Opinion
No. 1 CA-CV 13-0539
02-26-2015
MARSHA JARRELL, a widowed woman, Plaintiff/Appellee/Cross-Appellant, v. SHANE E. DEFFENDALL and JANE DOE DEFFENDALL, husband and wife; TELCOM CONSTRUCTION, INC., Defendants/Appellants/Cross-Appellees.
COUNSEL Law Office of Cole D. Sorenson, Phoenix By Cole D. Sorenson Co-Counsel for Plaintiff/Appellee/Cross-Appellant Law Office of John R. Gustafson, Tempe By John R. Gustafson Co-Counsel for Plaintiff/Appellee/Cross-Appellant Cavanagh Law Firm, Phoenix By Frank M. Fox, William F. Begley, Nelson A.F. Mixon Counsel for Defendants/Appellants/Cross-Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2010-095035
The Honorable David M. Talamante, Judge
REVERSED; VERDICT REINSTATED
COUNSEL Law Office of Cole D. Sorenson, Phoenix
By Cole D. Sorenson
Co-Counsel for Plaintiff/Appellee/Cross-Appellant
Law Office of John R. Gustafson, Tempe
By John R. Gustafson
Co-Counsel for Plaintiff/Appellee/Cross-Appellant
Cavanagh Law Firm, Phoenix
By Frank M. Fox, William F. Begley, Nelson A.F. Mixon
Counsel for Defendants/Appellants/Cross-Appellees
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 This is a personal injury action arising from a pedestrian-automobile collision. The primary issue is whether the superior court erred by granting a motion for new trial after the jury returned a verdict in favor of the defendant driver. For the following reasons, we reverse the order and reinstate the verdict.
FACTS AND PROCEDURAL HISTORY
¶2 Shane Deffendall was driving north in a company truck on his way to pick up supplies for a work project. He stopped at a red light in the far right-hand lane of an intersection, preparing to turn right. At the same time, Marsha Jarrell was standing at the southeast corner of that intersection waiting for a "Walk" signal to flash before walking north through the crosswalk.
The parties did not dispute that Deffendall was acting within the course and scope of employment. Though Deffendall's employer, TelCom Construction, Inc., is also a named party, for simplicity we refer only to "Deffendall" herein.
¶3 The "Walk" signal flashed when the light turned green, and the parties collided in the crosswalk. Jarrell suffered injuries from the collision and sued, alleging that Deffendall was negligent and negligent per se for failing to yield to her in the crosswalk. Deffendall asserted that he was not at fault and that Jarrell had inattentively entered the crosswalk after he had already begun his turn and was well into the intersection.
¶4 The evidence presented at trial was conflicting. Several eyewitnesses testified that they saw Jarrell enter the crosswalk and "walk[ ] into" Deffendall's truck after he had already begun his turn. Deffendall testified that he had checked his surroundings before turning, and that though he saw other pedestrians approaching the corner of the intersection, he did not see Jarrell. Jarrell testified that she looked left before entering the crosswalk but did not see Deffendall's truck. Asked how she failed to see the truck, Jarrell testified that she could not recall because "the timing was just a blink of an eye."
¶5 Each side called an expert witness. Deffendall's expert, an accident reconstructionist, concluded that Jarrell had entered the crosswalk after Deffendall was already well into his turn. In addition, he opined that though there was a blind spot that likely blocked Jarrell from Deffendall's view, in the circumstances of the collision it was appropriate for Deffendall to be facing forward rather than checking his blind spot, given that he had already checked for traffic and pedestrians and had nearly completed his turn. Jarrell's expert attempted to rebut the accident reconstructionist's analysis, concluding in part that there was not enough physical evidence to provide any definitive answers about what led to the collision.
¶6 After both sides rested, Jarrell moved for judgment as a matter of law regarding Deffendall's negligence. The court denied the motion. The jury then returned a unanimous verdict in favor of Deffendall, and Jarrell renewed her motion for judgment as a matter of law. The court again denied her motion.
¶7 Jarrell then filed a combined motion for new trial and renewed motion for judgment as a matter of law. She argued that she had established as a matter of law that Deffendall was negligent, and that a new trial was warranted because the verdict was contrary to the weight of the evidence, and because the jury instructions were faulty.
¶8 The court denied Jarrell's renewed motion for judgment as a matter of law but granted her motion for a new trial, solely on the basis that the verdict was contrary to the weight of the evidence. Deffendall appeals and Jarrell cross-appeals.
DISCUSSION
I. JARRELL WAS NOT ENTITLED TO A NEW TRIAL.
A. The Court Abused Its Discretion by Concluding That the Verdict Was Contrary to the Weight of the Evidence.
¶9 In its new-trial order, the court noted that it was "somewhat surprised at the verdict of the jury and considered it unfair" given that Deffendall had "failed to adequately address" his "conce[ssion] that there was a significant blind spot in the vehicle" blocking his view of Jarrell. The court concluded that the evidence established that Deffendall was at least partially at fault and the verdict therefore was contrary to the weight of the evidence:
As noted on the record, the Court believed that the jury would ultimately have to determine the relative degrees of fault between Plaintiff and Defendant; something they did not do. Apparently, the jury did not allocate the relative degrees of fault because it did not make a determination that Defendant was negligent. Based on the evidence presented, for reasons set forth above,
THE COURT FINDS that this failure to allocate and determine the relative degrees of fault results in substantial justice not being done to the Plaintiff in this matter. Accordingly, the Court finds it appropriate to grant Plaintiff's Motion for New Trial.
¶10 "We review a ruling on a motion for new trial for an abuse of discretion." Mill Alley Partners v. Wallace, 700 Ariz. Adv. Rep. 26, ¶ 7 (App. Nov. 20, 2014). "In reviewing a jury verdict, we view the evidence in a light most favorable to sustaining the verdict, and if any substantial evidence could lead reasonable persons to find the ultimate facts sufficient to support the verdict, we will affirm the judgment." Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d 1164, 1166 (App. 1996).
¶11 When ruling on a motion for a new trial, the judge sits as the "ninth juror." Hutcherson v. City of Phoenix, 192 Ariz. 51, 55, ¶ 23, 961 P.2d 449, 453 (1998). "The basic question he or she must ask is whether the jury verdict is so 'manifestly unfair, unreasonable and outrageous as to shock the conscience.'" Id. (citation omitted). Though the superior court has broad discretion in granting a new trial on the basis that the verdict is contrary to the weight of the evidence, see Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 197, ¶ 15, 273 P.3d 645, 649 (2012), "[c]ourts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable," Tennant v. Peoria & Pac. Union Ry., 321 U.S. 29, 35 (1944).
¶12 In this case, viewing the evidence in the light most favorable to sustaining the jury verdict, we conclude that the superior court erred. The jury could reasonably have concluded that Deffendall was not negligent. Indeed, there was substantial evidence from which the jury could find that Deffendall did not cause, and could not have prevented, the collision. For example, several eyewitnesses testified that Jarrell had walked into Deffendall's truck after Deffendall had already begun making his turn and was well within the intersection -- a position later supported by expert testimony. Additionally, the accident reconstructionist explained why, in the circumstances, Deffendall may have acted reasonably by facing forward rather than continually checking his blind spot as he completed his turn. The reconstructionist also concluded that only Jarrell was in a position to avoid the collision.
¶13 We recognize that "appellate courts are not in the best position to distinguish between verdicts in which the jury acted arbitrarily or appropriately," Walsh, 229 Ariz. at 197, ¶ 16, 273 P.3d at 649, and that, in general, the question of whether the verdict is contrary to the weight of the evidence is a determination "uniquely within the province of the trial judge," City of Glendale v. Bradshaw, 114 Ariz. 236, 238, 560 P.2d 420, 422 (1977). In this case, however, after being presented with all the evidence, the judge expressly determined that the jury would need to "decide the negligence" and also noted: "[T]he jury's going to have a tough decision in this case. They really are, based on what I've heard . . . it's not going to be an easy decision. At least it wouldn't be for me if I was on the jury." These comments do not reflect a judicial determination that a defense verdict would be inconsistent with substantial justice.
¶14 Our decision to reinstate the verdict is not the product of second-guessing the trial court's evaluation of the evidence. Instead, we view the court's own comments through the lens of the standard governing motions for new trial, and conclude that the court's findings do not support its decision. We agree with the trial court that the jury was making a "tough decision" regarding Deffendall's negligence, and conclude that it reasonably could have found that Deffendall was not negligent. Though the judge might have reached a different conclusion than the jury, the jury's decision was not so unfair, unreasonable or outrageous as to shock the conscience. Accordingly, it was error to grant a new trial on the basis that the verdict was contrary to the weight of the evidence.
B. The Jury Instructions Were Proper.
¶15 The court instructed the jury on the statutory duties of a pedestrian and a driver at a controlled intersection, consistent with A.R.S. §§ 28-645(A)(1)(a) (a driver facing a green-light signal may turn right unless prohibited by sign, but in doing so, "shall yield the right-of-way to . . . pedestrians lawfully within the intersection or an adjacent crosswalk at the time the signal is exhibited") and 28-646(A)(1) ("Pedestrians facing the [walk] signal may proceed across the roadway in the direction of the signal and shall be given the right-of-way by the drivers of vehicles."). Over Jarrell's objection, the court also gave the following jury instruction: "A pedestrian may not enter or proceed through a crosswalk without looking for approaching vehicles. A pedestrian having the right of way has an obligation to use reasonable care under the circumstances."
¶16 Jarrell argues this instruction is faulty because it "negated the right of way created by the walk statute and the duties of the driver when the walk signal is displayed." "Whether a jury instruction correctly states the law is a matter of law that we review de novo." Desert Mountain Props. Ltd. P'ship v. Liberty Mut. Fire Ins. Co., 225 Ariz. 194, 199, ¶ 11, 236 P.3d 421, 426 (App. 2010). We hold that the jury instruction was proper. The instruction's second sentence accurately describes a pedestrian's duty as set forth in Thompson v. Quandt, 83 Ariz. 343, 321 P.2d 1012 (1958), and its first sentence, though unnecessary, did not constitute prejudicial error in this case.
Because Thompson controls, we need not consider the related other-jurisdiction cases cited by the parties.
¶17 In Thompson, a pedestrian was injured in a pedestrian-automobile collision while crossing a traffic-controlled intersection within a crosswalk. Id. at 344-45, 321 P.2d at 1012-13. The pedestrian argued that the driver failed to yield the right-of-way, in violation of the statutory predecessor to A.R.S. § 28-645. Id. at 346, 321 P.2d at 1013. Part of the driver's defense was that the pedestrian was negligent in crossing the intersection. See id. The superior court gave an instruction "which told the jury that pedestrians had the right of way but that such was not exclusive and that in exercising such right of way pedestrians must use reasonable care and caution to protect themselves from danger." Id. at 345-46, 321 P.2d at 1013. Our supreme court held that this instruction was proper:
Unquestionably, a pedestrian lawfully crossing an intersection has the right of way over vehicles. This does not mean that pedestrians are free from the obligation to use reasonable care under the circumstances. The statute does not permit one to proceed in total disregard of traffic conditions when reasonable care would enable him to observe and avoid an accident.Id. at 346, 321 P.2d at 1013.
¶18 Neither the supreme court nor the court of appeals has revisited this holding in Thompson. Though Thompson was decided under an earlier statute and before Arizona adopted a comparative fault system, the reasoning underlying this long-standing precedent remains sound. Moreover, the language of the prior statute is substantially the same as its current version, compare Arizona Code Annotated of 1939, § 66-153g with A.R.S. §§ 28-645(A)(1)(a) and -646(A)(1), and the adoption of a comparative fault system has no effect on any substantive legal obligations of the parties, see 1 Comparative Negligence Manual § 1:1 (3d ed. 2014) (comparative fault is merely a scheme for apportioning damages).
Jarrell contends that Thompson is not controlling because that case did not involve a walk-signal statute. The argument is unpersuasive. A pedestrian must exercise reasonable care before entering and crossing an intersection regardless of the reason why she has a "right-of-way" in the intersection.
¶19 Like the pedestrian in Thompson, Jarrell was required to use reasonable care by looking for approaching vehicles before entering the crosswalk and crossing the intersection. The superior court's instruction accurately described this duty.
Jarrell also contends that the jury instruction is "against public policy and common sense" because it fails to advance public safety. We reject this argument because requiring a pedestrian to use reasonable care even when she has a right-of-way promotes safety by making it less likely that collisions will occur.
C. Jarrell Was Not Entitled to Judgment as a Matter of Law on Negligence.
¶20 On cross-appeal, Jarrell contends that she was entitled to judgment as a matter of law on the issue of negligence per se. We review the denial of a motion for judgment as a matter of law de novo. Goodman v. Physical Res. Eng'g, Inc., 229 Ariz. 25, 27, ¶ 6, 270 P.3d 852, 854 (App. 2011).
¶21 For the reasons set forth above, the court properly denied Jarrell's motions. While A.R.S § 28-645(A)(1)(a) requires a driver facing a green-light signal to "yield the right-of-way to . . . pedestrians lawfully within the intersection," Thompson requires pedestrians to act reasonably under the circumstances regardless of any right-of-way, 83 Ariz. at 346, 321 P.2d at 1013. Moreover, under the plain language of the statute, a driver's duty to yield does not arise until a pedestrian is lawfully within the intersection. Therefore, even if Jarrell had the right-of-way when the collision occurred, a jury could find (as it apparently did) that Deffendall did not breach his duty to yield because he already begun his turn and was well into the intersection before Jarrell stepped into the crosswalk. II. JARRELL IS NOT ENTITLED TO COSTS, FEES, OR SANCTIONS ON APPEAL.
¶22 Jarrell requests an award of costs, attorney's fees, and sanctions on appeal under A.R.S. §§ 12-342, -349, and -2106, and ARCAP 25. Given our reversal of the new-trial order, and the absence of any evidence that Deffendall's appeal was taken primarily for the purpose of delay or harassment, no such award is appropriate.
CONCLUSION
¶23 For the foregoing reasons, we reverse the new-trial order and reinstate the verdict. We deny Jarrell's requests for costs, attorney's fees, and sanctions on appeal. As the prevailing party on appeal, Deffendall is entitled to recover costs under A.R.S. § 12-341, upon compliance with ARCAP 21.
Because we reverse the grant of a new trial, we need not address the other issue raised on appeal relating to Deffendall's motion in limine to exclude expert testimony.
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