Gibbs v. O'Malley Lumber Co.

VOSS, Judge,

dissenting. •

I respectfully dissent.

I agree with the majority that there was sufficient evidence to present to the jury the defense of misuse. However, I agree with Olympia and O’Malley that the trial court erred in instructing the jury that misuse was a defense only if the misuse was the sole proximate cause of Gibbs’s injuries. I believe the trial court should have instructed the jury that the principles of comparative fault as contained in A.R.S. section 12-2506 apply to the defense of misuse.

A.R.S. section 12-2506 in relevant part, provides:

B. In assessing percentages of fault…