788 P.2d 1226 | Ariz. Ct. App. | 1989
OPINION
In this appeal by plaintiff from a verdict in his favor, reduced by a finding of comparative negligence, three errors are asserted. One of them is well taken. Accordingly, we reverse.
At the conclusion of the ease, the trial court instructed the jury that if it found that plaintiff was contributorily negligent it “must” specify the amount of such negligence.
Because the other issues may not arise on retrial, we do not reach them.
Reversed.
. Plaintiff requested the following Recommended Arizona Jury Instruction:
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 plaintiffs 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 plaintiffs contributory negligence should reduce the plaintiffs 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 plaintiffs damages.
Second, determine the relative degrees of fault of each party.
The court will then calculate the reduction of plaintiffs full damages in accordance with your determination of plaintiffs relative degree of fault.
The bracketed material followed the holding of Heimke and should have been given.