Willett v. Ciszek-Olson, CISZEK-OLSON and J

• Citation: 823 P.2d 97,170 Ariz. 230
• Decision Date: 24 December 1991
• Docket Number: CISZEK-OLSON and J,CA-CV
• Parties: Marie R. WILLETT, a married woman, Plaintiff/Appellant, v. Debra Annohn Olson, wife and husband, Defendants/Appellees. 291-0131.
• Court: Arizona Court of Appeals

Page 97

823 P.2d 97

170 Ariz. 230

Marie R. WILLETT, a married woman, Plaintiff/Appellant, v. Debra Ann CISZEK-OLSON and John Olson, wife and husband, Defendants/Appellees.

2 CA-CV 91-0131.

Court of Appeals of Arizona Division 2, Department B.

Dec. 24, 1991.

Law Offices of Ronald D. Mercaldo, Ltd. by Ronald D. Mercaldo, Tucson, for plaintiff/appellant.

Slutes, Sakrison, Even, Grant & Pelander, P.C. by Philip H. Grant, Tucson, for defendants/appellees.

OPINION

FERNANDEZ, Presiding Judge.

Marie Willett appeals from the judgment and the denial of her motion for a new trial following a jury verdict in her personal injury action. Appellee Debra Ciszek-Olson was found to be 67% responsible for Willett's total damages of $28,815. Willett argues that the trial court erred in refusing to instruct the jury on damages for permanent injuries. She also complains about an instruction requested by appellees. We agree that the court erred in refusing Willett's requested instruction and reverse.

Willett was injured when the car in which she was riding was struck by a car driven by Ciszek-Olson, who was attempting to complete a left turn. Willett's vehicle had entered the intersection just after the light turned yellow. Ciszek-Olson began her turn just after the light turned red.

REQUESTED INSTRUCTIONS ON PERMANENT INJURIES

Willett requested a jury instruction that included items for future pain and suffering and future medical expenses among the damages she could recover. She also requested an instruction on her life expectancy. The court refused to give either instruction.

In reviewing whether a requested jury instruction should have been given, this court must look at the evidence in the light most favorable to the requesting party, and if there is any evidence tending to establish the theory posed in the instruction, it should be given even if there are contradictory facts presented.

Andrews v. Fry's Food Stores of Arizona, 160 Ariz. 93, 95, 770 P.2d 397, 399 (App.1989). Both Willett and her husband testified that since the accident, she is less active because of back pain, she cannot interact with her grandchildren as she used to, and she requires assistance with her household tasks. Willett also testified that she continues to suffer from headaches, that she continues to have numbness in her thumb, and that she cannot sit for prolonged periods without suffering low back pain. Dr. Austin Gentry, a chiropractor and registered physical therapist, testified that the accident had intensified Willett's prior back condition and that it will remain permanently impaired. Ciszek-Olson neither challenged Gentry's qualifications to render an opinion on the permanency of the injuries nor objected to his testimony.

Under the standard enunciated in Andrews, supra, Willett's evidence was sufficient to support the giving of her requested instructions. We find no merit to Ciszek-Olson's contentions that the instructions were not warranted because Willett had pre-existing back problems, because her employer testified that she performed her work as well after the accident as she had before, and because the evidence in her cited cases was stronger than in this one. What Ciszek-Olson actually asks us to do here is to perform as a jury and to weigh the facts. We are not permitted to do so.

It was error to refuse Willett's requested instructions. Therefore, she is entitled to a new trial.

OBJECTION TO INSTRUCTION GIVEN

Because the issue will most likely arise again, we also address Willett's contention that the court erred in giving an instruction...