South-Western Legal Studies in Business

State Constitution Requires Jury to Consider Contributory Negligence Matters
Description

Arizona appeals court held unconstitutional a statute that held persons could not be liable if they injured a person who was committing a crime. The constitution requires that all issues of contributory negligence and assumption of risk go to a jury.

Topic Torts
Key Words

Constitutional Law; Non-liability Statute; Contributory Negligence; Assumption of Risk

C A S E   S U M M A R Y
Facts

Hernandez was suspected of stealing merchandise at a store. A security guard grabbed him and wrestled him to the floor, holding his neck in an arm lock. Hernandez passed out and died from lack of oxygen. His widow sued the security company (SDI) for wrongful death due to negligence. SDI moved to have the case dismissed, citing an Arizona statute that holds that a defendant in a civil action is not liable for damages if the plaintiff was harmed while attempting to commit a criminal act-such as stealing merchandise. The trial court refused to dismiss the case. SDI appealed that ruling.

Decision

Affirmed. The statute is unconstitutional since the 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 issue of contributory negligence in a wrongful death case must be submitted to the jury.

Citation

Sonoran Desert Investigations v. Miller, ---P.3d--- (2006 WL 1515589, Ct. App., Ariz., 2006)

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