Acuna v. Kroack

Decision Date27 January 2006
Docket NumberNo. 2 CA-CV 2005-0049.,2 CA-CV 2005-0049.
Citation212 Ariz. 104,128 P.3d 221
PartiesMarc Anthony ACUNA, in his own right, Plaintiff/Appellee, v. Michael KROACK and Sandra L. Hampton, husband and wife, Defendants/Appellants.
CourtArizona Court of Appeals

Law Office of Michael E. Larkin, By Michael E. Larkin, Tucson, for Plaintiff/Appellee.

Chandler & Udall, LLP, By Lori A. Petersen and Charles A. Davis, Tucson, for Defendants/Appellants.


PELANDER, Chief Judge.

¶ 1 In this personal injury action arising from a motor vehicle accident, defendants/appellants Michael Kroack and his wife, Sandra Hampton,1 appeal from the judgment entered on a jury verdict in favor of plaintiff/appellee Marc Acuna. Appellants argue that there was insufficient evidence to support Acuna's claim of negligent entrustment against Hampton, that the trial court erred in admitting evidence of appellants' post-accident conduct, and that the jury's damage award is excessive and not supported by the evidence.

¶ 2 We previously issued an opinion in this case. Acuna v. Kroack, 462 Ariz. Adv. Rep. 11 (Ct.App. Oct. 6, 2005). Acuna then moved for reconsideration of only the disposition section of the opinion. Having considered the parties' briefs and oral argument on that motion and finding it well-taken, we vacate our original opinion and issue this one in its place.2 For the reasons stated below, we vacate that portion of the trial court's judgment apportioning liability against Hampton on the negligent entrustment claim, modify the judgment to apportion one hundred percent of the fault against Kroack, and remand the case to the trial court with directions to enter judgment in favor of Acuna and against Kroack in the amount of $200,000.


¶ 3 We view the evidence and reasonable inferences therefrom in the light most favorable to upholding the jury's verdict. See Hutcherson v. City of Phoenix, 192 Ariz. 51, ¶ 13, 961 P.2d 449, 451 (1998); Crackel v. Allstate Ins. Co., 208 Ariz. 252, ¶ 3, 92 P.3d 882, 885 (App.2004). In October 2002, appellants, Illinois residents, were visiting Tucson and staying at the home of Kroack's mother, who lived in the vicinity of Oracle and Rudasill Roads.3 Shortly before the accident, in the afternoon of October 2, appellants left that residence in a Saab automobile to go shopping. With Hampton driving, they went north on Oracle to a plant nursery located just south of Rudasill. As they left the nursery a short time later, appellants "changed" drivers after arguing about who should drive the car, which Hampton described as a "little Saab [that] was really [her] little baby." According to Hampton, Kroack had wanted to drive because he had thought Hampton was "going the wrong way" in the nursery parking lot, and she had wanted to drive "because it was [her] car." Kroack apparently prevailed in the argument because, although Hampton later maintained that she had been the driver, he admittedly was driving at the time of the accident.

¶ 4 The accident occurred at the intersection of Oracle and Rudasill when Kroack, with Hampton as his passenger, was making a U-turn from driving northbound on Oracle to head southbound. He drove directly in front of Acuna's oncoming vehicle, which was traveling approximately forty-five miles per hour in the inside, southbound lane. Kroack ultimately admitted that he had been negligent and that his negligence had caused the collision.

¶ 5 Immediately after the collision, Kroack got out of the car and spoke with Acuna, initially accusing him of having changed lanes. Acuna testified that Kroack's "words were slurring" at that time, but that he had not smelled any odor of alcohol on Kroack's breath or seen bloodshot or watery eyes or a flushed face. According to an eyewitness, however, Kroack's face had appeared to be flushed when he got out of the car after the collision.

¶ 6 As he made sure southbound vehicles were stopped, Kroack directed Hampton to drive the car off Oracle Road into a nearby parking area on the west side of the street, and she did so. Kroack then left the scene on foot before police officers arrived. He headed south on Oracle and, according to Acuna and the other eyewitness, had appeared to be swaying and unsteady on his feet as he walked. Kroack was not seen at the accident site again, even though Acuna remained there for a couple of hours.

¶ 7 Kroack testified that he had left the scene shortly after the accident to get help and had chosen to walk to a Circle K store some distance south of the intersection to use the telephone, even though a number of other nearby businesses were closer to the intersection. Kroack further testified that, after he had telephoned for help at the Circle K, he eventually had lost consciousness and later had "woke[n] up" in a church parking lot. He returned to the accident scene later that day, but by that time, everything and everybody were "gone," including his wife, the car, and the police.

¶ 8 When questioned by an investigating police officer at the scene, Hampton identified herself as the owner of the car but did not "give [him] any information when [he] asked her about who the driver was or where he had gone." The officer testified that Hampton had then "claimed she was the driver." She was taken by ambulance to a hospital, where the officer spoke with her again. Hampton responded to the officer's questioning until he asked her who had been driving the car at the time of the accident. Hampton then told the officer about a man named Alejandro who had been doing some work on the patio at her mother-in-law's house, where she and her husband had been staying. According to the officer, Hampton "was indicating or trying to say that Alejandro [had been] in the vehicle with her," but she did not know his last name or how to contact him.

¶ 9 During his investigation at the accident scene, the officer found two beer cans in the back seat of appellants' vehicle, one open and empty and the other unopened and full. When questioned at his deposition about the beer cans, Kroack testified that he previously had given Alejandro two cans of beer as he worked at the home of Kroack's mother. Kroack testified that he had picked up the cans and, "because [he] didn't want to go around to the trash can," had put them in the back seat just before he and Hampton had left to drive to the plant nursery.

¶ 10 When Kroack and Hampton returned by train to Illinois several weeks after the accident, Kroack discussed the collision with Hampton and told her he had been driving. Several days later, Hampton gave a recorded statement in which she said she had been driving at the time of the accident. And, at her deposition in August 2004, Hampton continued to maintain that she had been driving at the time of the accident.

¶ 11 Acuna brought this action against Kroack and Hampton, alleging a negligence claim against both for the collision itself and a separate claim against Hampton for negligently entrusting the vehicle to Kroack. Acuna sought both compensatory and punitive damages. Before trial, appellants moved for partial summary judgment on the punitive damage and negligent entrustment claims. The trial court granted the motion on Acuna's claim for punitive damages. Finding genuine issues of material fact existed on his negligent entrustment claim, however, the court denied appellants' motion on that claim.

¶ 12 Before trial, both sides filed motions in limine on the admissibility of evidence of appellants' post-collision conduct. Appellants asked the trial court to preclude any evidence on the status of Kroack's driver's license, a prior driving under the influence of an intoxicant (DUI) arrest warrant, and the presence of the two beer cans in appellants' vehicle. The court ruled that evidence of their post-collision conduct and of the two beer cans would be admitted. But the court precluded any evidence relating to Kroack's driver's license or his prior DUI arrest.

¶ 13 Before and during trial, defendant Kroack admitted fault for having caused the collision and Acuna's injuries. At the close of evidence during trial, the trial court denied defendant Hampton's motion for judgment as a matter of law (JMOL), made pursuant to Rule 50, Ariz. R. Civ. P., 16 A.R.S., Pt. 1, on the negligent entrustment claim. The jury returned a verdict in favor of Acuna in the amount of $200,000. The jury apportioned seventy percent of the fault to Kroack and thirty percent to Hampton. This appeal followed the trial court's entry of judgment on the verdict and its denial of appellants' motion for a new trial.4


I. Evidence of post-accident conduct

¶ 14 Appellants argue the trial court erred in admitting evidence of their post-accident conduct.5 Specifically, they contend the court should have precluded any evidence of Kroack's having "left the scene of the accident" and of Hampton's having "initially claimed that she was driving the vehicle involved in the subject accident."6 According to appellants, that evidence "was not instructive as to how the accident occurred" and, "at trial, there was no issue whatsoever" on that topic. Because Kroack admitted having negligently driven the vehicle and having caused the accident, appellants argue, "evidence of [their] post-accident conduct should have been excluded" as "irrelevant and unduly prejudicial."

¶ 15 "A trial court has broad discretion in the admission of evidence, and we will not disturb its decision absent an abuse of that discretion and resulting prejudice." Crackel, 208 Ariz. 252, ¶ 59, 92 P.3d at 898. In support of their argument, appellants rely on Forquer v. Pinal County, 22 Ariz.App. 266, 526 P.2d 1064 (1974), and Saucedo v. Salvation Army, 200 Ariz. 179, 24 P.3d 1274 (App.2001). We find neither case controlling or particularly helpful on the evidentiary issue posed here.

¶ 16 In Forquer, a wrongful death action that involved a punitive...

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