Girouard v. Skyline Steel, Inc., 1 CA-CV 06-0093.

• Citation: 215 Ariz. 126,158 P.3d 255
• Decision Date: 24 May 2007
• Docket Number: No. 1 CA-CV 06-0093.,1 CA-CV 06-0093.
• Parties: Theodor J. GIROUARD III, surviving parent of Nicholas D. Girouard, deceased, Plaintiff/Appellant, v. SKYLINE STEEL, INC., Defendant/Appellee.
• Court: Court of Appeals of Arizona

158 P.3d 255

215 Ariz. 126

Theodor J. GIROUARD III, surviving parent of Nicholas D. Girouard, deceased, Plaintiff/Appellant, v. SKYLINE STEEL, INC., Defendant/Appellee.

No. 1 CA-CV 06-0093.

Court of Appeals of Arizona, Division 1, Department A.

May 24, 2007.

Warnock MacKinlay & Associates PLLC by Brian R. Warnock, Krista M. Carman, Phoenix, Attorneys for Plaintiff/Appellant.

Douglas & Cox LLP by Dean R. Cox, Phoenix, Attorneys for Defendant/Appellee.

OPINION

KESSLER, Judge.

¶ 1 In this case we are called upon to determine whether evidence of the manner of a decedent's death is admissible on the issue of damages in a wrongful death claim. We hold that such evidence is admissible, but only insofar as it is relevant to the survivor's own mental anguish resulting from the death and not the suffering of the decedent prior to death.

¶ 2 Plaintiff-Appellant Theodor J. Girouard III ("Girouard") appeals the superior court's entry of judgment in his wrongful death action, filed after the death of his son, Nicholas D. Girouard ("the decedent"). Girouard argues the superior court erred by excluding all evidence of the manner of the decedent's death. He further argues the court erred by awarding Defendant-Appellee Skyline Steel, Inc. ("Skyline") costs under Rule 68 of the Arizona Rules of Civil Procedure. For the following reasons, we vacate the judgment and remand for a new trial.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 The decedent perished after an automobile collision caused by the negligent acts of a Skyline employee. The record reflects that, after the collision, the decedent's vehicle burst into flames with the decedent pinned in the vehicle. While there is conflict in the evidence as to whether the decedent was conscious at this time there does not appear to be any dispute that he died of thermal and inhalation injuries related to the fire.

¶ 4 Girouard subsequently filed suit in superior court, claiming he was entitled to damages pursuant to Arizona's Wrongful Death Act, sections 12-611 et seq. of the Arizona Revised Statutes.¹ Skyline answered, admitting that its employee was negligent and that this negligence caused the automobile collision in which the decedent died. As a result, the only issue at trial was the amount of damages.

¶ 5 In the joint pretrial statement, Girouard listed as witnesses two people who had been present at the scene of the accident when the decedent died. He also stated his intent to introduce the accident report, the autopsy report, news videotapes of the fire, and several photographs. Skyline objected to these witnesses and exhibits on the grounds of relevance.

¶ 6 Skyline filed a motion in limine to preclude evidence pertaining to the manner of the decedent's death. Skyline argued that such evidence related to the events leading up to the death of the decedent, and did not pertain to the actual death of the decedent. Thus, it was not relevant, and was unduly prejudicial. Girouard responded that evidence pertaining to the manner of the decedent's death was relevant to the extent of his mental anguish resulting from the death. Girouard attached an excerpt of his deposition, in which he described how he learned there had been a fire from his daughter-in-law, then learned from the police that the fire had been "horrific" enough that there was nothing of the decedent's remains to identify, and later learned from the police report that the decedent had burned alive. He stated in the deposition that these facts were a great source of pain for him. The superior court granted the motion in limine.

¶ 7 Girouard filed a motion to reconsider and made an offer of proof. In his offer of proof, Girouard stated:

If [Girouard] were permitted, he would testify he saw the video on television, the news broadcast showed the burning vehicle, the tarp beside the vehicle that he assumed was his son's body.

He called down to the medical Examiner's Office so he could go down and identify the body to spare his daughter-in-law the anguish. He'll testify that he was told haven't you spoken to the investigating officer, there's really no reason to do that.

He will testify he spoke to the investigating officer who told him didn't you know there was a fire, there's nothing to identify.

He'll testify that he spoke to the funeral director going down to see his son and the funeral director told him the same thing, there is nothing there. He'll testify that he obtained the wedding ring off his son's hand that was scorched and had to have it cleaned before he would give it to his daughter-in-law.

He will testify that he read the police report, he read the witness statement of the witness Buchanan and who we would have liked to brought before the jury whose witness statements say Nick's feet were trapped, he couldn't be extricated and he was alive and the fire consumed him.

And [Girouard] was aware of all that immediately after the death and he will carry that to his grave and we submit it goes significantly to the anguish. It doesn't go to the matter of the negligent acts of Skyline and their employee but it goes to his damage and his loss.

He would like to testify that it had to be a closed coffin. He was not allowed to say goodbye to his son and that's another item of damage that he has to carry with him.

The superior court denied the motion to reconsider without explanation. The court allowed testimony that there was a closed casket at the decedent's funeral, but precluded any testimony or evidence indicating that there had to be a closed casket.

¶ 8 A jury awarded Girouard $ 250,000.00 in damages. Skyline requested an award of costs pursuant to Arizona Rule of Civil Procedure 68(d) on the grounds that Skyline had served an offer of judgment on Girouard for $ 300,000.00. Girouard objected on the grounds that the offer of judgment was not apportioned between the remaining defendants. The court entered judgment, awarding costs to Skyline and finding that apportionment was not necessary in this case. Girouard timely appealed. This Court has jurisdiction pursuant to section 12-2101(B) of the Arizona Revised Statutes (2003).

DISCUSSION

¶ 9 Girouard challenges the superior court's preclusion of any evidence suggesting the manner of the decedent's death and the allowance of costs as a Rule 68 sanction. We hold that the superior court erred by precluding evidence suggesting the decedent's manner of death insofar as it was relevant to the extent of Girouard's mental anguish resulting from the death, but not from the actual or perceived pain and suffering of the decedent. Accordingly, we reverse and remand for a new trial consistent with this opinion. Further, since the issue may recur on remand, we address the award of Rule 68 sanctions and hold the court did not err by awarding such sanctions.

I. Manner of Death Evidence

¶ 10 We will not disturb the superior court's ruling on the admissibility of evidence unless it abused its discretion or misapplied the law. Conant v. Whitney, 190 Ariz. 290, 292, 947 P.2d 864, 866 (App.1997). The process of weighing the prejudicial impact of evidence against its probative value is a function peculiarly within the function of the trial court, which we review for an abuse of discretion. Crackel v. Allstate Ins. Co., 208 Ariz. 252, 266, ¶ 53, 92 P.3d 882, 896 (App.2004). We review de novo any construction of a statute. Yauch v. Southern Pac. Trans. Co., 198 Ariz. 394, 399, ¶ 10, 10 P.3d 1181, 1186 (App.2000).

¶ 11 While relevant evidence is generally admissible, Ariz. Rule of Evidence 402, a court may exclude relevant evidence 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." Ariz. R. Ev. 403. A Rule 403 analysis begins with assessment of the probative value of the evidence with respect to the issue for which it is offered. Shotwell v. Donahoe, 207 Ariz. 287, 295, ¶ 34, 85 P.3d 1045, 1053 (2004). This is balanced against the potential prejudice to the opposing party, i.e., the extent to which it suggests improper bases for a decision, such as emotion, sympathy, or horror. Id. If the issue is undisputed or other evidence that is less inflammatory but equally probative is available, then it is more likely that the potential prejudice caused by introducing such evidence outweighs the probative value of the evidence. Id.

¶ 12 The sole issue at trial was the extent of Girouard's damages compensable under the Wrongful Death Act. Thus, the admissibility of the evidence of the decedent's manner of death in this case depends upon its relevance and probative value with regard to the damages Girouard may claim under the Wrongful Death Act. If the damages were not permitted under the Wrongful Death Act, the manner of death evidence would be neither relevant nor probative of such damages. We are therefore compelled to examine the extent of compensable damages under the Wrongful Death Act to determine the admissibility of the evidence offered.

¶ 13 The Wrongful Death Act provides for damages as follows:

In an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover . . .

A.R.S. § 12-613 (2003) (emphasis supplied).² Our supreme court has interpreted "injury resulting from the death" to include "anguish, sorrow, stress, mental suffering, pain and shock" resulting from the death. City of Tucson v. Wondergem, 105 Ariz. 429, 433, 466 P.2d 383, 387 (1970). Girouard argues that the circumstances surrounding the decedent's death increased his mental anguish, making some of his offered evidence admissible. We agree to the extent that such evidence relates to mental anguish Girouard suffered resulting from the manner of death rather than the pain, real or perceived,...