Craddock

I concur in the judgment and in the opinion, except as to the cross-appeal. I would uphold the primacy of Civil Code section 1431.2 over Family Code section 783, not by reason of the special over the general rule, but because section 1431.2, as the product of an initiative, is the superior law and prevails thereby over any conflict between it and section 783. (Cf. American Lung Assn. v. Wilson (1996) 51 Cal.App.4th 743, 752 [ 59 Cal.Rptr.2d 428 ] (cone. opn. of Blease, Acting P. J., with Scotland, J., cone, therein.))

On July 2, 2001, the opinion was modified to read as printed above. The petition of appellant Kmart Corporation for review by the Supreme Court was denied September 19, 2001. Chin, J., did not participate therein.

Plaintiffs Rebecca Craddock and Ronald Craddock sued defendant Kmart Corporation for personal injury and premises liability arising out of an accident suffered by Rebecca Craddock at a Kmart store. Plaintiff Ronald Craddock, Rebecca’s husband, alleged loss of consortium. (We sometimes refer to the plaintiffs by their first names for clarity.)

After jury trial, plaintiffs won a special verdict. The jury found that Kmart’s negligence was 90 percent responsible for Rebecca’s injuries and that her negligence was 10 percent responsible. The jury awarded Rebecca total damages (without reducing the award for comparative fault) of $1,158,000 ($728,000 in economic damages and $430,000 in noneconomic damages); it also awarded Ronald $25,000 for loss of consortium. Reducing Rebecca’s award by the percentage of Rebecca’s comparative fault, the trial court entered judgment for Rebecca for $1,042,200 and for Ronald for $25,000.

Kmart moved for judgment notwithstanding the verdict (JNOV) and for new trial, partly based on the claim that a special instruction was erroneous. The trial court denied the motions.

Kmart also moved to set aside and vacate the judgment and to enter a new and…