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Williams v. Thude4/3/1997
En Banc
ZLAKET, Chief Justice.
The facts of this vehicular tort case are set forth in the opinion of the court of appeals. See Williams v. Thude, 180 Ariz. 531, 533, 885 P.2d 1096, 1098 (App. 1994). We granted review of two issues but on further consideration have decided to address only one, reformulated as follows:
Where evidence is sufficient to support the giving of jury instructions concerning a plaintiff's gross or wanton conduct, what should they say about its effect on his or her recovery?
In Bauer v. Crotty, 167 Ariz. 159, 168, 805 P.2d 392, 401 (App. 1991), the court of appeals indicated that a trial Judge must "inform the jury that if it finds [plaintiff] guilty of willful or wanton contributory negligence, then [plaintiff] cannot recover reduced damages under comparative negligence principles, and the jury must choose either to award [plaintiff] his full damages or to render a verdict for [defendant]." (Emphasis added).
In this case, a different panel of the same court departed from Bauer and approved instead the following instruction:
If you find that Plaintiff willfully or wantonly caused Plaintiff's injury, and that Defendant was at fault (but not willfully or wantonly), then you should not determine relative degrees of fault, however you may find for the Defendant or for the Plaintiff as you see fit.
Williams, 180 Ariz. at 539, 885 P.2d at 1104 (emphasis added). The court correctly noted in the foregoing opinions that additional instructions would be necessary to define gross, wanton or willful conduct and explain the comparative principles to be applied if the plaintiff was found to have been merely negligent.
Defendants argue that both of these cases were wrongly decided by the court of appeals, not a surprising position given that the jury instruction in the present matter fails to pass muster under either holding. The trial court's charge here contained the following admonition:
If you find that Lori Dixon willfully or wantonly
contributed to causing the accident and that the defendant was at fault but did not willfully or wantonly contribute to causing Lori Dixon's injury, then Lori Dixon has no right to either full or reduced damages and your verdict should be for the defendant.
(Emphasis added).
The jury returned a defense verdict. However, upon plaintiffs' motion, the Judge granted a new trial, and the court of appeals affirmed. In an attempt to recover their victory, defendants assert that the instruction given by the court was proper under A.R.S. § 12-2505(A), which provides:
The defense of contributory negligence or of assumption of risk is in all cases a question of fact and shall at all times be left to the jury. If the jury applies either defense, the claimant's action is not barred, but the full damages shall be reduced in proportion to the relative degree of the claimant's fault which is a proximate cause of the injury or death, if any. There is no right to comparative negligence in favor of any claimant who has intentionally, wilfully or wantonly caused or contributed to the injury or wrongful death.
(Emphasis added). Defendants rely on Hall v. A.N.R. Freight, System, Inc., 149 Ariz. 130, 134, 717 P.2d 434, 438 (1986), which held in part that since article 18, section 5 of the Arizona Constitution provides only a procedural guarantee, the legislature is free to abolish or modify the defense of contributory negligence. See Ariz. Const. art. 18, § 5 ("The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times
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