Anderson v. Quiktrip Corp.
| Decision Date | 20 November 2015 |
| Docket Number | No. 2 CA-CV 2015-0007,2 CA-CV 2015-0007 |
| Parties | YANCY ANDERSON, Plaintiff/Appellant, v. QUIKTRIP CORPORATION, Defendant/Appellee. |
| Court | Arizona Court of Appeals |
Appeal from the Superior Court in Pinal County
The Honorable Daniel A. Washburn, Judge
AFFIRMED
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Jones|Raczkowski PC, Phoenix
By Mark A. Raczkowski
Counsel for Appellant
Burch & Cracchiolo, P.A., Phoenix
By Theodore A. Julian, Jr., Melissa Iyer Julian,
and Daryl Manhart
Counsel for Appellee
Judge Espinosa authored the decision of the Court, in which Presiding Judge Miller and Chief Judge Eckerstrom concurred.
¶1 In this personal injury action, appellant Yancy Anderson seeks the reversal of the jury's verdict in favor of appellee QuikTrip Corporation (QuikTrip). He contends the trial court abused its discretion by admitting certain evidence and by refusing his requested jury instructions. For the following reasons, we affirm.
¶2 The facts relevant to the issues on appeal are essentially undisputed. Around 7:30 p.m. in April 2010, Anderson was leaving a QuikTrip convenience store in Casa Grande when he slipped off a sidewalk curb and was injured. Just before the accident, a QuikTrip employee had begun washing the walkway with a commercial-grade "powerwasher" that sprayed pressurized water. According to trial testimony, the store's exterior walkways are washed two to three times a week at the discretion of the store manager, and the store is open twenty-four hours a day with the fewest customers between midnight and early morning.
¶3 In April 2012, Anderson filed this negligence action. After a trial in which the jury found in favor of QuikTrip, the trial court entered judgment in accordance with the jury's verdict. We have jurisdiction over Anderson's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
¶4 Anderson first argues the trial court erred by allowing evidence showing a lack of prior powerwashing incidents at Arizona QuickTrip stores. Before trial, QuikTrip moved in limine to exclude thirty-eight incident reports involving powerwashing atseveral of its stores in Arizona. Contemporaneously, Anderson moved to preclude QuikTrip from introducing evidence and arguing "there ha[d] never been other injury incidents involving power-washing at [QuikTrip] stores" which, he asserted, "would tend to isolate [Anderson]'s incident while intimating the procedure is reasonably safe."
¶5 At the hearing on the motions, Anderson sought admission of the incident reports, arguing he anticipated that the two QuikTrip employees would testify "they [we]re not aware of any other injury incidents ever taking place at a QuikTrip involving their powerwashing activities." He contended the reports would be "substantive proof of notice to [QuikTrip] . . . that powerwashing activity creates a dangerous condition, and notice to them that their policies and procedures with regard[] to how that is done is not reasonably safe."
¶6 QuikTrip argued the incident reports should be excluded for lacking foundation and not having "any real probative value." And it asserted its motion to preclude other accidents "corresponds to [Anderson]'s [m]otion in [l]imine . . . to preclude [QuikTrip] from saying that there were no other accidents." Alternatively, QuikTrip maintained it should be permitted to "put [the incident reports] into perspective," by introducing "evidence of how many customers [it has] at the 105 stores in Arizona." The trial court subsequently denied QuikTrip's motion in part, permitting Anderson to offer incident reports pertaining to slips and falls on its sidewalks but not in other areas. It also denied Anderson's motion to exclude evidence showing a lack of prior incidents, stating it was "part and parcel" of QuikTrip's motion to preclude evidence of other accidents "in that if . . . , in fact, [QuikTrip claims no other accidents], . . . you've got [the incident reports] to assist and argue . . . against it."
¶7 In his opening statement at trial, Anderson informed the jury:
In its opening statement, QuikTrip acknowledged this was not its first slip and fall occurrence and noted Anderson "ha[d] collected over a two-year period up to 11 different incidents . . . 11, under all kind[s] of different circumstances, 11 in a two-year period in 105 different QuikTrip stores throughout . . . Arizona." Anderson objected based on relevance, but was overruled.
¶8 At trial, the store manager1 testified as follows:
In its closing argument, QuikTrip asserted:
¶9 Anderson maintains that the evidence "lacked foundation, was unfairly prejudicial and should not have been admitted by the trial court." "'We will not disturb the superior court's ruling on the admissibility of evidence unless it abused its discretion or misapplied the law.'" Taylor-Bertling v. Foley, 233 Ariz. 394, ¶ 3, 313 P.3d 537, 540 (App. 2013), quoting Girouard v. Skyline Steel, Inc., 215 Ariz. 126, ¶ 10, 158 P.3d 255, 258 (App. 2007).
¶10 Anderson contends "the general rule is that evidence as to the lack of prior incidents is not admissible," citing Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 124, 128-29, 700 P.2d 819, 822, 826-27 (1985). However, in Jones, a product liability case, our supreme court overturned precedent holding that evidence of the absence of prior accidents was per se inadmissible. Id. at 124, 128-29, 700 P.2d at 822, 826-27. Observing that "safety-history is relevant," the court noted that such evidence had been rejected in part because of a type of "negative evidence" problem, i.e., "there have been prior accidents but the witness does not know about them." Id. at 125-26, 700 P.2d at 823-24. It held that trial courts have discretion under Rule 403, Ariz. R. Evid., to "admit evidence of safety-history concerning both the existence and the nonexistence of prior accidents," provided that the proponent establishes that "had [there] been prior accidents, the witness probably would have known about them." Id. at 127-28, 700 P.2d at 825-26 (). In a later case, the court indicated that the rule may apply in premises liability actions. See Isbell ex rel. Isbell v. State, 198 Ariz. 291, ¶ 9, 9 P.3d 322, 324 (2000).
¶11 Anderson further argues that the evidence lacked foundation. He notes that the store's manager described the number of customers passing through Arizona QuikTrip stores during powerwashing activities, but "[t]here was no testimony or other proof indicating [the manager] was responsible for investigating all prior incidents in Arizona, charged with compiling data regarding prior powerwashing incidents, or ever in a position to do so." The manager, however, did not testify about the occurrence or absenceof accidents at QuikTrip stores statewide.2 As such, there was no need to establish that he would have known about such incidents had they occurred. To the extent Anderson believes the manager was not qualified to testify to customer traffic at Arizona stores in general—asserting that QuikTrip "applied the limited knowledge of one store manager to every QuikTrip store in Arizona over the course of two years"—he did not raise that objection at trial.3 The issue is therefore waived. See Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, ¶ 9, 9 P.3d 314, 317 (2000) ().
¶12 Anderson next asserts that the "evidence and argument regarding the lack of prior incidents" was unfairly prejudicial. As noted above, the store manager did not testify to a lack of accidents statewide. QuikTrip's counsel, however, asserted in closing that...
To continue reading
Request your trial