dissenting.
I respectfully dissent.
Prior to the submission to the jury, the Woodburns requested special verdict language that required the jury to determine the combined negligence of the Woodburns and Tana. The proposed instruction then told the jury not to determine damages if their combined negligence was 50% or more. The trial judge did not use the language from this proposed special verdict instruction, but instead instructed the jury to determine separately the negligence of the Woodburns, Tana and Manco Products, Inc. It then told the jury to determine the total damages suffered by the Woodburns. The jury attributed 40% negligence to the Woodburns, 10% to Tana, and 50% to Manco. The jury was not told that the trial court intended to impute the negligence of Tana to the Wood-burns nor of the consequences of finding that the joint negligence of the plaintiffs and Tana was 50%.
Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978), and the holding of the court today create confusion for the bench and bar. Seppi, which concerned an issue of first impression, stated:
[I]t is not reversible error for the court to inform the jury of the effect of apportioning 50% or more of the negligence to the plaintiff. Though we believe in most cases such an instruction is fully warranted, we conclude that the trial courts should be given discretion not to so inform, the jury in those cases where the issues are so complex or the legal issues so uncertain that such instructions would confuse or mislead the jury (emphasis added).
Id at 195, 579 P.2d at 692.
Seppi implies that such an instruction should or must be given, unless the issues are so complex or uncertain that such an instruction would confuse the jury, in which event the court has discretion not to give the instruction. Otherwise, the instruction is to be given if requested. The majority opinion today leaves the bench and bar with the impression that whether or not to give a Seppi instruction is a discretionary decision regardless of the complexity of the case.
The court should hold that a Seppi instruction should be given if requested unless the “issues are so complex or uncertain that such an instruction would confuse or mislead the jury”. Id. at 188, 579 P.2d at 685. In Ross v. Coleman Co., Inc., 114 Idaho 817, 761 P.2d 1169 (1988), the court held that “the trial court should instruct the jury on the consequences of the special findings which they make in their verdict.” Id. at 832, 761 P.2d at 1184. The trial court has the duty to give proper instructions. State v. Eastman, 122 Idaho 87, 831 P.2d 555 (1992); Hodge v. Borden, 91 Idaho 125, 417 P.2d 75 (1966).
In this case the issues were not complex or uncertain. The Woodburns requested the equivalent of a Seppi instruction in then-proposed special verdict language. I believe the trial court should have given a Seppi instruction and should have further instructed the jury that the negligence of Tana would be aggregated with the Woodburns.
*509By not informing the jury that the effect of attributing Tana’s negligence to the Wood-burns would result in apportioning 50% or more of the negligence to the Woodburns, or of the effect of a 50% negligence finding, this likely caused an unjust result and produced a judgment which did not reflect the wisdom of the jury or their view of the facts, but only their ignorance of Idaho law. Seppi, 99 Idaho at 194, 579 P.2d 683. The jury found the total damages suffered by Carl Woodburn and Janet Woodburn to be $205,425.00 each. Having found the plaintiffs to be 40% negligent, the jury could reasonably believe the Woodburns would each receive 60% of then-verdict. Additionally, had the jury speculated that Tana’s negligence would be attributed to the Woodburns, they could also have reasonably believed the Woodburns would receive at least 50% of their verdict. The jury could also have believed the Woodburns would receive all the damages awarded since they were not told there would be any reduction.
In determining whether or not to grant a new trial, the trial judge did not find that the Woodburns’ requested proposed special verdict language was untimely, but rather believed giving the instruction was a matter of his discretion. It’s the argument of this dissent that once the request was made, the trial court had a duty to correctly instruct the jury on the law and should have given a Seppi instruction. The Woodburns were prejudiced by the failure of the trial court to give the instruction, and the plaintiffs were also prejudiced by the trial court’s failure to advise the jury of the fact that the negligence of Tana would be added to that of her parents. If this case had been tried to the court and not to the jury, the judge would have known these things when determining an appropriate verdict. Should not the jury be also advised?
This case should be remanded for a new trial.