Zuluaga v. Bashas', Inc.

• Decision Date: 03 February 2017
• Docket Number: No. 2 CA-CV 2016-0104,2 CA-CV 2016-0104
• Citation: 394 P.3d 32
• Parties: Maricruz ZULUAGA, a minor, BY AND THROUGH her next friend, Guadalupe ZULUAGA, Plaintiff/Appellant, v. BASHAS', INC., an Arizona corporation doing business as Food City, Defendant/Appellee.
• Court: Arizona Court of Appeals

394 P.3d 32

Maricruz ZULUAGA, a minor, BY AND THROUGH her next friend, Guadalupe ZULUAGA, Plaintiff/Appellant,

v.BASHAS', INC., an Arizona corporation doing business as Food City, Defendant/Appellee.

No. 2 CA-CV 2016-0104

Court of Appeals of Arizona, Division 2.

Filed February 3, 2017

Hollingsworth Kelly, Tucson, By Louis Hollingsworth, Michael F. Kelly, and John F. Kelly, Counsel for Plaintiff/Appellant

Burch & Cracchiolo, P.A., Phoenix, By Daryl Manhart and Susie Ingold, Counsel for Defendant/Appellee

Judge Vásquez authored the opinion of the Court, in which Presiding Judge Howard and Judge Staring concurred.

OPINION

VÁSQUEZ, Judge:

¶ 1 In this negligence action, Maricruz Zuluaga appeals from the trial court's judgment in favor of Bashas', Inc. and the denial of her motion for a new jury trial. On appeal, Zuluaga argues the court erred by unreasonably limiting the scope of voir dire. Zuluaga also contends the court erred by giving a curative instruction after plaintiff's counsel referred during opening statements to the manner and timing of Bashas' disclosure of certain information. For the following reasons, we affirm the court's judgment.

Factual and Procedural Background

¶ 2 "We view the evidence and all reasonable inferences in the light most favorable to upholding the jury's verdict." Romero v. Sw. Ambulance , 211 Ariz. 200, ¶ 2, 119 P.3d 467, 469 (App. 2005). On June 2, 2011, six-year-old Zuluaga and her parents were shopping at a Food City location, operated by Bashas'. While in the store, Zuluaga briefly separated from her mother and went to the produce department. At the same time, a Food City employee, Carlos Martinez, passed through the produce department on his way to the back of the store. The two collided, and Zuluaga fell and sustained a skull fracture and subdural hemorrhage.

¶ 3 Zuluaga's mother brought this action on her behalf in July 2012, claiming Zuluaga suffered damages because of Martinez's negligence, for which Bashas' was vicariously liable. During the seven-day trial, the parties disputed whether Martinez had been running or walking through the produce department and whether he ran into Zuluaga or she ran into him. The jury returned a defense verdict in favor of Bashas'. The trial court denied Zuluaga's motion for a new trial, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1), (5)(a).

Scope of Voir Dire

¶ 4 Zuluaga argues the trial court "unreasonably limited her voir dire by refusing to allow questions about grocery store employment." We will not overturn a trial court's ruling on the scope of voir dire absent an abuse of discretion. State v. Burns , 237 Ariz. 1, ¶ 19, 344 P.3d 303, 314 (2015).¹ In addition, we will not reverse a judgment unless the error was prejudicial. See Ariz. Const. art. VI, § 27 ; United Cal. Bank v. Prudential Ins. Co. of Am. , 140 Ariz. 238, 295, 681 P.2d 390, 447 (App. 1983).

¶ 5 The trial court conducted the initial portion of voir dire in this case, asking prospective jurors if they, a close family member, or a close friend "work[ed] for Bashas or Food City." One juror responded affirmatively and was later dismissed for cause. During Zuluaga's portion of voir dire, counsel asked a similar, but broader, question: "Who here, or a family member, or a close friend, has ever worked in a grocery store? This could be 30 years ago, checkout clerk; cashier manager; surveillance." Five jurors responded affirmatively, and the first four briefly explained their connections. The court stopped Zuluaga's counsel before he could address the fifth juror, however, and the following exchange occurred:

The Court: You're getting to some areas here that are so long and I don't know how helpful it is. I'm surprised you haven't asked who hasn't worked at a grocery store because that's such a common way of kids to advance to adults. It doesn't really matter whether somebody has worked at a grocery store or has a good friend that has.

You can ask for similar specific areas, but I'm going to ask you to be more explicit asking the questions and move things along.

[Zuluaga's counsel]: Your Honor, thank you.

For the record, this case involves the actions of a grocery store with [an] employee and a manager, and whether or not their testimony is reasonable under the circumstances and upon the evidence the jury is going to hear, I believe it's very important to know which jurors have worked in that environment of a grocery store....

And I'm not going into this to each individual person. I'm trying to get answers and the jurors saying yes, and then I'll move past that. And I'm entitled to do that.

The Court: Well, ... you're not going to be able to evaluate until somebody views the witness and until that witness takes the stand. So, really, I think you're getting too specific here. You're going to find people that are candid and people who are less than candid. Ultimately, the jury is going to use their collective common sense in deciding what's credible or not, so I'm going to ask you to move on.

....

[Zuluaga's counsel]: To clarify the Court's ruling, the Court is preventing me [from] finishing this line of questions with the panel in respect to which members of the panel have worked in grocery stores or can remember—

The Court: Right. You can ask them, is there anything about their experience or experiences of a family [member] or friend that might [a]ffect [their] ability to fairly weigh the credibility of the witnesses in this case, whether they worked in a grocery store or not. So that's really the question here.

So get on with it.

¶ 6 In turn, Zuluaga's counsel asked the following question:

With respect to those of you who have had experience yourself in a grocery store or a close friend or family member, is there anything about those associations in your life or those people in your life, anything about conversations with them or knowledge about their jobs that would make it more likely, in this case, for you to start off favoring the grocery store or its employees in terms of credibility?

No jurors responded to the question. Of the five jurors who initially stated they, or someone close to them, had some experience working at a grocery store, two ultimately sat for trial, including the fifth juror who never disclosed the nature of that experience.²

¶ 7 Rule 47(b)(3), Ariz. R. Civ. P., provides that, "[u]pon the request of any party, the court shall permit that party a reasonable time to conduct a further oral examination of the prospective jurors."³ Although the court "may impose reasonable limitations with respect to questions allowed," id. , it cannot restrict questions "to the grounds of challenge for cause," Ariz. R. Civ. P. 47(d). Instead, voir dire "may extend to any legitimate inquiry which might disclose a basis for exercise of a peremptory challenge." Id. ; see A.R.S. § 21–211 (listing grounds for challenge for cause); Ariz. R. Civ. P. 47(c) (same) ; Evans v. Mason , 82 Ariz. 40, 46, 308 P.2d 245, 249 (1957). For parties to "intelligently exercise these rights of challenge, they are privileged to examine prospective jurors as to their qualifications." Wilson v. Wiggins , 54 Ariz. 240, 241–42, 94 P.2d 870, 871 (1939) ; see also State v. McMurtrey , 136 Ariz. 93, 99, 664 P.2d 637, 643 (1983).

¶ 8 In denying Zuluaga's motion for a new trial on this issue, the trial court explained that it had intended to "instruct [Zuluaga] to ask specific questions to determine who on the panel could not be fair." But as explained above, voir dire is not limited to grounds of challenges for cause, such as "bias for or against" a party. Ariz. R. Civ. P. 47(c)(5), (d). And although the court may have intended to encourage more specific questions, it explicitly told Zuluaga's counsel to ask whether the jurors' experiences would affect their "ability to fairly weigh the credibility of the witnesses" and "to move on." But merely asking jurors whether they subjectively believe they can be fair and impartial is not sufficient for counsel to make an informed decision about making a peremptory strike. See State v. Naranjo , 234 Ariz. 233, ¶ 17, 321 P.3d 398, 405 (2014) ; see also Silverthorne v. United States , 400 F.2d 627, 639 (9th Cir. 1968) (bias "should not be adjudged on that juror's own assessment of self-righteousness without something more"). Because Zuluaga's line of questioning was relevant to the factual issues in dispute, see Evans , 82 Ariz. at 46, 308 P.2d at 249, the court abused its discretion by limiting the scope of voir dire, see Burns , 237 Ariz. 1, ¶ 19, 344 P.3d at 314.

¶ 9 We nonetheless will not reverse the judgment unless the error was prejudicial. See United Cal. Bank , 140 Ariz. at 295, 681 P.2d at 447. "The test is whether prejudice seems affirmatively probable[,] and prejudice will not be presumed, but must appear probable from the record." Catchings v. City of Glendale , 154 Ariz. 420, 422–23, 743 P.2d 400, 402–03 (App. 1987), quoting Hallmark v. Allied Prods. Corp. , 132 Ariz. 434, 441, 646 P.2d 319, 326 (App. 1982). In other words, Zuluaga must show "not only that the voir dire examination was inadequate, but also that, as a result of the inadequate questioning, the jury selected was not fair, unbiased, and impartial." Naranjo , 234 Ariz. 233, ¶ 24, 321 P.3d at 406, quoting State v. Moody , 208 Ariz. 424, ¶ 95, 94 P.3d 1119, 1146 (2004).

¶ 10 Zuluaga did not attempt to meet this burden. She seems to argue, however, that we should presume prejudice in this case because of the gravity of the trial court's error.⁴ We acknowledge that other jurisdictions will presume prejudice when "the trial judge so limits the scope of voir dire that the procedure used for testing does not create any reasonable assurances that prejudice would be discovered if present." United States v. Baldwin , 607 F.2d 1295, 1298 (9th Cir. 1979) ; see also Fietzer v. Ford Motor Co. , 622 F.2d 281, 286 (7th Cir. 1980). This approach has been utilized where "the...