Rosen v. Knaub
| Decision Date | 26 May 1992 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 842 P.2d 1317,173 Ariz. 304 |
| Parties | Michael ROSEN and Bonnie Rosen, husband and wife, as individuals and on behalf of their natural son, Robert Rosen, Plaintiffs-Appellants, v. Samuel Manuel KNAUB and Jane Doe Knaub, husband and wife, Defendants-Appellees. 90-344. |
| Court | Arizona Court of Appeals |
The basic issue on appeal is whether the trial court, in a negligence action, can constitutionally bifurcate the liability and damage portions of the jury trial.
Appellants, Robert Rosen and his parents (plaintiffs), appeal from the judgment in favor of appellees, Samuel Knaub and his wife (defendants), and from the denial of plaintiffs' motion for a new trial.
This case arose out of an automobile accident in which an automobile driven by Samuel Knaub struck Robert Rosen, who was on a skateboard. The accident occurred on the evening of March 31, 1987, on West Cholla Street in Glendale. The posted speed limit in that residential area was twenty-five miles per hour.
At approximately 8:45 p.m., Samuel Knaub, 56, was driving a pickup truck westbound on Cholla Street. He did not see any children in the street. At the same time, Rosen, age 16, rode a skateboard down the inclined driveway into Cholla Street. He began his ride about halfway down the driveway on its western side, crossing from the west to the east side. He left the drive into Cholla Street at the eastern edge of the driveway, and traveled east in the westbound lane, in the direction of Knaub's truck.
Knaub spotted Rosen and applied the brakes. In his deposition, 1 Knaub testified:
Q. And in your interrogatories you estimate that you saw this boy approximately three to five feet before the impact actually occurred. Is that right?
A. I'm not sure of the distance. It was immediately. I jumped on the brakes and he came out of the dark, just shot into the lights and he was there.
. . . . .
Q. Can you remember what this boy was wearing? Did you have a chance to appreciate that before the collision occurred?
A. Dark clothing. It was all dark clothing.
Q. Do you remember attempting to steer, put any steering input into your vehicle's steering wheel before the collision occurred?
A. It was so sudden. I just jumped on the brakes. That's what I remember. I don't remember trying to swerve. I didn't have time to swerve.
The accident occurred in the middle of the block. There was no pedestrian crosswalk. After Knaub applied the brakes, the truck skidded a short distance and then struck Rosen, continuing to skid before coming to a stop. Rosen was severely injured.
Officers of the Glendale Police Department investigating the accident found that the sun had set at the time of the accident, but that a streetlight was operating near the point where the truck came to a stop. The nearest other streetlights were located 290 feet in either direction. However, the area was not well-lit; the investigating officer stated that "the area was very dark despite the presence of street lights on the north side of West Cholla Street." There was also testimony that the driveway where Rosen began his ride was lighted by two floodlights. Rosen was wearing blue jeans and a black shirt.
The parties disputed how fast Knaub was driving. Knaub estimated his speed at twenty-five to thirty miles per hour. Defendant's expert, Lamont Skousen, estimated the speed at thirty miles per hour. By Officer John Singleton's calculations, the truck was traveling at least thirty-four miles per hour. Plaintiffs' expert, Dr. Robert Piziali, estimated the truck was going at least thirty-six miles per hour.
The parties also dispute whether Knaub could have avoided the accident. Piziali testified that, had the truck been going twenty-five miles per hour, it would have stopped short of the point of impact. On the other hand, Officer Singleton, the lead investigating officer, wrote in his report that "the collision would still have occurred had the pickup been traveling twenty-five miles per hour due to the close proximity of the beginning of the skid marks to the area of the collision." He reaffirmed this conclusion at trial.
Defendants' expert, Skousen, testified that, in his opinion, based on the coefficient of friction, the pattern of skid marks, tests he performed with the truck and tests of the speed of skateboard riders, Knaub could not have perceived and reacted to Rosen in time to avoid the accident. Skousen testified that, in his opinion, had the truck been traveling twenty-five miles per hour, the collision still would have occurred. He opined that the cause of the accident was the boy's presence in the street traveling in the direction of the truck.
Prior to trial, the court granted defendants' motion to bifurcate, trying the issue of liability first. The jury returned a unanimous verdict in favor of defendants. Plaintiffs filed a motion for new trial, which the court denied, and judgment was entered in accordance with the verdict. Plaintiffs timely appealed from the judgment and the order denying the motion for new trial. We have jurisdiction pursuant to A.R.S. § 12-2101(B). See also A.R.S. § 12-2101(C).
Plaintiffs argue that the trial court violated the Arizona Constitution when, pursuant to Rule 42(b), Arizona Rules of Civil Procedure, it bifurcated the trial, trying liability before damages. The Arizona Constitution leaves the issue of contributory negligence to the jury:
The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.
Ariz. Const., art. 18, § 5. Plaintiffs argue that, in accordance with art. 18, § 5, the jury is required to hear all evidence, including damages evidence, before deciding whether to apply the doctrine of contributory negligence. Implicit in plaintiffs' argument is the contention that the jury is entitled to see the extent of the injuries suffered by the plaintiff in order to assess whether contributory negligence will be applied. We disagree with this position. 2
Issues of liability and damages are separate. Our supreme court has noted:
Separation of issues of liability from those relating to damages is an obvious use for Rule 42(b). Logically [,] liability must be resolved before damages are considered. Often the evidence pertinent to the two issues is wholly unrelated. Thus it is not surprising that courts, in many kinds of litigation, have ordered this separation.
Morley v. Superior Court, 131 Ariz. 85, 87, 638 P.2d 1331, 1333 (1981) quoting C. Wright & A. Miller, Federal Practice & Procedure § 2390 (1971). As Judge Cardozo has stated:
The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damages might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary.
Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 101 (1928) (quoted in Tucker v. Collar, 79 Ariz. 141, 145, 285 P.2d 178, 182 (1955)).
Plaintiffs attempt to avoid the logical distinction between the two issues by asserting that the evidence on damages was, in this case, relevant to the issue of liability. They assert: "Constitutional error was committed when the plaintiffs were prevented by the bifurcation ruling from demonstrating to the jury that the injuries sustained varied based upon the speed of the truck, rather than upon presence of a pedestrian." We find no merit to this argument because the injuries Rosen would have suffered if defendant's truck had been traveling at a different speed than it actually was are irrelevant to this case. Rosen's injuries were what they were. Whether they might have been different had the situation been different is merely a hypothetical exercise.
The jury's constitutional function under art. 18, § 5 was not hampered by the lack of evidence on damages because that evidence is not relevant to the issue of liability. We find no constitutional violation in bifurcating this trial. 3
Plaintiffs next argue that the court erred in giving two instructions requested by defendants. The instructions at issue read:
You are instructed that the driver of an automobile is not required to anticipate the sudden appearance of children in his pathway under ordinary circumstances. His duty is that of a reasonable person under all of the circumstances.
You are instructed that all persons are required by law only to anticipate and foresee and guard against what usually happens, or is likely to happen, but that they are not required to foresee and provide against that which is unusual and not likely to happen. The proper test in cases of this kind is not whether the injurious result or consequence was possible, but whether it was reasonably probable to occur according to the usual experience of persons.
As defendants point out, instructions virtually identical to these instructions have been previously approved by our supreme court. For example, the following instruction has been approved: "[A] driver is not required to anticipate the sudden appearance of children in his pathway under ordinary circumstances." Schmerfeld v. Hendry, 74 Ariz. 159, 245 P.2d 420 (1952). See also Esquivel v. Nancarrow, 104 Ariz. 209, 213, 450 P.2d 399, 403 (1969) (similar instruction approved).
Plaintiffs argue that the cases approving...
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Rosen v. Knaub
...Following trial, the jury rendered a defense verdict. The court of appeals subsequently affirmed the judgment. Rosen v. Knaub, 173 Ariz. 304, 842 P.2d 1317 (Ct.App.1992). We granted review to examine the propriety of two jury instructions, and have jurisdiction pursuant to Ariz. Const. art.......