Mesa AZ | Personal Injury attorney Brian T. Allen discusses intentional, willful and wanton conduct and how it affects a plaintiff’s claim in the following post:

Arizona is a comparative fault state. This means that a plaintiff may go forward with a personal injury claim even if he was partially at fault for his own injuries. During a trial in such a comparative fault case, the plaintiff presents evidence of the defendant’s fault for the plaintiff’s injuries, and the defendant presents evidence that the plaintiff was at least partially at fault for his own injuries. The jury then decides the matter by assigning a percentage of fault to each party for the plaintiff’s injuries. Damages are then awarded to the plaintiff in accordance with the percentages the jury assigns. For example, if the jury finds the plaintiff 85% responsible for his own injuries, and the defendant 15% responsible for the plaintiff’s injuries, the plaintiff will be awarded only 15% of the total damage amount.

However, plaintiffs do not always have the right to recover damages based on comparative fault. Arizona Revised Statutes 12-505(A) sets out one circumstance in which a plaintiff will be barred from recovering damages based on comparative fault:

The defense of contributory negligence or of assumption of risk is in all cases a question of fact and shall at all times be left to the jury. If the jury applies either defense, the claimant’s action is not barred, but the full damages shall be reduced in proportion to the relative degree of the claimant’s fault which is a proximate cause of the injury or death, if any. There is no right to comparative negligence in favor of any claimant who has intentionally, willfully or wantonly caused or contributed to the injury or wrongful death. (Bold added)

So, if the defendant alleges that the plaintiff engaged in intentional, willful, or wanton conduct which led at least in part to the plaintiff’s own injuries, and the jury finds that the conduct was indeed intentional, willful, or wanton, the plaintiff is no longer entitled to a determination of damages based on comparative negligence. As an example, imagine a case where the plaintiff was 60% at fault for his own injuries. Normally, the jury would then award the plaintiff damages amounting to 40% of the total claim. However, if the jury finds that the plaintiff’s conduct contributing to his own injuries was intentional, willful or wanton, the plaintiff will no longer have a right to that 40%.

This leads to two questions: 1) what constitutes willful or wanton conduct? And, 2) if comparative negligence is off the table, can the plaintiff recover anything on the claim? The answers to both questions are found within Arizona’s Revised Civil Jury Instructions. Question 1 is answered as follows:

Willful or wanton conduct is action or inaction with reckless indifference to the results, or to the rights or safety of others. A person is recklessly indifferent if he knows or a reasonable person in his position ought to know that: (1) The action or inaction creates an unreasonable risk of harm; and, (2) The risk is so great that it is highly probable that harm will result.

In regards to question 2, the answer is best stated as “maybe.” Here is what the Jury Instructions have to say:

If you find that the plaintiff willfully or wantonly caused the plaintiff’s injury, and that the defendant was at fault, then you should not determine relative degrees of fault. However, you may find for the defendant or for the plaintiff as you deem fit.

In other words, while the jury cannot use comparative negligence to resolve a case with willful or wanton conduct on the part of the plaintiff, it is allowed to do whatever it “deems fit.” This means that it is still possible for the plaintiff to recover damages on the claim. However, it makes the resolution of the case essentially unpredictable: the plaintiff could get everything, nothing, or something in between.


This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding When a Plaintiff Has No Right To Comparative Negligence, or any other personal injury, please feel free to contact Brian T. Allen at  480.461.5335,  log on to,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.