Fisk v. Hurricane Amt LLC
| Decision Date | 05 July 2018 |
| Docket Number | No. 1 CA-CV 17-0256,1 CA-CV 17-0256 |
| Parties | DALLAS FISK, Plaintiff/Appellant, v. HURRICANE AMT LLC, et al., Defendants/Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Randall H. Warner, Judge
AFFIRMED
Law Offices of Luis P. Guerra, LLC, Phoenix
By Luis P. Guerra
Ahwatukee Legal Office, PC, Phoenix
By David L. Abney
The Moulton Law Firm, PC, Scottsdale
By Kathleen M. Kassmann, Timothy L. Moulton
Counsel for Defendants/Appellees
MEMORANDUM DECISIONPresiding Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.
¶1 In this wrongful-death action, Dallas Fisk appeals the superior court's grant of judgment to Hurricane AMT LLC ("Franchisor") and the jury's verdict in favor of Category 5 LLC dba Hurricane Grill and Wings ("Hurricane Grill"). For the reasons that follow, we affirm.
¶2 Fisk was driving his wife Lindsey home just before midnight after an evening of shopping and other errands. As he turned left from westbound Bell Road onto southbound 83rd Avenue, a sport-utility vehicle coming the opposite direction on Bell plowed into the passenger side of his car, killing Lindsey.
¶3 The driver of the sport-utility vehicle, Holly Kast, stumbled out of her car after the accident and staggered and fell when she tried to walk. Kast smelled strongly of alcohol, had droopy, bloodshot eyes, slurred her speech, and was disoriented and incoherent. She failed a field-sobriety test, and a blood test later showed she had .284 blood-alcohol content. Police arrested Kast and the State charged her with manslaughter and other offenses.
¶4 Kast told police that she drank three beers and two shots of liquor at Hurricane Grill before the accident, and police found a receipt in her purse confirming those purchases. According to Kast, she was not drunk when she arrived at Hurricane Grill earlier that evening, but she admitted she was drunk by the time she and her companion left there shortly before the accident.
¶5 The bartender at Hurricane Grill who served Kast testified Kast did not seem intoxicated at any time that evening. The bartender did not know how many drinks she served Kast that night. Hurricane Grill's manager testified that when she visited Kast's table, Kast was alert and not visibly intoxicated.
¶6 Fisk sued Hurricane Grill and Franchisor (collectively, "Hurricane"), for causing Lindsey's death and his own personal injuries, alleging, inter alia, that Hurricane overserved Kast and negligently trained and supervised its alcohol-serving staff. Other members of Lindsey's family joined as plaintiffs in the wrongful-death claim. Before trial, however, each of the plaintiffs except Fisk accepted Hurricane's offers of judgment.
¶7 Hurricane designated Kast as a nonparty-at-fault. At trial, after Fisk rested, the superior court granted judgment as a matter of law to Franchisor, and the jury ultimately issued a verdict in favor of Hurricane Grill. Because Fisk had declined Hurricane's $50,000 offer of judgment and was awarded nothing at trial, the court granted sanctions of more than $191,000 to Hurricane pursuant to Arizona Rule of Civil Procedure 68.
¶8 The superior court denied Fisk's motion for a new trial, and Fisk timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018) and -2101(A)(5)(a) (2018).1
¶9 On appeal, Fisk argues he is entitled to a new trial because of several purported errors by the superior court.
¶10 Fisk first argues that the superior court erred by denying his motion to strike two prospective jurors for cause, requiring him to use peremptory challenges to remove the jurors. But in State v. Hickman, 205 Ariz. 192 (2003), our supreme court held that even if a court erroneously fails to remove a juror for cause, reversal is not warranted unless the party claiming error shows prejudice beyond the mere fact that the party had to use a peremptory challenge to remove that juror. Because Fisk used peremptory challenges to remove the allegedly objectionable jurors and he alleges no other prejudice, Hickman controls. Because Fisk shows no prejudice from the claimed error, we need not determine whether the court erred by declining to remove the jurors.
¶11 Fisk next argues the superior court erred by excluding evidence of the judgment entered against Hurricane after it settled with the other family members. Fisk cites claim preclusion and offensive collateral estoppel in arguing that the judgment bars Hurricane from disputing it is liable on his claim.
¶12 Neither doctrine applies here. Claim preclusion requires, inter alia, identity of claims by parties or their privies based on the same cause of action. See In re General Adjudication of All Rights to Use Water in Gila River Sys. & Source, 212 Ariz. 64, 69, ¶ 14 (2006). Claims are identical when they are based on the same evidence. See Pettit v. Pettit, 218 Ariz. 529, 532, 533, ¶¶ 8, 10 (App. 2008) (claim preclusion applies if the evidence needed to sustain the second action would have sustained the first). Fisk's claims for personal injuries and for the wrongful death of his wife are not the same as her other relatives' claims for wrongful death. See A.R.S. § 12-613 (2018) (). Fisk's claims for relief were personal to himself, and required the jury to determine both his injuries and the damages, including any loss of consortium, that he sustained upon the death of his wife. Although Fisk's claims and those of the relatives share some common elements (whether Hurricane was liable and issues concerning comparative fault), evidence of the relatives' damages would not have sufficed to prove Fisk's damages. Therefore, claim preclusion does not apply.
¶13 Collateral estoppel (issue preclusion) requires, inter alia, that "the parties actually litigated the issue in the prior proceeding." Calpine Const. Fin. Co. v. Ariz. Dep't of Revenue, 221 Ariz. 244, 249, ¶ 25 (App. 2009). But the parties to the settlement did not actually litigate the issue of Hurricane's liability; the other family members settled instead by accepting Hurricane's offers of judgment. See 4501 Northpoint LP v. Maricopa County, 212 Ariz. 98, 102-03, ¶¶ 24-26 (2006).
¶14 Fisk argues that the superior court erroneously admitted or excluded evidence in several instances. We review the admission or exclusion of evidence for an abuse of discretion, State v. Gill, 242 Ariz. 1, 3, ¶ 7 (2017) (admission); State v. Romero, 239 Ariz. 6, 9, ¶ 11 (2016) (exclusion), but interpret the Arizona Rules of Evidence de novo, Gill, 242 Ariz. at 3, ¶ 7.
The superior court abuses its discretion by committing an error of law. Romero, 239 Ariz. at 9, ¶ 11. We will not grant a new trial, however, absent both an abuse of discretion and resulting prejudice. Hudgins v. Sw. Airlines Co., 221 Ariz. 472, 480, ¶ 10 (App. 2009).
¶15 Fisk argues that the superior court erred in admitting the testimony of Hurricane's expert witness, Robert Bleyl, who examined Fisk's car and concluded that although the running lights and taillights were on at the time of the crash, the headlights were not. Bleyl reached his conclusion about the headlights based on his observations that the headlights, which were retractable, were in the down position and the filaments in the right front headlight did not show the distortion that he said would typically occur upon a severe impact near the light while the light was on.
¶16 The superior court has broad discretion in admitting expert testimony, see Lohmeier v. Hammer, 214 Ariz. 57, 64, ¶ 25 (App. 2006), and we will not disturb its decision to allow expert testimony absent an abuse of discretion, State v. Naranjo, 234 Ariz. 233, 247, ¶ 65 (2014). Arizona Rule of Evidence ("Rule") 702, which governs the admissibility of testimony by expert witnesses, provides:
¶17 "The rule 'recognizes that trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury's determination of facts at issue.'" State v. Bernstein, 237 Ariz. 226, 229, ¶ 11 (2015) (quoting Ariz. R. Evid. 702 cmt.). But "[t]he trialcourt's gatekeeping function is not intended to replace the adversary system." Bernstein, 237 Ariz. at 229, ¶ 11 (quoting Ariz. R. Evid. 702 cmt.). "Rather, '[c]ross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'" Bernstein, 237 Ariz. at 229, ¶ 11 (quoting Ariz. R. Evid. 702 cmt.).
¶18 Fisk argues the superior court erred by allowing Bleyl to testify because he was not qualified to provide an expert opinion about the headlight. As Fisk...
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