Bauer v. Crotty
| Decision Date | 17 January 1991 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 805 P.2d 392,167 Ariz. 159 |
| Parties | Arthur A. BAUER and Donna Bauer, husband and wife, Plaintiffs-Appellees, v. Dennis Redman CROTTY and Hazel Crotty, husband and wife, Defendants-Appellants. 89-157. |
| Court | Arizona Court of Appeals |
Plaintiffs Arthur A. and Donna Bauer (Bauer) brought this negligence action against defendants Dennis Redman and Hazel Crotty (Crotty), alleging that defendant Dennis Crotty had negligently caused plaintiff Arthur Bauer to be injured in a collision with a third vehicle when Crotty made an unsafe left turn in front of Bauer's truck. Crotty contended that Bauer, who was driving with a blood alcohol content of .28 or .29, was guilty of wanton contributory negligence. The jury found that Bauer had been 71% negligent and Crotty 29% negligent, and fixed Bauer's full damages at $98,903.00. Crotty appeals from the judgment entered on the verdict and from the denial of his motion for new trial and motion for judgment notwithstanding the verdict.
The parties present the following issues on appeal: (1) whether there was any evidence from which the jury could have concluded that Bauer's conduct was willful or wanton; (2) whether any error in the trial court's instructions on willful or wanton contributory negligence was immaterial and moot because the jury's comparative award to Bauer necessarily meant that it had found that Bauer's conduct was not willful or wanton; and (3) whether the trial court's instructions erroneously failed to inform the jury that if it found that Bauer had willfully or wantonly caused or contributed to his own injuries, he was not entitled to a comparative negligence recovery and the jury could choose to award him nothing.
The accident occurred on February 13, 1986, in Lake Havasu City, Arizona. On the portion of Lake Havasu Avenue where the accident occured, the road is described as resembling a roller coaster. Bauer was driving a red truck south on that road. He testified that when he reached the crest of a rise in the road, he noticed a car driven by Dennis Crotty coming in the opposite direction with its left turn blinker on. As he passed the crest, Bauer suddenly saw Crotty's car turn left in front of him, and applied his brakes. When he concluded that he was going to hit the side of Crotty's car, he turned left into an opening between the rear of Crotty's car and the rear of a car that had been following it. He then collided with a third car he did not remember seeing.
Heidi Kirn was a passenger in the car that had been following Crotty's car north on Lake Havasu Avenue. She testified that Crotty's car came to a complete stop before turning left. According to Kirn, a red truck that was driving south within the 35 mile per hour speed limit came over the hill, and Crotty's car turned in front of it after it was plainly visible. The red truck did not hesitate in slamming on its brakes. When the truck applied its brakes, Crotty's car was in the southbound lane, and Kirn's car was next to it in the northbound lane. Kirn thought that the truck would hit Crotty's car. In fact, the red truck veered into the northbound lane to avoid colliding with Crotty's car, and barely missed the back of Kirn's car.
Arthur Dion, the driver of the car in which Kirn was riding, testified that Crotty's car started to turn immediately after the red truck appeared over the crest of the hill. According to Dion, the driver of the red truck applied his brakes as soon as he saw Crotty's car make its turn. Dion testified that the driver of the truck had no alternative course of action available that would avoid the collision.
According to Robert Spoerry, a police officer who investigated the accident, Bauer's truck left 40 feet of skid marks that ended in the southbound lane at the north side of the driveway into which Crotty had turned. From the end of the skid marks to the point of impact with the northbound car, there were no additional skid marks. Spoerry stated his opinion that Bauer's truck had been travelling 30 to 35 miles per hour before it braked and 25 miles per hour when it collided with the northbound car. Accident reconstructionist Edward Maciag testified that Bauer's truck had travelled another 55 feet from where the skidmarks ended to the point of impact. In Maciag's opinion, Crotty's left turn in front of Bauer's truck caused the accident. Although Maciag found no indication that Bauer had reacted erratically or unreasonably to Crotty's left turn, he testified that there was no evidence that Bauer had done anything to avoid colliding with the northbound car after the skid marks ended.
Neither Kirn nor Officer Spoerry noticed the smell of alcohol on Bauer at the accident scene. Karen Webster, a lab assistant at Lake Havasu Hospital, drew blood from Bauer at the hospital after the accident. She testified that she was very uncomfortable doing so.
. . . . .
Webster testified she smelled a very strong odor of alcohol on Bauer's breath.
Plaintiff Arthur Bauer admitted that before the accident he had consumed three or possibly four eight-ounce glasses of wine. Crotty's expert, criminalist Lucien Haag, testified that the results of a blood alcohol analysis performed while Bauer was hospitalized established that his blood alcohol content at the time of the accident would have been approximately .28 to .29. He further testified that cognitive functions, including the ability to pay attention and integrate information, are impaired at a blood alcohol level of .08; that at that level, sensory functions are also demonstrably impaired in at least one area and often more than one; and that motor skills are impaired at a blood alcohol level of .10 or .12. Haag testified that, at the time of the accident, Bauer's blood alcohol level severely impaired his ability to pay attention, to integrate information, to react in a timely manner, and to move once he had decided to do so.
Crotty requested that the trial court give the following instruction:
If you find that the defendant was negligent and that his negligence was a cause of the accident, but you further find that the plaintiff's conduct was willful and wanton and a cause of the accident, then the plaintiff has no right to a determination of relative degrees of fault or reduced damages, and your verdict should be for the defendant.
Only you, the jurors, may decide whether plaintiff's conduct should preclude his recovery.
The trial court refused that instruction.
The trial court instructed the jury on comparative negligence principles as follows:
The defendant claims that the plaintiff was contributorily negligent. In considering this defense, you must decide: (1) was the plaintiff negligent?; (2) if so, was the plaintiff's negligence a cause of the plaintiff's injury?
If your answer to either of the above questions is "no," then the defense of contributory negligence does not apply.
If your answer to both of the above questions is "yes," then you should decide whether, under all the circumstances of this case, the plaintiff's contributory negligence should reduce the plaintiff's damages. That decision is left to your sole discretion. If you decide to apply the defense of contributory negligence, you must then do the following:
First, determine the full amount of plaintiff's damages. Second, determine the relative degrees of fault of each party.
The court will then calculate the reduction of plaintiff's full damages in accordance with your determination of plaintiff's relative degree of fault.
The trial court later told the jury:
I will now instruct you about willful or wanton conduct. These types of fault involve more than negligence. Where willful or wanton conduct contributes to causing an injury, rules of law apply that are additional to or different from the rules we have previously discussed.
Willful or wanton conduct is action or inaction with reckless indifference to the results or to the rights or safety of others. A person is recklessly indifferent if he knows or a reasonable person in his position ought to know: (1) that his action or inaction creates an unreasonable risk of harm; and (2) the risk is so great that it is highly probable that harm will result.
If you find that the plaintiff willfully or wantonly contributed to causing his own injury, then you may find for the plaintiff or for the defendant as you see fit.
The jury returned a reduced award in favor of Bauer. The jury fixed Bauer's full damages at $98,903.00, and found Bauer 71% at fault and Crotty 29% at fault. In accordance with the verdict, the trial court entered judgment in favor of Bauer in the amount of $28,681.87. The trial court also denied Crotty's motions for judgment notwithstanding the verdict (NOV) and for a new trial. Crotty appeals. We have jurisdiction pursuant to A.R.S. § 12-2101(B) and A.R.S. § 12-2102(A). 1
One of Crotty's principal theories at trial was that Bauer engaged in willful and wanton conduct by driving in a state of extreme drunkenness. Crotty's position was that this conduct contributed to Bauer's injuries, and that Bauer was therefore precluded from any recovery by A.R.S. § 12-2505(A), which provides in part: "There is no right to comparative negligence in favor of any claimant who has intentionally, wilfully or wantonly caused or contributed to the injury or wrongful death." Crotty argues that the trial court erroneously failed to inform the jury that if it found that Bauer had engaged in willful or wanton conduct which...
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