Williams for and on Behalf of Dixon v. Thude, No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtCLABORNE; WEISBERG, P.J., and GARBARINO
Citation885 P.2d 1096,180 Ariz. 531
PartiesJerry WILLIAMS and Shirley Williams, as guardians for and on behalf of Lori Jo DIXON; and as the natural parents of Lori Jo Dixon, Plaintiffs-Appellants, v. John THUDE and Jane Doe Thude, husband and wife; Manuel Morales-Vasquez and Jane Doe Morales-Vasquez, husband and wife, Defendants-Appellees. 90-0412.
Decision Date21 April 1994
Docket NumberNo. 1,CA-CV

Page 1096

885 P.2d 1096
180 Ariz. 531
Jerry WILLIAMS and Shirley Williams, as guardians for and on behalf of Lori Jo DIXON; and as the natural parents of Lori Jo Dixon, Plaintiffs-Appellants,
v.
John THUDE and Jane Doe Thude, husband and wife; Manuel Morales-Vasquez and Jane Doe Morales-Vasquez, husband and wife, Defendants-Appellees.
No. 1 CA-CV 90-0412.
Court of Appeals of Arizona,
Division 1, Department A.
April 21, 1994.
As Corrected April 26, and May 12, 1994.
Review and Cross-Petition for Review
Granted on Issue 2, Denied on all
other Issues Dec. 22, 1994.

Page 1097

[180 Ariz. 532] Crowe & Scott, P.A. by Michael B. Scott, Phoenix, for plaintiffs-appellants.

Jennings, Strouss & Salmon by William T. Birmingham, M. Byron Lewis and Michael J. O'Connor, Phoenix, for defendants-appellees.

OPINION

CLABORNE, Judge.

This action arose from a motor vehicle accident in which Lori Jo Dixon ("Lori") drove into the rear end of a cotton plow being pulled by a farm tractor. This is a consolidated appeal from an order by the trial court denying a motion for a new trial and a second appeal from an order granting the motion for new trial upon reconsideration. Six issues are raised on appeal:

1. Whether the trial court erred in failing to instruct the jury regarding negligent supervision;

2. Whether the trial court erred in bifurcating the trial on the issues of damages and liability;

3. Whether the trial court erred in instructing the jury regarding lighting requirements on the back of a motor vehicle;

4. Whether the trial court erred in refusing to instruct the jury regarding safety requirements for projecting loads;

5. Whether the trial court erred in admitting the blood alcohol content of Lori; and

Page 1098

[180 Ariz. 533] 6. Whether the trial court erred in instructing the jury regarding willful and wanton conduct.

We find that the trial court erred in instructing the jury. We affirm the order granting the motion for new trial.

I. Facts

In an evening in January 1988, Lori and some of her friends went to a nightclub in Tempe. At the end of the evening, Lori drove her friend Roxanne home. Roxanne loaned Lori some money so that Lori could get something to eat on the way home. Sometime between 1:30 a.m. and 2 a.m. Lori drove into the back of a cotton plow being pulled by a tractor. What Lori did after borrowing the money from Roxanne until the time of the accident is unknown.

Police officer Kenneth Underwood arrived at the scene of the accident at 2:10 a.m. Upon investigating the scene, he noticed an opened beer can in the driver's side of Lori's car. He subsequently ordered a blood alcohol sample which indicated that Lori's blood alcohol content ("BAC") at 3:15 a.m. was 0.119%. There were no skid marks indicating that Lori had taken any evasive action to avoid the accident. The farm tractor pulling the cotton plow had its back white cargo lights illuminated on the plow as it was traveling on the highway. There were no other lights or warning signs to indicate that the tractor was pulling the plow.

As a result of the accident, Lori suffered severe injuries and is unable to recollect the events of that night.

II. Procedure

Appellants Jerry and Shirley Williams ("Plaintiffs") filed a complaint alleging negligent operation, negligent hiring, supervision and training, and violation of the laws and regulations pertaining to the operation of farm equipment on public roads.

The trial was bifurcated on the issues of damages and liability. The case proceeded to a trial by jury. The jury heard extensive testimony regarding Lori's BAC and its relation back to the time of the accident. The jury was instructed regarding Lori's BAC and whether her conduct amounted to willful and wanton negligence proximately causing her injuries. In addition, the jury was instructed regarding lighting requirements on the rear of tractors but not as to the plow. At the close of the evidence, a directed verdict was entered dismissing some of the parties. The case went to the jury with Appellee Paradise Cattle Company ("Defendant") as the only defendant. The jury returned a defense verdict.

Following the verdict, Plaintiffs moved for a new trial. The motion was denied and Plaintiffs then moved for reconsideration. The trial court denied the motion. Plaintiffs appealed to this Court. Because of a decision issued by this Court bearing upon Plaintiff's case, we stayed the appeal and ordered the trial court to reconsider Plaintiffs' motion for a new trial. The trial court granted the motion for new trial and requested that this Court advise whether its instruction regarding the lack of a triangle or red light on the back of the plow was in error. Defendant appealed. We consolidated the two appeals.

III. Discussion

1. Failure to Instruct Jury on Negligent Supervision

Plaintiffs contend that the trial court erred in failing to instruct the jury regarding negligent supervision. Defendant responds that the issue has been waived on appeal. In order to properly preserve an objection to jury instructions on appeal, counsel must state distinctly what is being objected to and the grounds for the objection. See Rodriguez v. Schlittenhart, 161 Ariz. 609, 616, 780 P.2d 442, 449 (App.1989); Flieger v. Reeb, 120 Ariz. 31, 34, 583 P.2d 1351, 1354 (App.1978).

Here, the trial court asked both counsel if there were any corrections that needed to be made to the jury instructions. Defendant's counsel responded "nothing," and Plaintiffs' counsel responded "[none] that I am aware of." After the verdict, the trial court realized that he had inadvertently left out two of Plaintiffs' requested instructions regarding negligent supervision. Plaintiffs argue that the comment "[none] that I am aware of,"

Page 1099

[180 Ariz. 534] preserves the issue on appeal. We disagree. We held in Flieger that counsel's silence when asked if there were any additions or corrections to instructions amounted to waiver of any error on appeal. Flieger at 34, 583 P.2d at 1354. The same principle applies here. The fact that counsel for Plaintiffs failed to specifically object to the omission of the instruction amounts to waiver.

2. Motion to Bifurcate Trial

Plaintiffs next contend that the trial court erred in granting Defendant's motion to bifurcate the trial on the issues of liability and damages. Arizona Rule of Civil Procedure 42(b) (1987) ("Rule 42(b)") provides:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counter-claim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury.

The trial court is given broad discretion in exercising its severance power under Rule 42(b). Morley v. Superior Court of Arizona, 131 Ariz. 85, 87, 638 P.2d 1331, 1333 (1981); Woods v. Harker, 22 Ariz.App. 83, 86, 523 P.2d 1320, 1323 (1974). We find that the trial court did not abuse its discretion.

Rule 42(b) allows the trial court to bifurcate the trial, separating the issues of liability and damages, where the issues are separate and distinct from one another. Woods at 86, 523 P.2d at 1323. The record before us supports a finding that the evidence relevant to the issues of damages and liability was unrelated. Specifically, the trial court found:

In this case, Plaintiff has allegedly sustained catastrophic injuries....

This Court finds that Plaintiff's injuries and the results of those injuries holds a definite potential to adversely and improperly affect the jury's fair, impartial, and objective consideration of the liability issues. Additionally, the Court finds that bifurcation is proper inasmuch as it appears the issues of liability is [sic] separate and distinct from damages. Although it is stated that Plaintiff will be testifying on the liability aspect of Plaintiff's claim, the Court observes that Lori has no recall of the events of the accident nor of her activities prior to the accident. The liability issues are whether the Defendants' lack of fluorescent lighting was a proximate cause of the accident and whether Plaintiff was contributorily negligent in her speeding and/or intoxication. On the other hand, the issue of damages relates to the nature and extent of Plaintiff's brain injury, and the nature and extent of the treatment needed in the future.

These findings were within the trial court's discretion, and the severance order "served the purposes of Rule 42 by achieving judicial economy and avoiding prejudice." Mulhern v. City of Scottsdale, 165 Ariz. 395, 398, 799 P.2d 15, 18 (App.1990). Therefore, we find that the issues were properly bifurcated.

3. Lighting Requirements

Plaintiffs also argue on appeal that the trial court erred in refusing to give its requested jury instruction regarding lighting requirements on the back of motor vehicles pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") section 28-931(C) (1989). Plaintiffs included in their requested instruction specific language that bright white cargo lights shining from the rear of the tractor was in violation of Arizona law. The relevant statute provides:

All lighting devices and reflectors mounted on the rear of any vehicle shall display or reflect a red color, except the stop light or other signal device, which may be red, amber or yellow, and except that the light illuminating the license plate or the light emitted by a back-up lamp shall be white.

A.R.S. § 28-931(C).

In determining whether the trial court erred in not giving the requested instruction, we look to see if the instruction was adequately covered by another instruction. Lewis v. N.J. Riebe Enter., Inc., 170

Page 1100

[180 Ariz. 535] Ariz. 384, 397, 825 P.2d 5, 18 (1992). The following instruction was given by the court:

The law requires that:

A motor vehicle, trailer ... any other...

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22 practice notes
  • Noriega v. Town of Miami, 2 CA-CV 2017-0007
    • United States
    • Court of Appeals of Arizona
    • 26 October 2017
    ...or wanton conduct." Armenta v. City of Casa Grande, 205 Ariz. 367, ¶ 20, 71 P.3d 359, 364 (App. 2003), quoting Williams v. Thude, 180 Ariz. 531, 539, 885 P.2d 1096, 1104 (App. 1994).¶ 24 The trial court concluded that summary judgment on the issue of gross negligence was appropriate for two......
  • S Dev. Co. v. Pima Capital Mgmt. Co., 1 CA-CV-00-0347.
    • United States
    • Court of Appeals of Arizona
    • 30 August 2001
    ...on appeal, counsel must state distinctly what is being objected to and the grounds for the objection." Williams ex rel. Dixon v. Thude, 180 Ariz. 531, 533, 885 P.2d 1096, 1098 (App.), review granted in part (1994), aff'd, 188 Ariz. 257, 934 P.2d 1349 (1997); Ariz. R. Civ. P. 51(a) ("No part......
  • Williams v. Thude, CV-94-0249-PR
    • United States
    • Supreme Court of Arizona
    • 3 April 1997
    ...ZLAKET, Chief Justice. The facts of this vehicular tort case are set forth in the opinion of the court of appeals. See Williams v. Thude, 180 Ariz. 531, 533, 885 P.2d 1096, 1098 (App.1994). We granted review of two issues but on further consideration have decided to address only one, reform......
  • Bohmfalk v. Cochise Cnty., 2 CA-CV 2015-0137
    • United States
    • Court of Appeals of Arizona
    • 20 June 2016
    ...risk of harm; and (2) the risk is so great that it is highly probable that harm will result.Id. ¶ 20, quoting Williams v. Thude, 180 Ariz. 531, 539, 885 P.2d 1096, 1104 (App. 1994). The misconduct must be "'highly potent'" and, when presented, will "'fairly proclaim[] itself in no uncertain......
  • Request a trial to view additional results
22 cases
  • Noriega v. Town of Miami, 2 CA-CV 2017-0007
    • United States
    • Court of Appeals of Arizona
    • 26 October 2017
    ...or wanton conduct." Armenta v. City of Casa Grande, 205 Ariz. 367, ¶ 20, 71 P.3d 359, 364 (App. 2003), quoting Williams v. Thude, 180 Ariz. 531, 539, 885 P.2d 1096, 1104 (App. 1994).¶ 24 The trial court concluded that summary judgment on the issue of gross negligence was appropriate for two......
  • S Dev. Co. v. Pima Capital Mgmt. Co., 1 CA-CV-00-0347.
    • United States
    • Court of Appeals of Arizona
    • 30 August 2001
    ...on appeal, counsel must state distinctly what is being objected to and the grounds for the objection." Williams ex rel. Dixon v. Thude, 180 Ariz. 531, 533, 885 P.2d 1096, 1098 (App.), review granted in part (1994), aff'd, 188 Ariz. 257, 934 P.2d 1349 (1997); Ariz. R. Civ. P. 51(a) ("No part......
  • Williams v. Thude, CV-94-0249-PR
    • United States
    • Supreme Court of Arizona
    • 3 April 1997
    ...ZLAKET, Chief Justice. The facts of this vehicular tort case are set forth in the opinion of the court of appeals. See Williams v. Thude, 180 Ariz. 531, 533, 885 P.2d 1096, 1098 (App.1994). We granted review of two issues but on further consideration have decided to address only one, reform......
  • Bohmfalk v. Cochise Cnty., 2 CA-CV 2015-0137
    • United States
    • Court of Appeals of Arizona
    • 20 June 2016
    ...risk of harm; and (2) the risk is so great that it is highly probable that harm will result.Id. ¶ 20, quoting Williams v. Thude, 180 Ariz. 531, 539, 885 P.2d 1096, 1104 (App. 1994). The misconduct must be "'highly potent'" and, when presented, will "'fairly proclaim[] itself in no uncertain......
  • Request a trial to view additional results

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