Lohmeier v. Hammer

• Decision Date: 12 December 2006
• Docket Number: No. 1 CA-CV 05-0764.,1 CA-CV 05-0764.
• Citation: 214 Ariz. 57,148 P.3d 101
• Parties: William LOHMEIER, and Barbara Lohmeier, husband and wife, Plaintiffs-Appellants, v. Juanita HAMMER and John Doe Hammer, wife and husband, Defendants-Appellees.
• Court: Arizona Court of Appeals

148 P.3d 101

214 Ariz. 57

William LOHMEIER, and Barbara Lohmeier, husband and wife, Plaintiffs-Appellants, v. Juanita HAMMER and John Doe Hammer, wife and husband, Defendants-Appellees.

No. 1 CA-CV 05-0764.

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

December 12, 2006.

COPYRIGHT MATERIAL OMITTED

Warnock MacKinlay & Associates P.L.L.C. by Krista M. Carman, Brian R. Warnock, Prescott, Attorneys for Appellants.

Murphy Lutey Schmitt & Fuchs P.L.L.C. by Michael R. Murphy, Danny A. Wilson, Prescott, Attorneys for Appellees.

OPINION

WEISBERG, Judge.

¶ 1 William and Barbara Lohmeier appeal from a jury verdict in favor of Juanita Hammer on their claims arising from a motor vehicle accident. For the reasons discussed below, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 On July 5, 2001, Hammer rear-ended William while he was stopped at an intersection in Prescott, Arizona. On June 13, 2003, the Lohmeiers filed a complaint against Hammer in Yavapai County Superior Court, alleging that she negligently caused the collision that resulted in injuries to William's lumbar spine, cervical spine, and shoulder. In addition, William's wife, Barbara, sought damages for loss of consortium. William, who was sixty-eight years old at the time of the accident, presented evidence of his preexisting medical conditions, which he alleged caused him to be more susceptible to injury. In support of these claims, William presented testimony from his treating physicians.

¶ 3 Hammer admitted that she struck William's vehicle, but disputed the issues of causation and damages. At trial, Hammer presented the expert testimony of Dr. Joseph Peles, a biomechanical engineer, who opined that the forces involved in the collision were not sufficient to have caused William's alleged physical injuries. Hammer also presented evidence indicating William's "lack of candor," such as his failure to disclose certain medical treatments that he had received before the accident, as well as photographs taken after the accident that showed only minor damage to the vehicles.

¶ 4 The jury returned a verdict in favor of Hammer and awarded no damages to the Lohmeiers. The Lohmeiers moved for a new trial, arguing that the jury's verdict "was not justified by the evidence presented in trial." See Ariz. R. Civ. P. 59(a). The trial court denied the motion, and the Lohmeiers filed a timely appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-2101(B),(F)(1) and -2102 (2003).

ISSUES

¶ 5 On appeal, the Lohmeiers raise the following issues: 1) whether the trial court erred in admitting photographs of the vehicles and related testimony; 2) whether the trial court erred by using an improper jury form and refusing the Lohmeiers' request for special interrogatories; 3) whether the trial court abused its discretion by awarding Hammer substantially all of the expert witness fees; 4) whether the verdict was supported by substantial evidence; and 5) whether the trial court erred by allowing a biomechanical engineer to testify to the causation of William's physical injuries.

STANDARD OF REVIEW

¶ 6 We review a trial court's evidentiary rulings "for an abuse of discretion and generally affirm a trial court's admission or exclusion of evidence absent a clear abuse or legal error and resulting prejudice." John C. Lincoln Hosp. and Health Corp. v. Maricopa County, 208 Ariz. 532, 543, ¶ 33, 96 P.3d 530, 541 (App.2004). In reviewing a jury verdict, we view the evidence in the light most favorable to sustaining the verdict. Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 13, 961 P.2d 449, 451 (1998). We will affirm the judgment if any substantial evidence exists permitting reasonable persons to reach such a result. Id.

DISCUSSION

Vehicle Photographs

¶ 7 The Lohmeiers first argue that photographs of the vehicles were improperly admitted because they were taken on an unknown date and did not accurately depict the damage to the vehicles immediately following the collision.¹ On appeal, we will not disturb a trial court's rulings on the admission or exclusion of evidence unless we find a clear abuse of discretion and resulting prejudice, or find that the trial court misapplied the law. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 505, 917 P.2d 222, 234 (1996); Rimondi v. Briggs, 124 Ariz. 561, 563, 606 P.2d 412, 414 (1980) (trial court has considerable discretion in ruling on the admission of photographs). In determining whether a trial court abused its discretion, "we must determine not whether we might have so acted under the circumstances, but whether the lower court exceeded the bounds of reason by performing the challenged act." Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App.1997). Thus, we will not "disturb the exercise of discretion of the trial court if it is supported by any reasonable evidence." Peters v. M & O Constr., Inc., 119 Ariz. 34, 36, 579 P.2d 72, 74 (App.1978).

¶ 8 To be admissible, a photograph must be a reasonably faithful representation of the object depicted and aid the jury in understanding the testimony or evaluating the issues. Baker v. Atchison, Topeka and Santa Fe Ry. Co., 11 Ariz.App. 387, 389, 464 P.2d 974, 976 (1970). However, the individual who took the photographs need not be the person who verifies them at trial, and the verifying witness is not required to have been present when the photographs were taken, provided that he or she can attest that the photographs accurately portray the scene or object depicted. Higgins v. Ariz. Sav. & Loan Ass'n, 90 Ariz. 55, 66, 365 P.2d 476, 484 (1961).

¶ 9 In this case, Hammer proffered two photographs of William's vehicle that were purportedly taken by an auto body shop on or about July 27, 2001. Hammer testified that the photographs accurately depicted the condition of the vehicle immediately after the accident. The Lohmeiers, however, disputed the accuracy of the photographs, relying on William's testimony that the photographs of his vehicle appeared to have been taken after it was repaired. The trial court admitted the photographs, finding that Hammer's testimony had adequately established the requisite foundation.

¶ 10 The Lohmeiers contend that the trial court should have excluded the photographs because they were inaccurate. While we recognize that a trial court may exclude photographs when there is some evidence that they are inaccurate, see, e.g., Henderson v. Breesman, 77 Ariz. 256, 262, 269 P.2d 1059, 1064 (1954), the failure to do so does not necessarily constitute an abuse of discretion. See Stroud v. Dorr-Oliver, Inc., 112 Ariz. 403, 410, 542 P.2d 1102, 1109 (1975).

¶ 11 The Lohmeiers suggest that the trial court should not have credited Hammer's testimony because the eye condition she developed prior to trial required her to use a magnifier to view the photographs before providing the foundational testimony. Yet Hammer testified unequivocally that the photographs were consistent with her observations at the scene of the accident. Moreover, the Lohmeiers were free to challenge the accuracy of her testimony on cross-examination, and the trial court specifically advised the jury of the Lohmeiers' challenge prior to deliberation. Accordingly, the trial court did not abuse its discretion in admitting the photographs into evidence.

Verdict Forms and Interrogatories

¶ 12 The Lohmeiers next argue that the trial court erred in refusing to give the jury their requested verdict form, which segregated each alleged physical injury (lumbar spine, cervical spine, and shoulder), and in refusing, in the alternative, to submit special interrogatories to the jury regarding each injury. In addition, the Lohmeiers contend that the trial court erroneously refused their request that the jury be given a separate verdict form for Barbara's claim for loss of consortium. The trial court ruled that the Lohmeiers' proposed verdict forms and special interrogatories would be confusing and unhelpful to the jury as well as prejudicial to Hammer.

¶ 13 We evaluate jury instructions and verdict forms as a whole to determine whether they correctly stated the law, allowed the jury to understand the issues, and provided the jury with the correct rules for reaching a decision. Lay v. City of Mesa, 168 Ariz. 552, 556, 815 P.2d 921, 925 (App. 1991). Failure to give a requested verdict form is not reversible error unless the omission was prejudicial to the moving party. State v. Garcia, 102 Ariz. 468, 471, 433 P.2d 18, 21 (1967). Similarly, submission of special interrogatories is discretionary with the trial court. Patania v. Silverstone, 3 Ariz. App. 424, 428, 415 P.2d 139 (1966) (citing Powell v. Langford, 58 Ariz. 281, 287, 119 P.2d 230, 232 (1941)).

¶ 14 A general verdict implies a finding by the jury on every essential fact in favor of the prevailing party. King & Johnson Rental Equip. Co. v. Superior Court, 123 Ariz. 256, 257, 599 P.2d 212, 213 (1979). Thus, the jury's verdict in this case reflects its determination that the Lohmeiers failed to show by a preponderance of the evidence that the collision caused any of William's alleged physical injuries.

¶ 15 Moreover, the trial court did not abuse its discretion in finding that that the Lohmeiers' proposed verdict forms and special interrogatories would have placed undue emphasis on returning a verdict in their favor by singling out particular factual aspects of the litigation and making it likely that the jury would attach undue significance to such facts. See Bell v. Maricopa Med. Ctr., 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App.1988) (trial court did not err in refusing to give separate instruction regarding one aspect of the applicable standard of care).

¶ 16 The Lohmeiers also allege that the trial court committed prejudicial error by refusing their request that the jury be given a separate verdict form for Barbara's loss of consortium claim. The trial court gave a general verdict form referencing both William and...