Hallford-Brown v. Veolia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEPHANIE HALLFORD-BROWN, Plaintiff/Appellant,

v.

VEOLIA TRANSPORTATION SERVICES, INC., et al.,
Defendants/Appellees.

No. 1 CA-CV 17-0465
FILED 10-25-2018

Appeal from the Superior Court in Maricopa County
No. CV2013-007219
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Phillips Law Group, P.C., Phoenix
By Timothy G. Tonkin, Nasser Usama Abujbarah
Counsel for Plaintiff/Appellant

Lewis Brisbois Bisgaard & Smith LLP, Phoenix
By Todd A. Rigby, Shawn M. Petri
Counsel for Defendants/Appellees
 HALLFORD-BROWN v. VEOLIA, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Stephanie Hallford-Brown timely appeals from the jury’s
verdict in favor of Veolia Transportation Services, Inc. and Kenneth Van
Dyke (together, “the bus company”), the superior court’s denial of various
pretrial motions, the court’s decision to quash a trial subpoena for an out-
of-state witness, and the court’s judgment awarding the bus company its
costs and offer-of-judgment sanctions under Rule 68 of the Arizona Rules
of Civil Procedure. For the reasons that follow, we affirm.

BACKGROUND 1

¶2 In February 2013, Veolia employee Kenneth Van Dyke was
operating a Veolia bus and waiting at a layover stop to start his scheduled
route. Hallford-Brown was sitting on the bus-stop bench waiting to board
until the driver was ready to depart. When Van Dyke closed the bus doors
and began to pull into traffic, Hallford-Brown got up and ran toward the
bus, tapping it with her hand to get Van Dyke’s attention. She then fell off
the curb and was run over by the bus’s rear tire, suffering severe injuries to
her foot and leg. Hallford-Brown filed a complaint against Veolia and Van
Dyke alleging negligence, negligence per se, and negligent entrustment.

¶3 After seven days of trial, the jury returned a verdict in favor
of the bus company. The bus company later filed a proposed judgment and
statement of costs, including a request for sanctions pursuant to Rule 68 of
the Arizona Rules of Civil Procedure because the bus company ultimately
obtained a judgment more favorable than an offer of judgment Hallford-
Brown had previously rejected. The court awarded the bus company a total
of $42,684.83 in taxable costs and Rule 68 sanctions.

1 We view the evidence in the light most favorable to sustaining the
jury’s verdict. Warrington v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68,
69, ¶ 4 (App. 1999).

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DISCUSSION

¶4 On appeal, Hallford-Brown presents six arguments: (1) The
jury did not understand how to fill out the verdict forms; (2) the superior
court abused its discretion by quashing an out-of-state trial subpoena of
Kent Weston; (3) the superior court abused its discretion by denying
Hallford-Brown’s motion for jury view; (4) the superior court abused its
discretion by partially denying Hallford-Brown’s motion in limine
regarding a subsequent car accident; (5) the superior court abused its
discretion by denying Hallford-Brown’s motion in limine regarding her
glaucoma and left-eye blindness; (6) the superior court erred by awarding
Rule 68 sanctions to the bus company. We address each argument in turn.

I. The record does not indicate that the jury misunderstood the
verdict forms.

¶5 We view the evidence in the light most favorable to
upholding the jury verdict and affirm if there is substantial evidence to
support it. Warrington v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68, 69,
¶ 4 (App. 1999). “Substantial evidence is any relevant evidence from which
a reasonable mind might draw a conclusion.” Mealey v. Arndt, 206 Ariz. 218,
221, ¶ 12 (App. 2003) (citation omitted). Jurors are presumed to follow their
instructions; thus, when a jury returns a verdict in favor of one party
without reaching an apportionment of fault, the jury presumably
determined that apportionment was not necessary or warranted. See Ryan
v. San Francisco Peaks Trucking Co., Inc., 228 Ariz. 42, 46, ¶ 12 n.5 (App. 2011).

¶6 Hallford-Brown argues the verdict was contrary to the weight
of evidence because “the jury admitted that they believed the case was ‘51-
49’ but did not fill out the comparative negligence form,” confining itself to
signing the verdict form in favor of the bus company. Hallford-Brown
contends that “[o]ne interpretation of this verdict is that the jury did not
understand how to fill out the verdict forms.” We decline to adopt this
interpretation.

¶7 First, there is no evidence in the record before us that the jury
felt the case was “51-49.” Moreover, even had the jury collectively
expressed any such statement, its meaning would be purely speculative.
Furthermore, the court instructed the jury on the option to apportion
comparative fault between the parties and on how to fill out the three
verdict forms to correctly reflect their verdict. The jury did not exercise that
option. Additionally, the jurors did not submit any questions regarding the

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apportionment of comparative fault during either the trial or their
deliberations, supporting a conclusion that they were not confused.

II. The superior court did not abuse its discretion by quashing the
trial subpoena of former Veolia safety manager Kent Weston.

¶8 Prior to trial, Hallford-Brown filed a motion to issue a letter
rogatory to the Circuit Court of Collier County, Florida. Rule 28 of the
Arizona Rules of Civil Procedure provides for the use of letters rogatory to
obtain depositions in foreign jurisdictions, but Hallford-Brown’s proposed
letter rogatory requested the Florida court’s assistance in compelling Kent
Weston, a retired Veolia safety manager, to appear and testify at the trial
scheduled to take place in Arizona. Nevertheless, the superior court issued
Hallford-Brown’s so-called letter rogatory and the clerk of the Florida court
signed the proposed subpoena. The bus company then filed a motion to
quash the subpoena, arguing neither the superior court nor the Florida
court had the authority to compel Weston’s attendance at the Arizona trial.
The superior court quashed the subpoena and, after full briefing, ruled that
it lacked the authority to compel Weston to travel to Arizona to testify in
the civil trial.

¶9 Hallford-Brown contends that, during trial, there was “no one
available to discuss the safety zone and its relevance to the case.” She argues
that the superior court erred in quashing the subpoena and that Weston’s
testimony was essential to her case. The superior court “has broad
discretion in ruling on disclosure and discovery matters,” and we will not
disturb those rulings absent an abuse of discretion. Marquez v. Ortega, 231
Ariz. 437, 441, ¶ 14 (App. 2013).

¶10 Under Arizona Rule of Civil Procedure 45(b), “[a] subpoena
commanding attendance at a hearing or trial must issue from the superior
court in the county where the hearing or trial is to be held.” In the absence
of an applicable statute, “a state court cannot require the attendance of a
witness who is a non-resident of, and is absent from, the state.” Armstrong
v. Hooker, 135 Ariz. 358, 359 (App. 1982), superseded on other grounds by Ariz.
R. Civ. P. 16(a) (1987), as recognized in Estate of Lewis v. Lewis, 229 Ariz. 316,
322, ¶ 15 (App. 2012); see also State v. Owens, 103 Ariz. 541, 543 (1968) (“[T]he
determination of whether a witness is beyond the jurisdiction of the court
so that his personal attendance cannot be had is a matter within the sound
discretion of the trial court.”); Helge v. Druke, 136 Ariz. 434, 437 (App. 1983)
(“Subpoenas to compel the attendance of a witness may run to the
boundaries of the state and a witness present at any place in the state may
be compelled to attend.”). Because the superior court lacked a legal basis to

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compel Weston to travel from Florida to testify at trial in Arizona, it did not
abuse its discretion by refusing to order Weston to do so.

¶11 Furthermore, even if the superior court had the authority to
compel Weston to appear at trial from out of state, we cannot say the
superior court otherwise abused its discretion by quashing the subpoena.
Contrary to Hallford-Brown’s assertion that “there was no one available to
discuss the safety zone and its relevance to the case,” multiple witnesses
testified at length about the safety zone and its relevance throughout trial.
Weston’s deposition testimony was presented at trial describing the “safety
zone” as a 15-foot perimeter around the sides, front, and rear of the bus of
which operators must be aware of at all times and confirmed that the Veolia
operator training manual instructed operators to continually survey the
zone for hazards. Van Dyke also testified to his understanding of the safety
zone and possible hazards within it at the time of the incident. Hallford-
Brown’s expert witness Paul Herbert testified that a 15-foot safety zone—
and the expectation that a bus operator evaluate every person or other
hazard within it—was a common industry standard. Herbert also
confirmed that the bench on which Hallford-Brown was sitting just before
the incident was within the safety zone, and that he believed Van Dyke had
not been adequately trained on the concept. The bus company’s expert
witness David Stopper also testified about the safety zone, including his
belief that Van Dyke had adequately monitored it during the incident and
that Hallford-Brown was not a hazard within it.

III. The superior court did not abuse its discretion by denying
Hallford-Brown’s motion for a jury view.

¶12 Hallford-Brown requested that the jury be transported to the
scene of the incident to see its layout firsthand. The question of whether to
grant a jury view is a matter left within the sound discretion of the superior
court. State v. Avila, 141 Ariz. 325, 330 (App. 1984). In exercising this
discretion, the court has a duty to weigh the danger of prejudice against the
probative value of the evidence. State v. Martin, 107 Ariz. 444, 446 (1971).
“[F]or a denial of a jury view to constitute an abuse of discretion, it must
appear almost to a certainty that such denial deprived the jury of material
assistance in evaluating the evidence and that such deprivation was in fact
prejudicial” to the party requesting the jury view. State v. Money, 110 Ariz.
18, 25 (1973).

¶13 Hallford-Brown contends the superior court gave no detailed
rationale for its decision to deny the request for a jury view of the scene,
only indicating “the potentials for problems that arise from it” as the basis

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for its denial. Hallford-Brown argues that, without understanding what
those potential problems may have been, she was left with only conjecture
regarding the court’s reasoning. We disagree.

¶14 Prior to its denial, the court heard arguments from both
parties’ lawyers, allowing Hallford-Brown’s counsel to “explain to me why
pictures don’t do this justice.” Hallford-Brown’s counsel argued that the
relative positions of the bus and the bus bench were central to the case and
confirmed that he could charter a bus to conduct the jury view. The court
expressed concerns, however, about the judge, lawyers, parties, and jurors
mixing in a less formal setting outside of the courtroom. The bus company’s
counsel then argued that such a situation could foster inappropriate
interactions and misinterpretations, noted the potential for a mistrial, and
pointed out that the available in-court evidence included photographs,
Google View, and the bus video footage of before, during, and after the
incident. Immediately thereafter, the court ruled it was “less concerned
about the time than . . . about the . . . potentials for problems that arise from
it” and denied the motion. We conclude that the record makes clear the
basis for the court’s denial; namely, that given the available photographic
and video evidence of the incident, the potential for a mistrial and
confusion and misinterpretation by jurors outweighed any added value of
seeing the scene in person.

¶15 Hallford-Brown further contends the record “make[s] it
clear” the jurors did not fully comprehend the style of the bus stop because
they asked to view the video on “countless occasions.” Although the jury
asked multiple questions related to the video throughout the trial and their
deliberations—including whether they could play the video frame-by-
frame, whether the video could be made larger, whether they could
approach the screen to view the video more closely, whether the video had
been sped up, and whether there was any video of the operator pulling into
the stop—none of their questions were resolvable through an in-person jury
view, and instead were indicative of the jurors’ interest in the video rather
than confusion over the layout of the scene. Accordingly, the superior court
did not abuse its discretion by denying Hallford-Brown’s motion. See State
v. Mauro, 159 Ariz. 186, 204 (1988) (explaining that the trial court did not
abuse its discretion by denying a request for a jury view because the scene
might not be in the same condition as the date of the incident and the jury
could get the necessary evidence through diagrams, photographs, and
testimony).

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IV. Hallford-Brown was not prejudiced by the superior court’s partial
denial of her motion in limine regarding a subsequent car
accident.

¶16 About three years after the bus incident but prior to trial,
Hallford-Brown was involved in a car accident in which she was also
injured. Before trial, she filed a motion in limine asking the superior court
to preclude any evidence of that accident. The court granted the motion in
part, precluding any evidence that there was a separate claim, bills, or
compensation arising from that accident, but allowing evidence of the
subsequent accident and Hallford-Brown’s related injury for the purpose of
addressing her lost wages claim.

¶17 Hallford-Brown now argues that the evidence relating to her
subsequent car accident was irrelevant and prejudicial, and its introduction
was a ruse by the bus company that confused the jury about the origin of
her injuries. We disagree. “We will not disturb a trial court’s rulings on the
exclusion or admission of evidence unless a clear abuse of discretion
appears and prejudice results.” Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493,
506 (1996).

¶18 Throughout the trial, multiple expert witnesses for both the
plaintiffs and the bus company testified about the timeline and magnitude
of Hallford-Brown’s lost earning capacity, including testimony that
Hallford-Brown began working full-time again sometime after the bus
incident but stopped doing so after the later car accident. Her ability or
inability to engage in full-time employment following both of her injuries
was directly relevant to her claim of lost earnings. However, we need not
decide whether the superior court abused its discretion by partially
denying her motion in limine because Hallford-Brown has demonstrated
no resulting prejudice.

¶19 There was no dispute during trial that the Veolia bus ran over
Hallford-Brown and that she suffered serious injuries, and Hallford-Brown
points to nothing in the record indicating the jury may have been confused
about the origin of her injuries. Further, the superior court instructed the
jury:

[Hallford-Brown] claims [the bus company was] at fault for
her injuries. [The bus company] claim[s] [Hallford-Brown]
was at fault. . . . Before you can find any party at fault, you
must find that party’s negligence was a cause of [Hallford-
Brown]’s injury. . . . There may be more than one cause of an

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injury. . . . If you find [the bus company was] not at fault, then
your verdict must be for [the bus company]. If you find [the
bus company was] at fault, then [the bus company is] liable to
[Hallford-Brown] and your verdict must be for [Hallford-
Brown]. You should then determine the full amount of
[Hallford-Brown]’s damages and enter that amount on the
verdict form.

By returning a verdict in favor of the bus company, the jury determined as
a threshold matter that the bus company was not negligent during the
earlier bus incident. Because the jury awarded nothing to Hallford-Brown
and therefore never made any determination relating to her damages for
lost earnings, Hallford-Brown suffered no prejudice from the admission of
evidence relating to the later car accident.

V. The superior court did not abuse its discretion by denying
Hallford-Brown’s motion in limine regarding her glaucoma and
left-eye blindness.

¶20 Before trial, Hallford-Brown filed a motion in limine asking
the superior court to preclude any evidence of her glaucoma and left-eye
blindness as irrelevant and prejudicial, which the court denied. During
trial, Hallford-Brown testified that she was permanently blind in her left
eye. The bus company then questioned Hallford-Brown regarding the
condition:

Q: . . . [N]ow the bus is moving and you’re running toward it
still. I believe you mentioned yesterday that you’re blind in
your left eye?

A: Correct. I am.

Q: Okay. And that’s from a glaucoma condition?

A: Correct.

Q: That’s a condition you’ve had since you were a teenager?

A: Yes.

Q: . . . So . . . the left side of you is facing the bus as you’re
running toward it?

A: Correct.

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During closing, the bus company argued:

And when she’s running by [the bus], she’s running along her
left side. And we know about the glaucoma, we know about
the left eye blindness. She is running blind. Right next to the
curb, right next to a moving bus that’s pulling away, starting
to lose her balance, juggling all this, reaches out for the bus
. . . and [loses] her balance and she’s off the curb . . . .

¶21 Hallford-Brown refers to statements allegedly made by jurors
but not in the record, claiming the jurors “indicated that a large reason they
ruled for [the bus company] was that they could not get over a woman ‘with
glaucoma’ running after a bus.” Hallford-Brown argues the evidence
relating to her glaucoma was “not relevant and was so prejudicial that it
gave her no opportunity for a fair trial,” and that the bus company should
have requested a medical exam under Arizona Rule of Civil Procedure 35.
Reviewing the superior court’s denial of her motion in limine for an abuse
of discretion, Warner v. Southwest Desert Images, LLC, 218 Ariz. 121, 133, ¶ 33
(App. 2008), we disagree.

¶22 First, contrary to Hallford-Brown’s assertion, Arizona Rule of
Civil Procedure 35 did not require the bus company to offer expert
testimony or request a court-ordered exam about Hallford-Brown’s left-eye
blindness; rather, the Rule allows the court to order a party whose physical
condition is in controversy to submit to an exam. Ariz. R. Civ. P. 35(a)(1).
Here, the fact that Hallford-Brown was permanently blind in her left eye
was not in controversy: Hallford-Brown admitted she suffered from this
condition.

¶23 Further, “[t]he function of an expert witness is to provide
testimony on subjects that are beyond the common sense, experience and
education of the average juror.” Adams v. Amore, 182 Ariz. 253, 255 (App.
1994) (citation omitted); see, e.g., Hunter Contracting Co., Inc. v. Superior
Court, 190 Ariz. 318, 320-21 (App. 1997) (“Expert testimony is necessary to
prove professional negligence when question to be determined is strictly
within the special and technical knowledge of the profession and not within
the knowledge of the average layman.”) (citation omitted); Riedisser v.
Nelson, 111 Ariz. 542, 544 (1975) (“Negligence on the part of a physician
must be established by expert medical testimony unless the negligence is so
grossly apparent that a layman would have no difficulty in recognizing it.”)
(citation omitted).

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¶24 Here, Hallford-Brown failed to demonstrate that the
reasonableness and comparative fault of a half-blind person running
toward a moving bus was beyond the common sense, experience, and
education of an average juror, nor that the evidence of her left-eye blindness
was irrelevant. On the contrary, her left-eye blindness was directly relevant
to the reasonableness of her own actions and how the incident occurred:
“The conduct of an actor with a physical disability is negligent only if the
conduct does not conform to that of a reasonably careful person with the
same disability.” Restatement (Third) of Torts § 11(a). “[P]ersons with
particular disabilities can appreciate that some conduct on their party will
foreseeably entail a greater risk than the same conduct engaged in by able-
bodied persons. . . . For example, it is considerably more dangerous for a
blind person to walk over unfamiliar terrain than for a person free of
disability.” Restatement (Third) of Torts § 11 cmt. b. Accordingly, the
superior court did not abuse its discretion by denying Hallford-Brown’s
motion in limine regarding her glaucoma and left-eye blindness.

VI. The superior court did not abuse its discretion in awarding costs
to the bus company.

¶25 Prior to trial, the bus company served Hallford-Brown with
an offer of judgment, which Hallford-Brown rejected. See Ariz. R. Civ. P.
68(c), (d). Following the jury verdict, the bus company submitted a
statement of costs totaling $53,250.83, claiming it was entitled to not only
its taxable costs pursuant to Arizona Revised Statutes § 12-341, but also its
reasonable expert witness fees and double its post-offer taxable costs
pursuant to Rule 68(g). Hallford-Brown objected to the bus company’s
statement of costs on various grounds, arguing the award should be
reduced to a total of $38,915.22. In reply, the bus company accepted all of
Hallford-Brown’s proposed reductions except one, and the superior court
accordingly awarded a total of $42,684.83.

¶26 The only objection raised by Hallford-Brown in her response
and not adopted by the bus company in its reply relate to the expert witness
fees associated with David Stopper. Because Hallford-Brown requested an
amount of $38,915.22 and the court awarded $42,684.83, it now appears
Hallford-Brown is specifically appealing the $3,769.61 in Mr. Stopper’s
travel-related expenses. Hallford-Brown concedes that Rule 68 allows the
court to award the bus company the reasonable travel expenses of its expert
witnesses, but contends the figure charged by Mr. Stopper was
unreasonable. She argues the bus company did not need to bring in an out-
of-state expert when a local expert could have provided equivalent
testimony, but she provides no supporting authority or evidence. We

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review the superior court’s decision to impose sanctions of reasonable
expert witness fees under Rule 68 for an abuse of discretion. Stafford v.
Burns, 241 Ariz. 474, 484, ¶ 38 (App. 2017). Because Mr. Stopper’s travel-
related expenses do not seem inherently unreasonable and the bus
company was under no obligation to procure an in-state expert, we discern
no such abuse here.

CONCLUSION

¶27 For the foregoing reasons, we affirm. As the prevailing party
on appeal, we award Veolia and Van Dyke their costs on appeal upon
compliance with Arizona Rule of Civil Appellate Procedure 21.

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

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