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Wiggs v. City of Phoenix9/21/1999
nduct of defense counsel.
JON W. THOMPSON, Presiding Judge
CONCURRING:
JEFFERSON L. LANKFORD, Judge
NOYES, Chief Judge, Dissenting,
The applicable standard of review is deferential. "An order granting a new trial is subject to a more liberal standard of review than an order denying one. A reviewing court will not set aside a trial court's grant of new trial absent a clear showing of abuse of discretion." Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 325, 762 P.2d 609, 612 (App. 1988) (internal citations omitted).
The trial court gave many reasons for granting a new trial. I strongly believe that the trial court's expressed conviction of the need for a new trial is owed more deference on review than it was given in the majority opinion.
I will focus on just one of the issues addressed by the trial court: The failure to instruct the jury on the City's non-delegable duty regarding the street light. Because the City conceded that it had a non-delegable duty regarding the street light, this appeared to be a non-issue, as far as the jury was concerned. In final argument, however, the City strongly suggested that it had delegated this duty to APS, by its contract with APS:
Did APS do anything wrong? I don't know. But if you find that those lights were not on and they should have been, the City had an agreement with Arizona Public Service.
And if they didn't come on, then Arizona Public Service is the one that had the photo cells in their control. And if it should have come on, then it is their responsibility.
I'm going to suggest to you that nothing inappropriate was done at this intersection. But again, if you find they should have been on, then look at the contract, Exhibit 42.
As relevant here, the parties tried the case and the court instructed the jury as though liability hinged on whether the light was on or off when the child was killed, and as though the City was responsible if the light was off. The court's failure to instruct the jury on the City's non-delegable duty seriously hampered Plaintiff's ability to rebut the City's final-argument suggestion that only APS was responsible if the light was off.
For several reasons, some of which were contributed to by trial court rulings, the vicarious liability and comparative fault issues in this trial became quite confused. In my opinion, the record supports the Conclusion that the end result of this confusion was an irregular proceeding that did not qualify as a fair trial. On such a record, we should affirm the trial court's decision to grant a new trial. See Buffa v. Scott, 147 Ariz. 140, 142-44, 708 P.2d 1331, 1333-35 (App. 1985) (affirming the grant of a new trial despite several errors in the court's stated reasons).
I respectfully Dissent from this reversal.
E. G. NOYES, JR., Chief Judge
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