Maywald v. Toyota

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

SHAWN MAYWALD, an individual,
and TANYA L. MAYWALD, an individual, Plaintiffs/Appellants,

v.

TOYOTA MOTOR CORPORATION, a Japanese corporation; TOYOTA
MOTOR NORTH AMERICA, INC., a California corporation; OVERTYME,
INC., an Arizona corporation, Defendants/Appellees.

No. 1 CA-CV 23-0723
FILED 12-19-2024

Appeal from the Superior Court in Navajo County
No. S0900CV202100003
The Honorable Melinda K. Hardy, Judge

VACATED AND REMANDED

COUNSEL

Shumway Law, PLLC, Phoenix
By G. Lynn Shumway
Counsel for Plaintiffs/Appellants

Ghelfi Law Group, Phoenix
By Brent Ghelfi
Counsel for Plaintiffs/Appellants

Bowman and Brooke LLP, Phoenix
By James W. Halbrooks Jr., William F. Auther,
Amanda E. Heitz, Alexander J. Egbert
Counsel for Defendants/Appellees
 MAYWALD, et al. v. TOYOTA, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Andrew M. Jacobs joined. Judge James B. Morse Jr. concurs in
the result.

F U R U Y A, Judge:

¶1 Shawn and Tanya-Lynn Maywald appeal the superior court’s
grant of summary judgment for Toyota Motor Corporation, Toyota Motor
North America, Inc., and Overtyme, Inc. (collectively “Toyota”). For the
following reasons, we vacate the judgment and remand for further
proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 This is a products liability dispute concerning Toyota’s 2019
4Runner, which is not equipped with Lane Departure Warning technology
(“LDW”). LDW is a feature that, when activated and under certain driving
conditions, can provide an audible and visual alert to a driver who has
inadvertently left the current lane of travel. The 4Runner did not include
LDW in 2017, 2018, and 2019 models. Toyota incorporated the technology
into the 2020 model after a redesign.

¶3 In December 2019, the Maywalds were travelling southbound
on State Route 77 in Navajo county. At that time, Emilio Tsosie was driving
a 2019 4Runner northbound on that same road. Tsosie fell asleep, drifted
from his lane, and collided with the Maywalds’ vehicle. Shawn suffered
serious injuries in this collision.

¶4 The Maywalds filed a complaint against Toyota, alleging
claims for strict products liability, negligence, and loss of consortium. After
discovery, Toyota moved for summary judgment, arguing the Maywalds
could not establish the 2019 4Runner was defective and unreasonably
dangerous, such that its design was a cause of the collision. The Maywalds
filed two cross-motions for partial summary judgment concerning
Arizona’s risk/benefit analysis and Toyota’s comparative fault defense.
The Maywalds also filed a motion to exclude Toyota’s expert witness
testimony regarding design defects. After argument, the superior court

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granted Toyota’s motion, denied the Maywalds’ motions, and entered a
final judgment.

¶5 We have jurisdiction over the Maywalds’ timely appeal
under Article 6, Section 9 of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) §§ 12-120.01(A)(1), -2101(A)(1).

DISCUSSION

¶6 We review the court’s ruling on a motion for summary
judgment de novo, viewing the facts and reasonable inferences in the light
most favorable to the non-moving party; here, the Maywalds. Rosenberg v.
Sanders, 256 Ariz. 328, 333 ¶ 24 (2023). The court must “grant summary
judgment if the moving party shows that there is no genuine dispute as to
any material fact and the moving party is entitled to judgment as a matter
of law.” Ariz. R. Civ. P. 56(a). Further, a party is entitled to a grant of
summary judgment if the facts produced in support of the non-movant’s
claim “have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim.” Rosenberg, 256 Ariz. at 332–33 ¶
23 (quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990)). But summary
judgment is not appropriate as a “substitute for jury trials simply because
the trial judge may believe the moving party will probably win the jury’s
verdict, nor even when the trial judge believes the moving party should win
the jury’s verdict.” Orme Sch., 166 Ariz. at 310.

I. Genuine Disputes as to Material Facts Exist as to the Maywalds’
Strict Products Liability Claim.

¶7 To establish a prima facie case of strict products liability,
plaintiffs must present evidence that when a product left a defendant’s
control: (1) “the product was in a defective condition that made it
unreasonably dangerous,” and (2) “the defective condition proximately
caused the plaintiff’s injuries.” Dillon v. Zeneca Corp., 202 Ariz. 167, 172 ¶ 14
(App. 2002).

A. Whether the Absence of LDW Made the 2019 4Runner
Unreasonably Dangerous is a Question of Fact.

¶8 “Under strict liability principles, a manufacturer is required
to adopt . . . safety devices which would prevent the product from
becoming unreasonably dangerous.” Rogers v. Unimac Co., 115 Ariz. 304,
307 (1977). “A defectively designed product is one that is made as the
manufacturer intended it to be but that is unreasonably dangerous.”

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Gomulka v. Yavapai Mach. & Auto Parts, Inc., 155 Ariz. 239, 242 (App. 1987).
Arizona courts have developed two tests to determine whether a defective
product was unreasonably dangerous: the consumer expectations test and
risk/benefit analysis. Golonka v. Gen. Motors Corp., 204 Ariz. 575, 581 ¶ 13
(App. 2003). Which test to apply depends upon the facts and circumstances
specific to each case. See Brethauer v. Gen. Motors Corp., 221 Ariz. 192, 199 ¶
25 (App. 2009).

1. The consumer expectation test does not apply to this case.

¶9 “Under the consumer expectation test, the fact-finder
determines whether the product failed to perform as safely as an ordinary
consumer would expect when used in an intended or reasonable manner.”
Golonka, 204 Ariz. at 581 ¶ 14 (quotation omitted). “If so, the product was in
a defective condition and unreasonably dangerous.” Id. In design defect
cases, “the consumer’s expectation . . . is an expectation of how safely the
product could be made to perform—the touchstone of the consumer
expectation test.” Brethauer, 221 Ariz. at 199 ¶ 27. For the consumer’s
expectation test to apply, an ordinary consumer does not need to know the
“specifics of design.” Id. But “while the consumer expectation test may
sometimes work well in design defect cases, it provides no resolution for
those cases in which the consumer would not know what to expect, because
he would have no idea how safe the product could be made.” Dart v. Wiebe
Mfg., Inc., 147 Ariz. 242, 244 (1985) (internal quotation omitted). Thus, the
test applies only “when the ordinary consumer, through use of a product,
has developed an expectation regarding the performance safety of the
product.” Brethauer, 221 Ariz. at 199 ¶ 27.

¶10 Here, we are unpersuaded that LDW technology is so familiar
and ubiquitous to the driving public that the ordinary driver would expect
its inclusion as necessary to the safe performance of the vehicle. The
Maywalds point to evidence they submitted that LDW has been available
in other Toyota models since 2002. And they submitted further evidence
concerning studies about LDW’s efficacy in preventing accidents due to
unintentional lane departures, and its wide availability in 2019, including
on most other Toyota model lines. But even viewing it in the light most
favorable to the Maywalds, this evidence cannot establish the kind of wide
public acceptance and awareness of LDW required to impute a general
expectation of its inclusion in vehicles, such that Toyota’s failure to include
LDW in the design of the 2019 4Runner made it unreasonably dangerous.
See Golonka, 204 Ariz. at 581 ¶ 14. Thus, we must turn to risk/benefit
analysis.

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2. Risk/benefit analysis applies to this case.

¶11 Under risk/benefit analysis, the fact-finder is asked to
determine “in light of relevant factors, whether the benefits of a challenged
design . . . outweigh the risk of danger inherent in the design.” Id. (cleaned
up). In so doing, they must consider several factors to determine whether a
defect is unreasonably dangerous: “(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.” Dart, 147 Ariz. at 245–46.

¶12 In this case, the Maywalds presented evidence that
unintended lane departures are a leading, and therefore common, cause of
vehicle accidents. The Maywalds’ evidence also discussed the severity of
injuries resulting from unintended lane departures. Both parties recognize
the purpose of LDW is to alert inattentive drivers in the event of such
unintended lane departures. And while Toyota disputes its effectiveness in
this case, no party disputes LDW’s general effectiveness or that the
technology can reduce collisions due to unintended lane departures. Toyota
did not argue the 2019 4Runner was designed with any features that
otherwise fulfill the function of LDW. Importantly, it does not dispute
installation of LDW in the 2019 4Runner was feasible without seriously
impairing the usefulness of the product or making it unduly expensive.

¶13 Citing Vineyard v. Empire Mach. Co., 119 Ariz. 502 (App. 1978)
and Chavarria v. Ford Motor Co., 124 Ariz. 158 (App. 1979), Toyota asserts
the Maywalds’ claims cannot survive summary judgment because they
failed, as a preliminary matter, to show any separate underlying defect in
the 2019 4Runner—for example, a propensity to move out of its lane. And
without first showing such a defect, the absence of LDW cannot be a
dangerous condition. Both cases are inapposite.

¶14 In Vineyard, a plaintiff sued a tractor manufacturer for strict
products liability after the manufacturer’s tractor rolled over, causing the
plaintiff serious injuries. Vineyard, 199 Ariz. at 503–04. The plaintiff pointed
to the lack of roll-over bars to protect operators in the event of roll-overs as
a defect making the tractor unreasonably dangerous. Vineyard, 199 Ariz. at
504. The trial court entered summary judgment against the plaintiff because

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the lack of roll-over bars was open and obvious. Id. In affirming the
judgment, the Vineyard court based its decision on the obviousness inherent
in the lack of roll-over protections and the plaintiff’s prior experiences with
instability during his earlier operation of the tractor. See id. at 505–06.
Vineyard did not decide the issue of whether failure to design a product to
include safety precautions could qualify as a defect without first
establishing a separate defect in the product. Indeed, the Vineyard court
expressly recognized, albeit via waiver, that the “lack of roll-over protection
is a defect” and proceeded to analyze whether that defect was unreasonably
dangerous. Id. Rather, the case turned on the definition of “unreasonably
dangerous” expressed in Comment (i) to the 1965 version of Section 402A
of the Restatement (Second) of Torts. Id. at 505. But this is merely an
expression of the consumer expectations test, not—as Toyota suggests—the
imposition of a requirement to separately establish a defect in the product
as a condition precedent to examining the product’s design. And as
explained above, see supra ¶¶ 9–10, the consumer expectations test is
unsuitable to this case.

¶15 Moreover, we are skeptical of Vineyard’s continued utility
after our supreme court clarified Arizona’s strict products liability law in
the design defect context in Dart. Compare Vineyard, 199 Ariz. 504–05
(assuming Arizona rejected risk/benefit analysis as set forth in Barker v. Lull
Engineering Co., Inc., 573 P.2d 443 (Cal. 1978)), with Dart, 147 Ariz. at 245
(approving risk/benefit analysis as expressed in Barker as an alternative
strict products liability test and noting Barker’s “analysis is a logical
refinement of [the Arizona Supreme Court’s] previous reasoning in [Byrns
v. Riddell, 113 Ariz. 264 (1976)].”).

¶16 Thus, Toyota’s reliance on Vineyard is misplaced. That case
does not establish a separate requirement to find a defect as a necessary
predicate to applying risk/benefit analysis. Further, it expresses an
outdated understanding of strict products liability law in the design defect
context that was superseded by Dart. And because Chavarria relies on
Vineyard and is of like vintage, it is likewise unhelpful. See Chavarria, 124
Ariz. at 159 (analyzing case under Vineyard, but distinguishing it on its
unique facts). Instead, risk/benefit analysis as set forth in Dart and its
progeny controls.

¶17 Toyota further argues risk/benefit analysis should be applied
to the 2019 4Runner as designed—i.e., without LDW—because LDW “could
be incorporated into the 2020 4Runner only after the vehicle was completely
redesigned.” There are two problems with this position.

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¶18 First, it is inconsistent with strict products liability law in
design cases, which requires considering the possibility of designs different
from the one the manufacturer intended and adopted. See Gomulka, 155
Ariz. at 242 (“A defectively designed product is one that is made as the
manufacturer intended it to be but that is unreasonably dangerous.”)
(emphasis added).

¶19 Second, it is belied by Toyota’s own statements. Toyota
admitted during deposition testimony that it was technically feasible to
have installed LDW on the 4Runner by at least 2018, the model year before
the vehicle involved in the collision. It testified:

Q. Was it technologically feasible to put a [LDW] system into
the 4Runner in model year 2018 if it was started on March
30th, 2015, to work toward that?

A. Technically feasible. There would have to be many
changes, but it’s technically feasible that the 4Runner could
be chosen to be one of the vehicles to receive it at a particular
timing.

Toyota did not explain why it did not choose the 4Runner for installation
of LDW before 2020 or provide any evidence that addressed the
risk/benefit analysis factors.

¶20 Further, the superior court, in support of its ruling, stated that
“LDW/LDA technology became an option or feature on the Toyota 2019
4Runner after 3600 hours of redesign.” But no evidence in the record
supports this finding. Rather, the statement appears to originate from oral
argument on the summary judgment, when Toyota’s counsel stated, “it
took 36,000 man hours to redesign the 4Runner to put a lane departure
warning system into it.” And even if Toyota had presented proof of the
number of hours required to install LDW, that would simply be more
evidence for a jury to consider in deciding whether the 2019 4Runner’s
design was unreasonably dangerous. See Dart, 147 Ariz. at 246.

¶21 Though Toyota may view it as inadequate, the Maywalds’
evidence and the reasonable inferences from it raise genuine disputes of
material fact as to whether the benefits of including LDW technology in the
4Runner’s design outweigh the risks inherent in omitting it. These disputes
of material fact make summary judgment inappropriate.

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II. Genuine Disputes as to Material Facts Exist Regarding the
Maywalds’ Negligence Claim.

¶22 In a negligent design case, a manufacturer is liable if it “acted
unreasonably at the time of design or manufacture in light of the
foreseeable risk of injury from use of the product.” Golonka, 204 Ariz. at 581
¶ 16. In determining the reasonableness of the manufacturer’s actions, “the
fact-finder considers the same risk/benefit analysis factors used to
determine strict liability.” Id.; see Dart, 147 Ariz. at 246. The main focus in
negligent design cases is “whether the manufacturer’s conduct was
unreasonable in light of the foreseeable risk of injury.” Id. at 582 ¶ 17; see
Gomulka, 155 Ariz. at 242 (“A negligent design case focuses on whether the
defendant’s conduct was reasonable in view of a foreseeable risk at the time
of design of the product.”).

¶23 Here, the Maywalds presented sufficient evidence to raise
disputes of material fact as to whether Toyota was negligent in not
installing LDW into the 2019 4Runner. Toyota first introduced LDW in 2002
to help its vehicle owners reduce the risk of unintended lane departures.
Toyota testified in deposition that it made LDW standard for the Toyota
Safety Sense Package because it recognized the benefits of LDW. But, it did
not install LDW in the 2019 4Runner despite its technical feasibility. Because
Toyota did not present any evidence as to why it did not install LDW in the
2019 4Runner, the Maywalds have again shown a dispute of material facts
that a jury must resolve as to whether Toyota acted unreasonably at the
time it designed the 2019 4Runner.

III. Whether the Absence of LDW was a Proximate Cause of the
Collision is a Question of Fact.

¶24 Causation is a necessary element of both strict products
liability claims, see Dillon, 202 Ariz. at 172 ¶ 14, and negligence claims,
Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9 (2007). Proximate cause is “that which,
in a natural and continuous sequence, unbroken by any efficient
intervening cause, produces an injury, and without which the injury would
not have occurred.” Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz. 179,
183 ¶ 15 (App. 2001). Determining proximate cause ordinarily is a question
of fact for a jury. Torres v. Jai Dining Servs. (Phoenix) Inc., 252 Ariz. 28, 30 ¶
11 (2021). To survive summary judgment, a plaintiff “need only present
probable facts from which the causal relationship reasonably may be
inferred.” Braillard v. Maricopa Cnty., 224 Ariz. 481, 496–97 ¶ 50 (App. 2010)
(quoting Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546 (1990).
“The defendant’s act or omission need not be a ‘large’ or ‘abundant’ cause

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of the injury; even if defendant’s conduct contributes ‘only a little’ to
plaintiff’s damages, liability exists if the damages would not have occurred
but for that conduct.” Id. (quotation omitted).

¶25 Here, the Maywalds introduced sufficient causation evidence
to raise disputes of material fact. Tsosie, the driver of the 2019 4Runner,
provided an affidavit stating he would have turned LDW on based on his
prior experience with warning systems. The Maywalds’ expert stated in an
affidavit that LDW would have warned Tsosie when he started to deviate
from his lane, given the collision happened on straight, well-marked roads
in daylight under good driving conditions. He testified LDW would have
given Tsosie additional time to avoid the collision because Tsosie had
initiated steering prior to the accident. The expert further opined that the
presence of active LDW in the 2019 4Runner at the time of the collision
would more likely than not have prevented this accident.

¶26 Toyota counters that this evidence constitutes unsupported
speculation that cannot establish causation. We disagree. The Maywalds’
causation evidence was sufficiently specific and definite to prompt Toyota
to proffer relevant contrary evidence of its own. For example, Toyota’s own
expert stated that LDW’s efficiency may be affected by several factors, such
as road and lighting conditions. Further, another of Toyota’s experts
criticized the Maywalds’ expert in another affidavit, stating that no studies
evaluated the perception and reaction time in sleeping drivers to gauge the
efficacy of alert systems. Though Toyota may disbelieve Tsosie’s and the
Maywalds’ expert’s statements because, as it argues, they lack sufficient
support, such concerns go to the question of their weight. But the
conflicting evidence cries out for resolution by a jury, rendering summary
judgment as to causation inappropriate.

¶27 Therefore, we hold that disputed issues of material fact exist
as to whether lack of LDW in the 2019 4Runner was a proximate cause of
the injuries at issue.

IV. We Do Not Address Denial of the Maywalds’ Motion for Summary
Judgment and Discovery Motions.

¶28 The Maywalds argue the court erred in denying their two
motions for summary judgment and motion to exclude Toyota’s expert. The
court dismissed these motions as moot without reaching their merits.
Denial of a motion for summary judgment is not itself appealable. Manicom
v. CitiMortgage, Inc., 236 Ariz. 153, 162 ¶ 37 (App. 2014), as corrected (Nov.

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19, 2014). Moreover, because the court did not address the merits of the
motions, we decline to address them in the first instance on appeal. Id.

CONCLUSION

¶29 For the reasons explained, we vacate the superior court’s
grant of summary judgment. Because the Maywalds’ loss of consortium
claim was resolved summarily in tandem with their substantive claims for
strict products liability and negligent design, which we reinstate today, we
likewise vacate summary judgment as to the loss of consortium claim. See
Martin v. Staheli, 248 Ariz. 87, 92 ¶ 16 (App. 2019) (loss of consortium claim
depends on the underlying tortious action that caused the injury).

¶30 The case is remanded for further proceedings.

M O R S E, Judge, concurring in the result:

¶31 I concur in the result because the majority correctly applies
Golonka, 204 Ariz. at 581 ¶ 13, and neither party asks us to overrule that
decision. I write separately to express concern over the potential liabilities
associated with emerging-autonomous technologies and Advanced Driver
Assistance Systems (“ADAS”), of which LDW is a subset. While the
majority applies a risk/benefit analysis, the pace of innovation in car-safety
features introduces novel and unforeseeable challenges for manufacturers
and litigants. As ADAS features become more prevalent, the omission of
such technologies may be leveraged in litigation as evidence of a design
defect, particularly in the absence of clear legislative and regulatory
guidance. This area remains largely unlitigated, but as the legal landscape
and ADAS develop, manufacturers could find themselves held accountable
for design decisions based on evolving-industry standards, even when
those omissions were previously considered reasonable.

¶32 For example, in Mikolajczyk v. Ford Motor Co., the court held
that while plaintiffs are not required to plead the existence of feasible-
alternative designs, their availability remains a relevant consideration in
evaluating strict-product-liability claims. 231 Ill.2d 516, 546 (2008). As the
majority discusses here—and as established in Arizona under Golonka, Dart,
and Gomulka—a jury’s liability assessment may hinge on whether the
design defect was unreasonable and whether reasonable alternatives were
available at the time of manufacture.

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¶33 As we look ahead to the ongoing integration of autonomous
systems in our society and cars, plaintiffs may argue that continued
production of human-operated cars could be viewed as inherently risky.
See Iiona Scully et al., Safety and Regulatory Considerations of Advanced Driver
Assistance Systems (ADAS), AMERICAN BAR ASSOCIATION, (Mar. 1, 2021),
https://www.americanbar.org/groups/tort_trial_insurance_practice/co
mmittees/automobile-litigation/safety_regulatory_considerations/
(“Because the adoption of ADAS technology has been largely voluntary
and industry-driven, plaintiffs alleging that lack of ADAS technology is a
defect can potentially offer defect, negligence, and punitive damages
arguments that focus on noncompliance with the state-of-the-art.”). And
the failure to incorporate these systems may be argued as a design defect,
even if a particular consumer is aware of, and wishes to eschew, ADAS
features. See Gomulka, 155 Ariz. at 242 (“One test of whether a product is
unreasonably dangerous is whether its inherent danger exceeds the
expectation of the ordinary consumer.” (emphasis added)); Golonka, 204
Ariz. at 582 ¶ 17 (stating that in strict-liability-design cases, “the knowledge
revealed by the accident and the evidence presented at trial is additionally
imputed to the manufacturer, and the risk/benefit factors are then applied
in ‘hindsight’ to decide whether it was reasonable for a manufacturer with
this knowledge to have put the product on the market”) (citing Dart, 147
Ariz. at 247–48).

¶34 Alternatively, even if ADAS leads to fewer accidents, because
ADAS technology shifts driving decisions “from human drivers to
automated systems (and their designers), a larger share of the crashes that
nonetheless occur will implicate product liability law.” Bryant Walker
Smith, Automated Driving and Product Liability, 2017 MICH. ST. L. REV. 1, 2
(2017). This situation may “conceivably lead to higher prices for automated
driving systems, which could lead to slower adoption of these systems,
which could lead to crash injuries that could have been prevented by these
systems.” Id. at 6. Our current case law could place us on the path to
increasing the cost of ADAS technology dramatically or a situation in which
manufacturing a human-operated car is, in itself, a tort. I hesitate to follow
that path and, therefore, only concur in the result.

AMY M. WOOD • Clerk of the Court
FILED: JR
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