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Wareing v. Falk2/9/1995
. Sess. Laws 16. This part of the UCATA deals with contribution among defendants held jointly and severally liable. But, with a few exceptions not at issue here, joint and several liability was abolished by the 1987 amendments to the UCATA. A.R.S. ยง 12-2506(A), (D). Consequently, after the 1987 amendments, the contribution statutes rarely apply. See Dietz v. General Elec. Co., 169 Ariz. 505, 510, 821 P.2d 166, 171 (1991). Thus, in Dietz, our supreme court held that a provision in the more recently enacted comparative fault portion of the UCATA prevailed over a conflicting provision in the older contribution portion of the UCATA. Id. For this reason, the language of A.R.S. section 12-2501 does not affect the comparative fault issue in this appeal.
Finally, Falk argues that his position is supported by the Recommended Arizona Jury Instructions ("RAJI") (Civil) 2d, Negligence 10. That instruction provides:
If you find that defendant wilfully or wantonly caused plaintiff's injury , you should determine the full amount of plaintiff's damages and enter that amount on the verdict form without regard to defendant's claim that plaintiff was at fault; you are not to determine relative degrees of fault.
Falk notes that the RAJI was prepared by a committee of the Arizona Supreme Court and approved by that court for use in the trial courts. He argues, therefore, that it provides persuasive authority that the wilful or wanton negligence of a defendant cannot be compared with the ordinary negligence of a plaintiff.
The RAJI, however, are not authoritative on Arizona law. The supreme court gave merely a "qualified" approval to the RAJI. This approval was not "an endorsement that the instructions were free from error." See State v. Slemmer, 170 Ariz. 174, 182 n.9, 823 P.2d 41, 49 n.9 (1991). A prefatory note in the volume of instructions warns courts and counsel that they should satisfy themselves in each case that the instructions are correct.
We find the cited instruction to be an incorrect statement of the law. This portion of the RAJI was a correct statement of the law when Arizona followed the common law rule that a wilful or wanton defendant may not assert the defense of contributory negligence to bar a plaintiff's recovery. Because we hold that the legislature abolished this rule by adopting comparative fault, this portion of the RAJI instruction should no longer be used.
IV. CONCLUSION
We conclude that Wareing is entitled to compare his fault with that of Falk. Accordingly, we reverse and remand to the trial court with directions to reduce Falk's judgment by the percentage of fault assessed to him.
PHILIP E. TOCI, Judge
CONCURRING:
EINO M. JACOBSON, Presiding Judge
JOE W. CONTRERAS, Judge
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