Catchings v. City of Glendale

• Decision Date: 05 May 1987
• Docket Number: No. 2,CA-CV,2
• Citation: Catchings v. City of Glendale, 154 Ariz. 420, 743 P.2d 400 (Ariz. App. 1987)
• Parties: Viola Darlene CATCHINGS, individually and as personal representative of the Estate of Thomas Catchings, deceased; Dawn Marie Catchings, By and Through her next of friend, Viola Darlene Catchings; Karen Andrews DePace, individually and as personal representative of the Estates of Billie Eugene Andrews and Jolene Andrews, deceased; John Leslie Andrews; and David Wayne Andrews, By and Through his guardian Karen Andrews DePace, Plaintiffs/Appellants, v. The CITY OF GLENDALE, a municipal corporation; Defendant/Appellee. 87-0012.
• Court: Arizona Court of Appeals

Page 400

743 P.2d 400

154 Ariz. 420

Viola Darlene CATCHINGS, individually and as personal representative of the Estate of Thomas Catchings, deceased; Dawn Marie Catchings, By and Through her next of friend, Viola Darlene Catchings; Karen Andrews DePace, individually and as personal representative of the Estates of Billie Eugene Andrews and Jolene Andrews, deceased; John Leslie Andrews; and David Wayne Andrews, By and Through his guardian Karen Andrews DePace, Plaintiffs/Appellants, v. The CITY OF GLENDALE, a municipal corporation; Defendant/Appellee.

No. 2 CA-CV 87-0012.

Court of Appeals of Arizona Division 2, Department A.

May 5, 1987.

Reconsideration Denied June 15, 1987.

Review Denied Sept. 22, 1987.

[154 Ariz. 421] Charles M. Brewer, Ltd. by Charles M. Brewer and Stuart J. Reilly, Phoenix, for plaintiffs/appellants.

Black, Robertshaw, Copple & Pozgay, P.C. by Steven D. Copple, and Law Offices of Richard M. Davis by Richard M. Davis, Phoenix, for defendant/appellee.

OPINION

FERNANDEZ, Judge.

Appellants, the survivors of Thomas Catchings and Billie and Jolene Andrews, appeal from the judgment entered in favor of appellee City of Glendale after a lengthy trial and an unfavorable jury verdict. We affirm.

On June 13, 1977, the Andrews flew in a Cessna 172 piloted by Susan McCoy, a co-worker of Billie Andrews, from the Glendale Municipal Airport to Prescott. The airport is owned by appellee. On their return flight in mid-afternoon, the airplane was heard to touch down at about the midpoint of the runway, and the pilot was then seen attempting to go around. There was testimony that the plane never rose higher than four or five feet off the ground on the take off. The plane flew past the end of the runway and crashed into a cement mixer truck that was then traveling east on Olive Avenue. The driver of the cement mixer was thrown out and killed. The cement mixer, with the airplane impaled on it, then traveled approximately 700 feet further east on Olive before it turned over. All three people in the plane were killed.

The airport originally consisted of an unpaved airstrip owned and operated by private companies engaged primarily in non-aviation activities. In 1971 the City of Glendale obtained title to the site at a bankruptcy sale, paved the runways and opened the airport for public use. The airport is actually located within the Peoria city limits.

Appellants filed suit in December 1977 against the city, McCoy's estate and the company that rented the airplane to her. The rental company was dismissed from the case in 1982, and the estate was dismissed in 1983. Trial against the City of Glendale commenced May 29, 1984, and the jury verdict in favor of the city was rendered July 23, 1984. Appellants contended at trial that the crash occurred because the runway was not long enough and because there were obstructions close to the airport in the form of two roads, a railroad and a large tree.

The airport is a basic utility-stage I airport, the lowest class of airport. That type of airport can accommodate approximately 75% of propeller-driven airplanes under 12,500 pounds. The master airport plan prepared for appellee in 1980-1981, which stated that the runway length at the airport was deficient by over 1,000 feet, contemplated a new airport which would accommodate small business jets as well as most propeller-driven airplanes. It is undisputed that the runway at the time of the accident (2,371 feet in length) was short, and the jury heard testimony on that fact. It also heard testimony that a Cessna 172, the type of plane that crashed, is a four-seat propeller airplane which requires 1,026 feet for a take off from a standing start under conditions that existed on the day of the crash. The airplane that crashed was taking off after an aborted landing. There was testimony as well that a Cessna 172 could touch down and come to a stop in less than 600 feet.

On appeal, appellants complain that 1) the jury was improperly empaneled because a juror gave incorrect answers to questions and failed to provide requested information, 2) the trial court improperly instructed the jury and erroneously refused appellants' requested jury instructions, and 3) the trial court improperly precluded admission of evidence.

JURY EMPANELMENT

Appellants contend that they are entitled to a new trial because the jury was not properly empaneled. Their contention is based upon allegedly false answers given on voir dire by a juror. Appellants assert that the false answers deprived them of the right to challenge the juror for cause or, at the least, to remove him through a peremptory challenge.

During jury voir dire, prospective juror Egbert responded to questions that he was not married and had no children. Appellants later discovered that Egbert was married at the time of trial, that he had been previously married and divorced twice, and that he had four children. In addition, Egbert did not respond to a question about whether panel members had been involved in a lawsuit. Later investigation revealed that, in addition to his two divorce actions, Egbert had sued someone for assault and battery and had been sued to clear title in a mortgage foreclosure action. Appellants insist that they would have exercised a peremptory strike to excuse Egbert if they had known the true facts.

In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the United States Supreme Court held that in order for a party to obtain a new trial because of a juror's failure to respond honestly to a material question on voir dire, the party must show that a correct response would have resulted in a valid challenge for cause. Even if Egbert had answered honestly about his marriages, his children, and his previous involvement in litigation, his responses would not have constituted grounds for a challenge for cause.

Appellants insist that the McDonough holding is not applicable here because the Supreme Court found that the juror's answers in that case were honest but mistaken, whereas Egbert's answers were clearly false. That is apparently the case with regard to his answers about marriages and children, since appellants produced copies of official records of his marriages and of one of his divorces as well as his children's birth certificates in their motion for new trial. With regard to his previous involvement in litigation, however, the record indicates the question was asked ambiguously. Appellants' attorney questioned the panel as follows: "Have any of you folks been involved in any type of accident like an automobile accident or construction accident, or were you involved in a lawsuit and caused to be sued or one of your relatives caused to be sued?" All the panel members who responded to that question mentioned lawsuits connected with accidental injuries. Egbert was not involved in litigation arising from an accident. Given the nature of the question, we are unable to say that Egbert was dishonest in failing to respond affirmatively to it.

In any event, however, the rule in Arizona with regard to jury misconduct is that a party must show he was prejudiced by the misconduct in order to obtain a new trial. Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30 (1939). "The test is whether prejudice seems affirmatively probable and prejudice will not be presumed, but must appear probable from the record." Hallmark v. Allied Products Corp., 132 Ariz. 434, 441, 646 P.2d 319, 326 (App.1982). Since the ten jurors ¹ rendered a unanimous verdict, appellants have not shown that probable prejudice resulted from Egbert's conduct. A verdict of eight jurors would have been sufficient. There is no showing that Egbert's misconduct influenced the other jurors. Since we cannot assume prejudice and since appellants have failed to show us any, we find no basis for their contention that they are entitled to a new trial. Simpson v. Heiderich, 4 Ariz.App. 232, 419 P.2d 362 (1966).

JURY INSTRUCTIONS

Appellants contend the trial court erred because it refused to instruct the jury on any of the theories of their case. They insist it was error to instruct the jury with only a single general negligence instruction, citing Stallcup v. Coscarart, 79 Ariz. 42, 282 P.2d 791 (1955). The general rule is that a party is entitled to have a requested instruction given if it is supported by the evidence presented. DeMontiney v. Desert Manor Convalescent Center Inc., 144 Ariz. 6, 695 P.2d 255 (1985); Porterie v. Peters, 111 Ariz. 452, 532 P.2d 514 (1975). Appellants contend the court erroneously refused to instruct the jury on negligence per se, on negligence related to the facts of their case, on appellee's failure to provide a safe airport, and on foreseeability and proximate cause.

Negligence Per Se

A major issue at trial was the applicability of Part 77 of the Federal Aviation Regulations (F.A.R.s) entitled "Objects Affecting Navigable Airspace," which was adopted by the Federal Aviation Administration pursuant to the authority of 49 U.S.C. § 1348. Section 77.21 of the F.A.R.s, 14 C.F.R. § 77.21 (1975), states that Part 77 "establishes standards for determining obstructions to air navigation. It applies to existing and proposed manmade objects, objects of natural growth, and terrain. The standards apply to the use of navigable airspace by aircraft and to existing air navigation facilities, such as an air navigation aid, [or] airport...." The standards established for an airport such as the Glendale Municipal Airport provide that an existing object is an obstruction to air navigation if it exists within an imaginary "primary surface" that extends 200 feet beyond the end of the runway and an imaginary "conical surface" that extends outward and upward from the end of the runway at a slope of 20 to 1. 14 C.F.R. §§ 77.23, 77.25(b)(c).

It is undisputed that at the time of the accident, obstructions existed within those imaginary surfaces at the Glendale...