Opinion
1 CA-CV 24-0012
10-29-2024
JOHN HARRINGTON, Plaintiff/Appellee, v. CIRCLE K STORES, INC., Defendant/Appellant.
Eid Law Office, PLLC, Phoenix By Benjamin R. Eid Counsel for Plaintiff/Appellee CHDB Law, LLP, Tempe By Wade R. Causey Counsel for Defendant/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2020-054793 The Honorable Michael D. Gordon, Judge
Eid Law Office, PLLC, Phoenix By Benjamin R. Eid Counsel for Plaintiff/Appellee
CHDB Law, LLP, Tempe By Wade R. Causey Counsel for Defendant/Appellant
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in which Judge Anni Hill Foster and Judge Angela K. Paton joined.
MEMORANDUM DECISION
BAILEY, JUDGE
¶1 Circle K appeals a final judgment entered after a jury verdict awarding John Harrington about $113,000. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the jury's verdict. Higgins v. Assmann Elecs., Inc., 217 Ariz. 289, 296, ¶ 26 (App. 2007).
¶3 In July 2019, Harrington went inside a Circle K to buy ice. Circle K kept the ice on wooden pallets in a large walk-in freezer. That morning, the pallet closest to the freezer door was empty, so Harrington stepped on the front pallet to reach ice stacked on a pallet farther back inside the freezer. Harrington felt the pallet "pop." He then lost his footing and fell, injuring himself. After he fell, Harrington saw "loose [ice] cubes everywhere in the freezer." A photograph taken afterward showed the pallet was broken.
¶4 A customer found Harrington inside the freezer and alerted the store manager, Heriberto Felix. Paramedics arrived and put Harrington on a stretcher, before transporting him to the hospital. As Harrington laid on the stretcher, a "Circle K employee directed [the] paramedics to hand out a half a dozen or so bags of ice over [Harrington's body]" to be distributed to other customers seeking to purchase ice. Nine-days later, Harrington's counsel notified Circle K that Harrington was injured and seeking medical treatment. In August 2020, Harrington filed a complaint against Circle K, alleging its negligence caused his injuries.
¶5 Circle K's surveillance camera pointed toward the freezer door. Felix reviewed the video and confirmed it showed Harrington enter the freezer and would have shown who else entered the freezer before Harrington fell. Circle K's policy required saving video footage of incidents. Before trial, Harrington moved for sanctions against Circle K because it failed to preserve the video. The superior court declined to enter default judgment or give the jury an adverse inference instruction but imposed the "lesser sanction" of allowing Harrington to "challenge the credibility of the missing evidence to the jury," which read:
[C]ounsel may cross-examine [Felix] on the existence of the videotape. The Court finds it relevant because it could have or could not have captured the events that transpired around
the time of the incident in the freezer. Counsel shall withhold any questions that suggest a nefarious motive and may only question him factually.
¶6 At trial, Felix testified Circle K required employees to keep ice stocked on the front pallet so customers could reach in and take ice. Felix said customers were not supposed to step inside the freezer, but there were no signs, cones, or other indications telling customers to not enter the freezer. If Felix saw customers enter the freezer, he told them customers were not allowed to go inside but should instead ask an employee for help.
¶7 Felix also testified that "sometimes a bag [of ice] is bad, so we have to keep [an] eye on it and clean it." To "prevent [] employee injur[ies]," the freezer was supposed to be cleaned once every shift. But employees did not always clean during their shifts, and Circle K kept no checklist showing when employees cleaned the freezer. Finally, Felix denied seeing the pallet damaged before Harrington fell but also testified he was "sorry [the pallet] was broken."
¶8 At the close of Harrington's case-in-chief, Circle K moved for a directed verdict, arguing Harrington produced no evidence showing he was an invitee, that there was an unreasonably dangerous condition, or that Circle K had notice of the condition. The superior court denied the motion.
The superior court and parties referred to the mid-trial motion as a motion for a directed verdict, but that term has been replaced with judgment as a matter of law ("JMOL"). See Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 127, ¶ 8 n.4 (App. 2008). "[T]he tests for granting a directed verdict and a JMOL motion are the same." Id. (citation omitted).
¶9 The jury found Circle K 51% at fault for Harrington's injuries. Circle K filed a renewed motion for JMOL, arguing Circle K had no notice of the unreasonably dangerous condition and evidence of the missing video footage was inadmissible. The superior court denied the renewed motion for JMOL and entered a final judgment awarding Harrington about $113,000 in damages and costs.
¶10 We have jurisdiction over Circle K's timely appeal under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶11 A negligence claim requires showing: "(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007) (citation omitted).
I. Unreasonably Dangerous Condition and Harrington's Status
¶12 The duty owed "is defined by the entrant's status." McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 255, ¶ 34 (App. 2013) (citation omitted). A person is an invitee when the person is "upon the part of the premises which the occupier has held open to him for the purpose that makes him an invitee." Id. (citation omitted). Proprietors owe business invitees a duty of reasonable care, which includes "an obligation to discover and correct or warn of unreasonably dangerous conditions that the possessor of the premises should reasonably foresee might endanger an invitee." Id. at 252, ¶ 23 (citations omitted).
¶13 Circle K argues insufficient evidence supports finding: (1) Harrington was an invitee and (2) that the ice or broken pallet constituted an unreasonably dangerous condition. "On an appeal from a final judgment [we] shall not consider the sufficiency of the evidence to sustain the verdict or judgment in an action tried before a jury unless a motion for a new trial was made." A.R.S. § 12-2102(C).
¶14 Circle K challenged the invitee and unreasonably dangerous elements in its motion for a directed verdict, but its post-verdict renewed motion for JMOL argued only that Circle K lacked notice and evidence of the missing video footage was inadmissible. We lack jurisdiction when a mid-trial motion is not followed by a post-verdict motion preserving the issues for appeal. See Marquette Venture Partners II, L.P. v. Leonesio, 227 Ariz. 179, 182-84, ¶ 11-13 (App. 2011) (holding that under the Arizona Rules of Civil Procedure, a Rule 50(a) motion must be followed by a Rule 50(b) motion to preserve a sufficiency of the evidence challenge on appeal under § 12-2101(C)); see also Williams v. King, 248 Ariz. 311, 317-18, ¶ 31 (App. 2020); Acuna v. Kroack, 212 Ariz. 104, 111, ¶ 27 n.9 (App. 2006). Accordingly, we lack jurisdiction to consider whether sufficient evidence showed Harrington was an invitee or an unreasonably dangerous condition existed.
II. Notice
¶15 Circle K argues Harrington did not prove it had notice of the unreasonably dangerous condition. Circle K raised this issue in its motion for directed verdict and renewed motion for JMOL.
¶16 We review de novo the superior court's ruling on a motion for JMOL. Torres v. JAI Dining Servs. (Phx.) Inc., 252 Ariz. 28, 30, ¶ 9 (2021). A motion for JMOL should be granted "if, viewing the evidence in the light most favorable to [the] Plaintiff[], reasonable people could not have found in [his] favor." Id. (citation omitted). "It is the jury's burden alone to weigh the credibility of witnesses and draw inferences from the evidence presented at trial." Zuluaga v. Bashas', Inc., 242 Ariz. 205, 212, ¶ 21 (App. 2017). "We will not 'reweigh the facts or comb through the record for evidence supporting a conclusion or inference different from that reached by the jury.'" Higgins, 217 Ariz. at 298, ¶ 34 (citation omitted).
¶17 The plaintiff must show that the proprietor (1) caused the unreasonably dangerous condition; (2) had actual knowledge or notice of the dangerous condition; or (3) had constructive notice of the dangerous condition. Preuss v. Sambo's of Ariz., Inc., 130 Ariz. 288, 289 (1981). Constructive notice requires showing "that the condition existed for such a length of time that in the exercise of ordinary care the proprietor should have known of it and taken action to remedy it." Id. (citation omitted). "[T]he notice . . . must be of the defect itself and not of the conditions producing the defect." Id. at 290.
¶18 At trial, Harrington's counsel asked Felix, "Should that pallet have been broken?" Felix responded, "No. And I'm sorry it was broken." Even though Felix later gave testimony that conflicted with this apology, the jury could still have reasonably concluded from Felix's apology that Circle K had actual notice of the broken pallet, and we do not reweigh evidence. See Zuluaga, 242 Ariz. at 212, ¶ 21.
¶19 Further, the pallet that Harrington slipped on blocked the freezer door. So, customers could not access ice from farther back inside the freezer without stepping on the pallet. If the jury found that the pallet's placement by the freezer door was the unreasonably dangerous condition, it could have also found that Circle K had actual notice, given Felix testified that Circle K employees restocked the front pallet with ice so that customers did not have to walk inside the freezer to retrieve it.
¶20 Finally, Felix testified that Circle K's camera pointed toward the freezer door, and the missing video footage would have shown who entered, how long they were in the freezer, and "how far or deep somebody can go in the freezer before you can't see it anymore." The freezer had a clear glass door, so the jury could have inferred that the video also showed the conditions inside the freezer. And, although Felix denied seeing the broken pallet before Harrington fell and said he would have cleaned up any loose ice, it is the jury's burden to determine credibility. Zuluaga, 242 Ariz. at 212, ¶ 21; see also Est. of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12 (2000) (stating "[t]he . . . jury is not compelled to believe the uncontradicted evidence of an interested party"); Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 197, ¶ 12 (2012) (stating "although Arizona cases generally prohibit juries from arbitrarily rejecting undisputed evidence, we have long recognized that a jury may appropriately discredit a witness's uncontradicted testimony for various reasons, including a witness's personal interest in the case") (citations omitted).
¶21 Accordingly, sufficient evidence supports the jury's finding that Circle K had notice of the freezer's condition.
III. Missing Video
¶22 Circle K further argues the superior court erred by admitting evidence of the missing video. Circle K frames this as an evidentiary issue, but the superior court allowed Harrington to ask Felix about the missing video as a sanction for Circle K's failure to preserve the video. We therefore consider whether the superior court erred by imposing the sanction.
¶23 We review the superior court's sanction ruling for an abuse of discretion. See Souza v. Fred Carries Conts., Inc., 191 Ariz. 247, 249 (App. 1997). To determine whether sanctions are appropriate, the court may consider factors including whether the party willfully destroyed the evidence or defied a court order, whether the other party had access to the evidence before it was destroyed or was prejudiced by its destruction, and whether lesser sanctions are appropriate. Id. at 250-51.
¶24 The superior court found that Circle K had a duty to preserve the video but willfully failed to do so, Circle K defied no court order, Harrington had no access to the video before Circle K willfully failed to preserve it, and Harrington suffered moderate prejudice because the video would have shown "whether any employees had approached or entered the freezer before the fall." The superior court then determined that neither default judgment nor an adverse inference instruction were warranted, but Circle K's conduct warranted the "lesser sanction" of allowing Harrington to "challenge the credibility of the missing evidence to the jury."
¶25 On appeal, Circle K argues the missing video footage was irrelevant. We interpret this as Circle K arguing it had no duty to preserve the video footage. We disagree. "[L]itigants have a duty to preserve evidence which they know, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request." McMurtry, 231 Ariz. at 260, ¶ 51 (citation omitted).
¶26 Felix testified that the video would have shown who entered the freezer. Who entered the freezer before Harrington fell was relevant to whether Circle K had notice of the freezer's condition. Further, a Circle K employee saw Harrington lying on the stretcher when they asked the paramedics to hand them ice, and, nine days later, Harrington's counsel's letter notified Circle K that Harrington was injured and seeking medical treatment. So, Circle K knew Harrington was injured, and knew, or reasonably should have known, that the video was relevant and reasonably likely to be requested during discovery. The superior court did not err in finding Circle K had a duty to preserve the video but willfully failed to do so.
¶27 The record supports the superior court's finding that Circle K defied no court order. And we agree that Harrington was prejudiced because, as previously mentioned, whether Circle K employees entered the freezer before Harrington fell was relevant, and, by willfully failing to preserve the video, Circle K deprived Harrington of the "most reliable and objective evidence" of whether Circle K had notice of the freezer's condition. See id. at ¶ 53.
¶28 The superior court properly considered the spoliation factors and did not abuse its discretion in imposing the lesser sanction of allowing Harrington to challenge Circle K's credibility due to its failure to preserve relevant video evidence. Cf. Souza, 191 Ariz. at 251-52 ("Arizona courts have expressed a preference for less drastic sanctions than dismissal" and "[w]e do not limit the [superior] court's exploration and consideration of appropriate, alternative sanctions on remand.") (citations omitted).
¶29 Circle K also argues that Harrington's counsel's statements during closing argument amounted to an "end-run" around the superior court's order denying Harrington's request for an adverse inference instruction.
¶30 The superior court allowed Harrington to ask Felix about the missing video but instructed Harrington to "withhold any question that suggests a nefarious motive." During Circle K's closing argument, its counsel stated: "The condition existed for a sufficient length of time. Where is the evidence as to time. It doesn't exist. It is not in this case . . . If it is not, you can't show notice." In rebuttal, Harrington's counsel stated:
You heard where is the missing evidence. And that is a question that I have had for quite some time because the best evidence that we have [here] showing this comes from [Harrington's friend] who took the pictures the day of the incident. Where is the video? Where is the video that would have captured everything? Why wasn't that preserved?
¶31 In context, Harrington was responding to Circle K's argument that evidence Circle K had notice did not "exist." Thus, even assuming Harrington violated the court's instruction, Circle K invited the error. See State v. Islas, 132 Ariz. 590, 592 (App. 1982) ("Generally, a party who participates in or contributes to an error cannot complain of it.") (citation omitted).
¶32 Moreover, Circle K's counsel did not object to Harrington's closing argument, but instead raised the issue in its renewed motion for JMOL. Thus, "absent serious misconduct [that] actually influence[d] the verdict," Circle K waived the right to challenge Harrington's closing argument on appeal. See Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 304-05, ¶ 16-18 (App. 1999) (holding appellants waived the right to object to counsel's closing argument and rejecting appellants' argument that raising the issue in their motion for a new trial was sufficient); Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, 364, ¶ 56 (App. 2014) (stating waiver does not apply when "serious misconduct actually influences the verdict.") (citation omitted).
¶33 Even if Harrington violated the court's instruction, Felix's testimony showed the video was missing and Circle K's counsel called attention to missing evidence when he argued in closing that evidence of notice did not "exist." See Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 452 (1982) (finding the jury was not misled when "the [closing] argument went beyond the boundary of legitimate inference and into speculation unsupported by the evidence, [because] this [was] immediately apparent from looking at [the] exhibit . . . and was called to the jury's attention by defense counsel in his argument"). Moreover, there is no evidence that Harrington's closing argument caused the jury to return a verdict resulting from passion or prejudice. See id. ("[T]he prime factor to consider is whether the record clearly establishes that the improper conduct caused the jury to return a verdict which was the result of passion and prejudice."). The superior court did not err by denying Circle K's renewed motion for JMOL based on Harrington's closing argument.
IV. Attorneys' Fees and Costs
¶34 Harrington requests attorneys' fees and costs under A.R.S. § 12-349 and ARCAP 21(a). We deny Harrington's request for attorneys' fees. Harrington may recover his taxable costs on appeal upon compliance with ARCAP 21(b). See A.R.S. § 12-341.
CONCLUSION
¶35 We affirm.