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Williams v. Thude4/3/1997
h of article 18, § 5. The majority agrees with Thude. I agree with Bauer.
Article 18, § 5 provides that "the defense of contributory negligence . . . shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." The first sentence of A.R.S. § 12-2505(A) acknowledges this. The second sentence applies comparative principles to the contributorily negligent plaintiff. The third sentence, the one at issue here, withholds comparative principles from the intentional, willful or wanton plaintiff. Thus, as to such plaintiffs, the doctrine of contributory negligence applies. That is to say, the action is still an "all or nothing" proposition and the jury is prohibited from applying comparative principles. Both Bauer and Thude acknowledge this. Bauer, 167 Ariz. at 168, 805 P.2d at 401 ("Although A.R.S. § 12-2505(A) eliminated the all-or-nothing principle as applied to ordinary contributory negligence, it remains intact when the jury finds that the plaintiff's contributory negligence was willful or wanton."); Thude, 180 Ariz. 531, 538, 885 P.2d 1096, 1103 ("It must be that the all or nothing principles of contributory negligence still apply to the willful and wanton plaintiff . . . . ").
The cases diverge at a single point. Bauer acknowledged that the power of a jury under article 18, § 5 is limited to the threshold question of whether or not to apply the defense of contributory negligence. The jury was not free to ignore the third sentence of § 12-2505(A), withholding comparative principles from willful plaintiffs.
In contrast, Thude, and the majority here, believe that the jury's power to deal with contributory negligence under article 18, § 5 also extends to ignoring an express statutory exception to comparative principles. The majority believes that article 18, § 5 allows the jury to apply comparative principles to willful and wanton plaintiffs. But there is no authority for expanding jury nullification beyond the express limits of article 18, § 5. The Bauer instruction acknowledges the proper reach of article 18, § 5 but keeps it within its terms. The instruction approved here fails to distinguish between the power to choose not to apply the all or nothing defense of contributory negligence under article 18, § 5 and the power to ignore a statute that prohibits the application of comparative principles to a willful plaintiff. This erodes the rule of law beyond anything required by article 18, § 5. I therefore respectfully Dissent.
Frederick J. Martone, Justice
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