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Wiggs v. City of Phoenix9/5/2000
AFFIRMED AND REMANDED Court of Appeals, Division One Ariz. , P.2d (App. 1999)
VACATED
We granted review in this wrongful death case to decide whether our comparative fault statute, A.R.S. § 12-2506, preserves vicarious liability for an independent contractor's negligence when the employer of that independent contractor has a non-delegable duty. We conclude that it does.
I.
Wiggs' daughter was hit and killed by an automobile while crossing a City of Phoenix street at dusk. There was conflicting evidence on whether the streetlight was on at the time of the accident.
Wiggs brought a wrongful death action against the City, alleging improper maintenance of the streetlight. Although the City conceded that its duty to maintain its streets in a reasonably safe condition was non-delegable, it nevertheless named Arizona Public Service (APS), an independent contractor, as a non-party at fault. APS was obligated to operate and maintain the streetlight pursuant to a contract between the City and APS.
At trial, Wiggs asked that the jury be instructed that the City was vicariously liable for APS's negligence. Wiggs relied on the non-delegable duty doctrine under the Restatement (Second) of Torts § 418 (1965). The proposed instruction read:
Plaintiff claims the City did not maintain the accident scene in a reasonably safe condition in part because streetlights near the accident scene were not illuminated. The City claims that it contracted with Arizona Public Service Company (APS) to maintain the streetlights. The City claims that if there is any deficiency in the time of when the streetlights became illuminated, APS and not the City is liable.
You are instructed that the City of Phoenix has a duty to maintain a public highway in reasonably safe condition for the use of the public. You are further instructed that if the City entrusted maintenance of a highway to an independent contractor like APS, the City is subject to the same liability for physical harm to persons using the highway caused by the negligent failure of the contractor to make it reasonably safe, as though the City had retained the work in its own hands. Accordingly, if you find APS negligently failed to maintain the subject streetlights, then the City of Phoenix is subject to liability as if the City itself had maintained the streetlights.
Plaintiff's Requested Preliminary Instruction No. 1. The trial court refused to give the instruction. The City argued to the jury that it delegated its duty to operate the streetlight to APS, and therefore, if the streetlight was not on at the time of the accident, then APS, not the City, was responsible for the death of Wiggs' daughter. Tr. Nov. 19, 1996 at 46-47.
The jury returned a verdict for the City. Wiggs moved for new trial. In granting Wiggs' motion, the trial court acknowledged its error in refusing to instruct the jury on the City's vicarious liability for APS's negligence. The City appealed, and the court of appeals reversed. Wiggs v. City of Phoenix, 304 Ariz. Adv. Rep. 11, 17 (App. 1999). The majority based its decision on: (1) Wiggs' failure to offer a form of verdict that would have allowed the jury to assign fault to APS in the event it found the City not negligent; and (2) its conclusion that APS was not an agent of the City, which precluded the City from being vicariously liable for APS's negligence under Arizona's comparative fault scheme. Id. at 13-14.
Judge Noyes dissented believing that the trial court's decision to grant a new trial deserved deference. Id. at 17. (Noyes, C.J., dissenting). He stated that the failure to instruct the ju
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