NOTICE:
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
DIVISION ONE
MARIA CHAVEZ CHAPA,
)
)
Plaintiff/Appellant, )
)
v.
)
)
ATC/VANCOM OF ARIZONA LIMITED
)
PARTNERSHIP dba VEOLIA
)
TRANSPORTATION PHOENIX, a
)
limited partnership; MICHAEL
)
WAYNE FISHER,
)
)
Defendants/Appellees. )
__________________________________)
1 CA-CV 10-0347
DEPARTMENT E
DIVISION ONE
FILED: 06/07/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
MEMORANDUM DECISION
(Not for Publication Rule 28, Arizona Rules of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.
by
Joel B. Robbins
Attorneys for Plaintiff/Appellant
Phoenix
Sanders & Parks, P.C.
by
Jeffrey L. Smith
Robin E. Burgess
Attorneys for Defendants/Appellees
Phoenix
P O R T L E Y, Judge
¶1
favor
Maria
of
Chavez
ATC/Vancom
Chapa
and
(collectively “Veolia”). 1
challenges
bus
driver
She
the
jury
Michael
verdict
Wayne
in
Fisher
contends that the trial court
erred by giving an assumption of the risk jury instruction.
For
the following reasons, we reverse the verdict and remand for a
new trial.
FACTS AND PROCEDURAL HISTORY 2
¶2
A
westbound
city
bus
stopped
just
west
of
Central
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.
¶3
verdict.
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).
1
The bus company is owned by ATC/Vancom and does business as
Veolia.
2
We view the facts in a light most favorable to sustaining the
verdict.
See Inch v. McPherson, 176 Ariz. 132, 136, 859 P.2d
755, 759 (App. 1993).
2
DISCUSSION
¶4
whether
“We review jury instructions as a whole to determine
the
jury
was
properly
guided
in
its
deliberations.”
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
contradictory
facts
presented.”
Willet
v.
Ciszek-Olson,
170
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
(App. 1989)).
Conversely, when there is no substantial evidence
to support an instruction, it is reversible error to give the
instruction.
Herman v. Sedor, 168 Ariz. 156, 158, 812 P.2d 629,
631 (App. 1991); Sparks v. Republic Nat’l Life Ins. Co., 132
Ariz.
529,
539,
647
P.2d
1127,
1137
(1982).
“Substantial
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)).
3
¶5
Implied assumption of the risk requires proof of the
following elements:
(1)
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;
(2)
Plaintiff must have actual knowledge of the
particular risk and appreciate its magnitude; and
(3)
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).
¶6
In Hildebrand, we applied the Restatement approach to
assumption of the risk.
bucket
loader,
positioned
obstructed a roadway.
P.2d at 1329.
There, Hildebrand, hired to repair a
the
loader
so
that
Although warned to move the loader, Hildebrand
was killed when a tractor struck the loader.
instructed
During
that
partially
Hildebrand, 16 Ariz. App. at 584, 494
saw there was enough room for vehicles to pass.
¶7
it
the
the
wrongful
decedent
death
assumed
placing the loader in the roadway.
Id.
Later, he
the
jury
Id.
trial,
the
Id.
risk
of
injury
was
by
In analyzing the issue
on appeal, we found that assumption of the risk and contributory
negligence are often conflated.
1330-31.
Specifically, we stated:
4
Id. at 585-86, 494 P.2d at
Contributory
negligence
arises
when
the
plaintiff
fails
to
exercise
due
care.
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
involved.
Id. at 585, 494 P.2d at 1330 (citation omitted). 3
that
the
“failure
consequences
assumption
of
of
to
one’s
risk
fully
acts
but,
appreciate
is
not
rather,
a
and
comprehend
properly
matter
negligence.”
a
a
of
matter
the
of
contributory
Id. at 586, 494 P.2d at 1331.
¶8
We concluded
As
result
of
the
analysis
and
the
absence
of
evidence of consent, we found that the defendant failed to show
that Hildebrand had impliedly consented to the tractor driver’s
negligence
or
that
he
had
danger that caused his death.
actual
Id.
knowledge
of
the
specific
At most, Hildebrand “failed
3
Examples of consent where the plaintiff agreed to take a chance
include:
[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.
5
see
to
fully
[which]
appreciate
would
the
consequence
constitute
assumption of the risk.”
of
contributory
Id.
his
conduct,
negligence
.
.
and
.
not
As a result, we reversed and
remanded the case for a new trial.
¶9
Nearly
a
decade
later
in
Garcia
v.
City
of
South
Tucson, we reaffirmed the Hildebrand analysis, and noted that
“[a]
general
knowledge
of
‘a
danger’
is
not
instruct the jury on assumption of the risk.
319, 640 P.2d 1117, 1121 (App. 1981).
sufficient”
to
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
police officer.
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.
¶10
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.
For
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.
See
W. Page Keeton et al., Prosser and Keeton on the Law of Torts, §
68,
at
487
(5th
ed.
1984).
The
record,
however,
does
not
support that she assumed the risk of being run over by the bus.
6
¶11
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
that
she
contemplated
negligence.
or
consented
to
Veolia’s
purported
In fact, Chapa testified that she did not know the
bus was going to move when she attempted to stop it.
Moreover,
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
jury instruction.
4
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
plaintiff
is
willing
to
take
his
chances. . . .
A plaintiff, for example,
who dashes into the street in the middle of
the block, in the path of a stream of cars
driven
in
excess
of
the
speed
limit,
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
of risk.
Restatement (Second) of Torts § 496(C) cmt. h.
7
¶12
Veolia argues, however, that Galindo v. TMT Transport,
Inc.,
152
Ariz.
instruction.
434,
733
P.2d
631
(App.
1986)
supports
the
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
the
risk
instructions
may
be
appropriate
to
allow
the
jury
decide the facts and apply the appropriate law.
¶13
There,
the
decedent,
who
had
a
history
of
mental
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.”
Id. at
435, 733 P.2d at 632.
At the conclusion of the trial, the court
instructed
to
the
jury
“apply
different
considerations
in
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
understands.”
Id.
(Emphasis
omitted.)
On
appeal
from
the
defense verdict, the decedent’s mother argued that the evidence
did not support the assumption of the risk instruction.
affirmed because:
8
We
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
other evidence.
However, the issue of [the
decedent’s] state of mind and its effect on
the
application
of
the
doctrine
of
assumption of the risk was properly left to
the jury for its determination.
Id.
¶14
Here,
testified
unlike
without
Galindo,
Chapa
contradiction
survived
about
her
her
appreciation of the dangers in catching a bus.
fall,
and
subjective
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
case.
¶15
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.
Because
we are remanding the matter for a new trial, we express no
opinion and, on remand, the trial court may address them, if
they arise.
See Dancing Sunshines Lounge v. Indus. Comm’n, 149
Ariz. 480, 482, 720 P.2d 81, 83 (1986).
9
CONCLUSION
¶16
Based on the foregoing, we reverse the verdict and
remand for a new trial.
/s/
________________________________
MAURICE PORTLEY, Presiding Judge
CONCURRING:
/s/
____________________________
LAWRENCE F. WINTHROP Judge
/s/
____________________________
SHELDON H. WEISBERG, Judge
10
