Statutes of Limitations

Statutes of Limitations (ARIZONA)

Personal Injury - 2 yrs.* [A.R.S. § 12-542]

Wrongful Death - 2 yrs.* [A.R.S. § 12-542]

Property Damage - 2 yrs.* [A.R.S. § 12-542]

All Product Liability Cases involving Personal Injury, Death or Property Damage - 2 yrs.* [A.R.S. §§ 12-542; 12-551]

Written Contracts - 6 yrs. [A.R.S. § 12-548]; but 4 yrs. if Contract executed outside of Arizona [A.R.S. § 12-544]

Oral Contracts - 3 yrs. [A.R.S. § 12-543]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [A.R.S. § 47-2725]


*Discovery rule applies [Walk v. Ring, 44 P.3d 990 (Ariz. 2002); Anson v. American Motors Corp., 747 P.2d 581 (Ariz. App. 1987)].



Statute of Repose (Products) (ARIZONA)


None (declared unconstitutional).



Admissibility of Expert Testimony (ARIZONA)


Daubert test [State v. Benson, 307 P.3d 19 (Ariz. 31, 2013)].  The court shall consider the following factors in determining whether the expert testimony is admissible: (1) whether the expert opinion and its basis have been or can be tested; (2) whether the expert opinion and its basis have been subjected to peer reviewed publications; (3) the known or potential rate of error of the expert opinion and its basis; and (4) the degree to which the expert opinion and its basis are generally accepted in the scientific community [A.R.S. § 12-2203].





Causes of Action (ARIZONA)


Broad statutory definition of “product liability action:” any action brought against a manufacturer/seller for damages caused by the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, sale, use or consumption of any product, the failure to warn or protect against a danger or hazard in the use or misuse of the product or the failure to provide proper instructions for the use or consumption of any product [A.R.S. § 12-681].


Strict Liability – Arizona follows Rest. (2nd) of Torts, 402A.  One who sells any product in a defective condition unreasonably dangerous to the user (or to his property) is subject to liability for physical harm thereby caused if: (1) the seller is engaged in the business of selling such a product; and (2) the product expected to and does reach the user without substantial change in the condition in which it is sold [Morrow v. Trailmobile, Inc., 473 P.2d 780 (Ariz. App.1970)].


Negligence – Under the negligence theory a defect arises when the manufacturer has failed to use reasonable care (while under the strict liability theory, the manufacturer can be held liable despite its best efforts to make a safe product) [Mather v. Caterpillar Tractor Corp., 533 P.2d 717 (Ariz. App. 1975)].


Breach of WarrantyExpress warranty only.  Implied warranty has been merged into the doctrine of strict liability [Scheller v. Wilson Certified Foods, 559 P.2d 1074 (Ariz. App. 1976)]


Definition of “Defect” (ARIZONA)


“Defective” means the product contains a danger which Manufacturer did not intend and the customer did not expect [Dart v. Wiebe Mfg., 709 P.2d 876 (Ariz. 1985)].  


The consumer expectation test is used in manufacturing defect cases because consumers have developed safety expectations from using properly manufactured products of the same general design [Golonka v. GMC, 65 P.3d 956 (Ariz. App. 2003)].


Also, see discussion below re: "design defects." 


Liability of Sellers (ARIZONA)


Liability applies to sellers, wholesalers, distributors, retailers, and lessors. [A.R.S. § 12-681].  For liability to apply, such persons must be engaged in the business of selling such a product.



Defenses  (ARIZONA)    


Comparative Negligence – Arizona follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [A.R.S. § 12-2505].  Comparative negligence is not applicable to strict liability cases [Jimenez v. Sears, Roebuck & Co., 904 P.2d 861 (Ariz. 1994)].


Product Alteration/Modification – Complete defense (if Defendants can show that the alteration/modification was not reasonably foreseeable, made by a person other than Defendant, and subsequent to the time the product was first sold) [A.R.S. § 12-683].


Product Misuse – Complete defense (if Defendant can show that the proximate cause was a use 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 if the intended consumer knew or should have known of such instructions or warnings) [A.R.S. § 12-683]. 


Assumption of Risk – Complete defense (assumption of risk occurs when Plaintiff uses the product despite discovering a defect) [Jimenez v. Sears, Roebuck & Co., 904 P.2d 861 (Ariz. 1994)]. 


State of the Art – Complete defense in design cases [A.R.S. § 12-683].




Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (ARIZONA)


Arizona does not endorse a blanked application of the doctrine.  Instead, 3 factors must be analyzed: (1) the nature of product defect; (2) the manner in which the loss occurred; and (3) the type of loss for which Plaintiff seeks redress.  Therefore, a buyer could potentially recover under tort theory because the loss resulted from unreasonably dangerous defect in a product and the loss occurred by fire in a sudden accident which was of type which could endanger persons and other property [Salt River Project Agr. Imp. and Power Dist. v. Westinghouse Elec. Corp., 694 P.2d 198 (Ariz. 1984)].



Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (ARIZONA)


Plaintiff may rely on circumstantial evidence to prove the existence of a defect in product liability cases [Brown v. General Foods Corp., 573 P.2d 930 (Ariz. App. 1978)].



Design Defects (ARIZONA)


The statutory definition of “product liability action” includes “design” [A.R.S. § 12-681].


The risk/benefit analysis asks the fact-finder to decide whether the benefits of a challenged design outweigh the risk of danger inherent in the design. If not, the design was defective and unreasonably dangerous.  Arizona Supreme Court has approved the following non-exhaustive list of factors to be used as part of the risk/benefit analysis: (1) the usefulness and desirability of the product; (2) the availability of other and safer products to meet the same need; (3) the likelihood of injury and its probable seriousness; (4) the obviousness of the danger; (5) common knowledge and normal public expectation of the danger (particularly for established products); (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings); and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive [Golonka v. GMC, 65 P.3d 956 (Ariz. App. 2003)]. 


Manufacturer is not liable 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 Defendant [A.R.S. § 12-683].


State of the Art – Complete defense in design cases [A.R.S. § 12-683].

Failure to Warn (ARIZONA)


The statutory definition of “product liability action” includes “formula,” “packaging,” and “labeling” [A.R.S. § 12-681].  Plaintiff in a strict products liability case based on information defect bears the burden of proving that Manufacturer’s failure to issue an adequate warning proximately caused the injury at issue [Golonka v. GMC, 65 P.3d 956 (Ariz. App. 2003)].


Arizona recognizes the “heeding presumption,” a rebuttable presumption used in a strict liability information defect cases to allow the fact-finder to presume that the injured person would have heeded an adequate warning, if given [Golonka v. GMC, 65 P.3d 956 (Ariz. App. 2003)].



Independent Cause of Action for Evidence Spoliation (ARIZONA)


Separate tort of spoliation of evidence is not recognized in Arizona [Tobel v. Travelers Ins. Co., 988 P.2d 148 (Ariz. App. 1999)] “There is no need to invoke esoteric theories or recognize some new tort” [La Raia v. Superior Court In and For Maricopa County, 722 P.2d 286 (Ariz. 1986)].