Bledsoe v. Salt River Valley Water Users' Ass'n

• Decision Date: 31 January 1994
• Docket Number: CA-CV,No. 2,2
• Citation: Bledsoe v. Salt River Valley Water Users' Ass'n, 880 P.2d 689, 179 Ariz. 469 (Ariz. App. 1994)
• Parties: Joseph K. BLEDSOE, a single man, Plaintiff/Appellee/Cross-Appellant, v. SALT RIVER VALLEY WATER USERS' ASSOCIATION, Defendant/Appellant/Cross-Appellee. 93-0237.
• Court: Arizona Court of Appeals

Page 689

880 P.2d 689

179 Ariz. 469

Joseph K. BLEDSOE, a single man, Plaintiff/Appellee/Cross-Appellant, v.SALT RIVER VALLEY WATER USERS' ASSOCIATION, Defendant/Appellant/Cross-Appellee.

No. 2 CA-CV 93-0237.

Court of Appeals of Arizona Division 2, Department B.

Jan. 31, 1994.

Review Denied Sept. 20, 1994.

Hofmann, Salcito & Stevens by Leroy W. Hofmann and Daniel R. Salcito, Phoenix, for plaintiff/appellee/cross-appellant.

Jennings, Strouss & Salmon by Michael A. Beale, James M. Ackerman, J. Matthew Powell, and Mikel L. Moore and Snell & Wilmer by George H. Lyons, Phoenix, for defendant/appellant/cross-appellee.

OPINION

DRUKE, Chief Judge.

Salt River Valley Water Users' Association(SRP) appeals from a jury verdict and judgment in favor of plaintiffJoseph Bledsoe, who was seriously injured while riding his bicycle on SRP's property in the early morning hours of April 5, 1989.Of the four issues SRP raises on appeal, we find that two involving closing and rebuttal argument by Bledsoe's counsel require reversal.Accordingly, because the matter must be retried, we decline to address the issue raised by Bledsoe in his cross-appeal as to the purported delay in the entry of judgment.

FACTS

SRP delivers irrigation water in the Phoenix area through a system of canals and dozens of "laterals," which are smaller, secondary canals that carry water from the main canals to various delivery points.The banks of the canals and laterals have dirt access roads which SRP's employees use to operate and maintain the irrigation system.The roads are also used by the general public for nonmotorized activities, such as walking, jogging, biking, etc.Motorized use is prevented by gates of various types, including "cable" gates.A cable gate consists of a length of cable stretched across the road between two steel posts.Bledsoe was injured by this type of gate.

At the time Bledsoe was injured, he worked for the Phoenix Fire Department in its health center.His duties included designing and implementing physical fitness programs.To set a fitness example for the other firefighters, Bledsoe decided to ride his bicycle to work.The route he chose was primarily on city streets, but part of it included an SRP lateral road with which he was unfamiliar.

Bledsoe's first ride began before sunrise.It was dark and his bicycle had no headlight.After traveling 16 to 18 miles on city streets, he came to the SRP lateral.Bledsoe saw that the lateral road was blocked by a cable gate, but he was able to pass through a gap at one end of the gate and continue riding.Some distance later, Bledsoe came to a locked ranch gate.He dismounted, picked up his bicycle, carried it around the gate, and resumed riding.Shortly thereafter, he struck a second cable gate, was thrown over the front of his bicycle, and was rendered a quadriplegic.Attached to this second cable gate was a two-foot wide, orange-and-white reflector, which became the primary focus of SRP's defense.

THE COURTROOM EXPERIMENT

SRP argued to the jury in closing that, based on the testimony of its experts from experiments they conducted under conditions similar to those on the morning of the accident, Bledsoe could have seen the reflector and avoided the cable gate had his bicycle been equipped with a $19.95 headlight.Bledsoe's counsel challenged SRP's position at the close of his rebuttal argument, contending that SRP's experts "never took any pictures of this ... they just told you that this was the case.So let's see."Counsel then requested permission to use the previously admitted reflector and headlight to refute SRP's experts.Specifically, counsel wanted to show that they were wrong in concluding (1) that Bledsoe could have seen the reflector from a distance of 66 feet or more, a safe stopping distance, and (2) that he could have seen the reflector even if the headlight were not shining directly on it because the headlight had a 12-foot cone of light.After SRP's objection was overruled, Bledsoe's counsel proceeded to make the following argument to the jury while shining the headlight on and off the reflector in a partially darkened courtroom at a distance of 40 feet:

Now, that's directly on it.Move it off and what do you see, and I want you to also recognize the fact that a bike is going to be going down a road like this, but where is the 12 foot [cone of light]?Which leads us to the last question, would the light have made a difference?

I submit to you that it would not have made a difference.That's 40 feet.[SRP's experts] are talking about 100 feet.They were talking about 66 feet.They were talking about all sorts of distances that you can see this marvelous cone of light.

This 19.95 marvel that Joe Bledsoe, if he had it on his bike would have avoided the accident.There is no cone of light that's available to Joe if he had it on his bike, if he was not directly on it and that's why they took all the photographs they took with the lights shined directly on the reflectorized sign.

I think that weighs upon the evidence.Your verdict should clearly be for Joe.

SRP contends that it was error to permit this courtroom experiment because it differed substantially from SRP's own experiments in three respects: the headlight batteries were two years old, the courtroom was only partially darkened, and the jurors' eyes did not have time to adjust to the darkness.Bledsoe counters that these differences affect merely the weight the in-court experiment should be given, not its admissibility, citing Wagner v. Coronet Hotel, 10 Ariz.App. 296, 299, 458 P.2d 390, 393(1969), in which we stated:

Prior to the reception of evidence based on out-of-court experiments, it must ordinarily be shown that the experiments were conducted under substantially similar conditions to those prevailing during the occurrence in controversy.The conditions need not be identical and minor variations in conditions go to the weight rather than the admissibility....

(emphasis added)(citation omitted).Because Wagner concerned the admissibility of an expert's testimony about his own out-of-court experiments, it is plainly distinguishable from this case and not controlling.Here, the experiment was conducted by counsel, not an expert, and we believe the variations were major, not minor.SeeOng v. Pacific Finance Corp., 70 Ariz. 426, 222 P.2d 801(1950)(proposed courtroom demonstration in slip-and-fall case would have been reversible error because conditions in courtroom bore no resemblance to conditions where fall occurred);State v. Buelna, 25 Ariz.App. 414, 544 P.2d 238(1975)(request to make tape recording in courtroom to compare with disputed tape properly denied because conditions not shown to be similar to those under which other tape made).See generally Morris K. Udall et al., Arizona Practice: Law of Evidence§ 103 (3d ed. 1991).

Moreover, it is apparent from the circumstances that counsel was attempting to replicate SRP's out-of-court experiments rather than simply trying to illustrate the headlight's traits or characteristics.The distinction is important because replications require a greater degree of similarity than demonstrations.

When used in an attempted replication of the litigated event, courts generally insist that conditions in the experiment substantially match the circumstances surrounding that event.However, when the experiment is not a purported replication but is more in the nature of a demonstration, it is appropriately admitted if it fairly illustrates a disputed trait or characteristic.

Volz v. Coleman Co., Inc., 155 Ariz. 563, 565, 748 P.2d 1187, 1189(App.1986), aff'd on this ground, 155 Ariz. 567, 748 P.2d 1191(1987)(citations omitted).

Finally, because the experiment was conducted during counsel's rebuttal argument, the risk of misleading the jury was substantial.As SRP points out, the experiment "would not face cross-examination, explanation by the opposing experts, or even comments of opposing counsel."SeeRayner v. Stauffer Chemical Co., 120 Ariz. 328, 585 P.2d 1240(App.1978)(jury not misled when ample opportunity given to cross-examine expert to establish dissimilarities of tests).

For the foregoing reasons, we hold that the trial court erred in permitting Bledsoe's counsel to conduct the in-court headlight experiment during rebuttal argument under conditions substantially different from the out-of-court experiments SRP's experts conducted.

COMPUTER SIMULATION OF ACCIDENT

We also hold that the court erred in permitting Bledsoe's counsel to show the jury a videotaped computer simulation (VCS) of the accident during closing argument.Prior to trial, SRP moved in limine to preclude Bledsoe's use of the VCS, arguing that it would be unsupported by the evidence or by the testimony of the computer expert who prepared it because Bledsoe would not be calling him as a witness.Bledsoe countered that the expert's testimony was unnecessary because the VCS would not be offered in evidence, but used "merely for demonstrative purposes" in Bledsoe's closing argument to show counsel's "version of what happened."The trial court viewed the VCS and reserved its ruling, stating: "I've got to hear what comes in at the trial.I can't sit here and prejudge everything."After the evidentiary phase of the trial, the court ruled as follows:

[A]s to everything that is depicted in the video tape, [Bledsoe's counsel] could get up and draw it and this is just a more sophisticated way of presenting his theory as to how the accident happened.

The fact that there's no foundation as [to] how it was prepared is completely immaterial.

We disagree.

The VCS is not, as Bledsoe contends, "the same as a chart or a diagram" drawn by counsel during closing argument.Such charts or diagrams are what one evidence treatise calls pedagogical devices: "Courts have permitted the use of [pedagogical devices] as an aid to the fact-finder in cases involving complicated or voluminous...