Opinion
No. 1 CA-CV 19-0274
09-03-2020
PRITIKA UIAGALELEI, Plaintiff/Appellant, v. STATE OF ARIZONA, Defendant/Appellee.
COUNSEL The Leader Law Firm, PC, Tucson By John P. Leader Zachar Law Firm, PC, Phoenix By Christopher J. Zachar Law Office of Richard A. Gullette, Phoenix By Richard A. Gullette II Co-Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By Daniel P. Schaack Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2016-008965
The Honorable Teresa A. Sanders, Judge
AFFIRMED
COUNSEL The Leader Law Firm, PC, Tucson
By John P. Leader Zachar Law Firm, PC, Phoenix
By Christopher J. Zachar Law Office of Richard A. Gullette, Phoenix
By Richard A. Gullette II
Co-Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix
By Daniel P. Schaack
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Michael J. Brown and Judge D. Steven Williams joined. SWANN, Chief Judge:
¶1 In this wrongful death case against the state of Arizona, Pritika Uiagalelei appeals the superior court's denial of her motions for judgment as a matter of law ("JMOL") and new trial. We affirm because, contrary to Pritika's contentions, the state was not required to provide expert testimony to establish nonparty fault, sufficient evidence supported the jury's verdict, and the state engaged in no misconduct affecting the verdict.
FACTS AND PROCEDURAL HISTORY
"We view the evidence and reasonable inferences therefrom in the light most favorable to upholding the jury's verdict." Salica v. Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 416, ¶ 2 (App. 2010) (citation omitted).
¶2 In June 2016, Pritika Uiagalelei filed a complaint against the state for the wrongful death of her husband, Stevie, who in the course of his employment was killed when the fuel-tanker truck he was driving overturned near milepost 29 on State Route 72. Pritika alleged that the state was negligent in maintaining safe road conditions—specifically, the height differential, or pavement edge drop off ("PED"), between the asphalt road and the shoulder area. Pritika alleged that the state's negligence led to the accident when "the right rear tires of the trailer traveled off the westbound shoulder edge onto a deeply depressed gravel shoulder" that prevented "a motorist moving from the road to the shoulder [from] safely transition[ing] back to the asphalt."
¶3 In March 2017, the state filed a notice identifying truck-owner United Petroleum Transports, Inc. ("UPT") and its contractor Tucson Tanker Maintenance Co. ("TTM") as nonparties at fault. The state alleged that a jury reasonably could conclude that UPT "failed to adequately train its driver Stevie Uiagalelei on how to properly respond . . . when vehicle tires drop off the edge of the highway," and that TTM, which was "responsible for truck maintenance," failed to "properly maintain the truck and tires," contributing to a possible "tire blow out [that] caused [Stevie] to lose control of the truck and trailer." The state disclosed that it might call certain experts at trial, including an expert in "[t]rucking standards and practices." At trial, however, the state proceeded on the theory that TTM hired Stevie to drive the fuel tanker truck without confirming that he was trained to do so.
¶4 At trial, the state read into the record the deposition of TTM principal Kevin Collins. According to Collins, TTM leases drivers and trucks to UPT to transport fuel across state lines and TTM handles payroll administration for the drivers. TTM's two-person recruiting department receives potential drivers' general, one-page applications for hire and forwards competent applications to UPT. TTM does not check the applications' veracity or conduct background checks. Rather, applicants whose forms are forwarded will "fill out a UPT application" and UPT will examine the applicants' qualifications, conduct interviews and background checks, "do [the] safety file," and make the decision whether to lease the applicant as a driver.
¶5 At trial, the state also called Dwight Jennings, a trucking expert. Jennings testified that UPT, a "regulated employer under the Federal Motor Carrier Safety Administration," was responsible for training Stevie to drive fuel tanker trucks but Jennings saw in Stevie's file "[n]o evidence that he'd been trained in . . . driving tank vehicles." The file showed evidence of "payroll records that people were paid to train [Stevie]," but not evidence of actual training. Jennings did not express any opinion as to the liability or standard of care of TTM.
¶6 After the close of evidence, Pritika moved unsuccessfully for JMOL, arguing, in relevant part, that the state failed to present necessary "defense expert testimony" concerning negligence on the part of TTM.
¶7 During closing arguments, the state made the following statements:
Just briefly Tucson Tanker Maintenance, Kevin Collins was the owner. You heard his business entities that he had. He hired and paid a driver he never met. He leased the driver to UPT for a specific tanker truck. He assumed the driver was trained through an inspection. Didn't investigate anything else, and completely relied on UPT to train his employee on how to drive a tanker truck.
If somehow you get to that point and you have to decide how to allocate fault between the parties, if you think Tucson Tanker Maintenance should have some liability, then you can assess them some percentage. But I would submit that Tucson Tanker and UPT are almost the same entity and they were responsible for training.
¶8 The jury returned a $1.2 million verdict for Pritika, allocating 50% fault to nonparty UPT, 20% to nonparty TTM, 25% to Stevie, and 5% to the state.
¶9 Pritika filed a renewed motion for JMOL, largely reasserting that the court erred by permitting the jury to apportion fault to TTM absent expert testimony that TTM breached any applicable standard of care. Pritika also moved for a new trial based on, inter alia, the absence of an expert and alleged misconduct by the state. The court denied the motions and entered a final judgment in accordance with the jury's verdict. Pritika appeals.
DISCUSSION
I. THE SUPERIOR COURT PROPERLY SUBMITTED THE QUESTION OF TTM'S NEGLIGENCE TO THE JURY.
¶10 Pritika contends the superior court erred by denying her motions for JMOL as to TTM because the state did not provide "expert testimony" of TTM's negligence, specifically as to whether it breached any standard of care under a duty owed to Stevie. The state contends that expert testimony was not necessary to establish TTM's fault for two general reasons: (1) the jury heard uncontradicted evidence from TTM's owner that the company failed to investigate Stevie's background and verify whether he was actually qualified to perform the job for which he was employed, and (2) TTM's negligence in "hiring" and "referring Stevie to UPT" was so self-evident such that a layperson need no special knowledge to understand that TTM should not have hired Stevie without first ensuring his ability to perform the job.
¶11 JMOL may be granted when "a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Ariz. R. Civ. P. 50(a); see also Roberson v. Wal-Mart Stores, Inc., 202 Ariz. 286, 290, ¶ 14 (App. 2002) ("The 'motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.'" (citation omitted). "We review the superior court's denial of a motion for judgment as a matter of law de novo, viewing the evidence in the light most favorable to the non-moving party." Desert Mountain Props. Ltd. P'ship v. Liberty Mut. Fire Ins., 225 Ariz. 194, 200, ¶ 12 (App. 2010).
¶12 Because Arizona has abolished joint and several liability, a defendant is liable to an injured party only for his or her percentage of fault and may ask the trier of fact to apportion fault among all those who contributed to the injury, whether they were, or could have been, named as parties to the action. A.R.S. § 12-2506(A), (B). Here, the state named TTM as a nonparty at fault under A.R.S. § 12-2506(B). That designation permitted the state to offer trial evidence of TTM's negligence and argue that the jury should attribute some percentage of fault to TTM, thereby reducing the state's percentage of fault and ultimate liability. See Ocotillo W. Joint Venture v. Superior Court (Zylka), 173 Ariz. 486, 488 (App. 1992). "Because an allegation of comparative fault relating to nonparties is an affirmative defense [to a negligence action], the defendant must prove the nonparty is actually at fault." Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, 48, ¶ 22 (App. 2011).
¶13 To prove that TTM was comparatively at fault because of negligence, the state was required to show that TTM owed the plaintiff a duty to conform to a certain standard of care, TTM breached the duty, and the breach caused injury to the plaintiff. Id. At issue here is whether the state presented sufficient evidence that TTM breached its duty (the existence of which the parties do not dispute).
¶14 The state had the burden to establish what conduct the standard of care required and that TTM's actions did not meet that standard. See Kreisman v. Thomas, 12 Ariz. App. 215, 220 (1970). "If there is a duty, then the law requires that the defendant conform to a standard of care. In negligence cases that is usually 'reasonable care under the circumstances,' though it may differ, depending on the relationship." Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356 (1985). "Ordinarily, the standard of care to be applied in a negligence action focuses on the conduct of a reasonably prudent person under the circumstances," Sw. Auto Painting & Body Repair, Inc. v. Binsfeld, 183 Ariz. 444, 448 (App. 1995), and the jury may "rely on its own experience in determining whether the defendant[, or as in this case, a nonparty,] "acted with reasonable care under the circumstances," see Bell v. Maricopa Med. Ctr., 157 Ariz. 192, 194 (App. 1988). Further, "[e]xpert testimony is not necessary when the 'negligence is so grossly apparent that a lay person would have no difficulty recognizing it,'" DeJonghe v. E.F. Hutton & Co., 171 Ariz. 341, 346 (App. 1991) (citation omitted). For example, even though a determination of negligence in medical malpractice cases ordinarily requires expert testimony, Ryan, 228 Ariz. at 48-49, ¶ 23, there is no need for an expert to testify as to the applicable standard of care in a medical malpractice case where the evidence shows that a surgical instrument was left within the appellant's body after an operation—such an "error is so self-evident that a jury can determine the question of negligence without reliance upon the opinion of an expert," Landgraff v. Wagner, 26 Ariz. App. 49, 57 (1976).
¶15 We recognize that a negligent hiring theory, as relied upon here, "is somewhat unique in that the relevant facts and issues in any particular case may or may not necessitate the use of an expert witness." 29 Am. Jur. Trials 267, § 27 (1982). Expert testimony concerning the reasonableness of hiring and training could be necessary when the case concerns a specific certification or rating that involves specialized rules and practices. On this record, however, we conclude that the normal rules of negligence apply. TTM's alleged negligence—failing to ensure Stevie's qualifications or provide training for the specific job UPT needed—is not so esoteric that a lay juror would have difficulty understanding it. This is particularly true given the testimony provided by TTM's owner, who specifically indicated that TTM's recruiting department outsourced all background investigation and verification of a potential driver's qualifications to UPT. The question here was whether it was reasonable for a company that largely handles only the payroll of its employees to lease a driver to another company without independently ensuring the driver's specific qualifications for the task at hand. Though expert evidence of customary industry practices could bear on the reasonableness question, the jury was entitled to evaluate the issue in the context of all the evidence and its own experience. To be sure, a more complete and precise record might have been desirable. But there was no legal error in the superior court's decision to submit the issue of TTM's comparative fault to the jury. II. THE SUPERIOR COURT PROPERLY DECLINED TO GRANT A NEW TRIAL.
¶16 Pritika challenges the superior court's denial of her new-trial motion on several grounds. We detect no error in the court's ruling.
A. Sufficient Evidence Supported the Jury's Verdict.
¶17 Pritika first contends that the superior court erred by failing to grant her a new trial under Rule 59(a)(1)(H), which permits the court to grant a new trial where "the verdict, decision, findings of fact, or judgment is not supported by the evidence." Specifically, Pritika contends that the "only" evidence presented at trial to support the jury's nonparty-at-fault findings as to TTM—that TTM, along with UPT, contributed monies for cleanup services to State Route 72 following the motor vehicle accident—was inadmissible under Arizona Rule of Evidence 408, which prohibits the use of compromise offers and negotiations to prove the validity of a disputed claim. We need not address the question of the financial-contribution evidence's admissibility because even if that evidence was inadmissible, it was not the only evidence upon which the jury reasonably could have relied to apportion fault to TTM—as we discussed in Section I above, the jury was presented with evidence that TTM did nothing to evaluate Stevie's qualifications to perform the job of a fuel tanker truck driver.
B. The Alleged Misconduct Did Not Require a New Trial.
¶18 Pritika next contends that the superior court erred by failing to grant her a new trial under Rule 59(a)(1)(B), which permits the court to grant a new trial based on "misconduct of the . . . prevailing party." Pritika contends that the state (1) failed to disclose a material adverse witness, in violation of Rule 26.1(a)(4); (2) destroyed material evidence before trial; and (3) impermissibly referenced UPT and TTM's cleanup agreement during opening statements.
¶19 The "denial of a motion for new trial on grounds of misconduct is a matter within the trial judge's discretion[, and i]n exercising that discretion, the judge must decide whether the misconduct materially affected the rights of the aggrieved party." Leavy v. Parsell, 188 Ariz. 69, 72 (1997). We will not reverse the superior court's ruling unless "it appears probable that the misconduct 'actually influenced the verdict.'" Id. (citation omitted). "Because this is a factual determination, no presumption of prejudice or lack of prejudice should be applied." Id. But when "the misconduct is serious, . . . the judge should resolve any doubt in favor of the party aggrieved." Id.
1. The Alleged Disclosure Violations Did Not Require a New Trial.
¶20 We first address the alleged disclosure violation. Rule 26.1(a)(4) requires the parties to timely disclose in writing a disclosure statement setting forth the name and address of each person the disclosing party believes "may have knowledge or information relevant to the subject matter of the action." The parties must timely disclose information even if it is "damaging or unfavorable." See Rule 37(d).
¶21 Several weeks after Stevie's death, John Lopes, a recently retired Arizona Department of Transportation ("ADOT") maintenance employee, submitted the following written complaint to ADOT:
Hello, as a retired employee [I] have noticed on SR 72 and SR 95 the shoulders are getting very bad with drop offs as much as 1 - 2 feet with skid marks where traffic has tried to regain control from the drop offs. We just two weeks ago had a fuel transport [lose] control from such drop offs and had SR 72 closed for most of the night and the driver was killed in the accident. SR 72 is used by over sized loads with escort and in most cases DPS has drivers merge to the shoulders and [I] have seen some drivers refuse or get stuck due to the drop offs. It would seem that no one is checking the roadway and it would be more professional to repair the drop offs [than] wait for a[n] attorney to sue the state.
¶22 The parties agree that the state disclosed Lopes' complaint, but it apparently did not attribute the complaint to Lopes as the author, provide his address, or identify him as someone who might possess knowledge or information relevant to the wrongful death action. But even assuming that the disclosure constituted misconduct, "[r]eversal [of an order denying a new trial on grounds of misconduct] will be required only when it appears probable that the misconduct 'actually influenced the verdict.'" Reyes v. Town of Gilbert, 247 Ariz. 151, 156-159, 160, ¶¶ 20, 29, 38 (App. 2019) (citation omitted) (alteration in original). We cannot say that any failure to disclose Lopes' name and address probably influenced the jury's verdict. Even if Lopes' specific complaint was admissible under the rules of evidence, the jury heard extensive similar trial testimony that permitted it to apportion fault to the state on the theory that it failed to maintain safe road conditions. An active ADOT maintenance supervisor testified that a PED "[b]eyond two inches" should be scheduled for repair and that a PED of "six inch[es]" should be addressed immediately, and an expert testified that there was "an 11-inch dropoff" near milepost 29 at the time of Stevie's accident. Further, Pritika's traffic engineering expert testified that when Stevie was killed, there was an excessive, dangerous PED that directly "led to . . . Mr. Uiagalelei's vehicle losing control." Pritika's expert opined that at the time of the accident, the PED must have been at least eight inches high and that ADOT had not maintained the road consistent with its standards.
Nor can we say that the superior court erred by denying Pritika's motion for sanctions based on the state's disclosure. See Nienstedt v. Wetzel, 133 Ariz. 348, 356 (App. 1982) ("[T]he trial court has great discretion in imposing sanctions for the violation of the rules of discovery."); see also Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013) ("A trial court has broad discretion in ruling on disclosure and discovery matters, and this court will not disturb that ruling absent an abuse of discretion.").
¶23 Pritika also contends that the state failed to disclose an ADOT employee's response to Lopes' comment. The response, as quoted by Pritika in her opening brief, merely stated that ADOT would review the matter, that ADOT regularly inspects roadways, and that shoulder buildup improvements were scheduled for later in the year as part of the annual work program. Trial testimony similarly established that the shoulder work was part of a routine maintenance program. We therefore cannot say that any failure to disclose the response influenced the jury's verdict.
2. The Alleged Destruction of Evidence Did Not Require a New Trial.
¶24 Pritika contends that in April and August 2016, without notifying her counsel, ADOT spoliated material evidence by "repair[ing] the edge drops on SR 72 that caused [Stevie]'s crash and death" and "[i]n doing so, [ADOT] took no photographs and did nothing else to preserve the post-collision condition of the roadway." Pritika contends that she therefore was "prevented from properly and fully documenting the nature and extent of the edge drop" in preparation for trial.
¶25 An ADOT engineer testified that shoulder-blading repairs to State Route 72 did not take place until about April 2016—approximately ten months after the accident and four months after Pritika served her notice of claim. Pritika had ample time to investigate the allegedly dangerous condition that caused her husband's death. See Chambers v. Tamber, 21 Ariz. App. 291, 293 (1974) ("[U]ntil the opposing party formally concedes an issue, the litigant should continue to gather evidence bearing upon that issue."). Indeed, Pritika asserts that in February 2016, her "investigator and counsel" visited the scene of the accident and took "numerous photographs," at least some of which documented "elevation changes" and "erosion related depression" between the asphalt road and shoulder area. Nothing in the record suggests that the state's repairs near milepost 29 prevented Pritika from properly and fully documenting any PED-issues in preparation for trial. Moreover, it would be unreasonable to expect the state to preserve an allegedly dangerous road condition during the course of lengthy litigation to the possible peril of the traveling public. See Goss v. City of Globe, 180 Ariz. 229, 232-33 (App. 1994) ("[P]ublic entities have a duty to maintain public highways, roads and streets in a reasonably safe condition."). In any event, as discussed above, Pritika was able to present evidence to the jury that a dangerous, excessive PED existed near milepost 29 at the time of Stevie's accident.
Pritika contends that the engineer's testimony changed between his deposition and trial—though the engineer stated at the deposition that the repairs were made because of Stevie's accident, at trial he stated that the repairs were made as a matter of routine maintenance as well. The record reflects that the superior court allowed Pritika to impeach the engineer with the discrepancy. The witness's credibility was within the strict province of the jury to resolve. See Zuluaga ex rel. Zuluaga v. Bashas', Inc., 242 Ariz. 205, 212, ¶ 21 (App. 2017) ("It is the jury's burden alone to weigh the credibility of witnesses and draw inferences from the evidence presented at trial.").
¶26 Pritika also contends that the state committed misconduct because its experts relied on the repaired roadside to opine, contrary to Pritika's evidence, that no dangerous edge drops existed at the time of Stevie's accident. This was simply a matter of conflicting evidence, which was for the jury to resolve. See Anglin v. Nichols, 80 Ariz. 346, 349 (1956).
3. The Allegedly Improper Opening-Statement Remark Did Not Require a New Trial.
¶27 Pritika finally contends that the state committed misconduct when it implied during its opening statement that the cleanup agreement between UPT and TTM was evidence of those entities' fault:
Now here's some admissions by UPT and Tucson Tanker Maintenance. UPT hired a remediation business to clean up the hazardous materials spilled on the highway. They paid approximately $300,000 to clean up the highway. Tucson Tanker Maintenance contributed upon UPT's request, and the contract between the two of them only required Tucson Tanker Maintenance to contribute in cases in which it was negligent.
¶28 "[O]pening statements and arguments of counsel are not evidence." State v. Pedroza-Perez, 240 Ariz. 114, 117, ¶ 13 (2016). The superior court so instructed the jury in this case, and we presume that the jurors followed the instructions. See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). We further note that the state later specifically agreed that it would not argue in closing that the cleanup agreement was an admission of fault. The state instead argued in closing that the jury should find UPT and TTM at fault because the employers failed to ensure that Stevie was qualified to perform the duties of a fuel tanker truck driver. On this record, even if the brief reference to cleanup efforts in the state's opening statement was improper, we cannot say that it probably affected the jury's verdict.
Pritika asserts in her opening brief that the state's trial exhibit 151 improperly referenced the remediation. The trial exhibit worksheet available on appeal, however, indicates that the exhibit was not admitted into evidence for the jury's consideration. Pritika also notes that Collins' testimony, which was read into evidence, briefly mentioned the cleanup agreement. But though Pritika filed a motion in limine to exclude certain testimony of Collins from being read into the record, she did not request the exclusion of the passing reference to the cleanup agreement. --------
CONCLUSION
¶29 We affirm for the reasons set forth above.