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Evans v. Albina Transfer Co.11/7/1996
GERBER, Judge
In this consolidated wrongful death case, plaintiffs Donald and Arlene Evans (Evans) and Alfred and Patsy Bears (Bears) appeal from a jury verdict in favor of defendants Albina Transfer Company, Inc. and driver Elmer Lamar (Albina) and from the denial of their motions for new trial. Evans also appeals from the verdict in favor of defendant Estate of Jeffrey Bears (Bears' Estate). We must reverse the verdict and remand the case for a new trial because the trial court erred by improperly instructing the jury on the doctrines of assumption of risk and negligence per se.
FACTS AND PROCEDURAL HISTORY
In the early morning of February 15, 1988, Jeffrey Bears (Jeffrey) drove his car into the rear of a parked tractor-trailer truck owned by Albina. Jeffrey and his passenger, Daryl Evans (Daryl), were killed in the impact. At the time of the accident, Jeffrey's blood alcohol concentration (BAC) was .17 and Daryl's BAC was .12. Testimony indicated that the pair had been drinking together for much of the day before the accident. The trial court admitted testimony of the BAC of both men.
Police officers who investigated the accident testified that Jeffrey took no evasive action before striking the truck. An eyewitness estimated the speed of his vehicle at impact to be approximately 35 miles per hour.
The truck was parked on 27th Avenue approximately one-half mile north of Northern Avenue in an area zoned "residential." City of Phoenix street classification maps show this portion of 27th Avenue as a "collector street." Section 36-140 of the Phoenix City Code prohibits truck parking on such collector streets. The truck therefore was parked in violation of the Phoenix ordinance. At trial, however, investigating officers were permitted to testify that the truck was "properly parked."
Just north of Northern Avenue, 27th Avenue narrows from two northbound lanes to one lane. To guide traffic to the center of the road, the city had installed raised reflective markers in the pavement. The truck was parked between the markers and the curb, outside the through lane of travel.
The parties disputed the visibility of the truck. Bears and Evans claimed that dirt decreased the truck's visibility. However, Albina claimed that the rear reflectors, mud flaps, and license plate were clean and visible.
Following the accident, Evans sued Albina and Bears' Estate, and Bears brought a separate lawsuit against Albina. The cases were consolidated for trial.
At the close of evidence, Evans moved for a directed verdict, which the trial court denied. The jury reached a verdict in favor of defendants Albina on the claims of plaintiffs Bears and Evans and in favor of defendant Bears' Estate on the claim of Evans.
Bears and Evans subsequently filed motions for new trial, which also were denied. The parties filed timely notices of appeal from the judgment and the denial of their new trial motions. They now contend that:
1. The jury verdict is contrary to law and unsupported
by the evidence;
2. The trial court erred by allowing the investigating officers to testify that the truck was properly parked;
3. The trial court erred by denying Evans' motion for directed verdict;
4. The trial court erred by giving an assumption of risk instruction;
5. The trial court erred by giving negligence per se instructions based on Arizona Revised Statutes Annotated (A.R.S.) sections 28-701(A), 28-729(1), and 28-942;
6. The trial court erred by admitting evidence of Daryl's BAC; and
7. Albina's counsel mad
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