Williams v. Thude

MARTONE, Justice,

dissenting in part.

There are two very distinct issues in this case. The first is whether the instruction given below was erroneous. The second is what is the appropriate rule of law? Because the instruction given below was erroneous, I join in the judgment of the court. Because I do not subscribe to the court’s understanding of the correct rule of law, I cannot join its opinion.

1. The Erroneous Instruction

The defendant’s argument that a willful or wanton plaintiff has no right to recover finds support in Southern Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 574, 535 P.2d 599, 613 (1975):

[W]e hold, that a plaintiffs wanton contributory negligence may be balanced against the wanton negligence of a defendant so as to bar a recovery in Arizona.

But we noted that an instruction on this principle cannot “suggest that the jury must not return a verdict in favor of the plaintiff,” because that would be “contrary to our express holdings in Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970) and Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962).” Id.

Bauer v. Crotty, 167 Ariz. 159, 167, 805 P.2d 392, 400 (App.1991), acknowledged this and concluded that one could not instruct a jury “that it ‘should’ or ‘must’ return a verdict against such a plaintiff’ because it would “violate Ariz. Const, art. 18, § 5.” This, I believe, is an appropriate conclusion in light of our holding in Manhattan-Dickman Constr. Co. v. Shawler, 113 Ariz. 549, 555, 558 P.2d 894, 900 (1976), that because the word “should” could be construed as obligatory, the word “may” was preferable unless “the jury was advised that the word ‘should’ was not used in the obligatory or mandatory sense.”

I believe, therefore, that the court of appeals was correct in concluding that the instruction here was erroneous because it told the jury that the plaintiff had no right to any damages and that its “verdict should be for the defendant,” ante, at 258, 934 P.2d at 1350, and was unaccompanied by any instruction that it was not obligatory. It is for this reason that I join the court in affirming the judgment granting the motion for new trial. But for the reasons that follow, I believe the court’s proposed resolution is wrong because it applies article 18, § 5 beyond its own terms.

2. The Bauer /Thude Conflict

The instruction below was erroneous under both Bauer and Thude. But Bauer and Thude had different understandings of the reach of article 18, § 5. The majority agrees with Thude. I agree with Bauer.

Article 18, § 5 provides that “[t]he defense of contributory negligence ... shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.”¹ 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.² 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 plaintiffs contributory negligence was willful or wanton.”); Thude, 180 Ariz. 531, 538, 885 P.2d 1096, 1103 (“[I]t must be that the all or nothing principles of contributory negligence still apply to the willful and wanton plaintiff. ... ”).

The eases 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.

1 . Heimke v. Munoz, 106 Ariz. 26, 28, 470 P.2d 107, 109 (1970), construed this to mean that the jury has 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 propriety of this extraordinary conclusion is not presented in this case, and so I take it as a given here. For more on this see Noel Fidel, Preeminently a Political Institution: The Right of Arizona Juries To Nullify the Law of Contributory Negligence, 23 Ariz. St. L.J. 1 (1991).

2 . In contrast, the majority believes that juries were always free to apply comparative fault even before comparative fault was adopted. Ante, at 260, 934 P.2d at 1352 (Juries were free "to grant plaintiffs a full recovery, no recovery, or anything in between.") (emphasis added). I disagree with this premise. See Hall v. A.N.R. Freight System, Inc., 149 Ariz. 130, 136, 717 P.2d 434, 440 (1986) ("Our decisions indicate that prior to the Act jurors had discretion to freely apply or discard contributory negligence as they saw fit, but only as an all or nothing proposition.”) (emphasis added).