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Sayer v. State

Court of Appeals of Arizona, Second Division, Department A

August 28, 2013

RAY SAYER and KORI SAYER, husband and wife, Plaintiffs/Appellants,
THE STATE OF ARIZONA, a political entity, Defendant/Appellee.

Not for Publication Rule 28, Rules of Civil Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF GILA COUNTY Cause No. CV2009-317 Honorable Peter J. Cahill, Judge

Rabb & Rabb, PLLC By Lloyd L. Rabb III and Matthew L. Rabb Tucson and Cohen Law By Steven A. Cohen Scottsdale, Attorneys for Plaintiffs/Appellants

Thomas C. Horne, Arizona Attorney General By Fred Zeder Phoenix Attorney for Defendant/Appellee



¶1 Ray and Kori Sayer (the Sayers) appeal from a judgment in favor of the State of Arizona after a jury trial on the Sayers' highway negligence claim. The case arose from Ray's night-time motorcycle collision with a disabled elk that had been struck by another vehicle and was lying in the roadway.[1] The Sayers argue the trial court erred in admitting evidence of the state's plans and efforts to prevent similar accidents on other roadways in Arizona. Finding no error, we affirm.

Factual and Procedural Background

¶2 We view the evidence and all reasonable inferences from that evidence in the light most favorable to upholding the jury's verdict. See Hutcherson v. City of Phoenix, 192 Ariz. 51, ¶ 13, 961 P.2d 449, 451 (1998). The accident occurred in September 2008, on State Route 260 (SR 260) at milepost 253.8. Ray Sayer sustained serious injuries.

¶3 The Sayers' complaint alleged negligent failure by the state to maintain a safe highway.[2] After a ten-day trial, the jury found in favor of the state. This timely appeal followed entry of judgment.


¶4 On appeal, the Sayers contend the trial court erred in admitting the following evidence over their objections asserted in pre-trial motions and at trial: an elk-vehicle collision remediation project on Interstate 17 (I-17); wildlife-vehicle collision research throughout the state; elk-vehicle collision remediation projects on SR 260, east of the scene of the accident; and the cost per mile of the projects on SR 260. They argue the evidence was irrelevant and lacked foundation; further, even if relevant, its probative value was outweighed by unfair prejudice and the tendency to mislead or confuse the jury. The Sayers also argue this was inadmissible character evidence.

¶5 We will not disturb a trial court's ruling to admit evidence absent a clear abuse of discretion and resulting prejudice. Pima Cnty. v. Gonzalez, 193 Ariz. 18, ¶ 14, 969 P.2d 183, 187 (App. 1998). The abuse of discretion standard "does not mean that the trial court is free to reach any conclusion it wishes.... [But, ] where there are opposing equitable or factual considerations, we will not substitute our judgment for that of the trial court." State v. Chapple, 135 Ariz. 281, 296, 660 P.2d 1208, 1223 (1983). In addition, a trial court abuses its discretion if it commits an error of law in reaching a discretionary conclusion or it does not consider the evidence, or there is no substantial basis for a discretionary finding. Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455-56, 652 P.2d 507, 528-29 (1982).

¶6 The scope of relevant evidence is determined by whether facts proved by the evidence are "of consequence in determining the action." Ariz. R. Evid. 401(b); Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, ¶ 19, 10 P.3d 1181, 1188-89 (App. 2000); see also Newell v. Town of Oro Valley, 163 Ariz. 527, 530, 789 P.2d 394, 397 (App. 1990). Here, liability turned on whether SR 260 was reasonably safe at milepost 253.8. The Sayers presented testimony by Colorado wildlife biologist Dale Reed regarding the behavior of elk and other cervidae, [3] fencing to keep cervidae off highways, and warning signage about cervidae. They also presented testimony by Dr. Robert Bleyl, a highway transportation engineer. In addition to testimony about fencing and signage, Dr. Bleyl opined about the many factors that must be considered by state engineers to make a highway safe. In formulating their opinions, both experts relied upon their advanced academic training, job experience in their home states, published studies, and national guidelines.

¶7 The Sayers' relevance and foundation objections relate to several topics. The first topic concerned an elk-vehicle accident remediation project on I-17 near Munds Park. The project was first referred to in the Sayers' case-in-chief when Reed explained that the type of fence he had recommended for milepost 253.8 was "the same type of fence that's been put in on I-17 at Munds Park." He also used the project to opine that the state could have used electromats, [4] such as those used "in the area of I-17." Additionally, the Sayers did not object to the admission of an exhibit depicting the "I-17 Munds Park ...

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