Nunez v. Professional Transit Management of Tucson Inc.

• Decision Date: 18 May 2011
• Docket Number: 2 CA-CV 2010-0201
• Parties: ERA C. NUNEZ, as personal representative of the Estate of LINDA JOYCE BROWN, Plaintiff/Appellee, v. PROFESSIONAL TRANSIT MANAGEMENT OF TUCSON, INC., an Arizona corporation; and GRACE ZOELLNER, a single woman, Defendants/Appellants.
• Court: Arizona Court of Appeals

ERA C. NUNEZ, as personal representative of the Estate of LINDA JOYCE BROWN, Plaintiff/Appellee, v. PROFESSIONAL TRANSIT MANAGEMENT OF TUCSON, INC. an Arizona corporation; and GRACE ZOELLNER, a single woman, Defendants/Appellants.

2 CA-CV 2010-0201

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Dated: May 18, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication Rule 28, Rules of Civil Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C20090652

Honorable Stephen C. Villarreal, Judge

AFFIRMED

Law Office of William D. Nelson, P.C.

By William D. Nelson

Tucson

and

Knapp & Roberts, P.C.

By David L. Abney

Scottsdale

Attorneys for Plaintiff/Appellee

Snell & Wilmer L.L.P.

By William N. Poorten, Andrew M. Jacobs,

and Robert C. Garcia

Tucson

Attorneys for Defendants/Appellants

VÁSQUEZ, Presiding Judge.

¶1 In this personal injury action, Professional Transit Management of Tucson, Inc., doing business as SunTran, and Grace Zoellner (collectively, "SunTran"), appeal from the judgment entered after a jury verdict in favor of appellee Era Nunez, as personal representative of the estate of Linda Brown. On appeal, SunTran argues the trial court failed to instruct the jury on the appropriate standard of care. It also contends the court erred in several of its evidentiary rulings, in its rulings on jury instructions, and in refusing to hear SunTran's motion for judgment as a matter of law, filed pursuant to Rule 50, Ariz. R. Civ. P., until after the jury had begun deliberations. For the reasons stated below, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdict. Crackel v. Allstate Ins. Co., 208 Ariz. 252, ¶ 3, 92 P.3d 882, 885 (App. 2004). On May 2, 2008, Brown, who was in a wheelchair, boarded a bus operated by SunTran and driven by Zoellner. Following SunTran's standard procedures, Zoellner secured the wheelchair to the bus to prevent the chair from moving but, contrary to SunTran's policy, did not ask Brown if she wished to wear a seat belt to secure her in the wheelchair.

¶3 At one point during the route, after Zoellner had stopped the bus in traffic, she released the brake when traffic began to move, but made a "panic stop" when the vehicle in front of her stopped abruptly. Brown was thrown from her wheelchair and sustained injuries. Although SunTran kept video- and audio-taped footage of the incident, it did not preserve footage of Brown boarding the bus or of Zoellner securing her wheelchair, nor did it preserve Automated Vehicle Locator data that would have shown whether Zoellner was running late that day.

¶4 In January 2009, Brown sued Zoellner and SunTran, claiming Zoellner was negligent in following other vehicles too closely and in failing to ask Brown if she wanted to wear a seat belt. The jury returned a verdict finding SunTran seventy percent at fault and Brown thirty percent at fault and awarded $130,744.50 in damages to Era Nunez, as personal representative of Brown's estate.¹ This appeal followed.

Discussion

I. Standard of Care

¶5 SunTran argues the trial court erroneously instructed the jury that the standard of care for common carriers is "the highest degree of care." SunTran contends "[t]he highest degree of care standard is a remnant of a different time and lacks a sound theoretical underpinning." Whether a jury instruction correctly states the law is a matter of law that we review de novo. A Tumbling-T Ranches v. Flood Control Dist. of Maricopa County, 222 Ariz. 515, ¶ 50, 217 P.3d 1220, 1238 (App. 2009). But, "[w]ewill not overturn a jury verdict on the grounds of an erroneous instruction unless there is substantial doubt as to whether the jury was properly guided in its decision." Dawson v. Withycombe, 216 Ariz. 84, ¶ 63, 163 P.3d 1034, 1055 (App. 2007).

¶6 SunTran relies on Atchison, T. & S.F. Ry. Co. v. France, 54 Ariz. 140, 143-44, 94 P.2d 434, 436-37 (1939), stating that our supreme court "held a trial court committed reversible error by instructing the jury that common carriers are held to the highest standard of care when the case does not warrant such an instruction." SunTran misinterprets Atchison. In that case, the plaintiff claimed she had been thrown from her sleeping berth while travelling on a train operated by the defendant. 54 Ariz. at 141-42, 94 P.2d at 435. Although there was no direct evidence that contradicted the plaintiff's testimony, no evidence clearly corroborated her testimony that she was thrown from her berth, and much of the evidence that did exist was inconsistent with her testimony. Id. at 142, 94 P.2d at 435-36.

¶7 The trial court in Atchison instructed the jury that the standard of care for a common carrier was "the highest degree of care practicable under the circumstances," and refused to give the defendant's requested instruction that "negligence is the omission to do something which a reasonably prudent man... would do [and] it is not intrinsic or absolute, but is always relative to the surrounding circumstances." Id. at 143-44, 94 P.2d at 436. The jury returned a verdict for the plaintiff. Id. at 141, 94 P.2d at 435.

¶8 On appeal, our supreme court stated "[t]here [wa]s no evidence supporting plaintiff's testimony as to being thrown from her berth," and that "if [it were] sitting as jurors in the present case, [it] might [have held] that the decided weight of the evidencewas against the verdict." Id. at 142-43, 94 P.2d at 435-36. Therefore, given the paucity of evidence, the court concluded that even though the highest degree of care instruction accurately stated the law, it was by itself insufficient, and the trial court also should have given defendant's requested instruction. Id. at 145, 94 P.2d at 436-37. But, the court expressly stated that "[u]nder some circumstances this failure to give the suggested instruction... might not have been prejudicial." Id. at 145, 94 P.2d at 437.

¶9 Here, SunTran did not request an additional instruction that might clarify the standard of care for the jury; rather it requested a reasonable care instruction to supplant the highest degree of care instruction. Furthermore, because there was sufficient evidence of SunTran's negligence, the failure to give its reasonable care instruction was not prejudicial to SunTran. The jury heard testimony that Zoellner was negligent in following another vehicle too closely, and it watched footage of Zoellner making a "panic stop," causing Brown to be thrown from her wheelchair. The trial court did not err in refusing SunTran's requested instruction.²

¶10 SunTran nevertheless claims that no supreme court decision has addressed the standard of care for common carriers since Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201 (1949), and maintains Division One of this court "soundly rejected" the highest degree of care standard in Lowrey v. Montgomery Kone, Inc., 202 Ariz. 190, 42 P.3d 621 (App. 2002). But our supreme court as recently as 1998 reaffirmed that the standard of care for a common carrier is "the highest degree of care." See Napier v. Bertram, 191 Ariz. 238, n.9, 954 P.2d 1389, 1393 n.9 (1998). And to the extent Division One of this court rejected this standard in Lowrey, it lacked the authority to do so. We are bound by the decisions of our supreme court, and "have no authority to overrule, modify, or disregard them." City of Phoenix v. Leroy's Liquors, Inc., 177 Ariz. 375, 378, 868 P.2d 958, 961 (App. 1993).

II. Admissibility of Evidence

¶11 Next, SunTran contends the trial court erred in several of its evidentiary rulings. We review a trial court's evidentiary rulings for an abuse of discretion. See Cervantes v. Rijlaarsdam, 190 Ariz. 396, 398, 949 P.2d 56, 58 (App. 1997).

A. Expert Witness Testimony

¶12 First, SunTran argues the trial court erred in admitting the testimony of Robert Coulter, plaintiff's expert witness, because it was based on "Brown's hearsay declaration" that Zoellner did not ask her whether she wanted to wear a seat belt. Before trial, SunTran successfully moved to preclude admission of Brown's unsworn written declaration on the ground it constituted inadmissible hearsay. At trial, Coulter testified Zoellner breached her duty of care by not asking Brown if she wanted to wear a seat belt, alluding to Brown's unsworn declaration as the basis for this opinion. SunTran objected to Coulter's testimony, arguing Brown's "unsworn declaration [provided] the sole basis for [Coulter's] opinion... and that [statement was] expressly barred [in an earlier] ruling as hearsay." The trial court overruled the objection, stating that "[a]n expert is given a lot of latitude in terms of the information that expert reviewed in arriving at their opinion [including] rank hearsay."

¶13 "Under Rule 703, an expert may testify about hearsay facts or data, but only so long as the expert's opinion is based on such facts or data and they are 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" Cervantes, 190 Ariz. at 402, 949 P.2d at 62, quoting Ariz. R. Evid. 703. For the first time on appeal, SunTran argues Nunez "produced no support for the proposition that an inadmissible hearsay declaration is evidence of the type reasonably relied upon by standard of care experts." Because SunTran did not make this argument below, it is waived and we do not consider it further. See Odom v. Farmers Ins. Co. of Am., 216 Ariz. 530, ¶ 18, 169 P.3d 120, 125 (App. 2007). And, even assuming the trial court erred in allowing Coulter to testify about Zoellner's failure to offer the seat belt, the error was harmless. As we discuss below, the court properly instructed the jury that it could construe against SunTran its failure to preserve the video footage of...