Papastathis v. Beall, 2

• Decision Date: 22 May 1986
• Docket Number: CA-CIV,No. 2,2
• Citation: Papastathis v. Beall, 723 P.2d 97, 150 Ariz. 279 (Ariz. App. 1986)
• Parties: , 59 A.L.R.4th 1133 Ann PAPASTATHIS, surviving widow of the deceased, Peter Papasthathis, in her own behalf, and on behalf of Mary Ann Corson, a married woman, child of the deceased, Peter Papastathis, Plaintiffs/Appellees, v. Walter W. BEALL and Jane Doe Beall, his wife, and the Southland Corporation, a Texas corporation, Defendants/Appellants. 5702.
• Court: Arizona Court of Appeals

Page 97

723 P.2d 97

150 Ariz. 279, 59 A.L.R.4th 1133

Ann PAPASTATHIS, surviving widow of the deceased, Peter Papasthathis, in her own behalf, and on behalf of Mary Ann Corson, a married woman, child of the deceased, Peter Papastathis, Plaintiffs/Appellees, v.Walter W. BEALL and Jane Doe Beall, his wife, and the Southland Corporation, a Texas corporation, Defendants/Appellants.

No. 2 CA-CIV 5702.

Court of Appeals of Arizona Division 2, Department A.

May 22, 1986.

Reconsideration Denied June 24, 1986.

Venable & Randall by Gilbert T. Venable and Davich & Pollock, Ltd. by Gerald A. Pollock, Phoenix, for plaintiffs/appellees.

Lewis and Roca by John P. Frank, John A. Miller, Janet Napolitano, Phoenix, for defendants/appellants.

HATHAWAY, Chief Judge.

Appellants challenge the jury's verdict in favor of appellees in a wrongful death action and the court's denial of their motions for new trial, judgment n.o.v. and remittitur.We find the record supports the verdict and affirm.

On September 2, 1981, Peter Papastathis, decedent, was in appellantWalter Beall's (Beall)"7-11" store in Phoenix, Arizona.The franchisor, "owner and lessor" of the property is appellantSouthland Corporation(Southland).Upon entering the store, Mr. Papastathis went to a cooler and bent down to make a selection.At the same time, Bobby Gene Latham, Beall's employee, was loading soft drink cans into the cooler's soft drink rack from inside the cooler.A can fell from the rack above Mr. Papastathis and hit him on the back of the head.It is disputed exactly how far the can fell; the distance was one to three feet.At the time, Mr. Papastathis had a pre-existing weakness in the arteries of his brain known as an aneurysm.An aneurysm is a weak spot in an artery which usually occurs at a juncture between arteries.Despite some complaints of double vision, a drooping right eye, dizziness, ringing in the ears and headaches during the ensuing 15 months, Mr. Papastathis' life proceeded normally.On November 30, 1982, however, while attempting to lift his wife, who suffers from multiple sclerosis, Mr. Papastathis had a seizure requiring emergency hospitalization.He died from a ruptured intracranial aneurysm on December 3, 1982.

On September 1, 1983, Mrs. Papastathis and her daughter sued Beall and Southland, alleging negligence.At trial, two theories were advanced: (1) that both Beall and Southland were vicariously liable for the negligence of Latham, and (2) that Beall and Southland were themselves negligent for selection of the soft drink cooler rack.Southland moved for a directed verdict on the ground that it was not vicariously liable for any alleged negligence by Beall or Beall's employees, and the court denied the motion.On May 1, 1985, the jury rendered a $500,000 verdict in favor of appellees.Appellants filed their motions for new trial, judgment n.o.v. and remittitur on May 21, 1985.The court signed an amended judgment in favor of Mrs. Papastathis on July 15, 1985, and entered the judgment nunc pro tunc to May 8, 1985.The court denied the motions for new trial, judgment n.o.v. and remittitur on July 17, 1985, and appellants filed their notice of appeal on July 30, 1985.

On appeal, appellants claim that appellees did not prove causation, arguing that the jury was allowed to speculate about the causes of Papastathis' death and that the evidence did not establish that the falling soda can was a substantial factor in the aneurysm's rupture.Appellants also allege that Southland Corporation is not liable for the alleged negligence of the franchisee because Southland did not exercise control over Beall sufficient to establish an agency relationship.Southland also argues that it is not liable for the selection of the rack and that admission of evidence of alternative rack designs was prejudicial error.

I.CAUSATION

Appellants contend that the jury was improperly permitted to speculate that the incident at the 7-11 store was a substantial factor in the eventual demise of Mr. Papastathis.Under Arizona law, legal causation is established despite possible intervening causes if the conduct was a substantial factor in the eventual injury.Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200(1983);Ideal Food Products Company v. Rupe, 76 Ariz. 175, 261 P.2d 992(1953).Since we will not substitute our opinion for that of the jury, our inquiry must be whether there was sufficient evidence before the jury from which it could have found that the incident at the 7-11 was a substantial factor in Mr. Papastathis' death.SeePetefish v. Dawe, 137 Ariz. 570, 672 P.2d 914(1983);Farm Aero Service, Inc. v. Henning Produce, Inc., 23 Ariz.App. 239, 532 P.2d 181(1975).

At trial, appellees called two experts witnesses who linked the 7-11 incident to the eventual rupture of the aneurysm.One expert, Dr. Crowell, stated that the blow from the falling can caused the aneurysm to expand and to press against the third cranial nerve leading to the specific aneurysm symptoms.He stated that once an aneurysm expands, the threat of rupture is continuous.He also testified that the forces testified to by the engineering witness were significant and explained that tiny manipulations can cause disastrous ruptures of aneurysms.Dr. Crowell stated specifically, "I think there is a strong temporal relationship between the blow of [sic] the head and the appearance of the new symptoms which he didn't have prior to that period."Appellants' experts disagreed with appellees' experts, and there was testimony that hypertension and activities such as lifting, bending, squatting, sexual intercourse and straining at the stool are common causes of ruptured aneurysms.Mr. Papastathis was overweight, suffered from high blood pressure and consistently lifted his ill wife.While the jury did have conflicting evidence before it, it obviously accepted the testimony of appellees' witnesses.The trauma to a pre-existing condition causing the worsening of that condition was a substantial factor in his eventual death and is a basis for liability.Coca-Cola Bottling Company of Tucson v. Fitzgerald, 3 Ariz.App. 303, 413 P.2d 869(1966);Curbo v. Harlan, 253 Ark. 816, 490 S.W.2d 467(1973);Hastie v. Handeland, 274 Cal.App.2d 599, 79 Cal.Rptr. 268(1969);Austin v. Otis Elevator Company, 336 So.2d 914(La.App.1976).

In Austin, the decedent was injured in an elevator accident.As in our case, Austin had an aneurysm which received some trauma in the accident.He died during surgery on that pre-existing condition some weeks later.The appellate court upheld the judgment, finding that there was sufficient evidence from which the trier of fact could conclude that but for the accident, Austin would have had a greater chance of survival.

In the present case, there was evidence that but for the accident, Mr. Papastathis would not have died of the ruptured aneurysm.We do not weigh the conflicting evidence.The jury chose to believe appellees' experts.We hold that there was sufficient evidence from which the jury could have found causation.

II.NEGLIGENT SELECTION

Appellants do not dispute that the jury could have found the employee Latham negligent.It is clear from the evidence that he should have noticed Mr. Papastathis using the cooler at the time he was loading the cans and refrained from loading until Mr. Papastathis had moved.The vicarious liability of appellant Beall is also readily apparent.Southland, however, contests its vicarious liability for Latham's actions and its own liability for selection of the rack.

The racks in question were furnished to the franchisee by the Coca Cola Company.Coca Cola approached Southland about placing these racks in their stores.Southland employees testified that they requested each franchisee's permission before allowing Coca Cola to install the racks.At trial, appellees alleged that the racks had a safety problem in that the bar at the front of the rack did not extend to the midpoint of the can, making it possible for the cans to pop out of the rack.Appellees brought in evidence of other racks available at the time which had a safer design.

When Southland's regional manager selected the rack, he did consider the safety problem of whether the rack would hold the cans.When asked whether he did any specific testing with regard to this safety problem, he responded, "Very little.However, we rolled the cans down the rack to see if they stopped."Southland argues first that it owed no duty to Papastathis with regard to the...