St. Gregory's Church v. O'Connor

• Decision Date: 09 December 1970
• Docket Number: No. 1,CA-CIV,1
• Citation: 477 P.2d 540,13 Ariz.App. 421
• Parties: ST. GREGORY'S CHURCH, the Most Reverend Francis J. Green, Bishop of the Roman Catholic Church of the Diocese of Tucson, a Corporation Sole, Appellant, v. Thomas P. O'CONNOR and Nora Lucille O'Connor, husband and wife, Appellees. 1120.
• Court: Arizona Court of Appeals

Page 540

477 P.2d 540

13 Ariz.App. 421

ST. GREGORY'S CHURCH, the Most Reverend Francis J. Green, Bishop of the Roman Catholic Church of the Diocese of Tucson, a Corporation Sole, Appellant, v. Thomas P. O'CONNOR and Nora Lucille O'Connor, husband and wife, Appellees.

No. 1 CA-CIV 1120.

Court of Appeals of Arizona, Division 1, Department A.

Dec. 9, 1970.

Rehearing Denied Jan. 6, 1971.

Review Denied Feb. 16, 1971.

Jennings, Strouss & Salmon, by William R. Jones, Jr., and M. Byron Lewis, Phoenix, for appellant

Evans & Kunz, Ltd., by Donald R. Kunz, Phoenix, for appellees.

STEVENS, Judge.

In this opinion we will refer to Mrs. Nora Lucille O'Connor as the plaintiff. Mr. Thomas P. O'Connor, who is since deceased, and who was her husband, will be referred to as Mr. O'Connor. The defendant in the trial court was The Most Reverned Francis J. Green, Bishop of the Roman Catholic Church of the Diocese of Tucson, a corporation sole, the owner of St. Gregory's Church in Phoenix. The incident which is the basis of the claim for relief occurred on church property on 28 December 1963 at which time the plaintiff was 57 years of age and Mr. O'Connor was 61 years of age. The trial to a jury was conducted in December 1968. The jury returned a verdict in the sum of $80,000. The trial court ordered a remittitur to the sum of $60,000 which was accepted by the plaintiffs and a judgment in that sum was entered. The motion for new trial was denied and this appeal followed.

On the day in question the plaintiff and Mr. O'Connor were in the process of walking from the public sidewalk up a walkway on church property when the plaintiff tripped over a step in the walkway and fell, sustaining the injuries which are the subject of this action. The O'Connors were in route to the sanctuary to attend the wedding of the daughter of a friend. The day was bright and sunny. The accident occurred shortly before noon.

The plaintiffs alleged that:

'* * * it was the duty of the defendant and his agents to exercise all due and ordinary care and caution for the safety of plaintiffs while on said premises, but said defendant negligently failed and refused to perform said duty with respect to the walkway into the Sanctuary facing 18th Avenue, due to faulty or defective construction, creating a dangerous condition under the circumstances, of which said defendant knew or should have known, and which said defendant negligently failed to remedy, * * *.'

In the second Count of their complaint the plaintiffs further alleged:

'* * * the said dangerous condition was dangerous to the health and safety of strangers to said property and the public, and was in truth and in fact both a public and a private nuisance.'

These allegations were placed in issue.

The pretrial statement signed by counsel for the parties admitted the fact of the accident. The statement listed as one of the contested issues:

'The parties agree that the contested issues of fact and law in this case involve whether or not the defendant was negligent and the plaintiff contributorily negligent.'

The walkway in question led from the public sidewalk to the main entrance of the sanctuary wherein the wedding services were to be performed. Although the various measurements were established with great accuracy, we state them in this opinion in approximate figures. The distance from the public sidewalk to the entrance of the sanctuary was 52 feet. The elevation of the sanctuary was two feet higher than the public sidewalk. The walkway from the public sidewalk to the sanctuary entrance was 19 feet in width. Forty feet from the public sidewalk there was a step which extended across the full width of the walkway and which was 5 inches in height. The walkway from the public sidewalk to the step was banked by shrubs which, from the pictures in evidence, this Court would estimate to be possibly 2 to 3 feet high. That portion of the walkway between the step and the church entrance, approximately 12 feet, was banked by a brick structure. The top of the brick structure was slightly lower than the top of the adjoining hedge. The entire walkway was uniform in color and other than the step itself there were no signs or other On the day in question two weddings were conducted in the sanctuary in the forenoon. The wedding which the O'Connors were to attend was the second of the two. As they approached the sanctuary there were a number of people on the walkway, some leaving the first wedding ceremony and some arriving for the second. Some people were moving away from the sanctuary. Others were standing in groups apparently visiting and waiting for the first wedding couple to leave the church. The O'Connors had never been to St. Gregory's and were not aware of the existence of the step. They approached the sanctuary together, closely following the people who were preceding them. The O'Connors did not see the step. The plaintiff tripped over the step and fractured the right femur at the neck of the femur just below the ball and socket joint. The doctor referred to the injury as an intracapsular fracture. There was bone displacement, that is the bone did not remain in alignment.

indications as to the presence of the step. If a person's view was unobstructed as that person proceeded up the walkway to the sancturary the step was open and obvious.

Surgery was performed the following day and Hagge pins were inserted to hold the broken bone in place during the healing process. This was followed by a period when it was necessary for the plaintiff to use a wheel chair and then crutches.

The plaintiff sustained pain and a later X ray disclosed:

'* * * one pin extending about a quarter of an inch into the hip joint.'

The pins were removed by a surgical procedure in October 1964. There then appeared to be a good bone union. However, shortly thereafter without additional trauma, the femur again fractured at the December 1963 fracture site.

In November 1964 the plaintiff submitted to a third surgical procedure. At this time a stainless steel hip prosthesis was inserted. The prosthesis had:

'* * * approximately a six inch stem on it which slides into the upper portion of the femur * * *.'

Again there was a period of recovery. The doctor testified:

'A. Let me understand that question again--has she suffered any permanent disability as a result of that fracture?

'Q. Yes.

'A. With respect to her other normal activities?

'Q. Yes, this is what I was getting at.

'A. I would think she probably has not suffered any permanent disability as a result of that as compared to her other normal activities.

'Q. All right, sir, as a result of the surgical procedures which have been carried out on Mrs. O' Connor, Dr. Fife, is she going to require some medical attention in the future?

'A. Yes, she may.

'A. It is very difficult to estimate exactly what medical attention she will require as the result of her operations on her hip, because her attention is going to be for the whole person, and the hip will only be one part of the items of her body that will require attention:

But I think it would be safe to say that she may require symptomatic pain medication and medication because of pain in the hip.'

At the trial the plaintiff testified as to her limitations of activity and the fact that she tired very easily when walking. The plaintiff had an arthritic condition which was under reasonable control with medication.

Prior to the trial the O'Connors could no longer operate their guest facility near Apache Junction. Although they had given thought to selling prior to the accident, the plaintiff's condition hastened the sale. They then moved to Phoenix. Mr. O'Connor sustained a coronary in October 1968 prior to the trial in December 1968.

The basic contentions urged by the defendant on this appeal are five in number. We state them as follows:

1. Was it error to deny a motion for mistrial and to deny the motion for new trial based upon the inability of the defendant to adequately cross-examine Mr. O'Connor?

2. Was the verdict excessive as the result of passion and prejudice which was not cured by remittitur?

3. Was it error to permit an architect to testify that it was not good practice to construct the walkway in the manner in which it was constructed, that is to say by placing a step therein?

4. Was it error to deny the defendant the privilege of presenting evidence as to the absence of accidents?

5. Was there reversible error in the instructions?

CROSS-EXAMINATION

The trial consumed four trial days. These were not consecutive days. There was a recess after the second day due to the illness of counsel. During the morning of the fourth trial day the plaintiffs called Mr. O'Connor to the witness stand. Shortly after the commencement of his direct examination, a bona fide and dramatic event took place. Mr. O'Connor evidently sustained a heart problem which required that he take a pill in the presence of the jury. He was comforted by his wife. Almost simultaneously there was a recess. Out of the presence of the jury Mr. O'Connor disclosed to the trial court that the pill which he had taken in the presence of the jury was nitroglycerin. Defense counsel, fearful that Mr. O'Connor could not be adequately cross-examined and urging that there were legitimate areas of cross-examination which were not covered by his deposition, moved for a mistrial. Defense counsel also urged that the drama of the situation was such as to create great sympathy with the plaintiffs and a resulting prejudice to the defendant. Mr. O'Connor assured the trial court that he thought that he could resume the witness stand. There was a discussion in the absence of the jury with statements by Mr. O'Connor all of which was adequately reported by the court reporter. The trial court faced a difficult decision.

After a great deal of thought the motion for mistrial was denied and Mr. O'Connor was asked no further questions on direct examination nor did defense...