Maricopa County of State of Ariz. v. Maberry

• Decision Date: 17 January 1977
• Docket Number: No. 74-2928,74-2928
• Citation: 555 F.2d 207
• Parties: COUNTY OF MARICOPA OF the STATE OF ARIZONA, a body politic, Defendant-Appellant, v. Wilbur L. MABERRY and Dorothy E. Maberry, husband and wife, surviving mother and father of Samuel Lee Maberry, Deceased, Plaintiffs-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 207

555 F.2d 207

COUNTY OF MARICOPA OF the STATE OF ARIZONA, a body politic Defendant-Appellant, v. Wilbur L. MABERRY and Dorothy E. Maberry, husband and wife surviving mother and father of Samuel Lee Maberry Deceased, Plaintiffs-Appellees.

No. 74-2928.

United States Court of Appeals, Ninth Circuit.

Jan. 17, 1977.

As Amended on Denial of Rehearing and Rehearing En Banc May 2, 1977.

Daniel Cracchiolo (argued) of Burch, Cracchiolo, Levie, Guyer & Weyl, Phoenix, Ariz., for defendant-appellant.

Kenneth Rosengren (argued), Phoenix, Ariz., for plaintiffs-appellees.

On Appeal from the United States District Court for the District of Arizona.

Before BARNES, KILKENNY and WALLACE, Circuit Judges.

BARNES, Senior Circuit Judge:

Appellant has two strings to its bow on this appeal. The first is the alleged error in instructing the jury on the last clear chance doctrine, and the second is the alleged misconduct of counsel for appellees.

Some discussion of the facts relating to each alleged error is necessary to understand the legal question urged. We attempt to summarize these facts in the margin, on the Last Clear Chance instruction issue, ¹ and on the Misconduct of Counsel issue in the body of the second part of this opinion.

I. Instructions

Appellant's first point divides the Last Clear Chance problem into five parts:

A. Its total inapplicability under Arizona law;

B. The law of Arizona advocating restraint in the use of the last clear chance doctrine, (hereinafter "doctrine"), was not followed;

C. If proper to be given to the jury, the instruction, as given was materially altered, and was confusing, and not a correct statement of the law;

D. County personnel never had actual knowledge decedent was endangered;

E. By restricting the doctrine's application to the County alone, and taking the question of its applicability away from other defendants, the County was improperly made a target defendant.

It is hornbook law that a federal court in a diversity case must follow the substantive law of the state where the incident occurred. (Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).

Appellant flatly asserts that "no case in the Arizona appellate courts has ever applied the last clear chance doctrine to a factual setting other than one involving mechanical instrumentalities under human control"; that each of the Arizona appellate decisions relying on the doctrine involved either railroad, motor vehicle, or airplane accidents. We assume this is a correct statement and that the 25 cases cited by appellants (in Note 2 attached to their opening brief on this appeal) are all, and the only, cases involving the doctrine in Arizona law. Appellees supply none.

On February 8, 1974, the Arizona Supreme Court approved the use of R.A.J.I. (Recommended Arizona Jury Instructions), to be used throughout the State of Arizona, and thereafter one apparently became "MAR(ICOPA) JI # 20 Instruction." MARJI Instruction # 20 applies to the last clear chance issue. The "four-fact" instruction relates to and is to be given if an "Inattentive Plaintiff" is involved. The "five-fact" instruction is to be given if a "Helpless Plaintiff" is involved. While, due to conflicting testimony, there may have been a question as to whether, and if so, when, the decedent was a "helpless plaintiff," there certainly was sufficient evidence to present the issue (as to whether or not he was helpless) to the jury. Therefore, if any approved last clear chance instruction were to be given, it was required to be the "five-fact" Last Clear Chance Instruction (MAR(ICOPA County) J.I. Negligence 20) which reads:

"The defense of contributory negligence does not apply if you determine that the following five facts exist:

(1) The plaintiff negligently placed himself in a position of danger; and

(2) The negligence ended or resulted in a situation of peril from which he could not escape through the exercise of reasonable care; and

(3) The defendant actually knew, or by exercise of reasonable care, should have known of plaintiff's situation; and

(4) The defendant realized, or should have realized that the plaintiff was in a helpless situation; and

(5) The defendant thereafter had a last clear chance to avoid the accident by exercise of reasonable care and failed to do so." ²

It is clear that the "five facts" instruction differs in several substantial respects from the "four facts" instruction. ³

So far as we can ascertain, no Arizona appellate court has ever applied the last clear chance doctrine to a situation where the alleged negligence of a defendant was in medical care. That is not surprising because normally a case such as this is filed alleging medical malpractice only, and not ordinary negligence as well. In Arizona, its State Constitution ordinarily requires that all questions of contributory negligence be left to the jury. It cannot be ruled out as a matter of law. ⁴

Thus, the trial court was required to give the jury some instruction on contributory negligence. In the Arizona instruction as approved, and in the Restatement, there is no express limitation of any kind on the doctrine, and specifically none to "mechanical instrumentalities under human control." There is no question but that the doctrine became first established in law as a concomitant of the extensive use in America of railroads, streetcars, boats, automobiles, and airplanes. But this does not mean that the law in any one jurisdiction cannot extend the doctrine to factual situations not relating to mechanical instrumentalities. Appellees assert: "There appears upon exhaustive research to be no case in all America that restricts the doctrine of last clear chance to mechanical instrumentalities." (Appellees' Br., p. 16). That may be true, but if there be no such restriction, it seems strange that but one case in this country has been called to this Court's attention which has extended the doctrine to factual situations where mechanical instrumentalities are not involved. ⁵ Appellees likewise cite Davies v. Mann, 10 M. § W. 546, 152 Eng.Rep. 588 (1842) the original "Jackass case" in support of their position, ⁶ but refuse to recognize that a horse-drawn cart necessarily includes a "mechanical instrumentality." And appellant flatly urges that the only case extending the doctrine to a non-mechanical instrumentality case is one which was reversed on appeal, and is not actually a last clear chance case. ⁷

We consider that one ancient British case; a 97 year old Iowa case; and one Texas case that doesn't discuss the doctrine, to be insufficient authority to convince us what the Arizona law is ; or if it is presently undeclared, that we can postulate on such slender reeds what it should be.

One nationally recognized authority states "the most often stated . . . explanation" for the doctrine is that "if the defendant has the last clear opportunity to avoid the harm, the plaintiff's negligence is not a 'proximate cause' of the result."

While this coincides rather well with the attempt made in the older day to fix liability upon the "last human wrongdoer," it is quite out of line with modern ideas of proximate cause. In such a case the negligence of the plaintiff undoubtedly has been a cause, and a substantial and important one, of his own damage, and it cannot be said that injury through the defendant's negligence was not fully within the risk which the plaintiff has created. If the injury should be to a third person, such as a passenger in the defendant's vehicle, the plaintiff's negligence would clearly be recognized as a responsible cause, and it is an utterly artificial distinction which applies any other rule when the plaintiff himself is injured.

(Reference notes omitted)

Prosser on Torts, 4th Ed., 1971, pp. 427-428 ch. 11, § 66.

Appellee states that Arizona applies the doctrine "as a means of determining the legal proximate cause of the injury in a negligence case" (Br., p. 22), citing Odekirk v. Austin, 90 Ariz. 97, 366 P.2d 80 (1971).

This is a correct citation, but gives little comfort to appellees when the Arizona Court tells of the reasoning behind the application of the rule of last clear chance. The reasoning behind the doctrine is that although the negligence of both plaintiff and defendant continues up to the time of the injury, plaintiff's negligence is remote while the defendant's conduct is the proximate cause of the accident. But "the biggest problem for both the trial and appellate courts necessarily arises in attempting to determine whether the negligent acts of both parties concur as proximate cause. If so, then clearly defendant cannot be guilty of having had the last clear opportunity to avoid the accident." Hirsh v. Manley, 81 Ariz. 94, 300 P.2d 588, 591 (1956).

The Arizona Court then suggests it will follow the American Law Institute's Restatement of the law, "except in cases where different rule has been laid down by this court." Judge Beinstein of the Arizona Supreme Court then refers to two situations to which the doctrine of last clear is applicable in Arizona. This discussion appears in the margin. ⁸ Incidentally, we note that all discussions in Odekirk relate to a plaintiff injured by the operation of mechanical devices.

Appellant approves the cautionary language in Odekirk on the application of the last clear chance rule: "There are few, if any, legal doctrines that are more difficult of logical application . . . " (90 Ariz. 97 at 99; 366 P.2d at 81); while appellee finds comfort in the end of that same paragraph, namely: "(B)road statements . . . have (been) found . . . too broad . . . and must be explained and modified again. This process has not yet been completed." (366 P.2d at 81)

Difficult in application or not, we are not impressed with the strength of appellant's argument that because the trial court originally indicated it would not instruct on the doctrine to the jury (R.T. 390, lines 7-21), later had doubts...