Preston v. City of Tucson, 2 CA-CV 2009-0090

• Decision Date: 23 August 2010
• Docket Number: 2 CA-CV 2009-0090
• Parties: MELINDA PRESTON, Plaintiff/Appellant/Cross-Appellee, v. CITY OF TUCSON, an Arizona municipal corporation, Defendant/Appellee/Cross-Appellant.
• Court: Arizona Court of Appeals

MELINDA PRESTON, Plaintiff/Appellant/Cross-Appellee,

v. CITY OF TUCSON, an Arizona municipal corporation, Defendant/Appellee/Cross-Appellant.

2 CA-CV 2009-0090

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT A

Dated: August 23, 2010

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Not for Publication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. C20042292

Honorable Stephen C. Villarreal, Judge

AFFIRMED

Law Offices of Glynn W. Gilcrease, Jr.

By Glynn W. Gilcrease, Jr. Tempe

and

Law Offices of David L. Abney

By David L. Abney Phoenix

Attorneys for

Plaintiff/Appellant/Cross-

Appellee

Mesch, Clark & Rothschild, P.C.

By Gary J. Cohen and Richard Davis Tucson

Attorneys for

Defendant/Appellee/

Cross-Appellant

ESPINOS A, Judge.

¶1 In this wrongful death case, plaintiff/appellant Melinda Preston appeals from the judgment entered after a jury verdict in favor of defendant/appellee City of Tucson (City). Preston contends the trial court committed reversible error in deciding the admissibility of certain evidence and by giving the jury an "open and obvious" instruction. Finding no error, we affirm.¹

Factual Background and Procedural History

¶2 "[W]e view the evidence in the light most favorable to sustaining the [jury's] verdict." Gonzales v. City of Phoenix, 203 Ariz. 152, ¶ 2, 52 P.3d 184, 185 (2002). On October 3, 2001, Matthew Preston, a graduate student at the University of Arizona, was riding his bicycle northbound on the west sidewalk of Tucson Boulevard. He approached a cross street where a truck, which had been stopped at a stop sign for at least twenty seconds, was beginning to turn south onto Tucson Boulevard, directly in front of Matthew. Although Matthew applied his brakes, he was unable to avoid the truck and was run over and killed by its rear wheels. Melinda Preston, Matthew's mother, filed this wrongful death action against the City.² At trial, Preston presented evidence that the City had failed to adequately design and maintain the sidewalk, intersection, and bicycle lane. After the jury verdict and judgment in favor of the City, Preston filed this appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(B).

Discussion

Cellular Telephone Records

¶3 Preston contends the trial court abused its discretion by admitting Matthew's cellular telephone records. She argues they were not relevant and that the City had not timely disclosed its theory that Matthew's use of his telephone near the time of the accident had caused or contributed to his death. "This court 'will affirm a trial court's admission or exclusion of evidence absent a clear abuse of discretion or legal error and resulting prejudice.'" Belliard v. Becker, 216 Ariz. 356, \ 13, 166 P.3d 911, 913 (App. 2007), quoting Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, | 10, 10 P.3d 1181, 1186 (App. 2000).

¶4 Preston asserts the records were irrelevant because "at most[, they] support a conclusion that Matthew had completed a call thousands of feet before the intersection... and thus ha[ve] no conceivable bearing on the accident." "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence." Ariz. R. Evid. 401. Evidence adduced at trial showed that before the accident, Matthew had been riding between fourteen and eighteen miles per hour, had an unobstructed view of the area ahead of him, presumably including the truck stopped at the cross street, and yet delayed slowing his bicycle until he was very close to theintersection. The telephone records showed Matthew had made a call at 4:02 which ended at 4:04 p.m. Following the accident, the driver of the truck called 9-1-1 at 4:06 p.m. Accordingly, the records had "any tendency to make the existence of any fact that is of consequence... more probable or less probable," id., because they indicated Matthew might have been distracted by his telephone before the accident. Even if Matthew was no longer talking on the telephone immediately before the accident, the jury could have concluded he was in the process of putting it away or otherwise was distracted by it. ³ See Acuna v. Kroak, 212 Ariz. 104, ¶ 19, 128 P.3d 221, 226 (App. 2006) (evidence relevant when "material and probative" to factual issue); Yauch, 198 Ariz. 394, ¶ 22, 10 P.3d at 1189 (evidence relevant where appellant's arguments to exclude it did "not affect the admissibility of the evidence but, rather, its weight, which is a question for the jury"); Anderson v. Nissei ASB Mach. Co., 197 Ariz. 168, ¶ 36, 3 P.3d 1088, 1098 (App. 1999) ("In Arizona, the relevance standard is very broad; relevant evidence need only tend to make the existence of any material fact more or less probable.").

¶5 In addition, contrary to Preston's argument that the records could not be relevant without the City first demonstrating the truck driver had delayed in calling 9-1-1, there was evidence of at least some delay between the accident and that call. The driver testified that after he drove over what he thought was a speed bump, his passenger got outof the truck, looked underneath it, gave the driver a "panicked" look, and motioned for him to pull forward. After doing so, the driver got out of the truck and saw Matthew under it. The driver then telephoned 9-1-1. Thus, even assuming the City was required to show there had been some delay between the time of the accident and the 9-1-1 call in order to establish the records were relevant, such evidence was presented. Accordingly, the trial court did not abuse its discretion in determining Matthew's telephone call was relevant under Rule 401.⁴

¶6 Preston also contends the telephone records should not have been admitted because the City failed to timely disclose its factual theory concerning them, namely, that Matthew's use of his telephone could have been a cause of the accident. Preston, however, fails to offer any authority to support her assertion that the trial court's overruling her objection on this basis was error, let alone reversible error, and thus has waived this argument on appeal. See Ariz. R. Civ. App. P. 13(a)(6); see also FIA Card Servs., N.A. v. Levy, 219 Ariz. 523, n.1, 200 P.3d 1020, 1021 n.1 (App. 2008) (failure to develop argument constitutes abandonment). In any event, it is undisputed that Preston'sattorney produced these records to the City several years before trial and that the City subsequently listed them as exhibits in the Joint Pretrial Statement. Moreover, the City alleged in its answer that Matthew had been comparatively negligent and stated in its initial disclosure that the accident had been due to his "fail[ure] to maintain reasonable and proper attention." Therefore, Preston has demonstrated no error on this basis either.⁵

Expert Testimony

¶7 Preston next argues the trial court abused its discretion by allowing the City to present expert testimony regarding the condition of the bicycle paths on Tucson Boulevard and whether Matthew had been acting as a reasonable, prudent rider when he rode on the sidewalk.⁶ She contends these topics "were not proper subjects for expert testimony" because they concerned "factual issues within the knowledge and experience of ordinary lay people." She also maintains that the expert's testimony that a cyclist must obey traffic laws was "an ultimate conclusion on a crucial issue in the case."

¶8 If specialized knowledge will aid the trier of fact in determining a fact at issue, a witness who is "qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Ariz. R. Evid. 702. "The admissibility of expert testimony is within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion." Webb v. Omni Block, Inc., 216 Ariz. 349, ¶ 6, 166 P.3d 140, 143 (App. 2007).

¶9 As the City points out, Preston presented her own expert to testify both as to the condition of the bicycle lane as well as Matthew's reasonableness in riding on the sidewalk. This undercuts her argument on appeal that the City should have been barred from presenting expert testimony on these same subjects. See Ariz. R. Civ. P. 26(b)(4)(D) (each side presumptively entitled to one expert per issue). The City further argues that its expert, unlike Preston's, "was a bike safety expert with extensive experience riding bikes and first[-]hand experience riding bikes on Tucson [Boulevard]" who "rebutted [Preston]'s arguments and evidence that Matthew was justified in riding his bike on the safer sidewalk instead of the unsafe roadway." We agree with the City that the trial court did not abuse its discretion in admitting this testimony, especially in light of Preston's own expert's testimony on the same subjects.⁷ Cf. State v. Dann, 220Ariz. 351, ¶ 92, 207 P.3d 604, 621 (2009) (defendant's presentation of expert opinion opened door to state's presentation of rebuttal expert testimony on same subject).

¶10 Furthermore, contrary to Preston's assertion, the City's expert did not testify improperly as to "an ultimate conclusion on a crucial issue in the case." Rather, he stated that bicycles are considered vehicles and therefore must follow the same laws as vehicles, not only because it is illegal not to do so but also because "that's what's expected. So if you're going against the flow of traffic, say, on the wrong side of the road, in addition to not obeying the law[,] you're creating a situation that oncoming motorists" would not expect. We agree that this testimony was properly admitted in response to Preston's argument that Matthew's riding on the sidewalk in the opposite direction of traffic...