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Wiggs v. City of Phoenix9/5/2000
this as a simple acknowledgment that those whose liability is only vicarious are fault free--someone else's fault is imputed to them by operation of law. The quoted language just makes express that which is implicit--the statute does not affect the doctrine of vicarious liability.
Thus the vicarious liability of an employer of an independent contractor, where that employer has a non-delegable duty, is unaffected by our comparative fault statute because where one has a non-delegable duty, the one with whom the principal contracts to perform that duty is as a matter of law always an agent for purposes of applying the doctrine of respondeat superior. Contrary to the City's argument, this no more immunizes an independent contractor for its own negligence than an employee of an employer. In each case, the employer may seek indemnity against the independent contractor in cases of pure vicarious liability, or contribution against an independent contractor in cases in which the employer has some degree of independent liability. As to indemnity, see A.R.S. § 12-2501(F)(1), and as to contribution, see A.R.S. § 12-2506(E).
In this case, however, APS was not joined as a party. Instead, the City named it as a non-party at fault under § 12- 2506(B). In a case of vicarious liability, it does not make legal or tactical sense to name as a non-party at fault, the party whose conduct is imputed to the employer, because the employer will be fully liable for that fault. From Wiggs' perspective, allocation is irrelevant---with or without an allocation, the City is 100% liable. From the City's perspective, an allocation of fault to a non-party is irrelevant because A.R.S. § 12-2506(B) precludes the use of such a finding in any later action brought by the City against APS for indemnity.
Even if Wiggs had joined APS as a defendant, or if the City had joined APS as a third-party defendant under Rule 14(a), Ariz. R. Civ. P., and an allocation of fault was required, the trial court would simply enter judgment against the employer, the City here, for the combined percentages of both the employer's and the contractor's fault. In short, the independent contractor of an employer with a non-delegable duty would be treated the same way an employee is treated.
III.
Wiggs was entitled to the instruction that the City had a non-delegable duty. Without this instruction, the jury could have found that the City was not liable for APS's conduct. The trial judge was correct in concluding that this error deprived Wiggs of a fair trial. We vacate the opinion of the court of appeals and remand the case to the superior court for new trial.
FREDERICK J. MARTONE, Justice
CONCURRING: THOMAS A. ZLAKET, Chief Justice; CHARLES E. JONES, Vice Chief Justice; STANLEY G. FELDMAN, Justice; RUTH V. McGREGOR, Justice
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