Williams v. Thude4/3/1997
doption of comparative fault, Arizona Judges were routinely and properly instructing jurors that, although the contributorily negligent plaintiff "should not" or "may not" recover, the issue was entirely theirs to decide. As a practical matter, therefore, juries were essentially free to grant plaintiffs a full recovery, no recovery, or anything in between. See State v. Cress, 22 Ariz. App. 490, 496, 528 P.2d 876, 882 (1974); Zadro v. Snyder, 11 Ariz. App. 363, 367 n.1, 464 P.2d 809, 813 n.1 (1970). We acknowledged this reality in Hall v. A.N.R. Freight System, Inc. when we said, "If in fact juries could (and almost certainly did) apportion damages, the [Uniform Contribution Among Tortfeasors] Act merely legitimizes existing practice." 149 Ariz. at 136, 717 P.2d at 440 (emphasis added).
The charge recommended by the court of appeals in this case follows along the same path. It simply tells jurors that even though they should not compare fault, they are free to do whatever they choose with respect to the plaintiff's conduct. In contrast, the instruction given by the trial court here told the jury that the plaintiffs had "no right to either full or reduced damages." Thus, it went beyond both what the statute requires and our constitution permits. It essentially deprived the parties of their right to have the jurors deal with plaintiff Dixon's conduct as they saw fit. See Heimke v. Munoz, 106 Ariz. 26, 28, 470 P.2d 107, 109 (1970) (Article 18, section 5 gives the jury not only "the right to determine the facts, but to apply or not, as the jury sees fit, the law of contributory negligence as a defense."). The Dissent characterizes the foregoing principle as "extraordinary" even though Heimke has been a part of our legal history for more than a quarter of a century. See 1997 Ariz. LEXIS 38, *14 n.1. It further claims that by allowing jurors to ignore an express statutory exception to comparative principles, our opinion today expands "jury nullification beyond the express limits of article 18, § 5." 1997 Ariz. LEXIS 38, *12. We do nothing of the sort. By a long line of decisions, our court has consistently held that article 18, section 5 makes the jury the sole arbiter of the existence and application of contributory negligence. As explained in Heimke, this simply means that "the trial court must not, directly or indirectly, tell the jury that it shall return a verdict compatible with the law of contributory negligence as declared by the court." Camerena v. Department of Pub. Welfare, 106 Ariz. at 30, 470 P.2d at 11. Because comparative negligence is a form of contributory negligence, the foregoing constitutional mandate is no less applicable. See Hall, 149 Ariz. at 135-36, 717 P.2d at 439-40 ("Comparative negligence is a way of dealing with plaintiff's contributory fault. . . . For purposes of art. 18, § 5, 'contributory negligence' and 'comparative negligence' are consonant."). The cases cited in Heimke and Layton go back more than 75 years. Today's decision does not depart from that well-established body of law.
Finally, confronted with a challenge to the sufficiency of plaintiffs' objection at trial, the court of appeals held that the jury instruction constituted fundamental error. Williams, 180 Ariz. at 539, 885 P.2d at 1104 (citing Salt River Project v. Westinghouse Elec., 176 Ariz. 383, 387, 861 P.2d 668, 672 (App. 1993)). We recognize that the "fundamental error" doctrine should be used sparingly, if at all, in civil cases. See Johnson v. Elliott, 112 Ariz. 57, 61, 537 P.2d 927, 931 (1975). As defendants concede, earlier decisions have held that giving an instruction that deprives a party of a constitutional right is reviewable error even in the absence of proper objection in the trial court. See, e.
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