AMI 502 Concurring Proximate Causes—Liability—General Verdict

Do not use this instruction when the case is submitted on interrogatories. Oates v. St. Louis Southwestern R. Co., 266 Ark. 527, 587 S.W.2d 10 (1979).

The bracketed word “negligent” should be used when the case involves negligence only, with no issue of another type of fault.

The last sentence should be used only when some person who may also have been at fault is not a party to the action. When there are multiple parties it may be necessary to substitute other language in the last sentence for the references to the plaintiff and the defendant.

Use AMI 501 in addition to this instruction when there is evidence that the conduct of a third person, not a party to the suit, may have been a proximate cause of the plaintiff's damage. Beevers v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967).

This instruction was approved as a correct statement of law in Benson v. Temple Inland Forest Products Corp., 328 Ark. 214, 942 S.W.2d 252 (1997).

This instruction is not warranted when plaintiff's negligent act did not lead in a natural and continuous sequence, unbroken by any efficient intervening cause, to the defendant's intentional act that caused plaintiff's injuries. Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983). In cases of comparative negligence, the negligence of the plaintiff and that of the defendant are concurring proximate causes. St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977).

A modification of this instruction which overly emphasized that the negligence of a third party could not be imputed to the plaintiff was disapproved in Chicago, R. I. & P. R. Co. v. Hughes, 250 Ark. 526, 467 S.W.2d 150 (1971).

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).

Johnson thus restored the law on non-party fault to its previous status, under which, pursuant to Ark. Code Ann. § 16-64-122(a), the jury is not permitted to assign a percentage of fault to a person who is not a party to the suit; but it is proper to give AMI 501 and 502 where the defendant contends that a non-party is the sole proximate cause of the plaintiff's damages. Belz-Burrows L.P. v. Cameron Constr. Co., 78 Ark. App. 84, 78 S.W.3d 126 (2002).