Hernandez v. State, 2

• Decision Date: 21 April 1982
• Docket Number: CA-CIV,No. 2,2
• Citation: Hernandez v. State, 647 P.2d 1159, 132 Ariz. 561 (Ariz. App. 1982)
• Parties: Gilbert R. HERNANDEZ and Josephine I. Hernandez, husband and wife, Plaintiffs/Appellees, v. The STATE of Arizona, Defendant/Appellant. 4249.
• Court: Arizona Court of Appeals

Page 1159

647 P.2d 1159

132 Ariz. 561

Gilbert R. HERNANDEZ and Josephine I. Hernandez, husband and wife, Plaintiffs/Appellees, v.The STATE of Arizona, Defendant/Appellant.

No. 2 CA-CIV 4249.

Court of Appeals of Arizona, Division 2.

April 21, 1982.

Rehearing Denied May 28, 1982.

Review Denied June 29, 1982.

Miller & Pitt, P.C. by Richard L. McAnally and John L. Tully, Tucson, for plaintiffs/appellees.

Lesher, Clausen & Borodkin, P.C. by Monte C. Clausen, Tucson, for defendant/appellant.

OPINION

BIRDSALL, Judge.

This is the second time this case has been before this court on appeal.In Hernandez v. State, 128 Ariz. 30, 623 P.2d 819(App.1980), we affirmed the trial court's order granting a new trial to Gilbert and Josephine Hernandez, husband and wife, on the issue of damages for personal injuries of Josephine.In that same opinion we vacated the trial court's order granting a new trial on the issue of damages for the wrongful death of their minor daughter, Anita.

This appeal is from a judgment of $1,525,000 against the appellant, the State of Arizona, entered on a jury verdict in favor of Mr. and Mrs. Hernandez for damages for the injuries to Mrs. Hernandez.

The appellant claims on appeal:

1) That the trial court erred in denying its motion for remittitur, or in the alternative, a new trial on the damages issue;

2) That it was error to prohibit the appellant from showing the facts of the accident;

3) That the court should have ordered a mistrial when a doctor-witness for the appellees testified that the daughter, Anita, had been killed in the accident, and

4) That the trial court erred in not allowing the appellant to reopen to introduce some exhibits.

We affirm.

In the first trial in February, 1980, the jury returned a verdict of $52,487 for damages to the appellees resulting from Mrs. Hernandez' injuries.The special damages alone approximated this amount, leaving little or nothing for her permanent injuries, pain and suffering.The trial court granted an additur of $75,000, which the state refused to accept, resulting in the new trial order.In the first trial the appellees had asked the jury for $850,000.In their motion for the additurthey requested $350,000.There have thus been several different evaluations of these damages.

The one-car accident occurred in September, 1976, on the interstate highway just east of Benson, Arizona.Negligent maintenance and construction of the highway at that location caused a slippery condition which in turn caused Mr. Hernandez to lose control of his pickup truck.

The truck rolled several times causing injuries to all the passengers and driver and resulting in the death of Anita.Mrs. Hernandez, who was riding in the back of the truck, was by far the most seriously injured of the survivors.Her left leg was so badly broken and mangled that amputation of that limb above the knee was required.She also suffered a fracture of her right hip and a fractured pelvis.She spent 71 days in the hospital following the accident and was hospitalized twice in 1977 for surgical revision of the stump of her left leg.The removal of skin from other parts of her body to accomplish the necessary skin grafts on her stump has left extensive permanent scars.Prior to the first trial an artificial leg was fitted to her stump.This was unsuccessful, but the evidence in her second trial showed that this prosthesis is planned again.It is questionable whether this will be successful.Future hospitalization will be necessary for treatment to the left leg.She also is going to need a hip replacement for the right leg and faces probable back surgery.All of the trauma has caused extensive arthritic development.In the meantime, she has been confined to a wheelchair with attendant problems.It is apparent from an examination of the transcripts from both trials that the extent of her injuries and the necessity and cost of future medical care were underestimated in the first trial.The total (past and future) medical expense of some $47,000 proven in the first trial, had grown to $150,000 in the second.The necessity of future surgery-possible in the first trial-had become definite in the second.In the first trial the second attempt to use a prosthetic left leg was not planned.

Mrs. Hernandez was 35 years old at the time of the accident.Her life expectancy at the time of the trials was 38 years and 39 years.Due to the extent of her injuries, including the pelvic fractures, a medical decision to perform a tubal ligation was made in February, 1977, and this was done during her second hospitalization, so she cannot have more children.The arthritis has significantly increased the pain she was already experiencing.She has even had phantom pain where the left leg would be.

DAMAGES VERDICT

The appellant sought a remittitur to $350,000 from the verdict in the second trial, or a new trial again on the issue of damages.It argues that great weight should be given to all the prior evaluations of the damages.This is a novel, interesting argument, but we do not find it persuasive.It is obvious to us that the first jury verdict was miserly and, in retrospect, the additur of $75,000 was inadequate.The verdict in the second trial and the court's denial of a remittitur should remain undisturbed unless it is clearly the result of passion or prejudice or clearly excessive.Waqui v. Tanner Brothers Contracting Co., Inc., 121 Ariz. 323, 589 P.2d 1355(App.1979).

We recently considered a contention that the trial court erred in refusing a remittitur or new trial in Garcia v. City of South Tucson, 131 Ariz. 315, 640 P.2d 1117(1981), where the verdict for personal injuries was $3,592,213.We held that where the trial court has refused to interfere with the jury's determination of damages we cannot interpose our judgment unless convinced that the verdict is so outrageously excessive as to suggest, at first blush, passion or prejudice.Not only are we unconvinced here, but our review of the evidence leads us to the conclusion that this may have been the first fair evaluation made of the damages.Many Arizona Supreme Court decisions have considered this claimed error.SeeCaldwell v. Tremper, 90 Ariz. 241, 367 P.2d 266(1962);Southern Pacific Transportation Co. v. Lueck, 111 Ariz. 560, 535 P.2d 599(1975);Creamer v. Troiano, 108 Ariz. 573, 503 P.2d 794(1972).The verdict was not excessive.

MOTION IN LIMINE

At the commencement of the second trial the court granted the appellees' motion to preclude the appellant from introducing any evidence of the facts of the accident.This ruling was eminently correct.The appellant argued that the jury should be informed that Mrs. Hernandez was riding in the bed of the truck, not the cab, and that evidence which it claimed showed contributory negligence on the part of her husband should be permitted.We disagree.This evidence was not relevant on the issue of damages.In our first opinion in this casewe said:

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