Platt v. Gould
Decision Date | 08 April 1976 |
Docket Number | CA-CIV,No. 2,2 |
Citation | 548 P.2d 28,26 Ariz.App. 315 |
Parties | Karen PLATT and Charles R. Platt, Appellants, v. Lois L. GOULD, Appellee. 2023. |
Court | Arizona Court of Appeals |
Appellee filed an action for damages alleging that Karen Platt negligently caused the vehicle she was driving to collide with a vehicle being driven by appellee. Charles R. Platt was named as a defendant under the family purpose doctrine. The case, tried to a jury, resulted in a plaintiff's verdict in the sum of $69,000. Upon denial of the defendants' motion for a new trial, or in the alternative, for a remittitur, this appeal ensued.
On September 19, 1972, Ms. Platt was driving a 1969 Mustang. The weather was clear but puddles were in the streets from recent rains. She had experienced some difficulty with the brakes on the previous day, noticing that when they got wet their efficiency decreased. While on her way home from work, traveling in a westerly direction on Blacklidge in Tucson, Arizona, she attempted to stop at the intersection of Blacklidge and Park and found that her brakes were wet. She pumped the brakes and down shifted in an attempt to stop but still entered the intersection at approximately 5 miles per hour. She honked the Mustang's horn, attempting to warn oncoming vehicles, but struck Mrs. Gould's vehicle and flipped it over.
On appeal it is contended that the trial court erred (1) in refusing to instruct that brake failure is not a violation of A.R.S. § 28--952; (2) that right-of-way does not discharge a driver's duty to exercise due care and maintain a proper lookout and control speed; and (3) in finding a factual basis for application of the family purpose doctrine.
Appellants were not entitled to a jury instruction that brake failure is not a violation of A.R.S. § 28--952 in view of the evidence of her prior knowledge that her brakes were inadequate. The giving of the instruction would have conflicted with plaintiff's instruction number 1 1 and would have required reversal. Yellow Cab Company of Phoenix v. Green, 16 Ariz.App. 485, 494 P.2d 385 (1972). Where A.R.S. § 28--952 is violated and no legal excuse is offered, negligence exists as a matter of law. O'Donnell v. Maves, 108 Ariz. 98, 492 P.2d 1205 (1972). The burden shifted to appellants once it was shown that the statute had been violated, to show absence of fault. Ms. Platt's own testimony established that the previous day she had brake trouble from driving through puddles and that she failed to test the brakes after driving through puddles on the day of accident, although she had ample opportunity to do so. A jury of reasonable persons could not disagree that Karen Platt was at fault and there was no issue of legal excuse to submit to the jury.
Appellants' next contention is that the trial court erred in instructing that the driver with the right-of-way nevertheless is under a duty to exercise due care to maintain a proper lookout and control speed. The trial court gave R.A.J.I. Standard Negligence instruction 14 which provides:
'A driver may assume that another...
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...no longer resides with the parent, uses the parent's automobile. Id. at 394-95, 284 S.E.2d at 887-88 (citing, in part, Platt v. Gould, 26 Ariz.App. 315, 548 P.2d 28 (1976); McGinn v. Kimmel, 36 Wash.2d 786, 221 P.2d 467 (1950); Clemons v. Busby, 144 Ga.App. 207, 240 S.E.2d 764 [198 W.Va. 74......
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