Conant v. Whitney, 1

• Decision Date: 22 May 1997
• Docket Number: CA-CV,No. 1,1
• Citation: 190 Ariz. 290,947 P.2d 864
• Parties: 243 Ariz. Adv. Rep. 50 Ann CONANT and John Conant, Plaintiffs-Appellants, v. John A. WHITNEY, III, Defendant-Appellee. 96-0018.
• Court: Arizona Court of Appeals

Page 864

947 P.2d 864

243 Ariz. Adv. Rep. 50

Ann CONANT and John Conant, Plaintiffs-Appellants, v. John A. WHITNEY, III, Defendant-Appellee.

No. 1 CA-CV 96-0018.

Court of Appeals of Arizona Division 1, Department A.

May 22, 1997.

Review Denied Dec. 16, 1997.

Treon, Strick, Lucia & Aguirre by Arthur G. Newman, Jr., William G. Vose, Richard T. Treon, Phoenix, for Plaintiffs-Appellants.

Turley & Swan, P.C. by Christopher J. Bork, Phoenix, for Defendant-Appellee.

OPINION

NOYES, Judge.

A black bull owned by Defendant Whitney was in the road near Saguaro Lake one night and caused a two-motorcycle crash in which Plaintiffs John and Ann Conant were injured. The Conants' lawsuit alleged that Whitney was negligent, in part, because the bull had escaped from a pasture in which Whitney was not allowed to have bulls. Whitney leased this pasture from the Forest Service and his grazing permit specified that it was to be a "no bulls" pasture. Prior to trial, Whitney stipulated that the grazing permit documents could be admitted into evidence. During jury selection, however, Whitney changed his mind and filed a motion in limine to preclude the "no bulls" evidence. The next day--moments before opening statement--the trial court granted the motion and precluded this evidence, stating that "how the bull ended up there, I don't think is relevant. I think it is unduly prejudicial that it was there in violation of a lease with the Forest Service."

After nine days of trial and more than a day of deliberations, the jury found for Whitney. The court later denied the Conants' motion for new trial. On appeal, the Conants challenge the court's exclusion of the "no bulls" evidence. We conclude that exclusion of this evidence was harmful error requiring reversal. The parties raise two other issues: The Conants seek reinstatement of a posttrial offer of judgment which the trial court struck; Whitney argues that the trial court erred in denying his motion for directed verdict. We affirm the trial court on these two issues.

I.

Whitney owns a cattle ranch near the junction of the Beeline Highway and the Bush Highway. The Forest Service permits him to graze cattle on 188,000 acres of public land in this area, subject to restrictions. This land includes a 20,000 acre parcel, known as the "Desert Unit," which is north of Saguaro Lake. This is where the bull had been; it was backtracked from the accident scene to a cut fence in the Desert Unit. Whitney's grazing permit and related documents specified that he could have calves and 50 cows in the Desert Unit. The documents all stated, in various ways, that the Desert Unit was to be a "no bulls" pasture.

Whitney denied placing the bull in the Desert Unit or knowing it was there. He claimed that the bull was in the "Dos S Unit" and that it must have wandered out of there and into the Desert Unit. These were fenced pastures. To get from the Dos S Unit to the Desert Unit, the bull would have had to wander 10 to 12 miles and traverse fence lines, cattle guards, and the Beeline Highway. There were underpasses the bull might have used to cross the highway, but they were thought to be gated and locked at all times relevant here.

The Desert Unit is federal land which is open to the public for recreational use. This land is heavily used by dirt bikers and other recreational users, some of whom are vandals. The Forest Service and Whitney knew from experience that recreational users of the Desert Unit routinely cut fences. They also knew that bulls are more likely than cows to wander through a cut fence. One of Whitney's employees testified that Whitney routinely kept bulls in the Desert Unit. Whitney denied this.

Just before the crash, the Conants were riding a motorcycle on the Bush Highway, at night, with John driving. They were riding with some other motorcycles in a staggered, single-file formation. The motorcycle in front of the Conants hit the bull and went down and the Conants hit the other motorcycle and went down. Lawsuits were filed against several defendants. All we discuss here is the Conants' lawsuit against Whitney.

After the jury returned a defense verdict, the Conants served Whitney with a $799,999.99 offer of judgment pursuant to Rule 68, Arizona Rules of Civil Procedure. The trial court granted Whitney's motion to strike the offer of judgment. The Conants moved for a new trial, which the trial court denied. The Conants appealed. We have jurisdiction pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 12-2101(B) and (F) (1994).

II.

The trial court has broad discretion in determining the admissibility of evidence at trial. West Pinal Family Health Center, Inc. v. McBryde, 162 Ariz. 546, 550, 785 P.2d 66, 70 (App.1989). We will not disturb the exclusion of evidence unless the trial court abused its discretion or incorrectly applied the law. Id. We view the excluded evidence in the light most favorable to its proponent. State v. Castro, 163 Ariz. 465, 473, 788 P.2d 1216, 1224 (App.1989) (stating that appellate court looks at excluded evidence in light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect) (citations omitted).

Whitney asserts that the "no bulls" evidence was properly excluded under Rule 403, Arizona Rules of Evidence, which provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

The trial court arguably never conducted a rule 403 analysis; it seemed to find that the "no bulls" evidence was irrelevant. If that was the case, the ruling was erroneous for that reason alone. During trial, however, the trial court was asked, several times, to reconsider its exclusion of the "no bulls" evidence. In affirming its ruling, the trial court made various statements, some of which suggest a finding that the excluded evidence was relevant. We will therefore proceed as though the trial court found that it was relevant. Whitney's brief advises that "Whitney does not dispute that the evidence had some relevance to the Conants' case."

Whitney argues that the "no bulls" evidence had minimal relevance because the Forest Service was concerned with mature bulls escaping from the Desert Unit and accosting people at Butcher Jones Beach; it was not concerned with young bulls such as this one escaping and being hit by vehicles. (Whitney's argument here is that young bulls presented no more risk in this regard than cattle in general. Both the Forest Service and Whitney were concerned about cattle being hit by vehicles and each had done much to protect the public from this danger.) The Conants argue that, as their expert testified, this young bull had "more hormones than brains" and was much more likely to wander than cows or calves. Whitney argues that debating such issues would have wasted time. We think it likely that more time was wasted by letting the Conants go into everything except the "no bulls" evidence.

Whitney argues that, because he did not intentionally "place" the bull in the Desert Unit and because his grazing permit said nothing about bulls which were "accidentally" in the Desert Unit, the "no bulls" evidence was of minimal relevance. This argument is flawed if only because it resolves a factual dispute about how the bull got into the Desert Unit. Only if Whitney's testimony is accepted and the contrary inferences rejected can it be said that the bull was accidentally in the Desert Unit. The trial court cannot resolve such factual issues; the jury must do so.

To support the argument that the "no bulls" evidence was unfairly prejudicial, Whitney's brief asserts that "a juror with a particular bent toward patriotism or law and order might find it reprehensible that someone would break an agreement with the federal government." This is a very weak argument for exclusion of relevant evidence on Rule 403 "unfair prejudice" grounds. We have a possible grazing permit violation here; one bull in a 20,000 acre pasture. There is no reasonable danger of "unfair prejudice" from such evidence in this case.

Whitney said that he had not placed this bull in the Desert Unit. Because of this testimony, the jury would probably not find Whitney in breach of his grazing permit unless it found that he was lying about how the bull got into the Desert Unit. If Whitney was lying, that is reprehensible, but it is no reason to suppress relevant evidence. We make no inference about what the truth is here; we merely conclude that Whitney showed no good reason to exclude the "no bulls" evidence.

The Conants contend that the "no bulls" evidence was relevant and material for several reasons: To show that their claim that Whitney should have kept the bull out of the Desert Unit imposed no burden on him he did not already have under the grazing permit; to show that Whitney knew that keeping bulls out of the Desert Unit was necessary for reasons of public safety; to avoid misleading the jury into believing that the Forest Service approved of bulls being in the Desert Unit; to rebut the inference that the Forest Service was at fault for not prohibiting bulls in the Desert Unit; and to define Whitney's contractual undertaking and responsibility in relation to that of the Forest Service. We agree that the "no bulls" evidence was both relevant and material in this case. We also find that exclusion of this evidence unfairly simplified Whitney's defense.

In his opening statement, Whitney's counsel told the jury: "The evidence will show we took special steps to protect the public, which included the Conants." A few moments later, he said:

Mr. Whitney was not at fault, the County is at fault, even the Forest Service is at fault. The Forest Service had the obligation to enforce the area.

....

And so I think that you'll...