AMI 206 Issues—Affirmative Defenses—Burden of Proof

Repeat this instruction for each party claiming damages when the evidence justifies its use.

If identical affirmative defenses to a particular claim are relied upon by more than one party, name all such parties in the first blank space.

Describe any other affirmative defense or defenses other than comparative fault in the second bracketed blank space.

When AMI 301 is given, use “fault,” rather than “negligence.”

This instruction must be given when the issue of negligence on the part of a party claiming damages is raised as a defense. Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994); Hill Constr. Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987); Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982).

In 2003, Ark. Code Ann. § 16-55-202 was amended to provide that with respect to all affected causes of action accruing on or after March 25, 2003, the fault of non-parties can be considered in assessing percentages of fault when either the plaintiff has entered into a settlement agreement with a non-party or when a defendant files the statutory 120-day notice prior to trial that a non-party was wholly or partially at fault. In Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135, however, the Arkansas Supreme Court ruled that Ark. Code Ann. § 16-55-202 contravenes the separation of powers provisions of the Arkansas Constitution, Article 4, § 2 and Amendment 80, § 3, by effectively establishing a procedure for litigating the fault of non-parties “that conflicts with our ‘rules of pleadings, practice and procedure.’” Johnson, supra, 2009 Ark. 241, at 6 (quoting Amendment 80, § 3). The court held both subsections 202(a) and (b) unconstitutional. Id. at 8. See also McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737, 743–44 (8th Cir. 2010) (ruling that Johnson mooted claim to apportionment of fault to non-party because law reverted to what it was before passage of 2003 amendment to Ark. Code Ann. § 16-55-202). The Note on Use to this Instruction has been modified accordingly to delete reference to assignment of fault to non-parties.