Voohries-Larson

Opinion by Judge BRUNETTI; Dissent by Judge REINHARDT

Appellants Linda Voohries-Larson, Betsy Keilen, and Charlene Townsend, the mothers of three individuals killed in the crash of an airplane manufactured by the appellee Cessna Aircraft Company, appeal the judgment entered following a jury verdict for Cessna in their diversity action alleging wrongful death and product liability. Appellants contend that the district court erred in its instructions to the jury regarding superseding cause and wilful and wanton conduct. We have jurisdiction under 28 U.S.C. § 1291 , and we dismiss in part and affirm in part.

I.

On July 4, 1993, a twin-engine Cessna airplane crashed in Prescott, Arizona, killing all five people on board. The three men who died in the crash were subsequently identified as Brad Keilen, Tor-rence Voohries, and Ronald Townsend, children of the three appellants. The two women on board, Megan Campbell and Stacy Stephenson, met the men the night of the crash and had accepted an offer to ride in the airplane. Because there were no eyewitnesses to the crash, the wreckage and bodies were discovered after five hours had elapsed.

During the course of the sixteen-day trial,…

dissenting:

I respectfully dissent. Arizona law explicitly forbids summary adjudication of contributory negligence. Ariz. Const, art. XVIII, § 5. Cessna attempted to sidestep this prohibition by characterizing decedents’ negligence as a superseding cause, in the instruction it submitted to the district court: “[i]f you find the actions of Plaintiffs’ decedents constituted a superseding cause, you must find for Defendant Cessna” (emphasis added). By giving this instruction, the district court *720 erroneously allowed the jury to disregard the issue of contributory negligence, over the plaintiffs’ objection, and in violation of Arizona law.

In Arizona, “[t]he 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.” Id. As the majority notes, the plaintiffs’ argument is that Cessna’s instruction erroneously equates superseding cause with contributory negligence in an attempt to remove the contributory negligence issue from the jury. Cf. Markowitz v. Arizona Parks Board, 146 Ariz. 352 , 706 P.2d 364, 371 (1985) (in bank) (“A contributory negligence issue cannot be taken from the…