Kassman v. Busfield Enterprises, Inc.

• Decision Date: 04 November 1981
• Docket Number: No. 2,CA-CIV,2
• Citation: Kassman v. Busfield Enterprises, Inc., 639 P.2d 353, 131 Ariz. 163 (Ariz. App. 1981)
• Parties: Mitchell KASSMAN, Plaintiff/Appellant, v. BUSFIELD ENTERPRISES, INC., an Arizona corporation; Paul Ash Investment Company, an Arizona corporation; George Porter Tomlins and Jane Doe Tomlins, husband and wife, Defendants/Appellees. 3944.
• Court: Arizona Court of Appeals

Page 353

639 P.2d 353

131 Ariz. 163

Mitchell KASSMAN, Plaintiff/Appellant, v.BUSFIELD ENTERPRISES, INC., an Arizona corporation; Paul Ash Investment Company, an Arizona corporation; George Porter Tomlins and Jane Doe Tomlins, husband and wife, Defendants/Appellees.

No. 2 CA-CIV 3944.

Court of Appeals of Arizona, Division 2.

Nov. 4, 1981.

Rehearing Denied Dec. 11, 1981.

Review Denied Jan. 6, 1982.

Feller & Cohen by Jeffrey R. Feller and Cruse & Firetag by Robert J. Cruse, Phoenix, for plaintiff/appellant.

Lesher, Kimble & Rucker, P.C. by Stephen H. Lesher, Tucson, for defendants/appellees Busfield and Tomlins.

Everett, Bury & Moeller, P.C. by David C. Bury, Tucson, for defendant/appellee Paul Ash.

OPINION

HATHAWAY, Chief Judge.

Mitchell Kassman brought this suit for personal injuries, alleging assault and battery, negligent supervision, and negligent hiring.Jury verdicts were returned against the defendants Whitaker, Busfield and Tomlins in the sum of $100,000 as compensatory damages.The jury found in favor of the defendantPaul Ash Investment Company(Ash).

The defendants Busfield and Tomlin were granted a new trial on the issue of liability and the plaintiff was denied its motion for judgment n. o. v. or in the alternative a new trial against the defendantPaul Ash Investment Company.This appeal follows from the trial court's rulings on the post-trial motions.

The incident out of which the lawsuit arose occurred shortly after midnight on January 22, 1978, when the plaintiff, with two friends, entered a bar known as Jekyll & Hydes, operated by defendantBusfield Enterprises, Inc.The plaintiff and his friends became involved in an argument with another customer in the parking lot of the bar.George Tomlins, employed as a "bouncer" at Jekyll & Hydes, chased the plaintiff and his friends to the Tucson House, where Tomlins shouted, "Armed robbery.Get the police" at the defendant Whitaker, the Tucson House doorman and an employee of Ash.The plaintiff and his companions were not armed.Whitaker, armed with a pistol, pursued the plaintiff and his companions into the parking lot of the Tucson House.He fired two or three shots into the air.When the plaintiff continued running, Whitaker fired at him.He was struck and fell to the ground.This lawsuit ensued as a result of the injuries the plaintiff suffered.

At the conclusion of the evidence, while jury instructions were being discussed, counsel for the defendants Busfield and Tomlin indicated that he desired an instruction on intervening/superseding cause, although he had not formally prepared and offered such an instruction pursuant to rule 51(a),Rules of Civil Procedure.The court agreed to give such an instruction and indicated that it would give the instruction, using InstructionNo. 3.79 from the California Book of Approved Jury Instructions (BAJI).

The court inadvertently failed to give the instruction, and counsel did not notice the oversight and therefore did not bring it to the court's attention, even though the court invited additions or corrections to the instructions.In granting the defendants Busfield's and Tomlin's motion for new trial, the court stated:

"There was evidence to support Plaintiff's contention that Defendant Tomlin (sic) negligently shouted to Defendant Whitaker that Plaintiff was armed and dangerous and should be stopped, and that Defendant Whitaker should help stop Plaintiff.There was also evidence to suggest that thereafter, defendant Tomlin (sic) saw Defendant Whitaker grab a gun and that Defendant Tomlin (sic) accompanied Whitaker around the building to the point where the shooting occurred.However, there was also evidence in support of movants' contention that Tomlin (sic) had no idea that Whitaker had a gun and that Tomlin (sic) did not join Whitaker in the chase.

Thus, there was evidence in support of movants' theory that Whitaker's conduct superceded Tomlin's (sic).Plainly, the court erred in failing to give the 'superceding cause' instruction which it said it would give.Since movants did not bring this error to the Court's attention when given an opportunity to do so before the jury retired, and may not have even argued the point to the jury, the question is whether the Court's error is 'fundamental.'The Court believes that the error was and is fundamental, even though the jury was given an appropriate, basic, definition of proximate cause.That instruction did not inform the jury that, even though they might find Tomlin (sic) had negligently set in motion the process by which Plaintiff was injured, they might nevertheless relieve movants of liability if they found that Whitaker's possession and use of a gun was in no way known or foreseeable to Tomlin (sic) at the time in question."

Along with other reasons, plaintiff contends that the trial court erred in granting a new trial to Busfield and Tomlins for failure to give an intervening/superseding cause instruction, because the matter was waived in the absence of their calling it to the trial court's attention.Rule 51(a),Rules of Civil Procedure, provides in part:

"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict ...."

Where an instruction is inadvertently omitted by the trial court, and counsel does not direct the court's attention to the matter, the right thereafter to complain is lost, Coyner Crop Dusters v. W.O. Marsh, 90 Ariz. 157, 367 P.2d 208(1961), reversed on other grounds, 91 Ariz. 371, 372 P.2d 708, and the matter will not be considered on appeal in the absence of fundamental error.Tryon v. Naegle, 20 Ariz.App. 138, 510 P.2d 768(1973).The fundamental error doctrine is sparingly applied in civil cases, Ortega v. State, 6 Ariz.App. 356, 432 P.2d 904(1967), such as where constitutional infirmities are in question, Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444(1962), or where the very foundation of the case is undercut, Wagner v. Coronet Hotel, 10 Ariz.App. 296, 458 P.2d 390(1969).We do not find the failure of the trial court to instruct on intervening/superseding cause in the instant case, in the absence of timely objection or notification to the court from counsel, to constitute fundamental and reversible error.Cf., Patania v. Silverstone, 3 Ariz.App. 424, 415 P.2d 139(1966), where the court held that "the failure to instruct on the issue of licensee and trespasser, without a request, was not such a vital issue as to constitute fundamental and reversible error."3 Ariz.App. at 428, 415 P.2d 139.

At the conclusion of the presentation of evidence, the trial court directed a verdict in favor of the defendant Ash on the issue of negligent hiring.The plaintiff moved for a new trial against Ash on three grounds, the first being that the trial court erred in directing a verdict in favor of Ash on the issue of negligent hiring.

The general rule concerning negligent hiring and supervision of employees is found in Restatement (Second) of Agency, § 213:

"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:

(a) in giving improper or ambiguous orders of (sic) in failing to make proper regulations; or

(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others: (sic)

(c) in the supervision of the activity; or

(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or...