Wareing v. Falk, 1

• Decision Date: 09 February 1995
• Docket Number: No. 1,CA-CV,1
• Citation: 897 P.2d 1381,182 Ariz. 495
• Parties: Andrew J. WAREING, a single man, Defendant/Cross-defendant-Appellant, v. Gary R. FALK, a married man, individually, Defendant/Cross-claimant-Appellee. 92-0517.
• Court: Arizona Court of Appeals

Page 1381

897 P.2d 1381

182 Ariz. 495

Andrew J. WAREING, a single man, Defendant/Cross-defendant-Appellant, v. Gary R. FALK, a married man, individually, Defendant/Cross-claimant-Appellee.

No. 1 CA-CV 92-0517.

Court of Appeals of Arizona,

Division 1, Department A.

Feb. 9, 1995.

Review Denied July 11, 1995.

[182 Ariz. 496] Teilborg, Sanders & Parks, P.C. by Stephen Paul Forrest and Bruce C. Smith, Phoenix, for appellant.

Van O'Steen and Partners by Paul Englander, Phoenix, for appellee.

OPINION

TOCI, Judge.

This appeal presents one issue: under Arizona's Uniform Contribution Among Tortfeasors Act ("UCATA"), may a defendant who has engaged in wilful or wanton misconduct receive the benefit of comparative fault principles, thus reducing the negligent claimant's recovery?

We hold that because wilful or wanton misconduct is a degree of negligence in Arizona, and because the UCATA defines fault as "negligence in all of its degrees," the UCATA permits apportionment of fault between a negligent claimant and a wilful or wanton defendant. Accordingly, we reverse and remand to the trial court with directions to reduce the judgment by the percentage of fault attributable to appellee Gary Falk.

I. FACTS AND PROCEDURAL HISTORY

Sharon Kereny-Falk sued both Falk, the driver of a vehicle in which Kereny-Falk was a passenger, and Andrew Wareing, the driver of a second vehicle, for damages caused on February 25, 1990, when their vehicles collided. Falk and Wareing each filed cross-claims for damages. The case was subject to compulsory arbitration. The arbitrator awarded damages to Kereny-Falk, finding Falk 35 percent at fault and Wareing 65 percent at fault. ¹ In ruling on the cross-claims, the arbitrator held that Wareing was liable for 100 percent of Falk's damages and that Falk was not liable for any of Wareing's damages. The arbitrator reached this conclusion because he found that Wareing's conduct was "wilful and wanton." The arbitrator concluded that Arizona law barred the application of comparative negligence principles to such conduct on either of the cross-claims.

Wareing appealed the arbitrator's ruling on Falk's cross-claim to the superior court. The parties filed cross-motions for summary judgment on stipulated facts as found by the arbitrator. Specifically, the parties stipulated that: (1) both drivers were negligent; (2) Falk was 35 percent at fault and Wareing was 65 percent at fault; and (3) Falk was negligent in making an improper lane change, while Wareing's conduct constituted wilful or wanton misconduct because he was driving at a high rate of speed while legally intoxicated. The only issue before the trial court was whether the ordinary negligence of Falk could be compared with the wilful or wanton misconduct of Wareing in determining Falk's recovery.

The trial court agreed with the arbitrator that, as a matter of law, Falk's ordinary negligence could not be compared with Wareing's wilful or wanton misconduct in determining Wareing's liability to Falk. Accordingly, the trial court entered judgment requiring Wareing to pay the full amount of Falk's damages. Wareing appeals.

II. STANDARD OF REVIEW

The trial court's decision turned on its interpretation of Arizona's comparative negligence statutes. Statutory interpretation is an issue of law, and this court is not bound by the trial court's legal conclusions. Blum v. State, 171 Ariz. 201, 204, 829 P.2d 1247, 1250 (App.1992); Walls v. Arizona Dep't of Pub. Safety, 170 Ariz. 591, 594, 826 P.2d 1217, 1220 (App.1991). Thus, we consider the issue anew. Do v. Farmers Ins. Co., 171 Ariz. 113, 115, 828 P.2d 1254, 1256 (App.1991).

III. DISCUSSION

A. The UCATA and the Common Law

Prior to the UCATA, ² Arizona followed the common law in negligence actions. Under the common law doctrine of contributory negligence, if a plaintiff's own negligence, however slight, contributed to the plaintiff's injuries, the plaintiff could be barred from recovering any damages from a defendant whose negligence primarily caused the plaintiff's injuries. ³ Dykeman v. Engelbrecht, 166 Ariz. 398, 400, 803 P.2d 119, 121 (App.1990). Another doctrine, however, barred a wilful or wanton defendant from asserting the defense of contributory negligence ("wilful or wanton doctrine"). See, e.g., Southern Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 562, 535 P.2d 599, 601 (1975). This and other doctrines like "last clear chance" ⁴ were adopted to combat the harshness of the bar of contributory negligence. Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234, 1239 (1981); see also Dykeman, 166 Ariz. at 400, 803 P.2d at 121; Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105, 112-13 (1962).

After Arizona adopted the UCATA, thereby abolishing the common law bar of contributory negligence, the continued viability of these ameliorative doctrines was an open question. Dykeman provided an answer with respect to the last clear chance doctrine. There, the plaintiff, who was found 60 percent at fault at trial, argued on appeal that the trial court erred by not instructing the jury on the last clear chance doctrine. 166 Ariz. at 400, 803 P.2d at 121. The plaintiff reasoned that because the legislature did not specifically abolish the doctrine when it adopted the UCATA, the doctrine was still applicable. Rejecting that argument, we held that the UCATA implicitly abolished last clear chance. We concluded that last clear chance, because it was designed to soften the harshness of the common law bar of contributory negligence, was no longer necessary under a comparative negligence system. Id. at 401, 803 P.2d at 122. Additionally, we said that an instruction on last clear chance would "directly contravene" the UCATA's purpose of "apportioning recovery based upon degrees of fault." Id.

Falk argues that, unlike the last clear chance doctrine, the wilful or wanton doctrine survived the passage of the UCATA. Specifically, Falk argues that wilful or wanton misconduct differs in kind from negligent conduct. Thus, according to Falk, because the UCATA addresses only degrees of negligence, it did not abolish the wilful or wanton doctrine. We disagree.

We recognize that early Arizona Supreme Court decisions did not clearly define wilful or wanton misconduct. For example, in Alabam Freight Lines v. Phoenix Bakery, Inc., 64 Ariz. 101, 110, 166 P.2d 816, 821 (1946), the court characterized wilful or wanton misconduct as "wanton negligence." In that decision, however, the court also stated that such conduct was an intentional wrong. Id. at 111, 166 P.2d at 821; see also, Lueck, 111 Ariz. at 563, 535 P.2d at 602 (alternately describing such conduct as "wanton negligence" and "intentional, wrongful conduct").

In 1979, however, the supreme court resolved the inconsistency by holding that wanton misconduct is a form of negligence. In DeElena v. Southern Pacific Co., 121 Ariz. 563, 566, 592 P.2d 759, 762 (1979), the supreme court rejected an argument that wanton misconduct is a tort wholly separate from negligence. The court concluded, instead, that wanton misconduct is a type of negligence. The court labeled such negligence as "aggravated negligence." Id.; accord Bauer v. Crotty, 167 Ariz. 159, 166, 168, 805 P.2d 392, 399, 401 (App.1991) (holding that wilful or wanton misconduct is not "qualitatively distinct" from negligence and describing such misconduct as "willful or wanton contributory negligence").

Many other states that define wilful or wanton misconduct as a form of negligence have adopted comparative negligence systems. The courts of these states have consistently recognized that "[u]nder comparative negligence, rules designed to ameliorate the harshness of the contributory negligence [doctrine] are no longer needed." Scott, 634 P.2d at 1239. Consequently, the decisions in these states have held that the adoption of comparative negligence abolished the wilful or wanton doctrine. See, e.g., Billingsley v. Westrac Co., 365 F.2d 619, 623 (8th Cir.1966) (applying Arkansas law); Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, 1241 (1975); Sorensen v. Allred, 112 Cal.App.3d 717, 169 Cal.Rptr. 441, 446 (1980); Martel v. Montana Power Co., 231 Mont. 96, 752 P.2d 140, 142-43 (1988); Bielski, 114 N.W.2d at 112-13.

For the opposite proposition, Falk cites several cases from other states holding that the adoption of comparative negligence did not abolish the wilful or wanton doctrine. See, e.g., Davies v. Butler, 95 Nev. 763, 602 P.2d 605, 610 (1979); Danculovich v. Brown, 593 P.2d 187, 193 (Wyo.1979). These decisions, however, reached that result because the applicable statutes define wilful or wanton misconduct as a form of intentional conduct different in kind from negligence. See Davies, 602 P.2d at 610; Krivijanski v. Union R.R. Co., 357 Pa.Super. 196, 515 A.2d 933, 936 (1986); Danculovich, 593 P.2d at 192-93. Furthermore, these cases acknowledge that under a comparative negligence system, all degrees of negligence, including gross negligence, may be compared. See Davies, 602 P.2d at 610-11; Danculovich, 593 P.2d at 192-93.

Our analysis of the cases from other states, and the reasoning of Dykeman, persuade us that, absent an expression of contrary intent, the legislature abolished the wilful or wanton doctrine by enacting the UCATA. "The thrust of the comparative negligence doctrine is to accomplish (1) apportionment of fault between or among negligent parties ... and (2) apportionment of the total damages resulting from such loss or injury in proportion to the fault of each party." Scott, 634 P.2d at 1240. In Dykeman, the supreme court held that the UCATA abolished the last clear chance doctrine because that doctrine conflicted with the objectives of comparative negligence. See 166 Ariz. at 401, 803 P.2d at 122.

The reasoning of Dykeman applies with equal force to the other common law doctrines adopted to combat the harshness of the contributory negligence doctrine. Jefferson L. Lankford & Douglas...