Hernandez v. State

• Decision Date: 23 November 2001
• Docket Number: No. 1 CA-CV-01-0008.,1 CA-CV-01-0008.
• Citation: Hernandez v. State, 201 Ariz. 336, 35 P.3d 97 (Ariz. App. 2001)
• Parties: Michael HERNANDEZ and Ida Hernandez, husband and wife, Plaintiffs-Appellants, v. STATE of Arizona, Arizona State Park Service, Defendants-Appellees.
• Court: Arizona Court of Appeals

35 P.3d 97

201 Ariz. 336

Michael HERNANDEZ and Ida Hernandez, husband and wife, Plaintiffs-Appellants, v.STATE of Arizona, Arizona State Park Service, Defendants-Appellees.

No. 1 CA-CV-01-0008.

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

November 23, 2001.

Goldberg & Osborne by Joel T. Ireland, Tucson, Attorneys for Plaintiffs-Appellants.

Janet Napolitano, Attorney General, by Daniel P. Schaack, Phoenix, Assistant Attorney General, Attorneys for Defendants-Appellees.

OPINION

WEISBERG, Judge.

¶ 1AppellantsMichael Hernandez("Hernandez") and Ida Hernandez raise several issues on appeal, including a challenge to the use of their notice of claim for impeachment purposes.For the following reasons, we affirm the trial court's rulings.

I.BACKGROUND

¶ 2We review the facts in the light most favorable to the prevailing party.Todaro v. Gardner,72 Ariz. 87, 91, 231 P.2d 435, 437(1951).Hernandez and his family arrived at Patagonia Lake State Park at dusk on a Friday.They had visited the park at least twice before.

¶ 3 Hernandez and his son, Michael Hernandez, Jr., ("Michael Jr.") attempted to buy bait at the Patagonia Lake Camp Store.They learned that they could only purchase bait at the marina store, which was about to close.

¶ 4 Hernandez had previously visited the marina store and therefore knew that the camp store was on a hill above it.Notwithstanding, he and Michael Jr. crossed a parking lot area adjacent to the camp store and stepped over a cable fence supported by posts three feet high.They encountered a "very steep" hill on which "you could lose your balance ... easily."At the bottom of the slope was a retaining wall with a fourteen-foot drop-off to the road below.Unaware of the drop-off, Hernandez stepped off the retaining wall.The fall knocked out several of his front teeth and fractured his left wrist.¶ 5Appellants filed a negligence claim against the State of Arizona.Following a five-day trial, the jury returned a verdict in the state's favor.This appeal followed.

II.DISCUSSION

A.The Trial Court Did Not Abuse Its Discretion By Excluding An ADOT Memorandum.

¶ 6We will not reverse a trial court's decision to admit or exclude evidence absent a clear abuse of discretion, with resulting prejudice.Gemstar Ltd. v. Ernst & Young,185 Ariz. 493, 506, 917 P.2d 222, 235(1996)(citingSelby v. Savard,134 Ariz. 222, 227, 655 P.2d 342, 347(1982)).Likewise, we will not reverse the denial of a motion for a new trial absent a clear showing that the trial court abused its discretion.Wendling v. Southwest Sav. & Loan Ass'n,143 Ariz. 599, 602, 694 P.2d 1213, 1216(App.1984).

¶ 7Appellants first argue that the trial court abused its discretion by excluding a memorandum exchanged by two Arizona Department of Transportation("ADOT") engineers suggesting that ADOT should "place adequate warning signs [at Painted Cliffs rest area] so that the public, [e]specially children, are notified of the danger posed by access to the retaining walls."The ADOT memo did not, however, address the retaining wall at Patagonia Lake State Park and expressed no statewide safety policy on retaining walls.Moreover, the dangers posed at the two sites are dissimilar: whereas the Painted Cliff wall consists of blocks forming steps that enable people to scale it, the Patagonia Lake wall is not scalable and is cordoned off.In light of these factors, we conclude that the ADOT memo was irrelevant and the trial court did not abuse its discretion in excluding it.¹

B.The Trial Court Did Not Abuse Its Discretion In Admitting The Notice Of Claim For The Purpose Of Impeaching Hernandez.

¶ 8 Hernandez next protests the admission of his notice of claim for the purpose of impeaching his trial testimony.According to the notice of claim:

At about, 8:30 p.m.Mr. Hernandez was walking on a trail leading to the lake marina.As Mr. Hernandez and Michael followed the trail, Mr. Hernandez stepped forward, believing he was on the trail, fell off a cliff, and fell approximately 25 feet....

At 8:30 p.m., it was very dark, and Mr. Hernandez could clearly see the lights of the marina, but because there were no markings on the trail, and no railing along the cliff, he was unable to see that the trail curved, and stepped off the edge of the cliff.

Hernandez deviated from this account at trial by testifying that there was no trail and that he stepped off the edge of a retaining wall, not a cliff.The state accordingly used the notice of claim to impeach Hernandez's new version of the events.

¶ 9 Evidence impeaching a witness's credibility is always relevant.SeeState v. McCall,139 Ariz. 147, 158, 677 P.2d 920, 931(1983).Prior inconsistent statements are admissible for this purpose.SeeState v. Saenz,88 Ariz. 154, 156-57, 353 P.2d 1026, 1028-29(1960)(holding that a police officer's notes were relevant as prior and possibly inconsistent statements made and recorded by the witness);Parkinson v. Farmers Ins. Co.,122 Ariz. 343, 345, 594 P.2d 1039, 1041(App.1979)(holding that insured's son's prior inconsistent statements impeached his more recent claim that he acted accidentally).²Because a party's credibility is always relevant, McCall,139 Ariz. at 158,677 P.2d at 931, we cannot say that the trial court abused its discretion in admitting the notice of claim for this purpose.

¶ 10Appellants also argue, and the dissent agrees, that Rule 408 of the Arizona Rules of Evidence should have barred the notice of claim's admission.But Rule 408 only operates to exclude statements made in "compromise" of a "disputed" claim,³ neither of which was the case here.

¶ 11 First, when a notice of claim is filed, there is not yet a "disputed" claim.The filing of the notice of claim merely initiates the claim process against a government entity, just as a complaint in court does against a non-government defendant.See generallyCharles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure§ 5304 at 196-97(1980).It simply sets out the nature of claimant's declaration or loss and the resulting payment to which he believes he is entitled.At that stage of the process, for all the complainant knows, the state may agree that it is liable for whatever is demanded and the matter may be resolved without further litigation.It is only when and if the government entity contests all or part of the claim made or of the amounts demanded that a "disputed" claim exists.

¶ 12 Next, because there is no "disputed" claim when the claimant first files the notice of claim, the notice of claim cannot operate as an offer to "compromise" a disputed claim, the second characteristic of excludable evidence under the rule.Rule 408 only excludes evidence of a promise or offer to compromise a claim "which was disputed as to either validity or amount."Thus, the types of documents that have been deemed excluded by the rule are those that have "compromised"a party's claim.See, e.g., State ex rel. Miller v. Superior Court(Stephens),189 Ariz. 228, 232-33, 941 P.2d 240, 244-45(App.1997)(stipulated agreement for immediate possession of condemned property, including an appraisal, was compromise evidence under Rule 408 because prepared "for the purposes of negotiating a stipulation between ADOT and the property owners to receive immediate possession without court intervention");Ramada Dev. Co. v. Rauch,644 F.2d 1097, 1106-07(5th Cir.1981)(report by architect barred because it was to function as "a basis of settlement negotiations");Berthot v. Courtyard Properties, Inc.,138 Ariz. 566, 567-68, 675 P.2d 1385, 1386-87(App.1983)(letter in which credits given "solely to get matters settled quickly" barred under Rule 408);Bates v. Estes Co.,125 Ariz. 327, 328, 609 P.2d 597, 598(App.1980)(letter stating "[i]t is my understanding that if these demands are met that my clients shall not enforce those rights to that purchase contract ...." was an offer of settlement barred under Rule 408).But seePeople ex rel. Dep't Public Works v. Forster,58 Cal.2d 257, 23 Cal.Rptr. 582, 373 P.2d 630, 635-36(1962)(unconditional assertion of market value of property in letter offering compromise figure admissible in evidence for limited purpose of assertion of market value as statement of independent fact).Here, not only had the state not yet disputed any aspect of the claim, but Hernandez did not offer any compromise less than all the amounts to which he felt he was entitled.

¶ 13 It is true that "[t]he notice of claim statute serves to give public entities notice of a claim and thereby provides an opportunity to resolve the claim before a lawsuit is ever filed."Andress v. City of Chandler,198 Ariz. 112, 114, ¶ 10, 7 P.3d 121, 123(App.2000);seeAriz.Rev.Stat.("A.R.S.")§ 12-821.01(A)(Supp.2000).However, the unilateral assertion of the plaintiff's demands within a notice of claim is not an offer to "compromise."Thus, while the notice of claim may play a role in promoting the settlement process, it is not itself part of the Rule 408"compromise" process.It merely serves to state the nature of the party's claim, including the amount of damages claimed, and to preserve the claim for later proceedings.It simply does not constitute an offer to compromise the claim as envisioned by Rule 408.

¶ 14 The dissent nevertheless equates the notice of claim to a "demand letter" in which the plaintiff offers to settle for a sum prior to litigation.But a pre-litigation demand letter is different from a notice of claim that must be filed in all cases against a government entity.A pre-litigation demand could include concessions, and thus be the type of document that is ofttimes excluded under the rule.But that application does not justify the expansion of Rule 408 to bar the introduction of a notice of claim, which may enhance settlement possibilities, but would not include any compromise of the claimant's position as part of an offer of settlement....