Romero v. Southwest Ambulance, rural/metro, City of Tucson

FILED BY CLERK
AUG 31 2005
IN THE COURT OF APPEALS
COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO

ALICE ROMERO, surviving parent of ) 2 CA-CV 2004-0053
MARK ANTHONY ROMERO ) DEPARTMENT B
(deceased), on behalf of herself and )
MARK ANTHONY ROMERO, JR. (a ) OPINION
minor) and ISAAC ROMERO (a minor), )
surviving children, )
)
Plaintiff/Appellant, )
)
v. )
)
SOUTHWEST AMBULANCE and )
RURAL/METRO CORPORATION, )
INC., an Arizona corporation; CITY OF )
TUCSON, a municipal corporation; )
TUCSON FIRE DEPARTMENT, a )
political subdivision of the City of )
Tucson; and TUCSON POLICE )
DEPARTMENT, a political subdivision )
of the City of Tucson, )
)
Defendants/Appellees. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C-335185

Honorable John F. Kelly, Judge

AFFIRMED
Vingelli & Errico
By Michael J. Vingelli and Melissa Errico Tucson

and

Stanton Bloom Tucson
Attorneys for Plaintiff/Appellant

Chandler & Udall, LLP
By Michael J. Crawford Tucson

and

Andrew F. Marshall, P.C.
By Andrew F. Marshall Tucson
Attorneys for Defendants/Appellees
Southwest Ambulance & Rural/Metro
Corporation, Inc.

Michael G. Rankin, Tucson City Attorney
By Michael E. Owen Tucson
Attorneys for Defendant/Appellee
City of Tucson

E S P I N O S A, Judge.

¶1 After a twelve-day trial, a jury found defendants Southwest Ambulance and

Rural/Metro Corporation, the City of Tucson, the Tucson Fire Department, the Tucson Police

Department, and various individual employees of each (collectively, defendants) not liable

in this wrongful death action. Appellant Alice Romero contends the trial court erred by

admitting certain evidence about the decedent, her son; denying a motion to bifurcate the trial

into liability and damage phases; and instructing the jury pursuant to A.R.S. § 12-711. We

affirm primarily on procedural grounds, Romero having failed to provide a sufficient record

2
on appeal. The record does support, albeit marginally, reaching the merits of Romero’s

constitutional challenge to the statute, which we reject.

Procedural and Factual Background

¶2 We view the evidence and all reasonable inferences in the light most favorable

to upholding the jury’s verdict.1 Crackel v. Allstate Ins. Co., 208 Ariz. 252, 92 P.3d 882

(App. 2004). On September 14, 1998, Romero’s son, Mark, died in the emergency

department of Kino Community Hospital. Romero thereafter filed this complaint, alleging

that emergency personnel who had treated Mark had negligently caused his death.

¶3 The first trial of this case in March 2002 ended in a mistrial after six days, and

the second trial was held in September 2003. Before each trial, Romero sought to preclude

evidence of Mark’s past illegal drug use, substance abuse treatment, criminal record,

incarcerations, and diagnosis of hepatitis and to bifurcate the trial into liability and damage

phases pursuant to Rule 42(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 1. Before the first trial, the

court denied Romero’s motions with the exception of testimony about Mark’s diagnosis of

hepatitis C, which the court precluded. Before the second trial, Romero refiled the motions

1
Romero has failed to provide this court any transcripts of the trial as required by Rule
11(b), Ariz. R. Civ. App. P., 17B A.R.S. Romero has also failed to adequately cite the trial
record in her briefs as required by Rule 13(a)(6), Ariz. R. Civ. App. P. See Ramirez v. Health
Partners of S. Ariz., 193 Ariz. 325, 972 P.2d 658 (1998). Stating that she is “totally indigent
and could not afford to pay” for transcripts, Romero insists they are unnecessary for our
review, relying on Hall v. Bowman, 88 Ariz. 409, 357 P.2d 149 (1960). But Hall was
decided prior to the adoption of the Arizona Rules of Civil Appellate Procedure and also
addressed the review of purely legal issues, unlike this case. We include only the basic facts
we have extracted from the record while determining the issues not waived on appeal.

3
and reargued the motion to bifurcate. The trial court denied all of Romero’s motions,

including the motion to preclude testimony about Mark’s hepatitis C.

Other Act Evidence

¶4 Romero contends the trial court erred in admitting irrelevant and unfairly

prejudicial character evidence about Mark. Defendants respond that, in the absence of any

transcripts, the trial court’s discretionary rulings must be upheld. Although, in a civil case,

a motion in limine may serve as a substitute for an evidentiary objection at trial, Premium

Cigars International, Ltd. v. Farmer-Butler-Leavitt Insurance Agency, 208 Ariz. 557, 96

P.3d 555 (App. 2004); see also State v. Lichon, 163 Ariz. 186, 786 P.2d 1037 (App. 1989)

(objection not required when motion in limine has been made), in the absence of the pertinent

trial transcripts, we agree with defendants that we are unable to determine what evidence was

presented at trial, whether Romero objected to the evidence at trial, how it was used, and how

it might have prejudiced her. See Ariz. R. Evid. 103, 17A A.R.S. Consequently, Romero’s

unsupported arguments that the trial court abused its discretion by allowing evidence that was

irrelevant to any “consequential fact” and unfairly prejudicial under Rule 403, Ariz. R. Evid.,

are insufficient for us to meaningfully review the trial court’s rulings or to overcome the

presumption that those rulings are supported by the record. See Baker v. Baker, 183 Ariz.

70, 73, 900 P.2d 764, 767 (App. 1995) (“A party is responsible for making certain the record

on appeal contains all transcripts or other documents necessary for us to consider the issues

raised on appeal. When a party fails to include necessary items, we assume they would

support the [trial] court’s findings and conclusions.”); see also State ex rel. Dep’t of Econ.

4
Sec. v. Burton, 205 Ariz. 27, 66 P.3d 70 (App. 2003); Bolm v. Custodian of Records, 193

Ariz. 35, 969 P.2d 200 (App. 1998).

Bifurcation of Trial

¶5 Romero next argues that the trial court erred in refusing to bifurcate the trial

into liability and damage phases in view of its allegedly erroneous admission of the character

evidence. We review a trial court’s decision on bifurcation for an abuse of discretion.

Williams v. Thude, 180 Ariz. 531, 885 P.2d 1096 (App. 1994), aff’d, 188 Ariz. 257, 934 P.2d

1349 (1997). As discussed above, we cannot say the character evidence was erroneously

admitted, and in the absence of trial transcripts, we cannot determine what evidence was

presented to the jury, how that evidence was used, or what effect it might have had. See In

re 6757 S. Burcham Ave., 204 Ariz. 401, ¶ 12, 64 P.3d 843, 847 (App. 2003) (absent a

transcript, appellant could not “support [the] argument that the trial court abused its

discretion in allowing [the opposing party] to introduce the evidence”). Accordingly, we are

unable to say the trial court abused its discretion in refusing to bifurcate the trial on that

basis. See Williams.

A.R.S. § 12-711

¶6 At the end of the trial, over Romero’s objection, the court apparently instructed

the jury pursuant to § 12-711. That statute provides:

In any civil action, the finder of fact may find the
defendant not liable if the defendant proves that the claimant
was under the influence of an intoxicating liquor or a drug and
as a result of that influence the claimant was at least fifty per
cent responsible for the accident or event that caused the
claimant’s harm.

5
Romero argues § 12-711 is unconstitutional, citing five bases. But the record contains no

written challenge to the statute and only one oral objection—that the jury instruction based

on the statute abrogated Romero’s right of action in violation of article XVIII, § 6 of the

Arizona Constitution.2 “The only objection which may be raised on appeal . . . is that made

at trial.” Selby v. Savard, 134 Ariz. 222, 228, 655 P.2d 342, 348 (1982). “[W]e generally

do not consider issues, even constitutional issues, raised for the first time on appeal.” Englert

v. Carondelet Health Network, 199 Ariz. 21, ¶ 13, 13 P.3d 763, 768 (App. 2000); see also

Ariz. R. Civ. P. 51(a), 17B A.R.S. (party must object to instruction before deliberations begin

to argue error in the instruction on appeal).

¶7 Romero argues that § 12-711 violates article XVIII, § 5 of the Arizona

Constitution by removing the issues of contributory negligence and assumption of the risk

from the jury; article II, § 13, the Equal Protection Clause, by depriving a particular class of

citizens of a right of action; and article II, § 4, the Due Process Clause, by depriving her of

a protected right. The record does not show Romero presented any of these issues to the trial

court save possibly one; therefore, they are waived on appeal.3 See Selby; Englert. Romero

2
We granted Romero’s motion to supplement the record, which added two pages of
the trial transcript in which this jury instruction was briefly discussed. It is from these pages
that we infer Romero presented this argument to the trial court.
3
Romero argues in her reply brief that these issues raise questions of fundamental
error. However, we are not required to address issues raised for the first time in a reply brief.
Nelson v. Rice, 198 Ariz. 563, 12 P.3d 238 (App. 2000); Wasserman v. Low, 143 Ariz. 4,
691 P.2d 716 (App. 1984); Ariz. R. Civ. App. P. 13(c), 17B A.R.S. Moreover, the doctrine
of fundamental error “should be used sparingly, if at all, in civil cases.” Williams v. Thude, 188 Ariz. 257, 260, 934 P.2d 1349, 1352 (1997); Englert v. Carondelet Health Network, 199
Ariz. 21, 13 P.3d 763 (App. 2000).

6
also argues that § 12-711 is unconstitutional because it conflicts with Arizona’s Uniform

Contribution Among Tortfeasors Act, A.R.S. §§ 12-2501 through 12-2509. This argument,

on its face, appears to lack merit given the permissive language of § 12-711. In any event,

it too was not presented to the trial court and has thus been waived. See Selby; Englert.

¶8 In the one argument we can infer she raised below, Romero contends generally

that the trial court’s jury instruction based on § 12-711 abrogated her right of action in

violation of article XVIII, § 6 of the Arizona Constitution.4 She relies on Gunnell v. Arizona

Public Service Co., 202 Ariz 388, 46 P.3d 399 (2002). Below, she relied on Halenar v.

Superior Court, 109 Ariz. 27, 504 P.2d 928 (1972). “Statutes are presumed to be

constitutional, and the party asserting that a statute is unconstitutional has the burden of

clearly demonstrating that it is.” Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, ¶ 20,

972 P.2d 658, 663 (App. 1998). However, “we decide cases on nonconstitutional grounds

if possible,” id. ¶ 10, and we review a question of law de novo. Phelps Dodge Corp. v. Ariz.

Elec. Power Coop., Inc., 207 Ariz. 95, 83 P.3d 573 (App. 2004). We will not reverse a jury’s

verdict because of a jury instruction unless the challenged instruction was erroneous and

prejudicial to the appellant’s rights. Bike Fashion Corp. v. Kramer, 202 Ariz. 420, 46 P.3d

431 (App. 2002).

¶9 Romero’s argument is unavailing because neither Halenar nor Gunnell

supports it. In Halenar, a decedent’s survivors sued his coworkers for negligence. The trial

4
That section provides: “The right of action to recover damages for injuries shall
never be abrogated, and the amount recovered shall not be subject to any statutory
limitation.”

7
court found that Arizona’s workers’ compensation statutes precluded the action. Our

supreme court held that the statutes in question, in accordance with the Arizona Constitution,

did not preclude an action against fellow employees, but only barred an action against the

employer in exchange for statutory benefits. Id.

¶10 In Gunnell, an excavator who was injured through both his own and the

defendant utility’s negligence sought to recover damages under Arizona’s Underground

Facilities Act, A.R.S. §§ 40-360.21 through 40-360.32. The trial court granted summary

judgment and Division One of this court affirmed, finding that Gunnell’s own negligence

prevented him from recovering any damages. Our supreme court reversed, holding that,

although both parties had, in fact, been negligent, the Act created a “comparative negligence

regime” that required the issue to be submitted to a jury. 202 Ariz. 388, ¶ 22, 46 P.3d at 405.

Stating that “the legislature [cannot] negate article XVIII, § 5 or 6 by decreeing through

statute that a negligent actor whose conduct was a cause of injury was the sole cause of the

injurious event,” the court made clear that the constitution requires such issues to be decided

by a jury. Id. ¶ 24.

¶11 Romero is correct that a claimant has a fundamental right under the Arizona

Constitution “to bring an action to recover damages.” See Lerma v. Keck, 186 Ariz. 228, 921

P.2d 28 (App. 1996). But the legislature may permissibly regulate a cause of action without

abrogating it, as long as reasonable alternatives permit a claimant to bring the action.

Ramirez. “A statute abrogates a cause of action if it ‘bars a cause of action before it [can]

legitimately be brought.’” Fry’s Food Stores v. Mather & Assocs., Inc., 183 Ariz. 89, 91, 900

P.2d 1225, 1227 (App. 1995), quoting Kenyon v. Hammer, 142 Ariz. 69, 74-75, 688 P.2d

8
961, 966-67 (1984). That is not the case here. Section 12-711 neither removes the question

of liability from the jury nor requires a jury to take a particular action. Cf. City of Tucson

v. Fahringer, 164 Ariz. 599, 603 (1990) (finding unconstitutional under Art. 18 § 5 statute

that posed “an absolute bar to recovery of damages by a particular category of persons who

could otherwise proceed with an action for damages.”). It merely permits a jury, after

making certain predicate findings, to find a claimant solely responsible for his or her own

injury. It does not, as Romero insists, require a jury to find in a defendant’s favor. Cf. Salt

River Project v. Westinghouse Elec., 176 Ariz. 383, 386 (App. 1993) (permissive instructions

“leave the plaintiff’s recovery to the discretion of the jury.”).

¶12 When a statute “does not abrogate any viable ‘right of action to recover

damages,’ it does not violate article 18, § 6.” Ramirez, 193 Ariz. 325, ¶ 32, 972 P.2d at 667-

68; see also Cronin v. Sheldon, 195 Ariz. 531, ¶ 34, 991 P.2d 231, 238 (1999) (“We have

held that article 18, § 6 precludes abrogation, but not regulation.”); Jimenez v. Sears

Roebuck & Co., 183 Ariz. 399, 407, 904 P.2d 861, 869 (1995) (“We long ago held that our

constitution permits regulations effectively reducing a plaintiff’s recovery.”); cf. Little v. All

Phoenix S. Cmty. Mental Health Ctr., Inc., 186 Ariz. 97, 919 P.2d 1368 (App. 1995) (mental

health statute eliminating all claims not within its confines abrogated general negligence

cause of action for identified class of plaintiffs in violation of Art. 18 § 6); Young v. DFW

Corp., 184 Ariz. 187, 908 P.2d 1 (App. 1995) (statute providing exclusive remedy for dram

shop liability abrogated general right to sue guaranteed by Art. 18 § 6). For that reason, as

well as the foregoing discussion, we do not find that § 12-711 violates Article 18 § 6, the

only constitutional issue presented and addressed here.

9
¶13 Absent any constitutional infirmity, a jury instruction should be given if the

evidence tends to establish a theory supported by the instruction. Anderson v. Nissei ASB

Mach. Co., 197 Ariz. 168, 3 P.3d 1088 (App. 1999). The evidence apparently did so here.

Therefore, we cannot say the trial court erred in instructing the jury pursuant to the statute.

¶14 Defendants have requested attorney fees on appeal pursuant to Rule 21(c),

Ariz. R. Civ. App. P., as a sanction against Romero for failing to comply with the rule

requiring transcripts. In our discretion, we decline to award such fees.

¶15 Based on the foregoing, the trial court’s judgment is affirmed.

PHILIP G. ESPINOSA, Judge

CONCURRING:

JOHN PELANDER, Chief Judge

M. JAN FLÓREZ, Presiding Judge

10