Zuern By and Through Zuern v. Ford Motor Co.

• Decision Date: 19 December 1996
• Docket Number: CA-CV,No. 2,2
• Citation: 937 P.2d 676,188 Ariz. 486
• Parties: , 233 Ariz. Adv. Rep. 43 Blake ZUERN, a minor, By and Through Frank ZUERN and Kristie Zuern, husband and wife, Plaintiffs/Appellants, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant/Appellee. 96-0182.
• Court: Arizona Court of Appeals

Page 676

937 P.2d 676

188 Ariz. 486, 233 Ariz. Adv. Rep. 43

Blake ZUERN, a minor, By and Through Frank ZUERN and Kristie Zuern, husband and wife, Plaintiffs/Appellants, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant/Appellee.

No. 2 CA-CV 96-0182.

Court of Appeals of Arizona,

Division 2, Department A.

Dec. 19, 1996.

Review Granted June 5, 1997.

[188 Ariz. 488] Haralson, Kinerk & Morey, P.C. by Dale Haralson and B. Lance Entrekin, Tucson, for Plaintiffs/Appellants.

Snell & Wilmer L.L.P. by Douglas W. Seitz and Rosalind R. Greene, Tucson, for Defendant/Appellee.

OPINION

PELANDER, Presiding Judge.

In this product liability case against a motor vehicle manufacturer, plaintiffs/appellants obtained a jury verdict but they challenge two evidentiary rulings by the trial court. The first ruling excluded certain evidence of vehicle defectiveness on disclosure grounds, and the second ruling admitted evidence concerning a nonparty's fault. In connection with the second ruling, we must examine what effect, if any, Arizona's Uniform Contribution Among Tortfeasors Act (UCATA), A.R.S. §§ 12-2501 to 12-2509, has on the application of this court's pre-Act decision in Cota v. Harley Davidson, 141 Ariz. 7, 684 P.2d 888 (App.1984). We find no error in either of the trial court's rulings and therefore affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from a two-vehicle accident in November 1991. Robert Ellisor, who was intoxicated and driving a Lincoln Continental at a speed of approximately 36 to 39 miles per hour, rear-ended plaintiffs' 1988 Ford Aerostar van, which was stopped. The van was equipped with four "captain's chairs." Plaintiff Frank Zuern was driving and his then five year-old son, Blake, was seated in the chair directly behind him. Both were wearing seat belts. During the collision, Mr. Zuern's seat back collapsed rearward into the space that Blake occupied. Blake sustained a fractured left femur and severe head injuries.

Plaintiffs sued Ford Motor Company (Ford), alleging that their van was defective and unreasonably dangerous and that Ford was strictly liable in tort for designing, manufacturing and selling the vehicle. Ford timely designated Ellisor as a nonparty at fault. The jury returned a verdict for plaintiffs and awarded full damages of $643,000 to Blake Zuern and $127,314 to his parents, plaintiffs Frank and Kristie Zuern. The jury allocated 70% of the fault to Ellisor and 30% of the fault to Ford, and the trial court entered judgment in accordance with the verdict for plaintiffs against Ford in the total net amount of $231,094.20. Plaintiffs moved for a new trial, challenging, inter alia, the aforementioned evidentiary rulings, and then appealed only from the trial court's order denying that motion.

DISCUSSION

1. Evidence of Rear Seat Defectiveness

Plaintiffs contend the trial court erred in excluding their proffered evidence of defects in the rear seat which Blake occupied, claiming the evidence would have simply rebutted a new defense theory which Ford had first disclosed less than sixty days before trial and which Ford presented at trial. "A trial court's rulings on the exclusion or admission of evidence will not be disturbed on appeal unless a clear abuse of discretion appears and prejudice results." Selby v. Savard, 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982). In addition, "[t]he trial court has broad discretion in ruling on discovery and disclosure matters," and we will not disturb its ruling absent a clear abuse of discretion. Soto v. Brinkerhoff, 183 Ariz. 333, 335, 903 P.2d 641, 643 (App.1995).

Throughout this litigation, plaintiffs primarily contended that Mr. Zuern's seat was defective, unreasonably dangerous and had caused Blake's injuries. According to plaintiffs, Blake's head injuries resulted from Mr. Zuern's seat ramping backward during the collision and causing his head to forcefully strike Blake's head. Approximately three months before trial, however, plaintiffs' experts formed a new opinion that Blake had hit the back of his head on an upper, horizontal cross member in his own seat back frame after he was struck by Mr. Zuern. Inspection of Blake's seat two months before trial revealed a dent in the upper, horizontal cross member of his seat back. The dent indisputably was made by Blake's head hitting it. When Ford moved to continue the trial for sixty days to address the new evidence, plaintiffs opposed the motion and essentially contended that their liability theory had not changed. The trial court denied Ford's motion.

Subsequently, the trial court granted Ford's motion in limine to preclude plaintiffs from arguing or presenting evidence that a defect in Blake's seat caused or contributed to his injury, and denied Ford's alternative motion to postpone the trial, both of which plaintiffs opposed. Adhering to its ruling, the trial court later rejected plaintiffs' proffered expert testimony, presented through an offer of proof during trial, that the rear seat was defective and unreasonably dangerous if Blake's head injuries resulted solely from his contacting the cross member in his seat back, without any impetus or force from Mr. Zuern.

Considering the entire context of its ruling, we cannot say the trial court clearly abused its discretion in precluding plaintiffs' proffered evidence concerning defectiveness of Blake's seat. Plaintiffs first disclosed that new, albeit alternative, theory informally during their expert's supplemental deposition one month before trial, ¹ and then formally through a supplemental disclosure a few days later. That disclosure came more than three months after the deadline for disclosing expert opinions. Thus, the trial court did not err in excluding the evidence based on plaintiffs' failure to timely and properly disclose the new liability theory, particularly since plaintiffs, not Ford, initially interjected the new issues into the case. Ariz.R.Civ.P. 26.1, 16 A.R.S. See generally Allstate Insurance Co. v. O'Toole, 182 Ariz. 284, 896 P.2d 254 (1995); Bryan v. Riddel, 178 Ariz. 472, 875 P.2d 131 (1994); Jones v. Buchanan, 177 Ariz. 410, 868 P.2d 993 (App.1993); cf. Czarnecki v. Volkswagen of America, 172 Ariz. 408, 837 P.2d 1143 (App.1991) (trial court properly rejected proposed amendment which would have added a new design defect theory seven weeks before trial).

Plaintiffs also contend they timely disclosed the proffered evidence concerning Blake's seat as "rebuttal" evidence, which the trial court should have admitted simply to counter Ford's theory concerning the mechanism of Blake's head injury. ² We cannot fairly construe the evidence as "rebuttal" evidence, however, nor did plaintiffs so characterize it before, during or after trial. Cf. Deyoe v. Clark Equip. Co., 134 Ariz. 281, 284, 655 P.2d 1333, 1336 (App.1982) ("It has been recognized that the line between direct and rebuttal evidence is hazy and hard to determine and the trial court must have reasonable discretion in fixing the line absent manifest abuse."). We note, moreover, that if plaintiffs regarded evidence of the rear seat's alleged defectiveness as essential to their case, they could and should have acceded to Ford's two requests for a short trial continuance to allow it time to address the new theory. Instead, they opposed the continuances. Under the circumstances, we cannot say the trial court abused its discretion in denying plaintiffs a new trial on this ground. SeeAriz.R.Civ.P. 59(a)(6), 16 A.R.S.

2. Evidence of Nonparty's Intoxication and Criminal Conviction

Analysis of Ellisor's blood after the accident revealed a blood alcohol content of .26%. He pleaded guilty to criminal charges relating to the accident, admitted "he was drunk and intentionally went out to get drunk" at the time, and was sentenced to prison. Over plaintiffs' objection, the trial court admitted evidence of those facts and permitted an investigating detective to testify that Ellisor had a "very strong odor of alcohol," fumbled through his wallet for several minutes looking for his license, refused to perform field sobriety tests, and appeared to be obviously impaired. Based on that evidence, Ford's counsel told the jury in closing argument that it should assess "by far the largest degree of fault" to Ellisor and urged the jury, as "the conscience of the community," to "figure out what we are going to do with drunk drivers in this community."

Plaintiffs contend, as they did in the trial court, that the evidence of Ellisor's intoxication and conviction should have been excluded because it was irrelevant, and any probative value it had was substantially outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury. Relying exclusively on Cota, plaintiffs maintain that "[t]he reasons why Ellisor drove his car into the Aerostar and the fact that he was subsequently convicted of a criminal charge" were irrelevant to the issue of fault in a case like this involving only a strict liability claim. According to plaintiffs, the only relevant consideration bearing on fault was the extent to which Blake's injuries were caused by the design of the Aerostar and the extent to which they were caused by the foreseeable collision with Ellisor's car.

In Cota, the plaintiff/motorcyclist was badly burned when one of the cycle's gasoline tanks ruptured during a collision. He sued the manufacturer on a "crashworthiness" theory of strict liability, ³ claiming the motorcycle was defective in its design. On appeal from an adverse jury verdict, the manufacturer alleged error, inter alia, in the trial court's exclusion of evidence that the motorcyclist had been drinking before the accident and was driving on the wrong side of the road at the time of the collision. In rejecting that claim, this court stated:

Defendants' thinly veiled reason for wanting this evidence to be brought to the jury's attention was to paint Cota as a wrongdoer and hope the jury would take that...