White v. Greater Arizona Bicycling Ass'n

• Decision Date: 08 August 2007
• Docket Number: No. 2 CA-CV 2006-0207.,2 CA-CV 2006-0207.
• Citation: 163 P.3d 1083,216 Ariz. 133
• Parties: Chad WHITE and Marsha White, natural children of John Alvin White, Plaintiffs/Appellants, v. GREATER ARIZONA BICYCLING ASSOCIATION, an Arizona corporation, Defendant/Appellee.
• Court: Arizona Court of Appeals

163 P.3d 1083

216 Ariz. 133

Chad WHITE and Marsha White, natural children of John Alvin White, Plaintiffs/Appellants, v. GREATER ARIZONA BICYCLING ASSOCIATION, an Arizona corporation, Defendant/Appellee.

No. 2 CA-CV 2006-0207.

Court of Appeals of Arizona, Division 2, Department B.

August 8, 2007.

Block Grynkewich, P.C., by Gary S. Grynkewich, and Copple Boehm & Murphy,

P.C., by Steven D. Copple and S. Christopher Copple, Tucson, Attorneys for Plaintiffs/Appellants.

Goering, Roberts, Rubin, Brogna, Enos & Treadwell-Rubin, P.C., by Scott Goering and Kristin A. Green, Tucson, Attorneys for Defendant/Appellee.

OPINION

BRAMMER, Judge.

¶ 1 Appellants Chad and Marsha White appeal from the trial court's denial of their motion for a new trial on the issue of damages, made pursuant to Rule 59, Ariz. R. Civ. P., 16 A.R.S., Pt. 2, in their wrongful death action against appellee Greater Arizona Bicyclists Association ("GABA"). The trial court ruled the jury could properly decide Chad and Marsha had suffered no compensable loss despite finding GABA liable for the death of their father, John White, notwithstanding GABA's failure to contest Chad's and Marsha's evidence. We reverse.

Factual and Procedural Background

¶ 2 Although the facts are essentially uncontested, "[w]e view the facts and the reasonable inferences therefrom in the light most favorable to upholding the jury's verdicts." Crackel v. Allstate Ins. Co., 208 Ariz. 252, ¶ 3, 92 P.3d 882, 885 (App.2004). On October 14, 2001, John participated in a bicycling event organized by GABA. During that event, while he was attempting to cross a cattle guard in the road, John's front bicycle wheel fell into a vertical gap in the guard. John was thrown forward from his bicycle and struck his head on the ground upon landing. He was airlifted to a hospital, but was pronounced dead approximately one hour and twenty minutes after the accident.

¶ 3 John's wife, Elaine, and his adult children, Chad and Marsha, filed a wrongful death action alleging the Arizona Department of Transportation ("ADOT") and GABA had been negligent. The plaintiffs stipulated to the dismissal with prejudice of their claim against ADOT and proceeded to trial on their claim against GABA. At trial, Chad testified he missed his father, had had "quite a few dreams about [his father]" since the accident, and in the time before his father's death, "was learning a lot more" from his father than he ever had before. He also testified that, when he found out about the accident, he had to be placed on oxygen because he "wasn't really breathing and sort of passed out." Marsha testified her father "helped [her] out all the time" and "[w]hen [she] needed help with things . . . [she] could talk to him." She further stated that, since her father's death, she "feels like there is a part of [her] missing."

¶ 4 Marsha also testified that her mother had "physical problems," including fibromyalgia, diabetes, and fatigue; that John had "always [been] there for [Elaine]"; and that Marsha now has "to help [Elaine] out with everything that [John] ha[d] helped her out with" previously, such as laundry, cleaning, and errands. Chad testified Elaine "gets upset very easily" since John's death. GABA did not cross-examine Chad or Marsha and offered no witnesses or evidence rebutting their testimony.

¶ 5 The jury determined GABA was liable for John's death and awarded $250,000 to Elaine but nothing to Chad or Marsha. It allocated fifty percent of the fault for John's death to ADOT as a nonparty and twenty-five percent each to John and GABA. Chad and Marsha then filed a Rule 59 motion for a new trial on the amount of damages, arguing the jury's failure to award them any damages was contrary to the "uncontroverted evidence that [Chad and Marsha] were in fact damaged." The trial court denied the motion, stating it was "within the jury's discretion to determine what amount of damages, if any, should have been awarded to Chad and Marsha." This appeal followed.

Discussion

¶ 6 Chad and Marsha contend on appeal that the trial court erred in denying their motion for a new trial on the issue of damages. "We review the denial of a motion for new trial . . . for an abuse of discretion." Mullin v. Brown, 210 Ariz. 545, ¶ 2, 115 P.3d 139, 141 (App.2005). Chad and Marsha argue the jury was required to award them some damages because the evidence of their emotional loss was uncontested. "[I]f any substantial evidence could lead reasonable persons to find the ultimate facts sufficient to support the [jury's] verdict, we will affirm the judgment." Gonzales v. City of Phoenix, 203 Ariz. 152, ¶ 2, 52 P.3d 184, 185 (2002).

¶ 7 Arizona's wrongful death statutes, A.R.S. §§ 12-611 through 12-613, permit "the surviving husband or wife, child, [or] parent" of a decedent to bring an action to recover damages on account of that decedent's death "caused by wrongful act, neglect or default," §§ 12-611, 12-612. Section 12-613 addresses the measure of damages for wrongful death and states: "[T]he jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default." Such damages may include a child's "loss of love, affection, comfort, guidance and companionship which [the child] would have received." S. Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 573, 535 P.2d 599, 612 (1975); Sedillo v. City of Flagstaff, 153 Ariz. 478, 480, 737 P.2d 1377, 1379 (App.1987) (damages for wrongful death "can include allowances for loss of companionship, comfort and guidance").¹

¶ 8 On appeal, Chad and Marsha rely solely on Sedillo, decided by Division One of this court. There, a jury had found the City of Flagstaff liable for the wrongful death of Tony Sedillo. 153 Ariz. at 480, 737 P.2d at 1379. It awarded damages to the decedent's widow and two minor children, but awarded no damages to his mother and his adult children. Id. "The evidence concerning the decedent's close family relationships was not impeached, contradicted or refuted by any substantive evidence offered by the City." Id. at 481, 737 P.2d at 1380. The plaintiffs also presented unimpeached testimony concerning "the present value of decedent's potential future income." Id. On appeal, Division One determined the trial court had abused its discretion in denying a new trial on the issue of damages to those plaintiffs to whom the jury had not awarded damages, id. at 482-83, 737 P.2d at 1381-82, reasoning that "ample testimony demonstrated that each of the plaintiffs suffered emotional and possibly financial losses due to Tony's death" and that "those [plaintiffs] who did not receive any damages were . . . entitled to some damages in light of the evidence established at trial and by virtue of their status as statutory beneficiaries."² Id. at 482, 737 P.2d at 1381.

¶ 9 Chad and Marsha argue Sedillo is "squarely on all fours with the present case" because "there was no impeachment, contradiction or refutation of the evidence of [their] close family relations with John." In response, GABA argues Sedillo is distinguishable because the plaintiffs in that case, unlike Chad and Marsha, "proved specific pecuniary losses" from the decedent's death, and evidence of financial loss is required, relying on Quinonez v. Andersen, 144 Ariz. 193, 696 P.2d 1342 (App.1984). We disagree. There was no evidence presented in Sedillo that the plaintiffs to whom the jury awarded no damages were financially dependent on the decedent, only that he would have provided financial support "`if they needed it'" or if they had attended college. 153 Ariz. at 482, 737 P.2d at 1381. The court in Sedillo described the plaintiffs' financial losses as merely "possibl[e]," but did not similarly qualify their emotional loss. Id. Therefore, we conclude the court in Sedillo did not rely on the evidence of the plaintiffs' economic loss in deciding they were necessarily entitled to some damages.

¶ 10 Nor does Quinonez support GABA's position. Although Division One of this court stated in Quinonez that damages in a wrongful death action are apportioned "by the individual pecuniary loss suffered by each [beneficiary]," it did not rule that evidence of economic loss is required in order to recover under the wrongful death statute. 144 Ariz. at 196, 696 P.2d at 1345. It instead determined the required apportionment permitted an individual statutory beneficiary to receive a new trial on the issue of damages in which other beneficiaries would not participate. Id. Indeed, nothing in Quinonez suggests the plaintiff sought damages for emotional loss; he instead presented evidence of "economic loss by reason of his wife's death." Id. at 198, 696 P.2d at 1347. Moreover, it is established law in Arizona that a party may recover for noneconomic losses in a wrongful death action. See Lueck, 111 Ariz. at 573, 535 P.2d at 612. And nothing in Sedillo suggests we should distinguish between emotional or economic loss for the purpose of applying its holding.

¶ 11 GABA also argues the court's holding in Sedillo depended on Division One's conclusion that "the jury may have improperly considered comparative negligence principles when it determined the awards." 153 Ariz. at 482, 737 P.2d at 1381. GABA asserts "there is no concern that the jury [in this case] based its award on improper considerations of comparative fault." Assuming, arguendo, that the jury was properly instructed on issues of comparative fault, we do not agree the holding in Sedillo depended on the mere possibility the jury improperly considered comparative negligence in calculating damages. The Sedillo court's concern the jury might have improperly considered comparative negligence principles was "[d]ue to the extremely low damage awards," id.; therefore, the court clearly was referring to those...