Rodriguez v. Schlittenhart, F

• Decision Date: 09 May 1989
• Docket Number: No. F,No. 2,CA-CV,F,2
• Citation: 780 P.2d 442,161 Ariz. 609
• Court: Arizona Court of Appeals
• Parties: Amos RODRIGUEZ; Carmelo R. Rodriguez and Rachel I. Rodriguez, husband and wife & parents of Amos Rodriguez, Lydia C. Acuna, mother and next friend of Amos J. Rodriguez, a minor, Plaintiffs/Appellants, v. Russel SCHLITTENHART, personal representative of the Estate of Robert E. Hamilton, deceased, Hamilton Farms, a partnership, composed of Robert E. Hamilton, Mary Z. Hamilton, Russel E. Schlittenhart, individually and as trustee, Robyn Ann Hamilton, Susan K. Hamilton, Robert N. Hamilton, Mark K. Hamilton and Cotton City Gin Corp., an Arizona Corporation; Electrical Districtour, a body corporate and politic, Defendants/Appellees. 88-0289.

Page 442

780 P.2d 442

161 Ariz. 609

Amos RODRIGUEZ; Carmelo R. Rodriguez and Rachel I. Rodriguez, husband and wife & parents of Amos Rodriguez, Lydia C. Acuna, mother and next friend of Amos J. Rodriguez, a minor, Plaintiffs/Appellants, v. Russel SCHLITTENHART, personal representative of the Estate of Robert E. Hamilton, deceased, Hamilton Farms, a partnership, composed of Robert E. Hamilton, Mary Z. Hamilton, Russel E. Schlittenhart, individually and as trustee, Robyn Ann Hamilton, Susan K. Hamilton, Robert N. Hamilton, Mark K. Hamilton and Cotton City Gin Corp., an Arizona Corporation; Electrical District No. Four, a body corporate and politic, Defendants/Appellees.

No. 2 CA-CV 88-0289.

Court of Appeals of Arizona Division 2, Department B.

May 9, 1989.

Review Denied Oct. 24, 1989. ^*

[161 Ariz. 611] Johnson & Mahon by Thomas E. Johnson, Tucson, for plaintiffs/appellants.

John S. Schaper and Sorenson & Moore by J. William Moore and Jones, Skelton & Hochuli by Edward G. Hochuli and Gary H. Burger, Phoenix, for defendants/appellees.

OPINION

ROLL, Judge.

Plaintiffs/appellants Amos Rodriguez and others appeal from the trial court's denial of their motion for new trial following a jury verdict finding for defendants Hamilton Farms, Russell Schlittenhart, Electrical District No. 4 (ED 4), and others. Rodriguez was seriously injured after coming into contact with a high voltage wire conductor. For the reasons set forth below, we affirm.

FACTS

Amos Rodriguez was seriously injured on June 23, 1985, at Well Site No. 16, located at a place known as The Moras on Hamilton Farms in Eloy. Hamilton Farms is a partnership formed in 1965 between Russell Schlittenhart and Robert E. Hamilton. Hamilton died in 1982, and the partnership continued between Schlittenhart and Hamilton's widow and children.

ED 4 is a political subdivision of the state. A.R.S. § 48-1701. ED 4 does not generate electricity but is a preferred customer for the purchase of hydroelectricity generated by the federal government. ED 4 provided power through its system to a disconnect point on a pole located east of Tweedy Road in Eloy. From that point, a line ran west 132 feet to Well Site No. 16.

Well Site No. 16 was installed sometime between 1936 and 1942. It consists of an H-frame platform electrical station with three large transformers mounted on a seven-foot high platform. The platform is not enclosed by a fence or otherwise. The transformers converted high voltage power supplied by ED 4 into lower voltage needed to run a nearby pump which produced water for irrigation.

The Moras consisted of Well Site No. 16, the pump, a pond, and several trees. Although Hamilton Farms personnel had posted "No Trespassing" signs in the vicinity and a yellow skull and crossbones symbol on a large metal box next to the transformer platform, The Moras was a common gathering spot for area residents. One church periodically conducted baptisms at the site. Frequently, people swam in the holding tank and had picnics in the vicinity.

On the evening of June 23, 1985, 19-year-old Amos Rodriguez, 18-year-old Ambrosio Sotelo, Amos's cousin Norberta "Cricket" Aguero, and Eleanore Zaragoza traveled to The Moras. When the four young people arrived, a party was already in progress. The two young women left Amos and Ambrosio at The Moras while they traveled to town to purchase some soda. Eventually everyone left The Moras except Ambrosio and Amos. When the two young men saw approaching headlights they concluded that it was the return of Eleanore and Cricket. Amos suggested that they hide from the young women as a joke. He proposed that they climb on top of the transformer platform. The car was in fact occupied by Cricket and Eleanore. When the young women arrived at The Moras and didn't see Amos and Ambrosio, they slowly began to drive away. Amos then rose to his feet, striking his head on the high-voltage wire conductor. The electrical charge threw Amos against the transformer and pinned him. Ambrosio jumped from the platform, screaming. Cricket and Eleanore heard the screaming and returned to the area. Ambrosio correctly concluded that it was dangerous to attempt to extricate Amos from the platform and Amos's three companions left the area to get help. Amos remained on the platform and in contact with the electrical conductor. When the trio and others returned, Amos was lying on the ground below the platform. Amos sustained severe and disfiguring electrical burns and was hospitalized for approximately two months.

PROCEDURAL HISTORY

On March 3, 1986, a complaint was filed on behalf of Amos Rodriguez seeking damages against Hamilton Farms, Electrical District No. 4, and others, for injuries sustained by Amos as a result of the negligent conduct of defendants. Thereafter, an amended complaint was filed adding Amos's parents and Amos J. Rodriguez, Amos's son, as plaintiffs. Thereafter, the trial court entered judgment in favor of all defendants as to the complaint of Amos J. Rodriguez. Trial to a jury commenced on December 1, 1987. On December 17, 1987, the jury returned a unanimous verdict in favor of all defendants. Thereafter, plaintiffs' motion for new trial was denied.

ISSUES ON APPEAL

On appeal, Rodriguez argues that the trial court (1) erred in making certain evidentiary rulings, (2) incorrectly instructed the jury, and (3) committed cumulative error.

Evidentiary Rulings

Rodriguez maintains that the trial court erred in four respects regarding evidentiary rulings. These evidentiary rulings pertain to (1) exclusion of evidence of a prior accident involving a transformer, (2) admission of a survey and photographs of other transformer platforms in the vicinity, (3) admission of personal history evidence regarding Russell Schlittenhart, and (4) denial of Rodriguez's motion in limine to exclude evidence of his two children born out of wedlock.

a. Prior Accident

Rodriguez argues that the trial court committed reversible error when it excluded evidence that in 1954 a young child sustained severe electrical burns when she walked through a hole in a fence that surrounded a ground-mounted electrical transformer and came into contact with the transformer. This accident occurred on the farm owned by Robert Hamilton 11 years before the partnership of Hamilton Farms was formed with Schlittenhart. Rodriguez maintains that this evidence was admissible to prove the existence of a dangerous condition, knowledge or notice of that condition, or negligence in allowing it to continue, citing Grant v. Arizona Public Service Co., 133 Ariz. 434, 441, 652 P.2d 507, 514 (1982).

Defendants argue that the 1954 accident was too remote, the 1954 accident involved a ground-mounted transformer rather than a transformer mounted on a platform seven feet above ground, and the difference in age of the respective injured parties is substantial.

The standard of review regarding the admission or rejection of evidence is abuse of discretion. Throop v. F.E. Young and Company, 94 Ariz. 146, 155, 382 P.2d 560, 571 (1963); State v. Stanley, 156 Ariz. 492, 494, 753 P.2d 182, 184 (App.1988). The trial court may exclude evidence when "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." Rule 403, Ariz.R.Evid., 17A A.R.S. The trial court did not abuse its discretion in excluding evidence of this 31-year-old accident involving dissimilar facts.

Rodriguez also argues that even if the trial court did not err initially in excluding evidence of the prior accident, this evidence should have been admitted following defendants' presentation of evidence that no accidents had been reported involving platform transformers. This argument disregards the important distinction between a transformer mounted in the ground and a transformer placed on a platform seven feet above the ground. Defendants maintained that no accidents had occurred involving transformers situated on platforms. The prior accident did not disprove this contention. In addition, counsel for Rodriguez made a tactical decision not to object to this evidence. ¹ The admission of defendants' evidence that no accidents had occurred involving platform transformers did not cause evidence of the prior accident involving a ground transformer to become admissible.

Rodriguez also argues that insufficient foundation was presented to establish that had accidents occurred involving other platform transformers, defendants would have been aware of such accidents. Jones v. Pak-Mor Manufacturing Co., 145 Ariz. 121, 124, 700 P.2d 819, 822, cert. denied, 474 U.S. 948, 106 S.Ct. 314, 88 L.Ed.2d 295 (1985). See also, M. Udall & J. Livermore, Arizona Law of Evidence § 85 (2d ed. Supp.1989). We disagree. Because of the severity of injuries likely to result from incidental contact with transformers, it was not necessary that defendants lay a foundation establishing the taking of affirmative steps to learn of such accidents.

b. Survey and Photographs of Other Transformer Platforms

Rodriguez argues that the trial court erred in admitting into evidence a notebook prepared by Keith Sobraske, a private investigator hired by Schlittenhart. The notebook contained limited, specific information regarding the dimensions of 71 transformer platforms in the vicinity of Eloy, Coolidge, and Casa Grande and two photographs of each of the 71 platforms. Some of the platforms were selected because they appeared along a particular route in proximity to Well Site No. 16. Defendants concede that the remaining platforms were "selected arbitrarily." Evidence was presented that there were at least 386 transformer platforms in the general geographical vicinity.

Rodriguez argues that the notebook was improperly admitted into evidence because of its random nature and because it merely tended to establish what was done rather than what ought to have been done.

We agree that evidence of less than 20 percent of...