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Herman v. Sedor5/21/1991
en Sedor failed to supply any I evidence from which a jury could find that the landlord and tenants might have agreed that the tenants would assume the landlord's duty of taking proper and realistic measures to protect the child from the recognized, specific hazard of the pool. Absent that evidence, any finding by the jury pursuant to that instruction would be purely speculative.
Appellees argue that the instruction was supported both by the grandparents' testimony and by Restatement (Second) of Torts § 323 (1965). That section, however, imposes liability upon one who gratuitously undertakes to render services to another "which he should recognize as necessary for the protection of the other's person or things" and who is negligent in performing that undertaking. It does not support the giving of the instruction here. Even if it can be said that the grandparents undertook to build a fence to protect the child, that undertaking would have no effect on appellees' obligation to protect their tenants, absent an agreement by the grandparents to assume that duty. The same is true of Restatement § 324(a), which appellees also claim supports the instruction. That section imposes liability on one who has no duty to do so but who takes charge of someone who is helpless and who fails to exercise reasonable care to secure the other's safety. It also does not affect appellees' duty to a child tenant.
Appellees also contend that even if there was no evidence to support the instruction, the error was harmless because appellant was free to argue that the grandparents had not assumed appellees' duty and because the jury was instructed that it might find, after it determined the facts, that some instructions did not apply. We find no merit to those contentions. Neither of the cases appellees cite supports their contention that the giving of an instruction for which there is no evidence is harmless error. Hammer v. Bell Construction Co., 16 Ariz. App. 108, 491 P.2d 497 (1971); City of Mesa v. Bradshaw, 11 Ariz. App. 171, 462 P.2d 864 (1969). The law, in fact, is to the contrary. It is reversible error to instruct on an issue if there is no evidence to support the instruction. Kauffman v. Schroeder, supra ; Spur Feeding Co. v. Fernandez, 106 Ariz. 143, 472 P.2d 12 (1970); Ong v. Pepsi Cola Metropolitan Bottling Co., 18 Ariz. App. 457, 503 P.2d 415 (1972). If an unsupported instruction is given, it "invites the jury to speculate as to possible non-existent circumstances. Spur Feeding, 106 Ariz. at 148, 472 P.2d at 17. That is precisely the situation in this case.
Reversed and remanded for a new trial.
Judges Footnotes
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