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Wiggs v. City of Phoenix9/21/1999
REVERSED
This appeal arises out of a wrongful death action brought by the mother of Shonna Wiggs, the deceased. Prior to trial, defendant City of Phoenix designated Arizona Public Service (APS) as a non-party at fault. At trial, the jury returned a defense verdict. The trial court granted plaintiff's new trial motion. Defendant City timely appealed and plaintiff cross-appealed. We have jurisdiction pursuant to Ariz. Rev. Stat. Ann. (A.R.S.) ยงยง 12-120.21 and 12-2101(F)(1).
The first issue we address in this appeal by defendant is whether plaintiff is entitled to a new trial if the jury was improperly instructed on the law pertaining to an issue in the case, where the general defense verdict is sustainable on another evidentiary theory and plaintiff did not request a form of verdict indicating which theory the jury accepted. We also consider, in examining a new trial order on this basis, the effect of plaintiff's failure to object to jury instructions requested by defendant. A second issue concerns the merits of plaintiff's contention that the jury should have received an instruction that defendant was liable for the negligence of a non-party at fault. Plaintiff also raises evidentiary issues on cross-appeal.
FACTUAL AND PROCEDURAL HISTORY
At approximately 8:05 p.m. on August 3, 1993, plaintiff's fifteen-year-old daughter, Shonna, was struck by a vehicle driven by Albert Armstrong and subsequently died. Shonna had been walking southbound across Cactus Road in the crosswalk at 34th Street. She used that same crosswalk approximately twice per day and did not have any vision or hearing problems.
Armstrong was traveling eastbound on Cactus Road at approximately forty miles per hour. In his deposition, he testified that he was not distracted from looking straight ahead, except to glance at his rear view mirror. When Armstrong saw Shonna, he made an unsuccessful attempt to avoid her. The right front side of his car struck her.
The accident occurred around dusk, and Armstrong stated that at the time, it was more dark out than light. Two motorists who witnessed the accident, Taryn Gibson and Kim Chapman, recalled that they saw Shonna looking straight ahead and walking at a steady pace while crossing the intersection. Chapman remembered thinking that Shonna would get hit because neither she nor Armstrong was slowing down.
Gibson testified that the streetlight at the crosswalk was not on at the time of the accident. She stated that it was dusk and that the streetlights did not come on until about the time that the paramedics arrived. However, the police report noted that the streetlight was on at the time of the traffic investigation, and another witness, Julie Rains, stated she noticed that the streetlight was on right after the accident.
According to defendant's expert, Dr. Ned E. Walton, streetlighting is typically controlled by a "photocell" that "senses the ambient daylight or dark condition" and reacts to it, setting the electricity to come on for the lights when it is dark and cutting off the electricity when it becomes light. Dr. Robert Bleyl, plaintiff's expert, also testified as to the effects of streetlight illumination on the roadway. He testified that, given the lack of any streetlighting, with only vehicle headlights illuminating the pedestrian, and at a rate of forty miles per hour with complete attentiveness, Armstrong could not have stopped his vehicle in time to avoid hitting Shonna.
Prior to trial, defendant designated APS as a non-party at fault. A 1986 contract between defendant and APS provided that APS was to "operate, maintain, and service the Streetlight Fac
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