Williams v. Thude4/3/1997
, be left to the jury.").
Alternatively, defendants claim that the foregoing constitutional provision is inapplicable because "willful or wanton conduct" is not a form of negligence at all, but rather is "akin to" intentional tort. They cite Southern Pacific Transportation Co. v. Lueck, 111 Ariz. 560, 562, 535 P.2d 599, 601 (1975), and the Restatement (Second) of Torts §§ 502, 503 (1963-1964) for this proposition, concluding that A.R.S. § 12-2505(A) does not conflict in any way with article 18, section 5. According to defendants, juries should be instructed, as this one was, that a plaintiff's willful or wanton conduct defeats recovery as a matter of law.
We address the latter argument first. "Each word, phrase, clause, and sentence [of a statute] must be given meaning so that no part will be void, inert, redundant, or trivial." City of Phoenix v. Yates, 69 Ariz. 68, 72, 208 P.2d 1147, 1149 (1949) (emphasis added). By its specific reference to injury or death caused "intentionally, wilfully or wantonly," A.R.S. § 12-2505(A) implicitly recognizes that these types of conduct may be different. Otherwise, the language clearly would be redundant.
This case does not involve the intentional infliction of harm, nor do we consider today how the statute would apply to such a claim. At most, we deal here with gross or wanton contributory negligence, the assertion being that plaintiff was driving under the influence of intoxicants at the time of her accident. Gross negligence and wanton conduct have generally been treated as one and the same. See. e.g., Evans v. Pickett, 102 Ariz. 393, 396, 430 P.2d 413, 416 (1967). Although some early decisions may not have clearly defined willful or wanton misconduct, any ambiguity was resolved in DeElena v. Southern Pacific Co. 121 Ariz. 563, 566, 592 P.2d 759, 762 (1979) ("It is settled that wanton misconduct is aggravated negligence."); see also Wareing v. Falk, 182 Ariz. 495, 498, 897 P.2d 1381, 1384 (App. 1995). The court of appeals recognized this in both Bauer, 167 Ariz. at 166-67, 805 P.2d at 399-400, and the present case, 180 Ariz. at 538, 885 P.2d at 1103. There is nothing radical about such a notion. As indicated by Prosser and Keeton, willful, wanton, and reckless conduct have commonly been "grouped together as an aggravated form of negligence." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 212 (5th ed. 1984).
Secondly, although the legislature has the power to eliminate contributory negligence altogether, the constitution requires that whenever and in whatever form the defense is permitted to exist, a fact question arises that "shall, at all times, be left to the jury." Ariz. Const. art. 18, § 5. Arizona Revised Statutes § 12-2505(A) does not purport to exterminate all species of contributory negligence. In fact, it suggests quite the opposite by repeating in its opening sentence the constitutional guarantee embodied in article 18, section 5. Moreover, the statute does not say that the wantonly negligent plaintiff is barred from all recovery, a rule that would have been easy to articulate had the legislature intended such a result. Instead, it only attempts to deprive such a plaintiff of any benefits that might flow from an application of comparative principles. At best, then, the statute can be said to have merely modified the contributory negligence defense.
We concluded long ago that a trial court cannot tell a jury what its verdict must be when there is evidence that the plaintiff negligently participated in causing his or her own injuries. See Trojanovich v. Marshall, 95 Ariz. 145, 146-47, 388 P.2d 149, 150 (1963); Layton v. Rocha, 90 Ariz. 369, 370-71, 368 P.2d 444, 445 (1962). Before the a
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