Martinez v. Desert Sky

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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 HERMAN R. Q. MARTINEZ and ROMELIA H. MARTINEZ, as surviving parents and heirs of decedent Sarah Annette Martinez; ESTATE OF SARAH ANNETTE MARTINEZ, by and through its representatives, Herman R. Q. Martinez and Romelia H. Martinez, ) ) ) ) ) ) ) ) ) Plaintiffs/Appellees, ) ) v. ) ) DESERT SKY ESPLANADE, L.L.C., an ) Arizona limited liability ) company, ) ) Defendant/Appellant. ) ) 1 CA-CV 09-0676 DIVISION ONE FILED: 09/16/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2006-014888 The Honorable Douglas L. Rayes, Judge AFFIRMED Charles J. Slack-Mendez By Charles J. Slack-Mendez Attorneys for Plaintiffs/Appellees Jardine, Baker, Hickman & Houston, PLLC By Kendall D. Steele Attorneys for Defendant/Appellant Tempe Phoenix O R O Z C O, Judge ¶1 Desert Sky Esplanade, L.L.C. (Desert Sky), appeals from the judgment entered on a jury verdict in favor of Herman R. Q. Martinez and Romelia H. Martinez (the Parents). Desert Sky claims the trial evidence failed to prove its fault under a premises liability theory in causing the Parents daughter s death. Desert Sky also challenges the trial court s orders denying its motion for new trial and renewed motion for judgment as a matter of law (JMOL). For the reasons that follow, we affirm the judgment and post-trial orders. BACKGROUND ¶2 The trial evidence, viewed in a light most favorable to sustaining the jury verdict,1 revealed the following. On June 25, 2004, certain commercial property (the Property) along 75th Avenue between Encanto Boulevard and McDowell Road was conveyed to Desert Sky. ¶3 On January 7, 2005, the Parents sixteen-year-old daughter, Sarah Martinez (Sarah), was a passenger in a vehicle being driven by her friend, M.M. Proceeding westbound on Encanto Boulevard, M.M. turned south on Center Road, a paved roadway exceeding forty-feet in width that traversed the western 1 Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d 1164, 1166 (App. 1996). 2 part of the Property.2 Although Center Road was a private roadway, no sign indicated it was closed to the public, and M.M. believed Center Road was a normal, public access road. ¶4 M.M. was driving fifty to fifty-five miles-per-hour as he steered through a curve in the road and noticed a speed hump3 when he was [a]lmost . . . on top of it, within a few feet. There were no speed limit signs on Center Road, nor were there any signs warning of the speed hump. M.M. attempted to maneuver through cut-outs in the hump, lost control of the vehicle, and crashed laterally into a tree on the side of the road. Sarah sustained fatal injuries in the accident. ¶5 On October 19, 2006, the Parents commenced a wrongful death action against Desert Sky4 alleging, among other things, that the speed hump was unreasonably dangerous due to (1) its improper placement on the curve in the road and (2) the absence of both a posted speed limit and signs warning drivers of the hump s existence. parties rested, The matter was tried to a jury. Desert Sky argued no trial After the evidence could 2 Center Road connected Encanto Boulevard and McDowell Road and provided delivery trucks access to retail stores on the Property. 3 A speed hump is an asphalt mound[] placed on roadways for the purpose of slowing traffic and is gentler than a speed bump. 4 Other named defendants are not parties to this appeal. 3 support a finding of an unreasonably dangerous condition on the Property and accordingly moved orally for Arizona Rule of Civil Procedure (Rule) 50. JMOL pursuant to The court denied the motion, and the jury subsequently found Desert Sky and M.M. each 50% at fault and awarded the Parents $2,500,000.00 in damages. ¶6 JMOL. Desert Sky filed a motion for new trial and renewed Again, Desert Sky claimed the Parents presented evidence that the speed hump was unreasonably dangerous. no Desert Sky also argued it did not, as a matter of law, owe Sarah a duty because Center Road was privately owned. Finally, Desert Sky asserted no evidence at trial established it had the requisite knowledge regarding the existence of the speed hump.5 court denied appealed. We Desert have Sky s motion, jurisdiction and pursuant Desert to The trial Sky timely Arizona Revised Statutes (A.R.S.) section 12-2101.B and F.1 (2003). DISCUSSION ¶7 Consistent with Arizona law, the jury was instructed that in order to find Desert Sky negligent, it had to determine that the speed hump was an unreasonably dangerous condition of which Desert Sky had notice, and Desert Sky failed to reasonable care to prevent harm under the circumstances. Ariz. Jury Instr. (Civil), at 98 (4th ed. 2005). 5 use Rev. To satisfy the It was undisputed at trial that the speed hump was in place when Desert Sky assumed ownership of the Property, thus inferring that Desert Sky did not construct the speed hump. 4 notice requirement, the jury was instructed to find any one of the following: (1) Desert Sky or its employees created the condition; (2) Desert Sky or its employees actually knew of the condition in time to provide a remedy or warning; or (3) the condition lasted for a sufficient length of time that Desert Sky or its employees, in the exercise of reasonable care, should have known of it. Id.; Haynes v. Syntek Fin. Corp., 184 Ariz. 332, 339, 909 P.2d 399, 406 (App. 1995). ¶8 Desert Sky first argues it did not owe a duty to Sarah because the car accident occurred while she was trespassing on a private road. Desert Sky first raised this issue in its post- trial motion for a new trial and renewed JMOL; it did not raise the issue in its first Rule 50 motion made at trial. Indeed, Desert Sky approved of the following instruction given to the jury: As the owner of a business, defendant Desert Sky [] is required to use reasonable care to warn of or safeguard or remedy an unreasonably dangerous condition of which Desert Sky [] had notice. Consequently, Desert Sky has waived the issue of whether it owed a duty to Sarah. See Watson Constr. Co. v. Amfac Mortg. Corp., 124 Ariz. 570, 582, 606 P.2d 421, 433 (App. 1979) (stating that issues raised for the first time in a motion for new trial are waived). ¶9 Desert Sky next contends the Parents failed to prove Desert Sky had the requisite knowledge to find that it actually 5 or constructively dangerous. knew the speed hump This issue was also waived. was unreasonably In its Rule 50 motion at trial, Desert Sky only challenged the evidence showing the speed hump was unreasonably dangerous. Notably, when the Parents attorney responded to Desert Sky s motion and began arguing the notice saying: Wait. issue, the trial court interrupted twice All I wanted you to tell me, what facts support the proposition that this speed hump was unreasonably dangerous? That s a very narrow motion as to the lack of evidence for the jury to find this was an unreasonably dangerous condition. And, Whoa, [Desert Sky s counsel is] not arguing notice, all he s saying is this was not a reasonably dangerous condition. That s all. Desert Sky did not object to this characterization of its Rule 50 motion. Thus, because Desert Sky raised the issue regarding its notice of the speed hump for the first time in its post-trial motion for new trial, this issue has been waived.6 Id. 6 Even if we were to find that this issue was not waived, sufficient evidence supports a finding that Desert Sky reasonably should have known of the speed hump because Desert Sky had owned the Property for over six months before the accident occurred. Desert Sky has not disputed that the speed hump was in existence when it acquired ownership of the Property. Further, trial evidence revealed that Desert Sky, as it conducted due diligence prior to purchasing the property, should have noticed there might be a problem with drivers speeding over the speed hump according to J.J., a traffic safety expert with experience in speed hump design. 6 ¶10 Accordingly, the sole issue properly before us is whether the evidence at trial supported a finding that the speed hump was unreasonably dangerous. We will reverse the trial court s denial of a motion for JMOL or new trial only if it reflects a manifest abuse of discretion. Ogden v. J.M. Steel Erecting, Inc., 201 Ariz. 32, 36, ¶ 15, 31 P.3d 806, 810 (App. 2001) (new trial); Gonzales v. City of Phoenix, 203 Ariz. 152, 153, ¶¶ 1-2, 52 P.3d 184, 185 (2002). We view the evidence in the light most favorable to sustaining the jury s verdict and, when considering disturb the permitting the verdict reasonable sufficiency if any persons of the evidence, substantial to reach will evidence such a not exists result. Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶¶ 13-14, 961 P.2d 449, 451 (1998); S. Dev. Co. v. Pima Capital Mgmt. Co., 201 Ariz. 10, 18, ¶ 16, 31 P.3d 123, 131 (App. 2001). We will not re-weigh the evidence because the credibility of witnesses and weight of the evidence are within the province of the jury. Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12, 9 P.3d 314, 318 (2000). ¶11 J.J. testified that national and local standards would prohibit speed humps in close proximity to curves on Center Road due to its excessive width and resultant higher speed and volume 7 of traffic.7 He also testified the curve before the speed hump limited the visibility of the speed hump and a driver s ability to see the hump s ground stripes. Because of the hump's placement relative to the curve, J.J. testified that warning signs should have been posted. J.J. also testified that he observed numerous skid marks on the hump s surface which in his experience indicated drivers had react[ed] at the last . . . second and were having problems with that speed hump . . . in that location. This evidence was sufficient for the jury to determine that the speed hump was unreasonably dangerous based on its location relative to the curve and Center Road s lack of posted warning and speed limit signs. The trial court, therefore, did not abuse its discretion in denying Desert Sky s motion for JMOL or new trial. 7 Indeed, J.J. testified a speed limit should have been posted on Center Road because it s connecting two major arterials. It looks like an arterial street itself. . . . So it looks, talks and walks like a major street and it should be signed that way and should be designed adequately. 8 CONCLUSION ¶12 For the above mentioned reasons, the judgment and trial court s orders denying Desert Sky s motion for a new trial and motion for renewed JMOL are affirmed. /S/ ___________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ____________________________________ MAURICE PORTLEY, Presiding Judge /S/ ____________________________________ MARGARET H. DOWNIE, Judge 9