Salt River Project Agr. Imp. and Power Dist. v. Westinghouse Elec. Corp.

• Decision Date: 09 February 1993
• Docket Number: No. 2,CA-CV,2
• Citation: 176 Ariz. 383,861 P.2d 668
• Parties: , Prod.Liab.Rep. (CCH) P 13,562 SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, a political subdivision of the State of Arizona, Plaintiff/Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania corporation, Defendant/Appellee. 92-0173.
• Court: Arizona Court of Appeals

Page 668

861 P.2d 668

176 Ariz. 383, Prod.Liab.Rep. (CCH) P 13,562

SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, a political subdivision of the State of Arizona, Plaintiff/Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania corporation, Defendant/Appellee.

No. 2 CA-CV 92-0173.

Court of Appeals of Arizona,

Division 2, Department B.

Feb. 9, 1993.

Review Denied Oct. 19, 1993. ^*

[176 Ariz. 384] Copple, Chamberlin & Boehm, P.C. by Richard A. Black and Linzer & Lang, P.C. by David L. O'Daniel, Phoenix, for plaintiff/appellant.

Lewis and Roca by Douglas L. Irish and Janet Napolitano, Phoenix, for defendant/appellee.

OPINION

DRUKE, Presiding Judge.

Salt River Project (SRP) appeals from an adverse jury verdict on its breach of warranty and product liability claims against Westinghouse Electric Corporation (Westinghouse). We are not unmindful that this case is over 15 years old, was previously on appeal, and took almost four months to try. Nevertheless, we must reverse because of improper jury instructions.

This case began in May 1976 when an SRP steam turbine was damaged as a result of a defect in a local maintenance controller (LMC) supplied by Westinghouse. The defect was the loss of the negative 15-volt direct current power supply (-15VDC) in the LMC, which caused the LMC to open the turbine's fuel throttle valve to five times its normal start-up opening. This allowed an excessive amount of gas to enter the turbine, generating too much heat, and damaging the turbine's blades and vanes at a replacement cost of $1,937,869.74.

SRP filed a two-count complaint against Westinghouse in October 1977 alleging product liability due to design defect in the LMC and breach of warranty. By stipulation, SRP was subsequently permitted to file first and second amended complaints in April and July 1978, respectively. The second amended complaint added count three alleging that Westinghouse negligently designed, built, installed, or maintained the LMC. In April 1979, Westinghouse moved for summary judgment on counts one and two and partial summary judgment on count three. The motion was granted by the trial court and Division One of this court affirmed. Salt River Project v. Westinghouse Electric Corp., 143 Ariz. 437, 694 P.2d 267 (App.1983). On review, the supreme court affirmed in part, reversed in part, and remanded the matter for trial. Salt River Project v. Westinghouse Electric Corp., 143 Ariz. 368, 694 P.2d 198 (1984).

Approximately four weeks before the scheduled trial date of March 6, 1989, SRP moved to amend its complaint for a third time as to the product liability claim to allege improper or inadequate warning or instruction. The trial court denied the motion and, after two brief continuances, proceeded with jury selection on March 14, 1989. On June 20, 1989, the presentation of evidence was completed and the court and counsel informally settled instructions without a court reporter. A formal record was made the following day.

Westinghouse's Requested Jury Instruction No. 30 covered three affirmative defenses: misuse, failure to maintain, and assumption of risk. It was given by the court after striking the defense of failure to maintain, and stated the following in pertinent part:

If Westinghouse proves any one of those two affirmative defenses [misuse and assumption of risk], then you must find in favor of Westinghouse on Salt River Project's products liability claim.

(Emphasis added.) The court also gave Westinghouse's Requested Jury Instruction No. 35 defining assumption of risk, which stated the following in the first sentence:

Westinghouse is not at fault if it proves that Salt River Project assumed the risk of injury and that Salt River Project's assumption of risk caused the injury.

(Emphasis added.)

SRP initially objected to the court giving any instructions on assumption of risk as being unsupported by the evidence. However, when it became apparent the court would nevertheless instruct on that defense, SRP submitted its own instruction on the matter, SRP's Requested Jury Instruction No. 35, and made the following record:

[SRP'S COUNSEL]: We are submitting 35 as being a correct statement of assumption of risk. We are not waiving our objection to the giving of the assumption of risk instruction ..., but if it is to be given it should be given in the form of our 35 rather than as the defendant has offered it....

* * * * * *

... I submit that the form that we proposed, 35, sets forth the correct law relative [to] assumption of risk, what the jury is to do with it and the item--

THE COURT: Okay. I am refusing that as covered by [Westinghouse's] 35.

(Emphasis added.)

The court submitted four interrogatories and two general verdict forms to the jury. The interrogatories required the jury to determine, inter alia, whether SRP's claim sounded in contract or tort, and the jury found it was the latter. The jury then found that Westinghouse was not liable on the tort claim and returned a general verdict against SRP.

SRP raises five issues on appeal. One is dispositive. The assumption of risk instructions submitted by Westinghouse and given by the trial court are constitutionally infirm and constitute reversible error.

Article 18, § 5 of the Arizona Constitution provides:

The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.

The scope and effect of article 18, § 5 were first addressed in Inspiration C.C. Co. v. Conwell, 21 Ariz. 480, 190 P. 88 (1920). There, our supreme court concluded that but for the provisions of article 18, § 5, the trial court would have been obligated to grant the defendant a new trial on the ground that the verdict was contrary to the evidence on the question of the assumption of risk. The court said that "[t]he language of the provision is plain and unambiguous, and to our minds clearly indicates that the power or duty to finally and conclusively settle the question of contributory negligence or assumption of risk is, by its terms, transferred from the court to the jury." Id. at 486, 190 P. at 90. This holding was reaffirmed 40 years later in Layton v. Rocha, 90 Ariz. 369, 370, 368 P.2d 444, 445 (1962) (whether contributory negligence deprives the plaintiff of the right to recover is "solely a question for the jury"), and continues unabated to the present. See Bauer v. Crotty, 167 Ariz. 159, 164, 805 P.2d 392, 397 (App.1991) ("Under art. 18, § 5, contributory negligence is always a question of fact for the jury"). The holding is equally applicable to assumption of risk. See Schwab v. Matley, 164 Ariz. 421, 793 P.2d 1088 (1990); Grant v. Arizona Public Service Co., 133 Ariz. 434, 652 P.2d 507 (1982); Chavez v. Pima County, 107 Ariz. 358, 488 P.2d 978 (1971); Davis v. Waters, 103 Ariz. 87, 436 P.2d 906 (1968); Inspiration C.C. Co. v. Conwell, supra; Menendez v. Bartlett, 125 Ariz. 48, 607 [176 Ariz. 386] P.2d 31 (App.1980); Shaya v. Petzoldt, 21 Ariz.App. 91, 515 P.2d 1189 (1973).

The struggle, however, has not been with the mandate of article 18, § 5, but rather with how to instruct the jury. Its provisions are not violated by instructions, such as the following, which are permissive and leave the plaintiff's recovery to the discretion of the jury if it finds that the plaintiff was negligent or assumed the risk:

"[P]laintiff should not recover." Rimondi v. Briggs, 124 Ariz. 561, 565, 606 P.2d 412, 416 (1980), and cases cited therein. (Emphasis in original.)

"[Y]our verdict should but need not be in favor of the Defendants...." Manhattan-Dickman Const. Co. v. Shawler, 113 Ariz. 549, 555, 558 P.2d 894, 900 (1976). (Emphasis added.)

"[P]laintiff may not be entitled to recover and your verdict may be for the defendant." Layton v. Rocha, 90 Ariz. at 370, 368 P.2d at 444. (Emphasis in original.)

"[Y]our verdict may, but need not be, in favor of Defendants...." Roundy v. Stewart, 140 Ariz. 201, 204, 680 P.2d 1262, 1265 (App.1984). (Emphasis added.)

"[Y]ou may find for the Defendant or for the Plaintiff as you may see fit." Winchester v. Palko, 18 Ariz.App. 534, 537, 504 P.2d 65, 68 (1973). (Emphasis in original.)

"[P]laintiff may not be entitled to a recovery." Flashberg v. Krebs, 8 Ariz.App. 254, 255, 445 P.2d 456, 457 (1968). (Emphasis in original.)

On the other hand, article 18, § 5 is violated by mandatory instructions which compel, direct, or require the jury to find for the defendant if it finds negligence or assumption of risk on the plaintiff's part. The following are illustrative:

"[Y]our verdict must be for the Defendant and against the Plaintiff...." Deering v. Carter, 92 Ariz. 329, 331, 376 P.2d 857, 859 (1962). (Emphasis in original.) See also Layton v. Rocha, supra; Michie v. Calhoun, 85 Ariz. 270, 336 P.2d 370 (1959); Wolfswinkel v. Southern Pacific Co., 81 Ariz. 302, 305 P.2d 447 (1956), aff'd on reh'g, 82 Ariz. 33, 307 P.2d 1040 (1957).

"[P]laintiff may not recover, regardless...." Southern Pacific Transportation Co. v. Lueck, 111 Ariz. 560, 573, 535 P.2d 599, 612 (1975).

"[P]laintiff is not entitled to recover." Schmidt v. Gibbons, 101 Ariz. 222, 223, 418 P.2d 378, 379 (1966). (Emphasis in original.)

"[P]laintiff cannot recover in this case." Trojanovich v. Marshall, 95 Ariz. 145, 147, 388 P.2d 149, 150 (1963). (Emphasis in original.)

"[Y]ou are instructed to find in favor of the defendants." Coyner Crop Dusters v. Marsh, 91 Ariz. 371, 374, 372 P.2d 708, 710 (1962).

"[I]t is your sworn duty to return a verdict for the defendants." Id.

Unquestionably, the assumption of risk instructions given in this case are mandatory, rather than permissive. They instruct the jury that if Westinghouse proves SRP assumed the risk, then Westinghouse is "not at fault" and the jury "must" find in favor of Westinghouse. The instructions therefore deprive SRP of its constitutional right under article 18, § 5 to have the defense of assumption of...