strict products liability theory, negligent use or contributory negligence is not a permissible basis for apportioning fault to the plaintiff under UCATA.

Jurisdictions less friendly to our exclusion of contributory negligence as a defense in a strict liability action, have also excluded this defense in crashworthiness claims. As an example, in Wisconsin, contributory negligence can be a defense in products cases and be used to apportion fault, but in cases like the instant one, the court has ruled:

“The negligence of [the plaintiff], if any, and [the driver], only pertained to the initial accident. There was no evidence that either did anything to enhance the injury caused by the roof collapse. Because the jury attributed all of [the plaintiff’s] damages to that collapse, responsibility for the underlying accident was simply not material…”

The fact that the plaintiff was involved in an accident can hardly be characterized as not reasonably foreseeable; rather it is foreseeable and cannot constitute misuse. Typically, the defendant will argue for the application of the rationale in Zuern v. Ford Motor Company. However, Zuern is uncontrolling. Zuern apportioned fault between multiple parties other than the plaintiff (i.e., an intoxicated second driver), and it did not suggest that apportioning fault to the plaintiff would be appropriate. When there are no other parties or non-parties beyond plaintiff and defendant to consider, Zuern should not be viewed or extended by analogy to permit apportioning fault to the plaintiff for his or her contributory negligence under the rubric of UCATA, If a court were to do so it would put in conflict A.R.S. §12-2509(B) and A.R.S. §12-2506(F)(2). Indeed, Jiminez raised but did not resolve this very question, cautioning that conflating contributory negligence and misuse in a products liability case would raise “serious questions” under these two provisions.


In cases brought under strict products liability theory, there can be no apportioning of fault to the plaintiff. Contributory negligence is an impermissible defense under Arizona law. Under such circumstances, only the named defendant to the action can be found legally at fault under the UCATA.

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