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Natseway v. City of Tempe8/8/1995
n this case, Mendoza was not an intentional tortfeasor. Thus, even though the Kansas cases reflect a concern that the negligent party had a duty to prevent the intentional tortfeasor from causing harm, the cases are inapposite to this case because of the fact that comparative fault could not apply in those cases due to the intentional fault of one of the tortfeasors.
The Plaintiffs also cite Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222, 233 (N.J. 1991), in which the New Jersey Supreme Court indicated that, in some cases, a court could appropriately preclude apportionment of fault between two tortfeasors when the duty of one encompasses the obligation to prevent the specific conduct of the other. The court, however, refused to preclude the apportionment of fault in that case. Id. We see nothing in Blazovic to cause us to preclude the application of comparative fault in this case.
Finally, we do not share the Plaintiffs' fear that juries will never find against a defendant like Tempe. We believe that a jury, as did the jury in this case, will be able to understand the duties involved in situations similar to this case, and will be able to equitably apportion fault according to those duties and the facts presented in the particular case.
THERE WAS SUFFICIENT EVIDENCE THAT MESA WAS A CAUSE OF THE
ACCIDENT TO ALLOW THE JURY TO APPORTION FAULT TO MESA
The Plaintiffs argue that Tempe should not have been allowed to compare Mesa's fault with its own because, according to them, Tempe did not present sufficient evidence that Mesa's failure to stop the pursuit before the accident was a legal cause of their daughter's death. They assert that the only evidence presented on this point came from Mesa police officers who testified that fleeing drivers are so unpredictable that it is impossible to know if they will stop their flight even after the police have ended their pursuit. They argue that the jury had to speculate that it was the failure to stop the pursuit that caused the accident rather than independent actions of Mendoza.
This argument is without merit. We must view the evidence in the light most favorable to the prevailing party. McFarlin v. Hall, 127 Ariz. 220, 224, 619 P.2d 729, 733 (1980). Tempe was only required to introduce evidence that afforded a reasonable basis for the Conclusion that it was more likely than not that Mesa's conduct was a substantial factor in bringing about the accident. See Wisener v. State, 123 Ariz. 148, 150, 598 P.2d 511, 513 (1979). Common sense and common experience suggest that Mesa's continuing pursuit was a substantial factor in causing the accident. Were it otherwise, there would be no reason for police departments to set up guidelines governing when officers should cease pursuit of a fleeing suspect.
The judgment of the trial court is affirmed.
THOMAS C. KLEINSCHMIDT
Presiding Judge, Department E
CONCURRING:
JOE W. CONTRERAS, JUDGE
NOEL FIDEL, JUDGE
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