Cameron v. Westbrook, 1 CA-CV 10-0398

Decision Date07 February 2012
Docket NumberNo. 1 CA-CV 10-0398,1 CA-CV 10-0398
PartiesMARY CAMERON, a single woman, individually, for her personal injury, and individually, for the benefit of the children of MARTIN CAMERON, for the wrongfu death of MARTIN CAMERON, deceased, Plaintiff/Appellant, v. KATHRYN KAY WESTBROOK and JOHN DOE WESTBROOK; PAUL HORTA, JR. and JANE DOE HORTA; JOHN CHRISTNER TRUCKING; ROYAL EXPRESS INCORPORATED, Defendants/Appellees.
CourtArizona Court of Appeals
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION

Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. CV2006-011915

The Honorable Robert A. Budoff, Judge

AFFIRMED

Law Offices of Joseph W. Charles, P.C.

By Joseph W. Charles

Christopher Short

Attorneys for Plaintiffs/Appellants

Glendale

Renaud Cook Drury Mesaros

Phoenix

By Tamara N. Cook

William S. Sowders

Kevin R. Myer

Attorneys for Defendants/Appellees

John Christner Trucking and Westbrook

Schneider & Onofry

By Timothy B. O'Connor

Attorneys for Defendant/Appellee Horta and Royal Express

Phoenix

GEMMILL, Judge

¶1 Mary Cameron ("Cameron") appeals from an adverse jury verdict and the trial court's denial of her motion for new trial. After a six-day jury trial, the jury found in favor of defendants Kathryn Westbrook, John Christner Trucking, Paul Horta, Jr., and Royal Express Incorporated (collectively, "Defendants") in this personal injury and wrongful death action. Cameron contends the trial court erred by giving a jury instruction on the sudden emergency doctrine, excluding Cameron's expert from testifying about the standards governing commercial truck drivers, restricting Cameron's cross-examination of an expert witness, and precluding reference to a Federal Motor Carrier Safety Regulation. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 "We view the facts and the reasonable inferences therefrom in the light most favorable to upholding the jury's [verdict]." Crackel v. Allstate Ins. Co., 208 Ariz. 252, 255, ¶3, 92 P.3d 882, 885 (App. 2004); Galindo v. TMT Transport, Inc., 152 Ariz. 434, 435, 733 P.2d 631, 632 (App. 1986).

¶3 On August 11, 2004, at approximately 6:00 p.m., a multi-vehicle accident occurred on Interstate 10 outside Tonopah amid a severe dust storm. Westbrook was driving a John Christner tractor trailer westbound on Interstate 10 when she encountered the dust storm. She slowed down and stopped in the right travel lane behind a van that was stopped in front of her.

¶4 Cameron was a passenger in the car her husband Martin Cameron was driving, which was also headed westbound on Interstate 10. When they entered the dust storm, the Cameron vehicle struck the rear of the Westbrook vehicle. Cameron quickly exited the vehicle in accordance with Martin's instruction. Exactly what happened next is not entirely clear and various expert reconstructions of the events have reached differing conclusions. The Cameron vehicle was hit by one or more trucks. A Swift Transportation tractor trailer, an Atlas Forklift Rental flatbed truck, and the Royal Express tractor trailer driven by Horta were involved in various impacts that may have been significant to the Camerons. A number of other vehicles entered the scene, ultimately resulting in a fifteen vehicle collision. The Cameron vehicle wound up facing eastbound, wedged between the right side of the Westbrook vehicle and the left side of the Horta vehicle. Martin died asa result of these collisions and Cameron sustained physical injuries.

¶5 Cameron filed a lawsuit against Defendants1 alleging that Westbrook and Horta were negligent in causing her personal injuries and Martin's death and that their trucking companies, John Christner and Royal Express, were liable under the doctrine of respondeat superior.2 After a six-day jury trial, the jury returned a verdict in favor of Defendants. The court denied Cameron's motion for new trial. This appeal followed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1),(4) (Supp. 2011).3

DISCUSSION
Sudden Emergency Doctrine

¶6 First, Cameron argues the trial court erred by giving a jury instruction on the sudden emergency doctrine. "When a jury instruction is challenged, we must view the evidence in a light most favorable to the party who requested theinstruction." Jones v. Munn, 140 Ariz. 216, 218, 681 P.2d 368, 370 (1984). "A trial court must give a requested instruction if: 1) the evidence supports the instruction, 2) the instruction is appropriate under the law, and 3) the instruction pertains to an important issue and was not adequately covered by another instruction." State ex rel. Miller v. Wells Fargo Bank of Ariz., N.A., 194 Ariz. 126, 132, ¶ 39, 978 P.2d 103, 109 (App. 1998). If the court instructs the jury on a theory not supported by the evidence, we will reverse. Pima County v. Gonzalez, 193 Ariz. 18, 20, ¶ 7, 969 P.2d 183, 185 (App. 1998).

¶7 Pursuant to Defendants' request and over Cameron's objection, the court instructed the jury as follows:

In determining whether a person acted with reasonable care under the circumstances, you may consider whether such conduct was affected by an emergency.
An "emergency" is defined as a sudden and unexpected encounter with a danger, which is either real or reasonably seems to be real. If a person, without negligence on his or her part, encountered such an emergency and acted reasonably to avoid harm to self or others, you may find that the person was not negligent. This is so even though, in hindsight, you feel that under normal conditions some other or better course of conduct could and should have been followed.
The existence of a sudden emergency and a person's reaction to it are only some of the factors you should consider in determining what is reasonable conduct under the circumstances.

Cameron contends the evidence did not warrant the instruction.

¶8 The evidence must allow the potential finding by the jury of three prerequisites for giving the sudden emergency instruction: 1) "a sudden or unexpected confrontation with imminent peril"; 2) the emergency was not caused by the person seeking the instruction; and 3) the person seeking the instruction had at least two alternative courses of conduct available. Tansy v. Morgan, 124 Ariz. 362, 364, 604 P.2d 626, 628 (1979). Cameron asserts the first two requirements were not satisfied. We disagree.

¶9 The jury heard testimony from several witnesses that the dust storm was sudden and not something you could see coming. Cameron testified the dust storm came up fast and unexpectedly. The witnesses and experts agreed it was a massive dust storm resulting in zero visibility. Horta testified he was approximately 100 to 150 feet behind the Atlas truck that "disappeared in front" of him and he immediately started braking. When he entered the dust storm, Horta testified that "all of a sudden" there was no visibility.4

¶10 Westbrook testified she geared down when she sawlightning and knew she was going into a bad storm. 5 Despite her knowledge of an impending storm, there is no indication Westbrook anticipated a blinding dust storm, as opposed to another type of storm. Cf. Myhaver v. Knutson, 189 Ariz. 286, 291, 942 P.2d 445, 450 (1997) (The sudden emergency doctrine should be limited to cases in which "the emergency . . . arises from events the driver could not be expected to anticipate."). Indeed, Westbrook stated there was no visibility "the instant [the dust storm] hit" and she was "totally blind . . . the moment it hit". Thus, a jury could conclude that although she prepared for a hazardous condition by slowing down, she did not anticipate the hazard she ultimately faced. We conclude that there is sufficient evidence to allow a reasonable jury to find that Westbrook and Horta were confronted with a sudden or unexpected imminent peril. See Jones, 140 Ariz. at 218, 681 P.2d at 370 (appellate court must view the evidence in the light most favorable to the party who requested the instruction); Anderson v. Nissei ASB Mach. Co., Ltd. , 197 Ariz. 168, 178, 3 P.3d 1088, 1098 (App. 1999) (same); Giles v. Smith, 435 S.E.2d 832, 834 (N.C. Ct. App. 1993) (noting that severe weather hasbeen found to create sudden emergencies).

¶11 Cameron further argues Defendants caused an emergency making the sudden emergency instruction inapplicable. See Petefish ex rel. Clancy v. Dawe, 137 Ariz. 570, 572, 672 P.2d 914, 916 (1983) ("[A]n actor is not entitled to the benefit of the emergency doctrine when his own negligence has been a cause of the emergency."). A claim for negligence requires a plaintiff to prove a duty to conform to a standard of care, breach of the standard of care, causation, and damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). "[E]very driver on the public highways owes to all other users of the highways a duty to drive carefully so as not to subject them to unreasonable risks of harm." Rudolph v. Ariz. B.A.S.S. Fed'n, 182 Ariz. 622, 625, 898 P.2d 1000, 1003 (App. 1995). When antecedent negligence is a question of fact, it is within the jury's province to resolve the issue. Petefish, 137 Ariz. at 572, 672 P.2d at 916.

¶12 Defendants did not create the dust storm. Whether Defendants created ancillary emergencies by, for example, not slowing down more quickly or not pulling off the road, are questions of fact. Cameron asserts Horta was driving too fast for the weather conditions, rendering him unable to stop when there was little visibility. Horta testified he was driving approximately 65 miles per hour in the right lane andimmediately started braking when the truck ahead of him disappeared into a dust cloud. When he noticed lights from a truck that was not moving, he veered toward the shoulder to get out of the...

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