Comparative Negligence in Arizona

Arizona follows the doctrine of pure comparative negligence. The comparative negligence statutes are found in A.R.S. § 12-2501 et seq. These statutes abolished joint and several liability in most instances and enacted a several liability law. See A.R.S. § § 12-2506 - 2509. The Arizona statute is based on similar statutes in the State of Kansas. In reality, the comparative negligence statutory scheme in Arizona is actually a blend of the Uniform Contribution Among Joint Tortfeasors Act (UCATA) and the Uniform Fault Act.

The comparative negligence laws provides that each defendant is only liable for the amount of plaintiff's full damages allocated to that defendant in direct proportion to the defendant's percentage of fault and a separate judgment shall be entered against the defendant for that amount. In assessing percentages of fault, the trier of fact considers the fault of persons who have contributed to the alleged injury, regardless of whether the person was, or could have been, named as a party to the suit. The law retains joint and several liability where the party is responsible for the fault of another (i.e., in an agency situation), if both parties were acting in concert, or if a person was acting as an agent or servant of the party, and in actions relating to hazardous waste or substances or solid waste disposal sites. The exceptions to the abolition of joint and several liability have yet to be defined by our appellate courts.

In 1993, the legislature unsuccessfully sought to introduce a tort reform package that addressed a number of areas in civil litigation, including the comparative negligence laws. This measure was defeated in the general election in November, 1994.

COMPARATIVE NEGLIGENCE IN PRODUCTS LIABILITY CASES

In Jimenez v. Sears Roebuck & Co., 183 Ariz. 399, 904 P.2d 861 (1995), the Supreme Court of Arizona held that comparative fault principles of the Uniform Contribution Among Tortfeasors Act applies to the defense of product misuse in a strict liability case.

hile the Supreme Court unanimously concluded that comparative fault applies to the misuse defense, even in a strict liability case, the justices split, causing them to write three separate opinions, on the scope of the misuse defense and whether it is a "species" of contributory negligence. The issue is important because contributory negligence is not a defense to a strict liability action, whereas product misuse is. See A.R.S. § 12-2509(B).

The majority attempted to distinguish contributory negligence from misuse and reasoned that "foreseeable" misuse or contributory negligence is still not a defense in a strict liability case.

Two other justices wrote concurring opinions which differed from the majority in the way that misuse is defined. As a result, there is a split as to whether true misuse is a comparative

defense which would reduce plaintiff's recovery by percentages of fault rather than an "all or nothing" defense which seems to be the intent of the statute. A.R.S. § 12-683(3) (defendant shall not be liable if proximate of incident was use other than for a purpose in a manner or an activity other than that which was reasonably foreseeable or contrary to any express and adequate instructions or warnings).

A very important issue yet to be decided by the Supreme Court which has some support in the language of Jimenez is whether, despite the abolition of joint and several liability there may be joint liability between defendants within the chain of distribution sued under a strict liability theory. In other words, can all entities in the chain be considered a single entity?

This issue is yet to be addressed and is a very important one particularly where the culpable party is insolvent or otherwise uncollectible. Jimenez suggests that retailers, middlemen or distributors may no longer have any real liability for the sale of defectively designed or manufactured products particularly if the manufacturer or culpable party is insolvent. Arizona products liability statutory authority suggests that among those who are in the chain of distribution, the percentages of "causation" should be used to ultimately determine fault. We are simply waiting for some clarification from the Supreme Court.

WILLFUL AND WANTON CONDUCT

Under Arizona's comparative negligence statutory scheme, comparative negligence provisions are inapplicable to a plaintiff whose willful or wanton conduct contributed to his injuries. A.R.S. § 12-2505. The effect of this "loss of right to comparative negligence" would be extreme as it would mean that the plaintiff's claim would then be governed by the all or nothing principles of contributory negligence.

Despite the apparent inequity in the statute, it is clear now that if a defendant is willful and wanton the defendants are still entitled to comparative negligence. Wareing v. Falk, 182 Ariz. 495, 897 P.2d 1381 (1995). See also Lerma v. Keck, 221 Ariz.Adv.Rptr. 18, 921 P.2d 28 (1996) (granting of benefits of comparative negligence to willful and wanton defendants does not violate equal protection or state constitution).

The problem is how to instruct the jury since the Arizona Constitution is somewhat unique and provides that contributory negligence as well as assumption is a question of fact that at all times shall be left to the jury. As a result, a jury cannot be instructed that it must return a verdict against a plaintiff who has engaged in willful or wanton conduct. Bauer v. Crotty, 167 Ariz. 159, 805 P.2d 392 (1991).

In April of 1997, the Supreme Court attempted to clarify how the jury is to be instructed where willful and wanton conduct of the plaintiff is involved. In Williams v. Thude, 188 Ariz. 257, 934 P.2d 1349 (1997), the Supreme Court retreated to the former rule of instructing the jury that they may "deal with plaintiff's conduct as they see fit." This reasoning is based on a narrow construction of the Arizona statute which, although allowing the jury to disqualify the plaintiff from the "benefit" of comparative negligence if the plaintiff has willfully or wantonly caused or contributed to his injury, does not bar the wantonly negligent plaintiff from all recovery.

Despite the fact that this may be contrary to the intent of the legislature in enacting the comparative fault provision at issue, the following is the jury instruction language approved by the Supreme Court:

  • 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 at p. 20.

This instruction obviously helps little and completely ignores the fact that if a claimant is willfully or wantonly negligent, he has no right to comparative negligence according to the statute but still may receive the full measure of damages. This is an anomaly because such an "all or nothing" instruction could allow a willful or wanton plaintiff to get a full recovery but the moderately negligent plaintiff could get a reduced recovery.

The dissent in Williams argued that while the Arizona Constitution allows the jury to apply "jury nullification" as to whether to apply contributory negligence, such power to nullify does not extend to willful and wanton plaintiffs. The dissent suggests that the jury should have been told that they may find against plaintiff rather than a "should" instruction against plaintiff. This would preserve the constitutional right of the jury to apply or ignore contributory negligence to reduce a claimant's recovery.

This case illustrates why it is so difficult to dispose of cases in Arizona that would otherwise be dismissed prior to trial simply because the judges do no have the discretion to grant summary judgment on the plaintiff's own contributory negligence or assumption of risk. Despite the legislature's attempt to disqualify willful and wanton claimants from recovery, the instruction approved by the Supreme Court does nothing to instruct the jury of that defense.

What if both plaintiff and defendant are willfully or wantonly negligent? There is no law on this issue. But the Williams instruction, until further defined by our appellate courts, will probably be given.

NON-PARTY AT FAULT

A.R.S. § 12-2506(A) establishes several liability in Arizona. The statute holds that each defendant is liable only for the amount of damages allocated to the defendant in direct proportion to the defendant's percentage of fault. Section 12-2506 also provides that when assessing the percentages of each defendant's fault, the fact finder "shall consider the fault of all persons who have contributed to the alleged injury . . . regardless of whether the person was, or could have been, named as a party to the suit." The percentages of fault assessed against such "non-parties are used only as a vehicle for accurately determining the fault of the named parties." Assessment of fault against a non-party does not subject a non-party to liability.

This portion of the comparative negligence/fault statutes in Arizona has been interpreted very broadly. The defendant is allowed to name a non-party at fault even if the plaintiff is prohibited from directly naming or recovering from such party. For example, the defendant can name the plaintiff's employer who is otherwise immune from plaintiff's claim. Dietz v. General Electric Co., 169 Ariz. 505, 821 P.2d 166 (1991).

So-called "phantom" tortfeasors which are unknown to all parties may be considered by the jury in apportioning fault. Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 937 P.2d 353 (1996). The fault of intentional tortfeasors may even be included. Natseway v. City of Tempe, 184 Ariz. 374, 909 P.2d 441 (1995).

While evidence of other tortfeasors' negligence, intentional wrongdoing, or strict liability, is still subject to Supreme Court interpretation, existing case law supports a very broad inclusion of all entities' fault comparisons. This is of considerable advantage to a defendant who can designate a non-party at fault resulting in the "laying off" of defendant's liability to a non-party which cannot defend itself. Notice of non-parties at fault must be given early in the case.

CONTRIBUTION

Sections 12-2501 through 2504 of the Arizona Revised Statutes contain the Uniform Contribution Among Joint Tortfeasors Act. "Contribution" involves the sharing of responsibility for paying the plaintiff's damages among all those responsible for the plaintiff's injuries.

The right of contribution arises if "two or more persons become jointly or severally liable in tort for the same injury to person or property." The amount of contribution to which a tortfeasor is entitled is the amount paid in excess of his pro rata share.

Since January 1, 1988, the doctrine of joint and several liability has been abolished making contribution actions rare under the statute. See Bill Alexander Ford v. Casa Ford, 187 Ariz. 616, 931 P.2d 1126 (App. 1996) (contribution claim may be maintained in Arizona based on an out-of-state joint and several liability judgment; the lack of allocation of fault in Texas court did not prevent contribution action in Arizona).

This does not mean that equitable theories of contribution are precluded (i.e., those which arise on "equitable contribution" claim without regard to the contribution statute). Mut. Ins. Co. v. American Casualty Co., 189 Ariz. 22, 938 P.2d 71 (1996). Of course, this also does not preclude a claimant from failing to enforce joint and several liability where one of the exceptions to the abolition of joint and several exists such as in Herstam v. Deloitte & Touch, 186 Ariz. 110, 919 P.2d 1381 (1996). In that case, the receiver of an insolvent insurance company brought an action against the company's former directors, officers, accountants, attorneys alleging that they acted in concert (an exception to the abolition of joint and several liability) to injure the company. The receiver, whose action alleged concert of action chose, after extended negotiations, to settle for nearly $80 million. In return, to insulate the settling group of defendants from claims asserted by the non-settling parties, the settlement agreement purported to bar all contribution claims between any non-settling and settling party in any other claims including indemnity. When the non-settling parties learned of this agreement which effectively barred the non-settlers from seeking contribution or indemnity from the settling parties, they brought an action which was certified to the Court of Appeals. The Court of Appeals upheld the agreement so as to favor settlements and further reasoning that the exception to several-only liability for concerted action torts was intended to be a benefit for injured plaintiffs. Multiple tortfeasors have no inalienable right to be held jointly liable.

COMMON LIABILITY

In Cella Barr Assoc., Inc. v. Cohen, 177 Ariz. 480, 868 P.2d 1063 (App. 1994), the Court of Appeals interpreted the effect of the contribution statute in light of Arizona's virtual elimination of joint liability. Cella Barr was sued for professional malpractice in issuing an environmental report. Cella Barr named Cohen and Munser as non-parties at fault. Cella Barr entered into a settlement with plaintiff for $1,250,000 which released Cella Barr and Cohen, but did not include Munser. It was determined that both plaintiff and Cella Barr were 18.5% at fault, Cohen 37%, and Munser 26% at fault. Cella Barr then asserted a contribution and indemnity claim against Cohen and Munser. The trial court dismissed this claim.

The Court of Appeals found no "common liability". With the imposition of A.R.S. § 12-2506, tortfeasors have no common liability, except in two narrow situations. Each tortfeasor is only severally liable for his pro rata share. The Court held that where a defendant is severally liable, there is no common liability to discharge and, accordingly, no right of contribution when a single tortfeasor settles a plaintiff's claim against him. Thus, the virtual elimination of joint liability defeated Cella Barr's contribution claim.

Neither of the two exceptions applied to Cella Barr. The exception found in § 12-2506(D)(1) applies only to a party acting as an agent or servant of another tortfeasor, not the injured party. Cella Barr alleged in its complaint that it was acting as plaintiff's agent, not Cohen's. Additionally, Cella Barr's contribution claim did not relate to hazardous waste or substances. Cella Barr was sued for professional malpractice, and even though the professional services rendered related to hazardous waste or substances, this did not invoke the second exception to the abolition of joint liability.