Dissenting.
¶ 61 The applicable standard of review is deferential. “An order granting a new trial is subject to a more liberal standard of review than an order denying one. A reviewing court will not set aside a trial court’s grant of new trial absent a clear showing of abuse of discretion.” Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 325, 762 P.2d 609, 612 (App.1988) (internal citations omitted).
¶ 62 The trial court gave many reasons for granting a new trial.1 I strongly believe that *371the trial court’s expressed conviction of the need for a new trial is owed more deference on review than it was given in the majority opinion.
¶ 68 I will focus on just one of the issues addressed by the trial court: The failure to instruct the jury on the City’s non-delegable duty regarding the street light. Because the City conceded that it had a non-delegable duty regarding the street light, this appeared to be a non-issue, as far as the jury was concerned. In final argument, however, the City strongly suggested that it had delegated this duty to APS, by its contract with APS:
Did APS do anything wrong? I don’t know. But if you find that those lights were not on and they should have been, the City had an agreement with Arizona Public Service.
And if they didn’t come on, then Arizona Public Service is the one that had the photo cells in their control. And if it should have come on, then it is their responsibility.
I’m going to suggest to you that nothing inappropriate was done at this intersection. But again, if you find they should have been on, then look at the contract, Exhibit 42.
¶ 64 As relevant here, the parties tried the case and the court instructed the jury as though liability hinged on whether the light was on or off when the child was killed, and as though the City was responsible if the light was off. The court’s failure to instruct the jury on the City’s non-delegable duty seriously hampered Plaintiffs ability to rebut the City’s final-argument suggestion that only APS was responsible if the light was off.
¶ 65 For several reasons, some of which were contributed to by trial court rulings, the vicarious liability and comparative fault issues in this trial became quite confused. In my opinion, the record supports the conclusion that the end result of this confusion was an irregular proceeding that did not qualify as a fair trial. On such a record, we should affirm the trial court’s decision to grant a new trial. See Buffa v. Scott, 147 Ariz. 140, 142-44, 708 P.2d 1331, 1333-35 (App.1985) (affirming the grant of a new trial despite several errors in the court’s stated reasons).
¶ 66 I respectfully dissent from this reversal.
. The trial court’s reasons for granting a new trial included the following minute-entiy explanation:
Alleged inconsistency of the non-delegable duty instruction and A.R.S. § 12-2506:
The general rule with respect to non-delega-ble duty is that "the employer's enterprise, and his relation to the plaintiff, are such as to impose upon him a duty which cannot be delegated to the contractor. The cases of non-delegable duty hold the employer liable for the negligence of the contractor, although he has himself done everything that could reasonably be required of him.” Prosser & Keeton on Torts, 5th ed., § 71, p. 511. In other words, the employer is held vicariously liable for the negligence of its contractor. This concept is not inconsistent with Arizona’s abolition of joint liability in favor of several only liability because vicarious liability goes to establishing a duty on the part of the defendant, while several liability is a means of apportioning damages. Therefore, if the City is found to be vicariously liable for the acts of Arizona Public Service (APS), the City figuratively “steps into the shoes” of APS. Thus, any damages assessed against the City would be based on vicarious liability, not joint liability.
Harmless error:
This court's failure to instruct the jury of the City’s non-delegable duty is reversible error. The failure materially affected Plaintiffs’ rights because it prevented Plaintiffs from arguing that the City was responsible for APS’s failure to provide adequate lighting at the area of the accident. The test for the propriety of jury instructions is whether, upon the whole charge, the jury will gather the proper rules to be applied in arriving at the correct decision. Kauffman v. Schroeder, 116 Ariz. 104, 106, 568 P.2d 411 (1977). The jury was not told that the City, based on its non-delegable duty to maintain the streets in a safe condition, should be found liable if APS was found to be negligent. The jury was merely instructed: "If you find that defendant was at fault, then defendant is liable to plaintiff and your verdict must be for plaintiffs____” Thus, if the jury did not find Defendant independently liable, they were foreclosed from assigning liability to other parties, including APS.
IT IS THEREFORE ORDERED denying Defendant’s Motion to Reconsider Regarding Grant of New Trial.
Child standard of care:
Arizona has adopted the Restatement (Second) of Torts, which requires that a child’s conduct conform to that of a "reasonable person of like age, intelligence, and experience under like circumstances.” Restatement (Second) of Torts § 283A. Also see, RAJI (Civil) Negligence 5.
In Barnes v. City of Tucson, 157 Ariz. 566, 760 P.2d 566 (App.1988), suit was brought on behalf of a 15 year old bicyclist who was injured when he collided with a post erected by the city on the edge of a city sidewalk. The Court of Appeals held that the trial court properly instructed the jury bn the standard of care applicable to a child. Since Shonna Wiggs *371was a 15 year old child at the time of the accident in the present case, an instruction on the child standard of care is appropriate.
IT IS THEREFORE ORDERED granting Plaintiff's Cross-Motion for Reconsideration/for New Trial on this issue (jury instruction on the child standard of care).
(Emphasis in original.)