Rincon v. Rumsey

Decision Date16 March 2011
Docket NumberNo. 2 CA-CV 2010-0150,2 CA-CV 2010-0150
PartiesJOSE L. RINCON and ADRIANA RINCON, surviving parents of JOSE L. RINCON, JR., Plaintiffs/Appellees v. GLENDA L. RUMSEY, Defendant/Appellee, CITY OF TUCSON,Defendant/Appellant.
CourtArizona Court of Appeals

Not for Publication

Rule 28, Rules of Civil

Appellate Procedure


Cause No. C20081087

Honorable Kenneth Lee, Judge


Burch & Cracchiolo, P.A.

By Daryl D. Manhart, Bryan F. Murphy,

and Jessica Conaway


Law Offices of Ronald D. Mercaldo, Ltd.

By Ronald D. Mercaldo


and Wiggins Law Offices

By Anthony J. Wiggins


Attorneys for Plaintiffs/Appellees


Lesher & Corradini, PLLC

By Stephen H. Lesher and Steve D. Corradini


Attorneys for Defendant/Appellee

Glenda L. Rumsey

Mesch, Clark & Rothschild, P.C.

By Scott H. Gan, Gary J. Cohen,


and Patrick J. Lopez


Koeller, Nebeker, Carlson & Haluck, LLP

By William A. Nebeker and Christopher D. Graham


Attorneys for Defendant/Appellant

City of Tucson

BRAMMER, Presiding Judge.

¶1 The City of Tucson (City) appeals from a remitted judgment entered against it in favor of appellees Jose and Adriana Rincon on their wrongful death claim, in which they asserted the City negligently had caused the death of their son, Jose Rincon Jr. (Jose Jr.), who was killed in a traffic collision. The City also appeals from the trial court's order denying its motion for a new trial. It argues the court committed reversible error in admitting Jose's and Adriana's testimony about who was "responsible" for Jose Jr.'s death and by admitting the testimony of two witnesses who observed the driving habits of other drivers at the intersection where the collision occurred. The City also contends the court abused its discretion in denying a motion for a new trial in which theCity, in addition to claiming the court erred in admitting that testimony, also had alleged (1) the court's damages instruction contained erroneous language, (2) codefendant Glenda Rumsey's counsel engaged in improper conduct, and (3) the verdict was "the result of passion and prejudice."

Factual and Procedural Background

¶2 "We view the facts in the light most favorable to sustaining the verdict." Pima County v. Gonzalez, 193 Ariz. 18, ¶ 2, 969 P.2d 183, 184 (App. 1998). In January 2008, Jose Jr. was killed as he rode his bicycle when he was struck from behind by a car driven by Rumsey in the eastbound bicycle lane on Broadway Boulevard, east of Vozack Lane in Tucson. Rumsey was intoxicated at the time of the collision and was convicted of manslaughter, assault, aggravated assault, driving under the influence, and extreme driving under the influence. Rumsey had been drinking at Chuy's Mesquite Broiler restaurant for several hours before the collision.

¶3 Adriana and Jose Rincon brought a wrongful death civil action against Rumsey, JBL Restaurant Investments, L.L.C., dba Chuy's (Chuy's), and the City. They alleged Rumsey had operated her motor vehicle negligently, Chuy's had served Rumsey excessive amounts of alcohol, and the City had created a dangerous situation by negligently constructing the intersection where the collision occurred so that it guided merging motor vehicles into the bicycle lane.

¶4 Before trial, the Rincons and Chuy's reached a confidential settlement agreement. In a joint pretrial statement, the remaining parties agreed the Rinconsclaimed Rumsey and the City were "at fault for the wrongful death of their son," the City claimed Rumsey was at fault, and Rumsey, although admitting she was at fault, claimed the City also was at fault. The statement also acknowledged the Rincons had "resolved their issues with Chuy's," but that Rumsey and the City had named Chuy's as a non-party at fault. The trial court read the statement to the jury during voir dire.

¶5 At trial, over the City's objection, the Rincons presented testimony from two witnesses who, near the time of the collision, had observed drivers entering the bicycle lane as they attempted to merge at the intersection where Jose Jr. was struck. Rumsey elicited testimony from the Rincons on cross examination regarding who they held responsible for Jose Jr.'s death.

¶6 After an eight-day trial, the jury entered a verdict in favor of the Rincons for $40 million, apportioning liability 34% against Rumsey, and 33% each against Chuy's and the City. The City filed a motion for a new trial and, alternatively, a motion for remittitur. The trial court denied the motion for a new trial but granted the motion to remit and ordered the judgment remitted to $12 million. The Rincons accepted the remission and judgment was entered. This appeal followed.

Rincons' Testimony

¶7 The City argues the trial court committed reversible error in admitting the Rincons' testimony about who was "at fault" or "responsible" for their son's death. It contends the testimony was inadmissible pursuant to Rules 602, 701, and 704 cmt., Ariz.R. Evid., because it was not based on the witnesses' personal knowledge or observation, nor was it helpful to a clear understanding of a fact in issue. "We review 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. & Health Corp. v. Maricopa County, 208 Ariz. 532, ¶ 33, 96 P.3d 530, 541 (App. 2004).

¶8 The City objected to the following exchange between Rumsey's counsel and Jose during cross-examination:

Q What I'd like to do now is ask you the question that was asked at your deposition. I'd like for you to share with the jury your opinion as to who and what, in your mind, without reaching any legal conclusions, without allocating fault quantity to my client, or Chuy's, or City of Tucson, just as a father, not as a lawyer or one who has been exposed to so many lawyers in the last couple of years, who, in your opinion, and what was at fault for the loss of your son?
[Counsel for City]: Objection.
THE COURT: Counsel approach.
(The following discussion was held at the bench.)
[Counsel for City]: That's not relevant, Your Honor. It invades the province of the jury.
[Counsel for Rumsey]: I'm not asking for a legal conclusion.... We've heard how my client tried to pass fault to the City at that time. We've heard the allegations. Let him tell the jury why we're here today.

The trial court overruled the objection and allowed Jose to respond. His answer included his opinion as to the responsibility of all three original defendants:

But I think what it boils down to in trying to, in trying to validate him and his innocence is you sort of look at where was the negligence. And an obvious one is where the criminal charges were filed. That's one. And another one is where she was, and the responsibility of the establishment.... And as I've come to know now because of what went on in the criminal trial, and because of what has come to light in the depositions and discovery..., is that my son was two feet in the bike lane. He was not a risk taker. He was where he thought he was safe. But he should have been five feet over, two feet in the bike lane. And that's very concerning and disturbing. And that's a third reason why we're here today.1

¶9 The City also objected to the following portion of Adriana's testimony on cross-examination by Rumsey's counsel:

Q I'm going to pose to you the same question that I posed to Mr. Rincon, and I want to preface the question for purposes of not over-stepping here, you are not an attorney, are you?
A No, I'm not.
Q You do not have legal training, do you?
A None whatsoever.
Q I'm not asking you to give a legal opinion, to reach any legal conclusions, I'm not asking you to apportion anything or quantify anything, okay, but what I'm asking you to tell us, tell the jury is, do you have an opinion, a personalopinion, as the mother of Jose,... as to who is responsible for the death of your son?
[Counsel for City]: Objection, Your Honor, foundation, form.
THE COURT: Overruled.
A I just think about the five feet of asphalt that could have saved him. Any one of those variables taken alone, he would be here. I'd have a 16-year-old driving me crazy. That's all.

¶10 Rule 704, Ariz. R. Evid., provides that opinion testimony "is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." However, Rule 701 requires that lay opinion testimony be "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." See also Ariz. R. Evid. 704 cmt. (opinion must assist trier of fact to understand evidence or determine fact in issue); Ariz. R. Evid. 602 (witness must "ha[ve] personal knowledge of the matter"). For example, in Groener v. Briehl, 135 Ariz. 395, 398, 661 P.2d 659, 662 (App. 1983), the court held that, under Rule 701, an eyewitness to an accident should not have been allowed to testify as to his opinion that the collision was unavoidable. The witness had no knowledge of the details necessary to make such a determination, and his opinion did not aid the jury in determining a fact in issue, but rather "merely told the jury how in this witness' opinion the jury should decide the case." Id.; see also State v. Koch, 138 Ariz. 99, 102-03, 673 P.2d 297, 300-01 (1983) (statement witness "quite sure" of defendant's guilt properly excluded as not based on perception and not helpful to jury where witness had noknowledge of circumstances), citing State v. Henricks, 653 P.2d 479, 482 (Mont. 1982) (witness opinion based upon contact with parties after accident not rationally based on perception). Moreover, "a witness who testifies as to the ultimate cause of [an] accident must be qualified as an expert witness." Rimondi v. Briggs, 124 Ariz. 561, 564, 606 P.2d 412, 415 (1980).

¶11 Because the Rincons' opinions as...

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