THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
MARIA CHAVEZ CHAPA,
ATC/VANCOM OF ARIZONA LIMITED
PARTNERSHIP dba VEOLIA
TRANSPORTATION PHOENIX, a
limited partnership; MICHAEL
1 CA-CV 10-0347
RUTH A. WILLINGHAM,
(Not for Publication Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2007-007666
The Honorable Eileen S. Willett, Judge
REVERSED AND REMANDED
Robbins & Curtin, P.L.L.C.
Joel B. Robbins
Attorneys for Plaintiff/Appellant
Sanders & Parks, P.C.
Jeffrey L. Smith
Robin E. Burgess
Attorneys for Defendants/Appellees
P O R T L E Y, Judge
(collectively “Veolia”). 1
contends that the trial court
erred by giving an assumption of the risk jury instruction.
the following reasons, we reverse the verdict and remand for a
FACTS AND PROCEDURAL HISTORY 2
Avenue on Indian School Road to let passengers get off and on.
The driver closed the bus doors as Chapa was walking along the
side of the bus.
Chapa unsuccessfully attempted to get the
driver’s attention by either waiving her arm or banging on the
side of the bus.
As the bus began to pull out of the bay, Chapa
fell, was subsequently run over by the bus’s left rear tires,
and suffered serious injuries to her pelvis and legs.
Chapa filed a lawsuit, but the jury rendered a defense
After an unsuccessful motion for a new trial, Chapa
filed this appeal.
We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(B) (2003).
The bus company is owned by ATC/Vancom and does business as
We view the facts in a light most favorable to sustaining the
See Inch v. McPherson, 176 Ariz. 132, 136, 859 P.2d
755, 759 (App. 1993).
“We review jury instructions as a whole to determine
State Farm Fire & Cas. Ins. Co. v. Grabowski, 214 Ariz. 188,
192, ¶ 13, 150 P.3d 275, 279 (App. 2007).
We also view the
evidence “in the light most favorable to the requesting party,
and if there is any evidence tending to establish the theory
posed in the instruction, it should be given even if there are
Ariz. 230, 231, 823 P.2d 97, 98 (App. 1991) (quoting Andrews v.
Fry’s Food Stores of Ariz., 160 Ariz. 93, 95, 770 P.2d 397, 399
Conversely, when there is no substantial evidence
to support an instruction, it is reversible error to give the
Herman v. Sedor, 168 Ariz. 156, 158, 812 P.2d 629,
631 (App. 1991); Sparks v. Republic Nat’l Life Ins. Co., 132
evidence is more than a mere scintilla and is such proof that
‘reasonable persons could accept as adequate and sufficient to
support’” a verdict.
State v. Fulminante, 193 Ariz. 485, 493, ¶
24, 975 P.2d 75, 83 (1999) (quoting State v. Mathers, 165 Ariz.
64, 67, 796 P.2d 866, 869 (1990)).
Implied assumption of the risk requires proof of the
There must be a risk of harm to plaintiff caused
by defendant’s conduct or by the condition of the
defendant’s land or chattels;
Plaintiff must have actual knowledge of the
particular risk and appreciate its magnitude; and
The plaintiff must voluntarily choose to enter or
remain within the area of the risk under
circumstances that manifest his willingness to
accept that particular risk.
Hildebrand v. Minyard, 16 Ariz. App. 583, 585, 494 P.2d 1328,
1330 (1972) (citations omitted); see also Restatement (Second)
of Torts § 496C (1965).
In Hildebrand, we applied the Restatement approach to
assumption of the risk.
obstructed a roadway.
P.2d at 1329.
There, Hildebrand, hired to repair a
Although warned to move the loader, Hildebrand
was killed when a tractor struck the loader.
Hildebrand, 16 Ariz. App. at 584, 494
saw there was enough room for vehicles to pass.
placing the loader in the roadway.
In analyzing the issue
on appeal, we found that assumption of the risk and contributory
negligence are often conflated.
Specifically, we stated:
Id. at 585-86, 494 P.2d at
Assumption of risk arises regardless of the
due care used.
It is based, fundamentally,
on consent. Contributory negligence is not.
In the implied assumption of risk situation
the consent is manifested by the plaintiff’s
actions after he has been informed of the
nature and magnitude of the specific danger
Id. at 585, 494 P.2d at 1330 (citation omitted). 3
Id. at 586, 494 P.2d at 1331.
evidence of consent, we found that the defendant failed to show
that Hildebrand had impliedly consented to the tractor driver’s
danger that caused his death.
At most, Hildebrand “failed
Examples of consent where the plaintiff agreed to take a chance
[A]ccept[ing] employment knowing that he is
expected to work with a dangerous horse; or
ride in a car with knowledge that the brakes
are defective and the driver incompetent; or
. . . enter a baseball park, sit in an
unscreened seat, and thus consent that the
players proceed with the game without taking
any precautions to protect . . . from being
hit by the ball.
Hildebrand, 16 Ariz. App at 585, 494 P.2d at 1330-31;
Restatement (Second) of Torts § 496C cmt. g, illus. 1-6.
assumption of the risk.”
As a result, we reversed and
remanded the case for a new trial.
Tucson, we reaffirmed the Hildebrand analysis, and noted that
instruct the jury on assumption of the risk.
319, 640 P.2d 1117, 1121 (App. 1981).
131 Ariz. 315,
There, the plaintiff, a
Tucson police officer, while responding to the home of a gunman
who was randomly firing, was shot in the back by a South Tucson
Id. at 317, 640 P.2d at 1119.
We affirmed the
damages verdict and rejected the argument that the trial court
should have given an assumption of the risk instruction because
the plaintiff knew that standing on the gunman’s front porch was
a dangerous place.
Id. at 319, 640 P.2d at 1121.
Here, Chapa alleged that the bus driver negligently
moved the bus from the curb while she was on the sidewalk.
the assumption of the risk doctrine to apply, Veolia must have
demonstrated that Chapa knew and understood the risk of trying
to catch a bus and had freely chosen to encounter the risk.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts, §
support that she assumed the risk of being run over by the bus.
Although Chapa had been a school bus driver for six
months in 1974 and may have been generally aware that she could
fall if she attempted to stop the bus, there was no evidence
In fact, Chapa testified that she did not know the
bus was going to move when she attempted to stop it.
even assuming that Chapa knew that she was unsteady on her feet,
her purported knowledge does not suggest that she assumed any
risk that the bus driver would be negligent.
supra, § 68, at 489.
Keeton et al.,
At most, she was contributorily negligent
but did not assume any risk. 4
586, 494 P.2d at 1331.
See Hildebrand, 16 Ariz. App. at
Consequently, the trial court erred
when, over Chapa’s objection, it gave the assumption of the risk
The Restatement provides:
In order for assumption of risk to be
implied from the defendant’s conduct, it
must be such as fairly to indicate that the
chances. . . .
A plaintiff, for example,
who dashes into the street in the middle of
the block, in the path of a stream of cars
certainly does not manifest consent that
they shall be relieved of the obligation of
care for his safety.
This is merely
contributory negligence, and not assumption
Restatement (Second) of Torts § 496(C) cmt. h.
Veolia argues, however, that Galindo v. TMT Transport,
Galindo, however, highlights the fact that where a
person dies and cannot testify about his subjective appreciation
of the dangers, both contributory negligence and assumption of
decide the facts and apply the appropriate law.
illness and was on an outing from the Arizona State Hospital,
ran out in front of a moving gasoline tanker on the freeway,
which was described as “an attempt to tackle the truck.”
435, 733 P.2d at 632.
At the conclusion of the trial, the court
determining whether assumption of the risk had been proven and
whether it should be applied.”
Id. at 437, 733 P.2d at 634.
The jury was also instructed that “a person assume[d] the risk
of injury when he voluntarily expose[d] himself to the specific
danger which cause[d] his injury and which he knows about and
defense verdict, the decedent’s mother argued that the evidence
did not support the assumption of the risk instruction.
The instruction on assumption of the risk
permitted the jury to take into account [the
decedent’s] mental deficiency as one of the
factors to consider together with all of the
However, the issue of [the
decedent’s] state of mind and its effect on
assumption of the risk was properly left to
the jury for its determination.
appreciation of the dangers in catching a bus.
There was no
evidence that she “consented” to Veolia’s purported negligence
of moving the bus from the curb.
Consequently, the assumption
of the risk instruction was inappropriate to the facts of this
We therefore reverse and remand for a new trial.
Additionally, Chapa challenges two evidentiary rulings
— whether the trial court erred when it allowed evidence of
Chapa’s prior falls and whether it erred by precluding standard
of care testimony of the Veolia accident investigator.
we are remanding the matter for a new trial, we express no
opinion and, on remand, the trial court may address them, if
See Dancing Sunshines Lounge v. Indus. Comm’n, 149
Ariz. 480, 482, 720 P.2d 81, 83 (1986).
Based on the foregoing, we reverse the verdict and
remand for a new trial.
MAURICE PORTLEY, Presiding Judge
LAWRENCE F. WINTHROP Judge
SHELDON H. WEISBERG, Judge