Free Proposed Jury Instructions - District Court of Arizona - Arizona

1 Plaintiffs Proposed Jurv Instruction No. 20

2 If you find that Plaintiffs prevailed under either their written warranty claim or

3 their implied warranty claims, you must then consider if Plaintiffs can revoke
4 acceptance of the subject Motor Home. If you believe the defects within the subject
5 Motor Home substantially impair the value of the Motor Home to Plaintiffs, you may
6 permit Plaintiffs to revoke acceptance of the Motor Home. Substantial Impairment is

7 a subjective test, where you first determine the purpose for which Plaintiffs

8 purchased the Motor Home, and then determine whether the defects or
9 nonconformities within the Motor Home substantially impaired Plaintiffs' abilty to use

10 the Motor Home for those purposes.
11
Authority: 15 U.S.C. § 2310 (d)(1); 15 U.S.C. § 2311 (b); N.R.S. § 104.2711;

12 13 14 15 16 17 18 19

N.R.S. § 104.2714; N.R.S. § 104.2715; N.R.S. § 104.2608; Sierra Diesel Injection

Service v. Burroughs Corp., Inc., 1987, 651 F.Supp. 1371 (In view of buyer's obligation to act in good faith, and to afford seller a reasonable opportunity to cure

any defects in goods, revocation of acceptance is not barred when buyer has
reasonably waited for seller to repair goods); Waddell v. L. V.R. V. Inc., 2006, 125

P.3d 1160 (Recreational vehicle's (RV's) chronic engine overheating prevented buyers from using the RV to travel as they intended, and thus, the RV's
nonconformity substantially impaired its value to the buyers that entitled them to

timely revoke acceptance of the RV, where the buyers intended to spend two to three years traveling around the country, the RV engine tended to overheat within ten miles

of its starting point, and the RV was in for repairs by the dealer for a total of 213 days)(Although the seller of nonconforming goods must generally receive an

opportunity to cure the nonconformity before the buyer may revoke his acceptance,
the seller's attempts to cure do not count against the buyer regarding timely

20
21

revocation);

22 - Accepted
23 - Rejected

24 Modified
25 26 27 28

Defendant objects to this instruction because Plaintiff has never
disclosed a cause of action for revocation of acceptance. Plaintiff was
required to amend her complaint to add any new claims by November 10, 2004.

: :ODMA \PCDOCS\PHX\304617\1

41

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 1 of 10

1

She never did. She should not be able to assert a new cause of action without

2
3

ever having properly amended her complaint or disclosed this new legal

theory. Furthermore, Defendant did not manufacture or warrant the entire
motor home, but only the chassis. Plaintiff is seeking to have the jury force
Defendant to accept a motor home that is five times the value of the chassis

4
5

6 7
8 9

that Defendant manufactured and warranted.

10
11

12 13 14

15 16 17 18 19

20
21

22

23 24 25 26 27
28

: :ODMA\PCDOCS\PHX\304617\ 1

42

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 2 of 10

1

Plaintiff's Proposed Jurv Instruction No. 21
Defendant has the burden to establish the validity of Affrmative Defenses alleged.
For example, if Defendant alleges modifications, alterations, and/or misuse of

2
3

4
5

the Motor Home by Plaintiff, Defendant must prove that any alleged modifications,
alterations, and misuses caused the defects and were not reasonably foreseeable to

6 7
8 9

Defendant.

Likewise, if Defendant alleges Plaintiff did not perform reasonable and
necessary maintenance, Defendant must prove such failure was the cause for the
defects. Reasonable and necessary maintenance means those things (A) which the
Plaintiff reasonably can be expected to perform or have performed and (B) which are

10
11

12

necessary to keep any consumer product performing its intended function and
operating at a reasonable level of performance.

13 14 15 16 17

Finally, Defendant also has the burden of proving that Plaintiff failed to provide

it a reasonable opportunity to cure defects, malfunctions or failures within the Motor

Home.

Authority: 15 U.S.c. §2304(c); 15 U.S.C. §2310 (e); State ex reI. Dandoy v.

18 City of Phoenix, 133 Ariz. 334, 651 P.2d 862 (App. 1982);Haynes,Renewal Guaranty Corp., 105 Ariz. 549, 468 P.2d 576 (1970); Strahan v. Burr v. 33 Ariz. 128, 262
20 1981) ("(b)urden is always on the party advancing an affirmative defense to establish

19 P.995 (1928); 15 U.S.C. 2304 (a) (4), Fed. R. civ. P. 8., Affirmative Defenses in Answers to Amended Complaint; Jones v Taber, 648, F,2d 1201 at 1203 (9th cir.
affrmative Defense has the burden of proving it."); Continental Airlines, Inc. v. Intra

21 its validity."); Fed R. civ. P. 8, and cmt. Burden of Proof; ("(t)he Party raising an

22 Brokers, Inc., 24 F.3rd 1099, 1103 (9th cir. 1994) (Stating, U(e)stoppel is an
23 affrmative defense, for which the defendant bears the burden of proof."); State ex reI.

Dandoy v. City of Phoenix, 133 Ariz. 334, 651 P.2d 862 (App.Div.1 1982); Universal 24 Motors Inc., v. Waldock, 719 P.2d 254 (Alaska 1986); Prutch v. Ford Motor Co., 618

25 P .2d 657, 660 (Colo. 1980).

26 - Accepted
27 - Rejected
28 - Modified
43

::ODMA\PCDOCS\PHX\304617\ 1

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 3 of 10

1

Defendant objects to this instruction because it is redundant and
duplicative of Ninth Circuit Model

2
3

Instruction No. 1.13. Further, this instruction

seeks to transfer Plaintiff's burden of proof to Defendant by forcing Defendant

4
5

to show that a complaint is not a defect in materials or workmanship. This is

Plaintiff's burden and is a prima facie element of her case.

6 7
8 9

10
11

12 13 14 15 16 17 18 19

20
21

22

23 24 25 26 27
28

: :ODMA \PCDOCS\PHX\304617\ 1

44

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 4 of 10

1

Plaintiff's Proposed JUry Instruction No. 22

2 The defective condition of a product, for purposes of establishing breach of
3 warranty can be shown by circumstantial evidence.
4

Authority: Stackiewicz v. Nissan Motor Corp. in U.S.A., 686 P.2d 925

5 (Nev., 1984 )(Where other identifiable causes are absent and when there is evidence

6 evidence of malfunction is suffcient evidence of defect); Krause Inc. v. Little, 34 P.3d
7 566 (Nev. 2001) (Evidence of an unexpected, dangerous malfunction gives rise to an

of dangerous condition, fact finder in products liabilty suit can find that mere
inference of a manufacturing defect, and in such a situation, direct proof of the

8 malfunction's cause is unnecessary); Dietz v. Waller, 141 Ariz. 107, 685 P.2d 744

1997); Rocky Mountain Fire & Cas. Co. v Biddulph Oldsmobile, 131 Ariz. 289, 640 10 P.2d 851 (Ariz. 1982); Bailey v. Montgomery Ward and Co. 6 Ariz. 213, 413 P.2d

9 (Ariz. 1984); Souza Fred Carries Contract, Inc. 191 Ariz. 247, 955 P .2d 3 (App.

11 108, (App.1967);v. American Isuzu Motors, 321 III.App.3d 696, 749 N.E.2d 16 (1st 1965); Alvarez Nalbandian v. Byron Jackson Pumps, Inc., 399 P.2d 681 (Ariz.
12 Dist. III. 2001); Burrus v. Itek Corp., 46 III.App.3d 350, 360 N.E.2d 1168, 1171 (3rd Dist. 1977); Genetti v. Caterpilar, Inc., 621 N.W.2d 529 (Neb. 2001); Universal 13 Motors Inc. v. Waldock, 719 P.2d 254 (Alaska 1986); Larry J. Soldinger Assoc., Ltd.
Worthey v. Specialty Foam Products, Inc., 591 S.W.2d 145, 149 (Mo.App. 1979); 15 Osburn v. Bendix Home System, Inc., 613 P.2d 445 (Okla. 1980); Black v. Don

14 v. Aston Martin Lagonda of North Am., Inc., 1999 WL 756174 (N.D. III. 1999);

17 Handling Automobile Warranty and Repossession Cases § 7.53, at 202 (1984);
18 Bruffey Contracting Co. v. Burroughs Corp., 522 F.Supp. 769 (D. Md. 1981), atfd
681 F.2d 812 (4th Cir. 1982).
19

16 Schmidt Motor, Inc., 232 Kan. 458, 657 P.2d 517, 525 (Kan. 1983); Jacobson v. Broadway Motors, Inc., 430 S.W.2d 602, 606 (Mo.App. 1968); Roger D. Billngs,

20 - Accepted
21 - Rejected

22 Modified
23 24 25 26 27
Defendant objects to this instruction because it is redundant and

28

contrary to the Court's order dismissing Fleetwood wherein the Court stated: "the 'mere existence' of a certain problem, however, does 'not support the inference' that the problem is caused by a defect. The problem must be
:: ODMA \PCDOCS\PHX\304617\ 1

45

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 5 of 10

1

present and there must be some evidence that the problem is caused by a

2
3

'manufacturing defect...in material or workmanship." See Order at p. 11 :12-21.

As an alternate instruction, see Defendant's Proposed Instructions Nos. 3 and
4.

4
5

6
7
8

9

10
11

12 13 14 15 16 17
18 19

20
21

22

23 24
25 26

27 28

::ODMA \PCDOCS\PHX\304617\ 1

46

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 6 of 10

1

Plaintiffs Proposed JUry Instruction No. 23
By attempting to repair under warranty, the warrantor admits the defective

2
3

nature of the condition(s) in the product. Repair orders from Defendants and/or their
authorized repair agents indicating a repair attempt are circumstantial evidence of
defect (s) in the subject Motor Home.

4
5

6
7
8 9

Authority: Milcevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 919 (9th
Cir. 2005) (holding, U(b)y attempting to repair the (parts) under warranty, (the

warrantor) admitted the defective nature of these conditions. Thus, when it failed to correct the defects in the (parts), (the warrantor) breached the terms of its limited written warranty in violation of Section 231 0(d)(1 ).").

10
11

- Accepted
- Rejected
Modified

12

13 14 15
16 17 18 19

Defendant built only a component part and not the motor home,
therefore, Defendant objects to this instruction because it deals with the

"Motor Home" and attempts to shift the burden of proof from Plaintiff to
Defendant as to presenting evidence of a defect in materials or workmanship.

Plaintiff is required to present evidence that her complaint is a defect in
materials or workmanship covered under Defendant's limited warranty. This

20
21

instruction creates a presumption of defect just because Plaintiff brings the

motor home to a repair facilty with complaints.

22 23 24 25 26 27 28

Further, this instruction also attempts to graft a reasonable number of
attempts standard into the elements necessary to show a breach of limited

written warranty. This is contrary to the standards set forth in the Court's

Order Dismissing Fleetwood, p. 6:14-21. Further, the reasonable number of
attempts standard set forth in Section 2304 of the MMWA only applies when
the manufacturer offers a "full warranty." In this case, Defendant offered a

limited warranty, therefore, the "reasonable number of attempts standard is
47

::ODMA\PCDOCS\PHX\304617\1

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 7 of 10

1

inapplicable. See Chaurasia v. General Motors Corp., 212 Ariz. 18, 126 P.3d
165, 169 (2006); Hines v. Mercedes-Benz USA, 358 F. Supp. 2d 1222, 1229 (D.

2
3

Ga. 2005). As an alternate instruction, see Defendant's Proposed Instructions
Nos. 3 and 4.

4
5 6 7 8 9

10
11

12

13 14 15
16 17 18

19

20
21

22

23
24 25 26 27 28

::ODMA\PCDOCS\PHX\304617\1

48

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 8 of 10

1

Plaintiffs Proposed JUry Instruction No. 24
Plaintiff need not present expert testimony to establish a defect in the Motor
Home.
Authority: Nevada Contract Services, Inc. v. Squirrel Companies, Inc., 68 P.3d 896 (Nev., 2003)(Bar was not required to show specific cause of malfunction of liquor
dispensing system in its breach of warranty claim against companies that

2
3

4
5

6 7
8

manufactured and installed system, because it was too burdensome to require bar to

prove why liquor dispensing system, which integrating electronic and mechanical
components, did not work); Bailey v. Montgomery Ward and Co., 6 Ariz. 213, 413
P .2d 108, (App.1967), Nalbandian v. Byron Jackson Pumps, Inc., 399 P .2d 681 (Ariz. 1965) ("(i)t is (only) necessary to show that the warranted equipment failed to operate properly during the period for which it was guaranteed; ") Soldinger v. Aston Martin

9
10
11

Lagonda of North Am., Inc., 1999 WL 756174 (N.D. III. 1999); Jones v. Fleetwood
Motor Homes, 127 F.Supp.2d 958 (N.D. III. 2000); Art Hil, Inc. v. Heckler, 457 N.E2d

242, 246 (Ind.App. 1983) (breach of express warranty; "expert testimony is not
required to prove breach of warranty"); Wiliams v. Ford Motor Co., 411 S.W.2d 443,

12 13

447 (Mo.App. 1966) (expert opinion testimony not essential; case involved a malfunctioning steering wheel assembly); Shurtleff v. Jay Tuft & Co., 622 P .2d 1168
(Utah 1980); Burrus v. Itek Corp., 46 III.App.3d 350, 360 N.E.2d 1168, 1171 (III. App. 1977); Worthey v. Specialty Foam Products, Inc., 591 S.W.2d 145, 149 (Mo.App. 1979); Lucas v. Firestone Tire and Rubber Co., 458 F.2d 495 (5th Cir. 1972) ("There

14 15 16
17 18

is no burden on plaintiff to prove a specific defect by an expert witness as
distinguished from other proof."); Baker v. Chrysler Corporation, 1993 WL 18099
(ED. Pa. 1993); Ex parte General Motors Corporation and Ex parte Jim Bishop

19

Chevrolet-GEO-Buick-Olds, Inc. Re Aaron Tucker v. General Motors Corporation and Jim Bishop Chevrolet-GEO-Buick-Olds, Inc., 769 SO.2d 903 (Ala. 1999); Fortune v. Scott Ford, Inc., 175 A.2d 303 (N.Y. 1991); Green v. Ford Motor Co., 1996 U.S. Dist. LEXIS 4102 (E.D. Pa. 1996); Roger D. Billngs, Handling Automobile Warranty and

20
21

Repossession Cases § 7.53, at 202 (1984) ("expert testimony of the defect is unnecessary").

22

23 - Accepted 24 - Rej' ected 25 - Modified
26

Defendant objects to this instruction because it is contrary to the Court's

27
28

order dismissing Fleetwood wherein the Court stated: "A lay witnesses'
testimony regarding a defect wil often be enough 'if that defect is one that can
:: ODMA \PCDOCS\PHX\304617\ 1

49

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 9 of 10

1

2
3

be understood by the reasonable juror'. But where an alleged defect is 'not within the reasonable purview of the average lay person' expert testimony is

required." See Order at p. 11:12-21. As an alternate instruction, see
Defendant's Proposed Instructions Nos. 3 and 4.

4
5

6 7
8 9

10
11

12 13 14

15
16 17 18 19

20
21

22 23 24 25 26 27
28

: :ODMA\PCDOCS\PHX\304617\ 1

50

Case 2:04-cv-00161-ROS

Document 205-4

Filed 08/28/2006

Page 10 of 10