Picaso v. Tucson Unified School District

SUPREME COURT OF ARIZONA
En Banc

JUAN PICASO and MARIBEL PICASO, ) Arizona Supreme Court
husband and wife, individually ) No. CV-07-0154-PR
and as surviving parents of )
BENJAMIN PICASO, deceased, ) Court of Appeals
) Division Two
Plaintiffs/Appellants, ) No. 2 CA-CV 05-0174
)
v. ) Pima County
) Superior Court
TUCSON UNIFIED SCHOOL DISTRICT, ) No. C20022430
)
Defendant/Appellee. ) O P I N I O N
)
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Richard S. Fields, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
214 Ariz. 462, 154 P.3d 364 (App. 2007)

VACATED
________________________________________________________________

COPPLE, BOEHM & MURPHY, P.C. Phoenix
By Steven D. Copple
Scott E. Boehm
Attorneys for Juan Picaso and Maribel Picaso

MESCH, CLARK & ROTHSCHILD, P.C. Tucson
By Richard Davis
Gary J. Cohen
Attorneys for Tucson Unified School District
________________________________________________________________
H U R W I T Z, Justice

I.

¶1 On September 24, 2001, 14-month-old Benjamin Picaso

was struck and killed by a Tucson Unified School District

(“TUSD”) school bus. In 2003, Benjamin’s mother, Maribel

Picaso, pleaded guilty to misdemeanor child abuse. The plea

agreement stipulated that Maribel’s negligence had placed

Benjamin in the situation that led to his death.1

¶2 The case before us is a wrongful death action brought

by Maribel and her husband, Juan Picaso,2 against TUSD. The

1
The plea agreement provided:

AMENDED COUNT ONE: (CHILD ABUSE, NON-DEATH
or SERIOUS PHYSICAL INJURY, A CLASS ONE
MISDEMEANOR)

On or about the 24TH day of September, 2001,
MARIVEL [sic] PICASO-ATILANO, having care or
custody of BENJAMIN PICASO, committed child
abuse by criminally negligently causing or
permitting him, a child less than eighteen
years of age, to be placed in a situation
where he [sic] person or health was
endangered, to wit: resulting in the death
of the victim, in violation of A.R.S. §§ 13-
3623(B)(3), 13-603, 13-701, 13-702, 13-801,
13-804 and 13-811.

Maribel was originally charged with felony child abuse, but the
more serious charges were dropped as part of the plea agreement.
With the agreement of the state, the superior court imposed no
sentence other than the judgment of conviction in return for the
guilty plea.
2
Juan was also originally charged with felony child abuse,
but these charges were later dropped.

2
central issue below was the effect of Maribel’s plea on this

suit.

¶3 TUSD filed a motion in limine in the wrongful death

action seeking to “preclud[e] Maribel Picaso from denying the

essential allegation of her guilty plea.” The superior court

granted the motion, relying on Arizona Revised Statutes

(“A.R.S.”) § 13-807 (2007). That statute provides that “[a]

defendant convicted in a criminal proceeding is precluded from

subsequently denying in any civil proceeding brought by the

victim or this state against the criminal defendant the

essential allegations of the criminal offense of which he was

adjudged guilty.”3 The trial court rejected the plaintiffs’

argument that this statute applies only when the convicted party

is a defendant, rather than a plaintiff, in a subsequent civil

suit.

¶4 After a defense verdict, the Picasos moved for a new

trial, again arguing that the superior court had improperly

relied on § 13-807 in granting the motion in limine. TUSD

argued in response that the doctrine of issue preclusion

(formerly referred to as “collateral estoppel”) also supported

the trial court’s ruling. The superior court denied the new

3
During the plea colloquy, Maribel claimed that she entered
the guilty plea “to help [her] children.” Her counsel argued
below that one of her other children had unlocked the front door
of her home and that she wanted to avoid a criminal trial in
which she might have to blame that child for Benjamin’s death.

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trial motion, reasoning that “[w]hether the Court’s evidentiary

ruling was characterized as the application of A.R.S. § 13-807

or simply the application of [issue preclusion], the effect of

the ruling was to properly focus the jury’s attention upon the

relative actions of the parties and assess degrees of fault for

those actions.”

¶5 The court of appeals reversed and remanded for a new

trial. Picaso v. Tucson Unified Sch. Dist., 214 Ariz. 462, 154

P.3d 364 (App. 2007). The panel first held that § 13-807

“cannot possibly apply here” because “Maribel, the defendant in

the prior criminal proceeding, had no civil action brought

against her,” and “[t]he statute by its language applies only if

the criminal defendant is also later the civil defendant.” Id.

at 465 ¶ 9, 154 P.3d at 367. The court also rejected TUSD’s

argument that the guilty plea had issue preclusive effect.

Although noting that “[c]ourts in other jurisdictions are

divided on whether issue preclusion should prevent a party from

denying the essential elements of a guilty plea in a later civil

proceeding based on the same occurrence that led to the plea,”

id. at 467 ¶ 18, 154 P.3d at 369, the court of appeals adopted

the position of the Restatement (Second) of Judgments “that a

guilty plea in a criminal case should not have preclusive effect

in later civil litigation because no actual litigation occurs

when a criminal defendant pleads guilty,” id. at ¶ 20 (citing

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Restatement (Second) of Judgments § 27 cmt. e & § 85 cmt. b

(1980)).

¶6 We granted review because whether a guilty plea has

common law preclusive effect in a later civil proceeding is an

issue of first impression in this state.4 See ARCAP 23(c)(3).

We have jurisdiction pursuant to Article 6, Section 5(3) of the

Arizona Constitution and A.R.S. § 12-120.24. Application of

issue preclusion is an issue of law, which we review de novo.

Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223 ¶ 8, 62 P.3d

966, 968 (App. 2003).

II.

¶7 The parties do not dispute that Maribel’s guilty plea

was properly admitted into evidence in the subsequent civil

suit. See Ariz. R. Evid. 801(d)(2) (governing the statements of

parties); cf. Ariz. R. Evid. 803(22) (governing evidence of

conviction of a crime punishable by imprisonment in excess of

one year). Rather, the question on which the Picasos and TUSD

divide is whether the guilty plea also has preclusive effect in

the wrongful death suit with respect to the issue of Maribel’s

negligence.

¶8 As the court of appeals noted, this issue has divided

commentators and the courts. A number of opinions and

authorities have adopted the position of the Restatement

4
TUSD has now abandoned any reliance on § 13-807.

5
(Second) of Judgments that guilty pleas have no issue preclusive

effect in later civil litigation because no issues have actually

been litigated. See, e.g., Mrozek v. Intra Fin. Corp., 699

N.W.2d 54, 63 ¶ 21 (Wis. 2005); Rawling v. City of New Haven,

537 A.2d 439, 445 (Conn. 1988); Brohawn v. Transamerica Ins.

Co., 347 A.2d 842, 848 (Md. 1975); Glen Falls Group Ins. Corp.

v. Hoium, 200 N.W.2d 189, 192 (Minn. 1972); 18B Charles A.

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &

Procedure § 4474.1 (2007); David L. Shapiro, Should a Guilty

Plea Have Preclusive Effect?, 70 Iowa L. Rev. 27, 28 (1984).

Other courts and commentators, however, have rejected the

Restatement rule, generally taking the view that the safeguards

surrounding the entry of a guilty plea, which are designed to

make the conviction reliable enough to deprive a defendant of

his freedom, make the conviction preclusive as to the elements

of the offense in a civil context. See, e.g., Butler v. Mooers,

771 A.2d 1034, 1037 ¶ 8 (Me. 2001); Ray v. Stone, 952 S.W.2d

220, 224 (Ky. Ct. App. 1997); State ex rel. Leach v. Schlaegel,

447 S.E.2d 1, 4 (W. Va. 1994); Ideal Mut. Ins. Co. v. Winker,

319 N.W.2d 289, 296 (Iowa 1982); Geoffrey C. Hazard, Jr.,

Revisiting the Second Restatement of Judgments: Issue Preclusion

and Related Problems, 66 Cornell L. Rev. 564, 578 (1981).

¶9 Although we granted review to address this interesting

issue, our review of the record reveals that this is not the

6
appropriate case in which to do so. An appellate court must

determine whether the judgment, not the reasoning, of the

superior court was correct. Gary Outdoor Adver. Co. v. Sun

Lodge, Inc., 133 Ariz. 240, 242, 650 P.2d 1222, 1224 (1982).

Even if we assume arguendo that Maribel’s guilty plea here had

no preclusive effect, the result at trial in this case would not

have changed.

¶10 The trial judge properly instructed the jury that the

threshold question was whether TUSD was at all at fault for

Benjamin’s death. If the jury did not so conclude, the judge

instructed, a defense verdict was required without more

deliberation:

Plaintiffs must prove, one: The defendant was at
fault; two: Plaintiffs were injured; and three:
Plaintiffs’ damages. . . . If you find the defendant
was not at fault, then your verdict must be for
defendant.

¶11 The jury was instructed that only if it found TUSD at

fault for Benjamin’s death should it “then consider the

defendant’s claim that plaintiff, Maribel Picaso,” was also at

fault. (Emphasis added.) The jury was given three forms of

verdict — a defense verdict, a plaintiffs’ verdict with no

comparative negligence on the part of Maribel, and a plaintiffs’

verdict with the damages reduced in accordance with Maribel’s

comparative negligence. The jury returned a unanimous defense

verdict.

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¶12 The jury thus necessarily concluded that TUSD was

simply not at fault for Benjamin’s death. The trial court

rulings about which the Picasos complain on appeal all concern

the alleged comparative negligence of Maribel for that death.

Because the superior court instructed the jury that it was only

to consider Maribel’s comparative negligence in the event that

it also found TUSD at fault, any error below as to the

preclusive effect of the guilty plea could not have affected the

jury’s verdict.5 We therefore leave for another day the

preclusive effect of guilty pleas on subsequent civil

proceedings.

5
The superior court instructed the jury that “it is already
established in this case that Maribel Picaso negligently
permitted her son, Benjamin, to be placed in a situation where
his person or health was endangered, and that such negligence
was a cause of Benjamin’s death.” The jury was told, however,
that “[w]hether such admissions should be applied to find
Maribel Picaso at fault, and whether such fault should reduce
her full damages, is left in your discretion.” The instructions
thus did not give the guilty plea true preclusive effect, but
rather treated it simply as an evidentiary admission.

The Picasos complain that although the printed final jury
instructions describe Maribel’s negligence as “a” cause of
Benjamin’s death, the transcript of the proceedings quotes the
judge as saying it was “the” cause. TUSD claims that this is a
transcription error, and notes that preliminary jury
instructions referred to “a” cause. We need not resolve this
dispute. The Picasos did not object to the final jury
instructions on this point, and it is undisputed that the jury
was supplied with the printed instructions during its
deliberation. Moreover, the instruction at issue occurred after
the jury was told that it should consider Maribel’s negligence
only if it first found TUSD at fault.

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 III.

¶13 For the foregoing reasons, we vacate the opinion of

the court of appeals and affirm the judgment of the superior

court.6

_______________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

6
Because it reversed on other grounds, the court of appeals
did not consider the Picasos’ argument that the preliminary jury
instruction, which stated that Maribel’s negligence was “a
cause” of Benjamin’s death, violated Article 18, Section 5 of
the Arizona Constitution. Picaso, 214 Ariz. at 464 ¶ 1 n.1, 154
P.3d at 366 n.1. We need not remand on this point, however,
given the jury’s conclusion that TUSD had no fault in the death.
Whether Maribel was also at fault is a moot issue.

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