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 the trier of fact shall consider the fault of all persons who contributed to the alleged injury, death or damage to property, regardless of whether the person was, or could have been, named as a party to the suit____
C. The relative degree of fault of the claimant, and the relative degrees of fault of all defendants and nonparties, shall be determined and apportioned as a whole at one time by the trier of fact____
F. As used in this section:
2. “Fault” means an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all of its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability and misuse, modification or abuse of a product.
The trial court based its misuse instruction on A.R.S. section 12-683(3), which provides that a defendant in a products liability action shall not be liable if the defendant proves that “[t]he proximate cause of the incident giving rise to the action was a use or consumption of the product which was for a purpose, in a manner or in an activity other than that which was reasonably foreseeable____” A.R.S. § 12-683(3). In Gosewisch v. American Honda Motor Company, 153 Ariz. 400, 737 P.2d 376 (1987), the Arizona Supreme Court interpreted A.R.S. section 12-683(3) as barring recovery by a products liability plaintiff only if the sole proximate cause of the injury was the unforeseeable misuse. Id. at 407, 737 P.2d at 383. It could be argued a misuse that is the sole proximate cause of the plaintiffs injuries is not really an affirmative defense, but rather is a failure of one of the necessary elements for the plaintiffs cause of action. The plaintiff in a strict products liability action must prove that the unreasonably dangerous defect in the product proximately caused the plaintiff’s injuries. Brown v. Sears, Roebuck & Co., 136 Ariz. 556, 560, 667 P.2d 750, 754 (App.1983). However, if the misuse was the sole cause of the injuries, then the defect could not have been a proximate cause. See also Amburgery v. Holan Div. of Ohio Brass. Co., 124 Ariz. 531, 606 P.2d 21 (1980) (holding that to prove a product is defective plaintiff must show that it was being used in an intended, normal and anticipated manner).
However, Olympia and O’Malley argue that the enactment by our state legislature of a comparative fault system altered the “all- or-nothing” nature of the misuse defense embodied in A.R.S. section 12-683(3) and interpreted in Gosewisch. Olympia and O’Malley contend that, because A.R.S. section 12-2506 requires that the trier of fact determine the relative degree of fault of the claimant as well as “all others who contributed to an alleged injury,” and specifically defines “fault” as including misuse of a product, the legislature expressly intended that misuse be a comparative defense. See A.R.S. § 12-2506. I agree. A.R.S. section 12-2506 requires the jury to determine the fault of all persons who contributed to the plaintiffs injuries in assessing percentages of fault. As “fault” includes the plaintiff’s misuse, this seems to contradict A.R.S. section 12-683(3), which states that misuse is a defense if the *349misuse was the sole cause of the plaintiffs injuries, not merely a contributing cause.1
Olympia, O’Malley, and Gibbs all cited various rules of statutory construction to aid in interpreting these seemingly conflicting statutes. I prefer the approach taken by the Arizona Supreme Court in Dietz v. General Electric Company, 169 Ariz. 505, 821 P.2d 166 (1991), in which the court stated that it would interpret two conflicting statutes within Arizona’s Uniform Contribution Among Tortfeasors Act “in such a way as to achieve the general legislative goals that can be adduced from the body of legislation in question.” Id. at 510, 821 P.2d at 171 (emphasis added). Therefore, resolution of the issue in this case requires analysis of the policies and goals underlying the doctrines of comparative fault and strict products liability.
The Arizona Supreme Court in O.S. Stapley Company v. Miller, 108 Ariz. 556, 447 P.2d 248 (1968), adopted the doctrine of strict products liability set forth in the Restatement (Second) of Torts section 402A That section provides in relevant part:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
One of the rationales for imposing strict liability is that the consumer has the right to expect safe and merchantable goods and that reputable sellers will stand behind their goods. In addition, public policy demands that the burden of injuries caused by products be placed on those who market them, because those parties are best situated to minimize the risk of harm and may treat the burden as a cost of production against which liability insurance can be obtained. Restatement (Second) of Torts § 402A comment c (1965).
However, strict liability is not absolute liability. Before a manufacturer or merchant may be held liable, the plaintiff must prove that the product was defective, the defect was unreasonably dangerous, the defect existed at the time the product left the manufacturer or merchant, and the plaintiff’s injuries were proximately caused by the defect. Brown, 136 Ariz. at 560, 667 P.2d at 754. In addition, the Arizona courts have recognized various defenses to strict products liability actions. Assumption of risk and unforeseeable misuse are recognized as defenses to such actions. See O.S. Stapley Co., 103 Ariz. at 561, 447 P.2d at 253; Restatement (Second) of Torts § 402A comments n, h (1965). Unforeseeable alteration or modification of a product is also a recognized affirmative defense. AR.S. § 12-683(2). See Piper v. Bear Medical Systems, 152 Ariz.Adv.Rep. 58 (App. Nov. 18, 1993). A.R.S. section 12-683(1) also recognizes a “state of the art” defense. However, ordinary contributory negligence, which does not rise to the level of assumption of risk or product misuse, is not a defense under the strict products liability doctrine. O.S. Stapley Co., 103 Ariz. at 561, 447 P.2d at 253.
Arizona Revised Statutes section 12-683 was enacted in 1978 as part of a. series of statutes entitled, “Product Liability.” See AR.S. §§ 12-681 -686. The legislative goal behind the products liability statutes was apparently to address the “perceived crisis of rising products liability insurance rates” and to promote new product development by regulating products liability law. Torres v. Goodyear Tire & Rubber Co., 163 Ariz. 88, 96, 786 P.2d 939, 947 (1990). The Arizona legislature first adopted a comparative fault *350system in 1984. See A.R.S. §§ 12-2501 - 2509. The 1984 legislation provided a scheme for contribution between joint tortfeasors, and also contained comparative negligence provisions in A.R.S. section 12-2505. That statute allowed a jury to reduce a claimant’s damages in proportion to the relative degree of the claimant’s fault which proximately caused the injury. One of the general legislative goals of the contribution and comparative fault statutes was to increase the fairness of the tort system for both plaintiffs and defendants. Shelby v. Action Scaffolding, Inc., 171 Ariz. 1, 6, 827 P.2d 462, 467 (1992). However, the 1984 enactment left in place the common law doctrine of joint and several liability among defendants. Thus, a defendant who was only partially responsible for causing the plaintiffs injuries could be held liable for all of the plaintiffs damages. Effective January 1, 1988, the legislature enacted A.R.S. section 12-2506, which abrogated joint liability in most cases and established “a system of several liability making each tortfeasor responsible for paying for his or her percentage of fault and no mare.” Dietz, 169 Ariz. at 510, 821 P.2d at 171. Thus, AR.S. sections 12-2505 and 12-2506 represent the legislature’s intent to create a system which truly apportions damages according to the parties’ relative degrees of fault.
Arizona’s comparative fault statutes apply not only to negligence actions, but also to strict liability actions. See AR.S. §§ 12-2506, -2509(B). Some commentators and courts have criticized the applicability of comparative fault to strict liability actions, arguing that the policies underlying the two concepts are irreconcilable. See, e.g., Mark E. Roszkowski and Robert A Prentice, Reconciling Comparative Negligence and Strict Liability: A Public Policy Analysis, 33 St. Louis Univ.L.J. 19 (1988); Smith v. Smith, 278 N.W.2d 155 (S.D.1979); Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978) (dissenting opinions). Nevertheless, it seems a majority of jurisdictions considering this issue have applied comparative negligence or comparative fault principles to strict products liability actions. See, e.g., Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 73 Ill.Dec. 337, 454 N.E.2d 197 (1983).
Given that the purpose of a comparative fault scheme such as Arizona’s is to apportion the loss according to the contributory conduct of the actors, I agree with Olympia and O’Malley that, in enacting AR.S. section 12-2506, the legislature intended to amend the all-or-nothing nature of the misuse defense as described in AR.S. section 12-683(3). The defense of misuse is therefore not only available when the misuse was the sole proximate cause of the plaintiff’s injuries, but should be applied according to comparative principles. Where an unreasonably defective product and a plaintiff’s misuse of that product were concurrent proximate causes of the plaintiff’s injuries, the jury should be permitted to apportion some percentage of the fault to the plaintiff pursuant to A.R.S. section 12-2506, and the plaintiff’s recovery should be limited to that portion of his or her damages equal to the percentage of the cause contributed by the product defect.2 See Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1303 (Utah 1981) (stating that where misuse of plaintiff and defect of product unite as a proximate cause of an injury, both faults should be considered by the jury in determining the relative burden each should bear for the injury). This must be what the legislature intended when it expressly included “misuse of a product” in its definition of fault to be determined and apportioned by the trier of fact. AR.S. § 12-2506(F)(2). This result also best achieves the legislative goals inherent in a comparative fault system without frustrating the underlying purpose be*351hind strict products liability. As one court noted:
The manufacturer’s liability remains strict; only its responsibility for damages is lessened by the extent the trier of fact finds the consumer’s conduct contributed to the injuries____ Further, the risk associated with the product defect is still spread among all consumers. Only that portion due to plaintiffs own conduct or fault is borne by the plaintiff. Where the allocation of losses properly can be apportioned, we see no reason to spread the cost of the loss resulting from plaintiff’s own fault on to the consuming public.
Coney, 73 Ill.Dec. at 342, 454 N.E.2d at 202.
Gibbs argues that the application of comparative fault is limited to contributory negligence and assumption of risk pursuant to A.R.S. sections 12-2505 and 12-2509. Although A.R.S. section 12-2505 generally states that the existence of contributory negligence and assumption of risk should reduce a plaintiff’s damages rather than completely bar a plaintiff’s right to recover, I disagree that the statute prohibits apportioning of a plaintiff’s fault due to misuse. A.R.S. section 12-2505 does not limit the type of conduct by a plaintiff that may be compared to assumption of risk and contributory negligence. Where assumption of risk and misuse have both been recognized in Arizona as defenses to products liability actions, I fail to understand why the legislature would have intended that assumption of risk be a comparative defense, but misuse a defense only if the misuse was the sole cause of the plaintiff’s injuries.3 Indeed, the inclusion of misuse in the definition of fault contained in A.R.S. section 12-2506(F)(2) contradicts Gibbs’s argument that the legislature intended to limit the comparative defenses to contributory negligence and assumption of risk.
Gibbs also argues that the historical note following A.R.S. section 12-2506, stating that “[njothing in this act shall be construed to create a cause of action or to eliminate or diminish any defenses or immunities which currently exist, except as expressly provided,” supports his argument that misuse is not a comparative defense. However, the result I reach neither creates a cause of action nor diminishes an existing defense or immunity. Rather, I argue that unforeseeable misuse, a defense which existed prior to A.R.S. section 12-2506, may be a comparative defense pursuant to that statute.
Because misuse is a comparative defense, the trial court in this case erred in instructing the jury that misuse was to be considered a defense only if the misuse was the sole proximate cause of Gibbs’s injuries and in refusing to give comparative fault instructions with respect to the misuse defense. “[Wjhere the challenged instructions cut to the very heart of the case and misapply the applicable legal theories, the error must be considered prejudicial.” Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 250, 709 P.2d 876, 884 (1985). In this case, the jury could have found that Gibbs’s misuse of the strap was a contributing cause of his injuries, but refused to apply the defense because it was not the sole cause of the injuries. I would therefore reverse the trial court’s judgment and remand for a new trial.
. In my opinion, the treatment of misuse as a comparative defense does not necessarily conflict with A.R.S. § 12-683(3) or Gosewisch. A.R.S. § 12-683(3) describes when a plaintiff's recovery may be totally barred because of misuse. The statute does not state that a plaintiff's damages may not be reduced if the plaintiff’s misuse was a concurrent cause of the injuries, together with the unreasonably dangerous defect. Gosewisch merely reiterated that, pursuant to A.R.S. § 12-683(3), misuse does not bar recovery unless the misuse was the sole cause of the injuries. Application of comparative fault principles would reach the same result. The plaintiff's claim would not be barred unless the jury apportioned 100% of the fault to the plaintiff.
. In certain cases, a plaintiffs unforeseeable use of a product may result in a finding that the product was not defective at all or that the defective product did not cause the plaintiff s injuries. In those situations, the misuse should not be compared. Rather, the plaintiff should be denied recovery because his or her case lacks a crucial element. Mark E. Roszkowski and Robert A. Prentice, Reconciling Comparative Negligence and. Strict Liability: A Public Policy Analysis, 33 St. Louis Univ.L.J. 19, 72-75 (1988). However, in those cases where the product is proved to be defective, the defect is a contributing cause of the injury, and the plaintiff's unforeseeable misuse relates to the defect and magnifies it so that the plaintiff's conduct is also a contributing cause of the injury, comparison of fault is appropriate. Id. at 75-81.
. I recognize that ordinary contributory negligence, as in the plaintiff s failure to discover the defect, is not a defense under the products liability doctrine and so may not be compared. O.S. Stapley Co., 103 Ariz. 556, 447 P.2d 248; A.R.S. § 12-2509(B); see also Austin v. Raybestos-Manhattan, Inc., 471 A.2d 280, 287 (Me.1984) (assumption of risk but not ordinary negligence reduces recovery in strict liability action); Coney, 73 Ill.Dec. at 344, 454 N.E.2d at 204 (misuse and assumption of risk will reduce recovery but not simple negligence); West v. Caterpillar Tractor Co., 336 S.2d 80, 90 (Fla. 1976) (assumption of risk and misuse may reduce recovery in strict liability action but ordinary negligence will not).