Uiagalelei v. State

PRITIKA UIAGALELEI, Plaintiff/Appellant, v. STATE OF ARIZONA, Defendant/Appellee.

No. 1 CA-CV 19-0274

ARIZONA COURT OF APPEALS DIVISION ONE

September 3, 2020

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CV2016-008965

The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

The Leader Law Firm, PC, Tucson

By John P. Leader

Zachar Law Firm, PC, Phoenix

By Christopher J. Zachar

Law Office of Richard A. Gullette, Phoenix

By Richard A. Gullette II

Co-Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix

By Daniel P. Schaack

Counsel for Defendant/Appellee

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.

SWANN, Chief Judge:

¶1 In this wrongful death case against the state of Arizona, Pritika Uiagalelei appeals the superior court's denial of her motions for judgment as a matter of law ("JMOL") and new trial. We affirm because, contrary to Pritika's contentions, the state was not required to provide expert testimony to establish nonparty fault, sufficient evidence supported the jury's verdict, and the state engaged in no misconduct affecting the verdict.

FACTS¹ AND PROCEDURAL HISTORY

¶2 In June 2016, Pritika Uiagalelei filed a complaint against the state for the wrongful death of her husband, Stevie, who in the course of his employment was killed when the fuel-tanker truck he was driving overturned near milepost 29 on State Route 72. Pritika alleged that the state was negligent in maintaining safe road conditions—specifically, the height differential, or pavement edge drop off ("PED"), between the asphalt road and the shoulder area. Pritika alleged that the state's negligence led to the accident when "the right rear tires of the trailer traveled off the westbound shoulder edge onto a deeply depressed gravel shoulder" that prevented "a motorist moving from the road to the shoulder [from] safely transition[ing] back to the asphalt."

¶3 In March 2017, the state filed a notice identifying truck-owner United Petroleum Transports, Inc. ("UPT") and its contractor Tucson Tanker Maintenance Co. ("TTM") as nonparties at fault. The state alleged that a jury reasonably could conclude that UPT "failed to adequately train its driver Stevie Uiagalelei on how to properly respond . . . when vehicle tires drop off the edge of the highway," and that TTM, which was"responsible for truck maintenance," failed to "properly maintain the truck and tires," contributing to a possible "tire blow out [that] caused [Stevie] to lose control of the truck and trailer." The state disclosed that it might call certain experts at trial, including an expert in "[t]rucking standards and practices." At trial, however, the state proceeded on the theory that TTM hired Stevie to drive the fuel tanker truck without confirming that he was trained to do so.

¶4 At trial, the state read into the record the deposition of TTM principal Kevin Collins. According to Collins, TTM leases drivers and trucks to UPT to transport fuel across state lines and TTM handles payroll administration for the drivers. TTM's two-person recruiting department receives potential drivers' general, one-page applications for hire and forwards competent applications to UPT. TTM does not check the applications' veracity or conduct background checks. Rather, applicants whose forms are forwarded will "fill out a UPT application" and UPT will examine the applicants' qualifications, conduct interviews and background checks, "do [the] safety file," and make the decision whether to lease the applicant as a driver.

¶5 At trial, the state also called Dwight Jennings, a trucking expert. Jennings testified that UPT, a "regulated employer under the Federal Motor Carrier Safety Administration," was responsible for training Stevie to drive fuel tanker trucks but Jennings saw in Stevie's file "[n]o evidence that he'd been trained in . . . driving tank vehicles." The file showed evidence of "payroll records that people were paid to train [Stevie]," but not evidence of actual training. Jennings did not express any opinion as to the liability or standard of care of TTM.

¶6 After the close of evidence, Pritika moved unsuccessfully for JMOL, arguing, in relevant part, that the state failed to present necessary "defense expert testimony" concerning negligence on the part of TTM.

¶7 During closing arguments, the state made the following statements:

Just briefly Tucson Tanker Maintenance, Kevin Collins was the owner. You heard his business entities that he had. He hired and paid a driver he never met. He leased the driver to UPT for a specific tanker truck. He assumed the driver was trained through an inspection. Didn't investigate anything else, and completely relied on UPT to train his employee on how to drive a tanker truck.

If somehow you get to that point and you have to decide how to allocate fault between the parties, if you think Tucson Tanker Maintenance should have some liability, then you can assess them some percentage. But I would submit that Tucson Tanker and UPT are almost the same entity and they were responsible for training.

¶8 The jury returned a $1.2 million verdict for Pritika, allocating 50% fault to nonparty UPT, 20% to nonparty TTM, 25% to Stevie, and 5% to the state.

¶9 Pritika filed a renewed motion for JMOL, largely reasserting that the court erred by permitting the jury to apportion fault to TTM absent expert testimony that TTM breached any applicable standard of care. Pritika also moved for a new trial based on, inter alia, the absence of an expert and alleged misconduct by the state. The court denied the motions and entered a final judgment in accordance with the jury's verdict. Pritika appeals.

DISCUSSION

I. THE SUPERIOR COURT PROPERLY SUBMITTED THE QUESTION OF TTM'S NEGLIGENCE TO THE JURY.

¶10 Pritika contends the superior court erred by denying her motions for JMOL as to TTM because the state did not provide "expert testimony" of TTM's negligence, specifically as to whether it breached any standard of care under a duty owed to Stevie. The state contends that expert testimony was not necessary to establish TTM's fault for two general reasons: (1) the jury heard uncontradicted evidence from TTM's owner that the company failed to investigate Stevie's background and verify whether he was actually qualified to perform the job for which he was employed, and (2) TTM's negligence in "hiring" and "referring Stevie to UPT" was so self-evident such that a layperson need no special knowledge to understand that TTM should not have hired Stevie without first ensuring his ability to perform the job.

¶11 JMOL may be granted when "a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Ariz. R. Civ. P. 50(a); see also Roberson v. Wal-Mart Stores, Inc., 202 Ariz. 286, 290, ¶ 14 (App. 2002) ("The 'motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could notagree with the conclusion advanced by the proponent of the claim or defense.'" (citation omitted). "We review the superior court's denial of a motion for judgment as a matter of law de novo, viewing the evidence in the light most favorable to the non-moving party." Desert Mountain Props. Ltd. P'ship v. Liberty Mut. Fire Ins., 225 Ariz. 194, 200, ¶ 12 (App. 2010).

¶12 Because Arizona has abolished joint and several liability, a defendant is liable to an injured party only for his or her percentage of fault and may ask the trier of fact to apportion fault among all those who contributed to the injury, whether they were, or could have been, named as parties to the action. A.R.S. § 12-2506(A), (B). Here, the state named TTM as a nonparty at fault under A.R.S. § 12-2506(B). That designation permitted the state to offer trial evidence of TTM's negligence and argue that the jury should attribute some percentage of fault to TTM, thereby reducing the state's percentage of fault and ultimate liability. See Ocotillo W. Joint Venture v. Superior Court (Zylka), 173 Ariz. 486, 488 (App. 1992). "Because an allegation of comparative fault relating to nonparties is an affirmative defense [to a negligence action], the defendant must prove the nonparty is actually at fault." Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, 48, ¶ 22 (App. 2011).

¶13 To prove that TTM was comparatively at fault because of negligence, the state was required to show that TTM owed the plaintiff a duty to conform to a certain standard of care, TTM breached the duty, and the breach caused injury to the plaintiff. Id. At issue here is whether the state presented sufficient evidence that TTM breached its duty (the existence of which the parties do not dispute).

¶14 The state had the burden to establish what conduct the standard of care required and that TTM's actions did not meet that standard. See Kreisman v. Thomas, 12 Ariz. App. 215, 220 (1970). "If there is a duty, then the law requires that the defendant conform to a standard of care. In negligence cases that is usually 'reasonable care under the circumstances,' though it may differ, depending on the relationship." Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356 (1985). "Ordinarily, the standard of care to be applied in a negligence action focuses on the conduct of a reasonably prudent person under the circumstances," Sw. Auto Painting & Body Repair, Inc. v. Binsfeld, 183 Ariz. 444, 448 (App. 1995), and the jury may "rely on its own experience in determining whether the defendant[, or as in this case, a nonparty,] "acted with reasonable care under the circumstances," see Bell v. Maricopa Med. Ctr., ...