Fisk v. Hurricane

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DALLAS FISK,
Plaintiff/Appellant,

v.

HURRICANE AMT LLC, et al.,
Defendants/Appellees.

No. 1 CA-CV 17-0256
FILED 7-5-2018

Appeal from the Superior Court in Maricopa County
No. CV2013-014929
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Law Offices of Luis P. Guerra, LLC, Phoenix
By Luis P. Guerra
Co-Counsel for Plaintiff/Appellant

Ahwatukee Legal Office, PC, Phoenix
By David L. Abney
Co-Counsel for Plaintiff/Appellant

The Moulton Law Firm, PC, Scottsdale
By Kathleen M. Kassmann, Timothy L. Moulton
Counsel for Defendants/Appellees
 FISK v. HURRICANE, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.

J O H N S E N, Judge:

¶1 In this wrongful-death action, Dallas Fisk appeals the
superior court's grant of judgment to Hurricane AMT LLC ("Franchisor")
and the jury's verdict in favor of Category 5 LLC dba Hurricane Grill and
Wings ("Hurricane Grill"). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Fisk was driving his wife Lindsey home just before midnight
after an evening of shopping and other errands. As he turned left from
westbound Bell Road onto southbound 83rd Avenue, a sport-utility vehicle
coming the opposite direction on Bell plowed into the passenger side of his
car, killing Lindsey.

¶3 The driver of the sport-utility vehicle, Holly Kast, stumbled
out of her car after the accident and staggered and fell when she tried to
walk. Kast smelled strongly of alcohol, had droopy, bloodshot eyes, slurred
her speech, and was disoriented and incoherent. She failed a field-sobriety
test, and a blood test later showed she had .284 blood-alcohol content.
Police arrested Kast and the State charged her with manslaughter and other
offenses.

¶4 Kast told police that she drank three beers and two shots of
liquor at Hurricane Grill before the accident, and police found a receipt in
her purse confirming those purchases. According to Kast, she was not
drunk when she arrived at Hurricane Grill earlier that evening, but she
admitted she was drunk by the time she and her companion left there
shortly before the accident.

¶5 The bartender at Hurricane Grill who served Kast testified
Kast did not seem intoxicated at any time that evening. The bartender did
not know how many drinks she served Kast that night. Hurricane Grill's
manager testified that when she visited Kast's table, Kast was alert and not
visibly intoxicated.

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¶6 Fisk sued Hurricane Grill and Franchisor (collectively,
"Hurricane"), for causing Lindsey's death and his own personal injuries,
alleging, inter alia, that Hurricane overserved Kast and negligently trained
and supervised its alcohol-serving staff. Other members of Lindsey's
family joined as plaintiffs in the wrongful-death claim. Before trial,
however, each of the plaintiffs except Fisk accepted Hurricane's offers of
judgment.

¶7 Hurricane designated Kast as a nonparty-at-fault. At trial,
after Fisk rested, the superior court granted judgment as a matter of law to
Franchisor, and the jury ultimately issued a verdict in favor of Hurricane
Grill. Because Fisk had declined Hurricane's $50,000 offer of judgment and
was awarded nothing at trial, the court granted sanctions of more than
$191,000 to Hurricane pursuant to Arizona Rule of Civil Procedure 68.

¶8 The superior court denied Fisk's motion for a new trial, and
Fisk timely appealed. We have jurisdiction pursuant to Article 6, Section 9,
of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.")
sections 12-120.21(A)(1) (2018) and -2101(A)(5)(a) (2018).1

DISCUSSION

¶9 On appeal, Fisk argues he is entitled to a new trial because of
several purported errors by the superior court.

A. Failure to Strike Jurors.

¶10 Fisk first argues that the superior court erred by denying his
motion to strike two prospective jurors for cause, requiring him to use
peremptory challenges to remove the jurors. But in State v. Hickman, 205
Ariz. 192 (2003), our supreme court held that even if a court erroneously
fails to remove a juror for cause, reversal is not warranted unless the party
claiming error shows prejudice beyond the mere fact that the party had to
use a peremptory challenge to remove that juror. Because Fisk used
peremptory challenges to remove the allegedly objectionable jurors and he
alleges no other prejudice, Hickman controls. Because Fisk shows no
prejudice from the claimed error, we need not determine whether the court
erred by declining to remove the jurors.

1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.

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B. Exclusion of the Judgment in Favor of the Other Plaintiffs.

¶11 Fisk next argues the superior court erred by excluding
evidence of the judgment entered against Hurricane after it settled with the
other family members. Fisk cites claim preclusion and offensive collateral
estoppel in arguing that the judgment bars Hurricane from disputing it is
liable on his claim.

¶12 Neither doctrine applies here. Claim preclusion requires,
inter alia, identity of claims by parties or their privies based on the same
cause of action. See In re General Adjudication of All Rights to Use Water in
Gila River Sys. & Source, 212 Ariz. 64, 69, ¶ 14 (2006). Claims are identical
when they are based on the same evidence. See Pettit v. Pettit, 218 Ariz. 529,
532, 533, ¶¶ 8, 10 (App. 2008) (claim preclusion applies if the evidence
needed to sustain the second action would have sustained the first). Fisk's
claims for personal injuries and for the wrongful death of his wife are not
the same as her other relatives' claims for wrongful death. See A.R.S. § 12-
613 (2018) (in action for wrongful death, "the jury shall give such damages
as it deems fair and just with reference to the injury resulting from the death
to the surviving parties who may be entitled to recover"). Fisk's claims for
relief were personal to himself, and required the jury to determine both his
injuries and the damages, including any loss of consortium, that he
sustained upon the death of his wife. Although Fisk's claims and those of
the relatives share some common elements (whether Hurricane was liable
and issues concerning comparative fault), evidence of the relatives'
damages would not have sufficed to prove Fisk's damages. Therefore,
claim preclusion does not apply.

¶13 Collateral estoppel (issue preclusion) requires, inter alia, that
"the parties actually litigated the issue in the prior proceeding." Calpine
Const. Fin. Co. v. Ariz. Dep't of Revenue, 221 Ariz. 244, 249, ¶ 25 (App. 2009).
But the parties to the settlement did not actually litigate the issue of
Hurricane's liability; the other family members settled instead by accepting
Hurricane's offers of judgment. See 4501 Northpoint LP v. Maricopa County, 212 Ariz. 98, 102-03, ¶¶ 24-26 (2006).

C. Evidentiary Issues.

¶14 Fisk argues that the superior court erroneously admitted or
excluded evidence in several instances. We review the admission or
exclusion of evidence for an abuse of discretion, State v. Gill, 242 Ariz. 1, 3,
¶ 7 (2017) (admission); State v. Romero, 239 Ariz. 6, 9, ¶ 11 (2016) (exclusion),
but interpret the Arizona Rules of Evidence de novo, Gill, 242 Ariz. at 3, ¶ 7.

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The superior court abuses its discretion by committing an error of law.
Romero, 239 Ariz. at 9, ¶ 11. We will not grant a new trial, however, absent
both an abuse of discretion and resulting prejudice. Hudgins v. Sw. Airlines
Co., 221 Ariz. 472, 480, ¶ 10 (App. 2009).

1. Admission of expert testimony about the headlight.

¶15 Fisk argues that the superior court erred in admitting the
testimony of Hurricane's expert witness, Robert Bleyl, who examined Fisk's
car and concluded that although the running lights and taillights were on
at the time of the crash, the headlights were not. Bleyl reached his
conclusion about the headlights based on his observations that the
headlights, which were retractable, were in the down position and the
filaments in the right front headlight did not show the distortion that he
said would typically occur upon a severe impact near the light while the
light was on.

¶16 The superior court has broad discretion in admitting expert
testimony, see Lohmeier v. Hammer, 214 Ariz. 57, 64, ¶ 25 (App. 2006), and
we will not disturb its decision to allow expert testimony absent an abuse
of discretion, State v. Naranjo, 234 Ariz. 233, 247, ¶ 65 (2014). Arizona Rule
of Evidence ("Rule") 702, which governs the admissibility of testimony by
expert witnesses, provides:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and
methods; and

(d) the expert has reliably applied the principles and methods
to the facts of the case.

¶17 "The rule 'recognizes that trial courts should serve as
gatekeepers in assuring that proposed expert testimony is reliable and thus
helpful to the jury's determination of facts at issue.'" State v. Bernstein, 237
Ariz. 226, 229, ¶ 11 (2015) (quoting Ariz. R. Evid. 702 cmt.). But "[t]he trial

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court's gatekeeping function is not intended to replace the adversary
system." Bernstein, 237 Ariz. at 229, ¶ 11 (quoting Ariz. R. Evid. 702 cmt.).
"Rather, '[c]ross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.'" Bernstein,
237 Ariz. at 229, ¶ 11 (quoting Ariz. R. Evid. 702 cmt.).

¶18 Fisk argues the superior court erred by allowing Bleyl to
testify because he was not qualified to provide an expert opinion about the
headlight. As Fisk asserts, Bleyl "admitted he is not a headlight expert, but
a civil engineer." Although Bleyl is a civil engineer, he testified to having
other, more specific qualifications. He testified he had been performing
forensic analyses of traffic accidents for nearly 40 years and wrote an article
documenting his research analyzing traffic-light filaments to determine
whether a particular light was on at impact. He also testified he had taken
a three-week course in analyzing car headlamps and taillights, and had
testified many times in state and federal courts about whether lights were
on or off at the time of an accident. Indeed, he testified that the primary
focus of his research has been in analyzing lamp filaments to determine
whether a light was on at the time of a collision. Nowhere did Bleyl "admit[]
he is not a headlight expert," as Fisk contends.

¶19 Fisk further argues that Rule 702 required Bleyl to have
"scientific, technical or other specialized knowledge of the right head lamp
from the subject [car] that was involved in the collision on March 9, 2012."
Fisk does not cite, and we have not found, any authority suggesting that
Rule 702 requires such particularized expertise. To the contrary, as long as
the jury "can receive help on a particular subject from the witness[, t]he
degree of qualification goes to the weight given the testimony, not its
admissibility." State v. Davolt, 207 Ariz. 191, 210, ¶ 70 (2004) (citation
omitted).

¶20 Fisk next argues the court should have excluded Bleyl's
testimony because Fisk and another witness testified that the headlights
were on, contrary to Bleyl's conclusion. "Expert testimony . . . is
inadmissible when the facts upon which the expert bases his testimony
contradict the evidence." Greenwell v. Boatwright, 184 F.3d 492, 497 (6th Cir.
1999). As Fisk concedes, however, "[e]xpert testimony 'is not inadmissible
simply because it contradicts eyewitness testimony.'" Id. The existence of
contradictory eyewitness testimony goes to the weight of an expert's
testimony, not its admissibility. See Sandretto v. Payson Healthcare Mgmt.,
Inc., 234 Ariz. 351, 359, ¶ 24 (App. 2014) ("[T]he trial court's 'gatekeeping
function ought not to be confused with the jury's responsibility to separate

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wheat from chaff.'") (quoting Crowe v. Marchand, 506 F.3d 13, 18 (1st Cir.
2007)). Nor was Bleyl's testimony inadmissible merely because the
experienced police detective who investigated the crash disagreed with
Bleyl's conclusions. See Ariz. R. Evid. 702 cmt. ("Where there is
contradictory, but reliable, expert testimony, it is the province of the jury to
determine the weight and credibility of the testimony."); State ex rel.
Montgomery v. Miller, 234 Ariz. 289, 298, ¶ 20 (App. 2014).

¶21 Fisk also suggests that Bleyl did not use proper methods to
perform his investigation, citing testimony from the Glendale detective
who watched Bleyl examine the lights on Fisk's car. The detective testified
that Bleyl used a rock to break open the glass face of the headlight, and used
only a pocket camera and pocket magnifier to examine the car's lights. The
detective testified she believed that Bleyl himself made the light inoperable
by pushing the bulb to the side when he opened it.

¶22 The detective's testimony may have been probative of
whether Bleyl's opinion was "the product of reliable . . . methods," see Ariz.
R. Evid. 702(c), or whether Bleyl "reliably applied" those methods here, see
Ariz. R. Evid. 702(d). But Fisk had the opportunity to challenge Bleyl's
testimony through "[c]ross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof." Bernstein, 237 Ariz. at 229,
¶ 11 (quoting Ariz. R. Evid. 702 cmt.). Moreover, Fisk did not seek a hearing
before trial to challenge Bleyl's methods. Although he filed a mid-trial
motion in limine to preclude Bleyl's testimony, that motion challenged only
Bleyl's qualifications, not his methods. See, e.g., Bernstein, 237 Ariz. at 228,
¶¶ 4-6 (superior court excluded expert testimony after pretrial hearing
pursuant to Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993)).

¶23 In these circumstances, the superior court did not err by
allowing the testimony.

2. Admission of evidence of Fisk's settlement demand.

¶24 Fisk argues the superior court erred in allowing evidence that
he made a settlement demand to Kast. Before trial, Fisk moved under Rule
408 to exclude evidence concerning his settlement with Kast, even for
impeachment. The superior court precluded use of the word "settlement"
and any reference to the amount of the settlement, but ruled that it would
allow evidence that Fisk had sent two demand letters to Kast. The court
later explained that "[Rule] 408 excludes offers to compromise and
compromises. It does not exclude demands. . . . [I]t excludes the monetary

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part of the demand . . . but it does not exclude the fact that your client asked
for money from the insurance company."

¶25 In the end, the court ruled that one letter was inadmissible,
and the other letter was not offered in evidence. Nevertheless, Fisk was
compelled to acknowledge on cross-examination that he had "made a
demand to representatives of Ms. Kast for wrongful death." Kast likewise
testified that Fisk sent her a "legal demand . . . for damages," asserting she
was responsible for the accident. Hurricane's counsel referenced this
testimony during closing argument, stating "[Fisk] made a demand of
[Kast]," and "[Kast] got behind the wheel and took responsibility. And
[Fisk] made a demand."

¶26 Rule 408 provides as follows:

(a) Prohibited Uses. Evidence of the following is not
admissible – on behalf of any party – either to prove or
disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering – or accepting,
promising to accept, or offering to accept – a valuable
consideration in compromising or attempting to compromise
the claim; and

(2) conduct or a statement made during compromise
negotiations about the claim.

(b) Exceptions. The court may admit this evidence for another
purpose, such as proving a witness's bias or prejudice,
negating a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.

The purpose of the exclusion of such evidence is to promote "the public
policy favoring the compromise and settlement of disputes" and to
encourage parties to communicate freely. Fed. R. Evid. 408 Advisory
Comm. Note; Miller v. Kelly, 212 Ariz. 283, 287, ¶ 12 (App. 2006).

¶27 A demand letter may be inadmissible if it constitutes an offer
to settle a claim in exchange for payment. See Bates v. Estes Co., 125 Ariz.
327, 327-28 (App. 1980). Testimony about the contents of such a demand
letter likewise may be inadmissible. See State ex rel. Miller v. Super. Ct., 189
Ariz. 228, 232 (App. 1997) ("Rule 408 precludes more than the 'offer' to
compromise; conduct and statements made in the pursuit of a settlement

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are also precluded."). Here, Hurricane sought to use evidence of Fisk's
demand to undercut any suggestion by Fisk at trial that the jury should not
apportion fault to Kast, whom Hurricane had designated as a nonparty-at-
fault.

¶28 The parties cite no Arizona authority concerning whether a
demand for payment after an accident necessarily is an offer to compromise
protected by Rule 408. Courts in other jurisdictions, however, have
concluded that preclusion does not apply to a demand consisting of nothing
more than threat of litigation unless full payment is made. See, e.g., Pierce
v. F.R. Tripler & Co., 955 F.2d 820, 827 (2d Cir. 1992) (once litigation has
begun, offers made between attorneys are presumed to be within the scope
of [Federal] Rule 408, but "[i]t is often difficult to determine whether an offer
is made in compromising or attempting to compromise a claim." (quotation
omitted)); Atmosphere Hosp. Mgmt., LLC v. Shiba Inv., Inc., 158 F. Supp. 3d
837, 845 (D.S.D. 2016) (communication of "pre-lawsuit factual and legal
grievances as well as . . . demands[] . . . are generally not 'compromise
negotiations' within the meaning of [Federal] Rule 408"); Commonwealth
Aluminum Corp. v. Stanley Metal Ass'n, 186 F. Supp. 2d 770, 773 (W.D. Ky.
2001) ("[O]ne-sided discussions which contain . . . settlement demands and
threats of litigation are not protected."); Kraemer v. Franklin & Marshall Coll.,
909 F. Supp. 267, 268 (E.D. Pa. 1995) (Federal Rule 408 not applicable where
"letter was not an offer to settle a claim, but a demand . . . accompanied by
a threat of legal action."); Ullmann v. Olwine, Connelly, Chase, O'Donnell &
Weyher, 123 F.R.D. 237, 242 (S.D. Ohio 1987) (Federal Rule 408 excludes
evidence of a demand letter only if "compromise negotiations were in fact
happening"); Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 855 (Ky. 2016)
(conversation intended solely to "inform[ the defendant] of the price it
would have to pay for [the plaintiff] to drop his lawsuit" not protected).

¶29 We need not decide the issue, however, because Fisk cannot
show that he was prejudiced by any error in allowing the jury to know of
the demand. The jury could not find Hurricane liable for serving Kast
unless it concluded that Kast caused the accident. At oral argument on
appeal, Fisk acknowledged that his case against Hurricane hinged on Kast
having caused the accident that injured him and killed his wife. At trial, he
argued that Kast was obviously drunk, but Hurricane continued to serve
her. And while Fisk argued in closing that all fault should be apportioned
to Hurricane, he also acknowledged that the accident occurred when Kast
drove drunk through the red light, and that, indeed, she had pled guilty to
manslaughter in connection with the accident.

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¶30 Under these circumstances, Fisk is hard-pressed to argue that
he was prejudiced by the jury's knowledge that he had made a demand for
payment to Kast based on her fault in the accident. Such a demand was
entirely consistent with his position at trial that Kast caused the accident by
running the red light. Instead, Fisk contended during oral argument on
appeal that the reference during his cross-examination to his demand to
Kast's "representatives" prejudiced him by inviting the jury to consider that
he might have received a settlement with Kast's insurance company. But
we cannot agree that the brief references quoted above impermissibly
prejudiced Fisk because they introduced the notion of insurance into the
case. Fisk also cites Dunn v. Maras, 182 Ariz. 412, 422 (App. 1995), for the
proposition that evidence of a settlement may prejudice the jury. The jury
here, however, was not told of any settlement that Fisk might have made
with Kast.

¶31 On this record, no reversible error occurred when the court
allowed the testimony that Fisk had made a demand on Kast.

3. Admission of "bad acts" evidence.

¶32 Fisk argues the superior court also erred in admitting
evidence of his and Lindsey's drug use, domestic violence, criminal
charges, probation and confinement. He contends the evidence was
irrelevant, had no proper purpose and unfairly prejudiced him by
"poison[ing] the jury's view" of him and his wife. We review the admission
of prior acts evidence for abuse of discretion. State v. Mott, 187 Ariz. 536,
545 (1997). Under Rule 404(b), "evidence of other crimes, wrongs or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith." Such evidence, however, may "be admissible for
other purposes." Id. To be admissible, evidence of a prior act must be
relevant under Rule 402, its probative value must not be substantially
outweighed by the potential for unfair prejudice under Rule 403, and it
must be admitted for a proper purpose under Rule 404(b). See id.

¶33 The superior court did not err in admitting this evidence
because it was relevant to Fisk's claimed damages for loss of consortium; it
rebutted Fisk's testimony concerning the value of Lindsey's support,
companionship and care. See, e.g., Quinonez v. Andersen, 144 Ariz. 193, 198
(App. 1984) (domestic violence and other bad acts evidence admitted to
rebut surviving spouse's claimed damages in wrongful death case); Udemba
v. Nicoli, 237 F.3d 8, 14-16 (1st Cir. 2001) (past act of domestic violence
admissible to show lack of damages); Fletcher v. City of New York, 54 F. Supp.
2d 328, 334 (S.D.N.Y. 1999) (past drug use admissible to show lack of

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damages). And the superior court mitigated any prejudice by instructing
the jury to consider the evidence only for that purpose. See Mott, 187 Ariz.
at 545 (citing Ariz. R. Evid. 105).

4. Admission of post-mortem toxicology results.

¶34 Fisk also maintains that the superior court erred in admitting
evidence and allowing argument relating to Lindsey's post-mortem
toxicology report, which showed she used methamphetamine shortly
before her death. While Fisk does not cite an exhibit by number or direct
our attention to any testimony, he cites a portion of Hurricane's closing
argument in which defense counsel referenced such evidence.

¶35 The toxicology report was relevant: It showed that Lindsey
continued to abuse a dangerous drug at the time of her death, which would
tend to degrade the quality of companionship, care and support she could
be expected to provide to him, had she lived. It also bore on the jury's
consideration of the probable length of her life. That the evidence showed
recent drug use at the time of the collision made the evidence more
probative of the expected quality of her future consortium. The evidence
therefore was relevant under Rule 402 and had a proper purpose under
Rule 404(b): To prove damages for loss of consortium, as discussed above.
See, e.g., Quinonez, 144 Ariz. at 198; Udemba, 237 F.3d at 14-16; Fletcher, 54 F.
Supp. 2d at 334.

¶36 Furthermore, the probative value of the evidence was not
"substantially outweighed by a danger of . . . unfair prejudice." Ariz. R.
Evid. 403. In Cobige v. City of Chicago, Ill., 651 F.3d 780, 784-85 (7th Cir. 2011),
as amended on denial of reh'g (Sept. 8, 2011), a wrongful death action, the court
ruled that the trial court erred in excluding evidence of the decedent's drug
abuse, trouble with the law and incarceration. The effect of the evidence in
that case – offered to counter the "rosy" picture of the decedent painted by
the plaintiff, the victim's son – was not unfairly prejudicial:

When the law makes damages depend on matters such as the
emotional tie between mother and son, the defendant is
entitled to show that the decedent's character flaws
undermined the quality of advice and support that she could
have supplied. This kind of effect is not "prejudice" at all –
not unless we count as "prejudice" all evidence that
undermines the other side's contentions.

Id. at 785.

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¶37 The reasoning in Cobige is sound and applies here. The
evidence that Lindsey abused drugs may have undermined Fisk's portrayal
of Lindsey and their marriage, and Hurricane was permitted to offer the
evidence to rebut Fisk's claimed damages. The evidence was not unfairly
prejudicial.

5. Admission of family court records.

¶38 The superior court likewise did not err by admitting family-
court records showing the Fisks' marital problems, including a dissolution
petition filed by Lindsey in 2010. Fisk argues these records had "scant
probative value" and risked substantial prejudice. As explained above,
however, this kind of evidence was admissible to rebut Fisk's claimed
damages for loss of consortium. See, e.g., Quinonez, 144 Ariz. at 198; Cobige,
651 F.3d at 784-85; Udemba, 237 F.3d at 14-16; Fletcher, 54 F. Supp. 2d at 334.
And while Fisk argues the evidence was stale and prejudicial, he was
entitled to counter it with evidence of more recent happier times. In any
event, the superior court did not abuse its discretion in allowing the
evidence.2

6. Admission of Dr. Sucher's and Dr. Petty's expert testimony.

¶39 Fisk argues the superior court erred in admitting expert
testimony from Dr. Sarah Petty and Dr. Michel Sucher, asserting that it was
irrelevant, lacked foundation and was highly prejudicial. Petty, a clinical
psychologist, testified about the Fisks' drug abuse and instances of domestic
violence and offered her opinion that the drug abuse made the Fisks
susceptible to domestic violence. Sucher, a board-certified physician who
practices addiction medicine, opined that Lindsey had a severe drug
addiction and Kast was an alcoholic at the time of the collision. Fisk argues
these opinions constituted "bad acts" evidence inadmissible under Rule
404(b).

¶40 As explained above, however, evidence of the challenged acts
and conditions was admissible under Rules 402, 403 and 404(b). Evidence
of domestic violence and drug abuse was probative of the value of
Lindsey's consortium to Fisk, and while such evidence may have

2 Moreover, Fisk fails to provide a record cite for the admission of the
evidence he challenges, which makes it impossible to review with precision
the superior court's weighing of the evidence and the manner in which the
court responded to any objection Fisk might have raised to the evidence.

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undermined Fisk's claimed damages, "[n]ot all harmful evidence . . . is
unfairly prejudicial," and this evidence was not. Mott, 187 Ariz. at 545-46.

¶41 Fisk further offers no support or authority for his contention
that the experts' opinions were inadmissible under Rule 702. Petty testified
based on her review of court records, police records, Lindsey's medical
records and others' testimony, including depositions of Lindsey's parents
and Fisk. Sucher likewise based his testimony on a review of medical
records, police records, counseling records and others' testimony. Fisk does
not show how either expert's testimony lacked an adequate factual basis.
See Ariz. R. Evid. 702(b) (expert testimony must be "based on sufficient facts
or data"). Both experts testified to their qualifications, see Ariz. R. Evid. 702
(expert can qualify through "knowledge, skill, experience, training, or
education"). Petty further testified that the materials she reviewed were
those reasonably relied upon in her field, see Ariz. R. Evid. 702(c), (d)
(reliable methods reliably applied), and Fisk raised no specific objection to
the materials on which Sucher based his opinions. See Ariz. R. Evid. 103(a)
(error in admitting evidence preserved on appeal only if the party "states
the specific ground" for objection). Moreover, Fisk did not request a
hearing before trial to challenge the admissibility of either expert's
testimony, and he does not point to any trial objection he made that the
superior court erroneously overruled. Fisk thus has not shown that the
superior court abused its discretion by allowing the experts' opinions. See
Naranjo, 234 Ariz. at 247, ¶ 65 (court's admission of expert testimony will
not be overturned absent showing of abuse of discretion).

¶42 Fisk further contends the court erred by allowing expert
testimony about a drug abuser's reduced life expectancy, in the absence of
evidence of a normal life expectancy. He also argues the court erred by
declining to instruct the jury about normal life expectancy. A court's
erroneous refusal to give a life-expectancy instruction can warrant a new
trial in some circumstances. See, e.g., Willett v. Ciszek-Olson, 170 Ariz. 230,
231 (App. 1991). But here, Fisk does not assert he asked for such an
instruction, and our review of the record yields no such request. Fisk
therefore has waived the issue. See Patania v. Silverstone, 3 Ariz. App. 424,
427 (1966).

7. Exclusion of bartender's DUI.

¶43 Fisk argues that the superior court erred in granting
Hurricane's motion in limine to exclude evidence that the bartender who
served Kast (1) drank to excess, including while working at Hurricane; (2)
was allowed by Hurricane to drive while impaired; and (3) was convicted

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of DUI as a result. Fisk argues this evidence should have been allowed "(1)
because the evidence indicated [the bartender] was an incompetent,
unqualified gatekeeper of alcohol service; and (2) because it indicated a
systemic failure to follow liquor-related policies."

¶44 To the extent Fisk wanted to offer this evidence to show the
bartender was incompetent and unqualified, the superior court did not err
because the evidence concerned events occurring after Lindsey's death. For
the same reason, the evidence did not bear on whether Hurricane "knew or
reasonably should have known [the bartender was] untrained, [or]
incompetent" when she served Kast. Meanwhile, the court reasonably
could have concluded that evidence relating to the bartender's DUI
presented a substantial risk of unfair prejudice or confusing the issues. See
Ariz. R. Evid. 403.

¶45 Nor did the court abuse its discretion in excluding the
bartender's DUI for the purpose of showing Hurricane's "systemic failure
to follow liquor-related policies." In his response to Hurricane's motion in
limine on this issue, Fisk never alleged that Hurricane knew or should have
known about the bartender's DUI. Without that link, the bartender's DUI
was not relevant to whether Hurricane systematically failed to follow its
own policies.

¶46 Finally, Fisk argues this evidence should have been admitted
under Rule 404(b)'s exception for evidence showing an absence of mistake
or accident. Because Fisk did not make this argument in the superior court,
we will not consider it on appeal. See Preston v. Kindred Hosps. W., L.L.C.,
225 Ariz. 223, 225, ¶ 4, n.2 (App. 2010), aff'd, 226 Ariz. 391 (2011).

8. Exclusion of Hurricane's prior overserving incident.

¶47 Fisk next argues that the superior court erred by excluding
evidence of a prior overserving incident at Hurricane Grill that led to a car
crash. Fisk asserts the accident occurred less than a month before the date
of the collision here, under substantially similar circumstances. Fisk
contends the evidence was admissible to show Hurricane knew or should
have known of the particular dangers of overserving, and also was
admissible to impeach a defense expert who testified that Hurricane's
bartender was a "well-trained server" who complied with alcohol-service
standards.

¶48 Evidence of previous similar accidents may be admissible.
See Burgbacher v. Mellor, 112 Ariz. 481, 483 (1975). "It must be shown,
however, that the previous conditions were substantially similar to the

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conditions resulting in the accident at issue." Id. Evidence of other
accidents is "usually inadmissible without a proper foundation showing
some similarity between the accident under consideration and the prior
event." Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 450 (1982). On appeal,
unless "it is obvious what the answer of the witness will be or what the
proof will be, or the relevancy and materiality of the excluded evidence is
apparent," "[a] party can claim the exclusion of evidence is error only if . . .
the party makes an offer of proof." State v. Hernandez, 232 Ariz. 313, 322, ¶
42-43 (2013) (citation and quotation omitted) (citing Ariz. R. Evid. 103(a)(2)).

¶49 On appeal, Fisk cites only a question to a defense expert about
the alleged overserving incident; he made no offer of proof and the record
contains no evidence of the alleged incident. We therefore have no basis
on which to conclude that this evidence – if it existed – was admissible. See
Hernandez, 232 Ariz. at 322, ¶¶ 39-40, 44 ("[T]he absence of an offer of proof
renders us unable to evaluate the trial court's ruling.").

D. The Franchisor's Liability and Punitive Damages.

¶50 Fisk argues the superior court also erred in granting the
Franchisor judgment as a matter of law because he had presented
"overwhelming evidence" that the Franchisor controlled, or had the right to
control, Hurricane Grill's liquor operations and therefore could be held
vicariously liable. But a party cannot be vicariously liable for the tort of a
second party if the second party is not liable. See Jamerson v. Quintero, 233
Ariz. 389, 392, ¶ 14 (App. 2013) ("[B]ecause the agent has been adjudicated
not liable, as a matter of law, the principal is not liable."). Because the jury
found in favor of Hurricane Grill, and Fisk has not shown grounds to
overturn that verdict, any error in dismissing the Franchisor was
immaterial. Fisk argues otherwise, contending that the court's statement to
the jury that the Franchisor was not at fault implied to the jury that
Hurricane Grill was not at fault as well, and argues that, at a minimum, the
statement impermissibly confused the jury. Fisk cites no authority for this
contention, and we discern no such implication. Therefore, we presume
that the jury followed its instruction in determining Hurricane Grill's
liability. See Golonka v. Gen. Motors Corp., 204 Ariz. 575, 583, ¶ 21 (App.
2003) (presumption exists that jury follows instructions).

¶51 Finally, because the jury did not award Fisk any
compensatory damages, we need not review any claimed error in the
court's denial of Fisk's claim for punitive damages. See Quinonez, 144 Ariz.
at 198-99 ("a party is not entitled to punitive damages in absence of a finding
that this same party suffered actual damages"; if a jury properly concludes

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that a plaintiff suffered no actual damages, "any error in not admitting
punitive damage evidence is harmless error as to him").

CONCLUSION

¶52 For the foregoing reasons, we affirm the superior court's
judgment as a matter of law in favor of Hurricane AMT LLC, the jury's
verdict in favor of Category 5 LLC dba Hurricane Grill and Wings, and the
denial of the motion for new trial.

AMY M. WOOD • Clerk of the Court
FILED: AA

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