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Taylor-Bertling v. Foley

Court of Appeals of Arizona, Second Division

November 20, 2013

Dianne Taylor-Bertling and Richard L. Bertling, wife and husband, Plaintiffs/Appellants,
v.
Theresa Foley, a single woman, Defendant/Appellee.

Not for Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).

Appeal from the Superior Court in Pima County No. C20112753 The Honorable Carmine Cornelio, Judge

Rockafellow Law Firm, Tucson By Leighton H. Rockafellow and Leighton H. Rockafellow, Jr. Counsel for Plaintiffs/Appellants

Curl & Glasson, P.L.C., Tucson By Douglas W. Glasson Counsel for Defendant/Appellee

Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.

MEMORANDUM DECISION

ECKERSTROM, Judge

¶1 Appellants Dianne Taylor-Bertling and Richard Bertling (the Taylor-Bertlings) brought suit against appellee Theresa Foley alleging negligence. The jury found in favor of Foley and judgment was entered against the Taylor-Bertlings. The Taylor-Bertlings now appeal, asserting six different claims of trial error. For the following reasons, we affirm.

Factual and Procedural Background

¶2 "We view the facts and the reasonable inferences therefrom in the light most favorable to upholding the jury's verdict[]." Crackel v. Allstate Ins. Co., 208 Ariz. 252, 3, 92 P.3d 882, 885 (App. 2004). On February 20, 2010, while at the home of Theresa Foley, Dianne Taylor-Bertling tripped and fell over a pot placed in a hallway of Foley's home. The Taylor-Bertlings filed suit against Foley, alleging Foley had been negligent in her maintenance of the premises, creating an unreasonably dangerous condition that was not open and obvious, and had failed to warn Dianne Taylor-Bertling of the hazard. After a three-day jury trial, a verdict was returned in favor of Foley. The Taylor-Bertlings filed a motion for new trial, which the court denied. This timely appeal followed. We have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1).

Limitation of Expert Testimony

¶3 The Taylor-Bertlings' first claim of error is that the trial court should have permitted their expert witness to testify that he had relied on a code known as the "Life Safety Code" as a basis for his opinion that the placement of the pot constituted a safety hazard. "We will not disturb the superior court's ruling on the admissibility of evidence unless it abused its discretion or misapplied the law." Girouard v. Skyline Steel Inc., 215 Ariz. 126, ¶ 10, 158 P.3d 255, 258 (App. 2007). We find no abuse of discretion occurred here.

¶4 Before trial, Foley filed a motion in limine to preclude the Taylor-Bertlings "from introducing any report affidavit or opinion testimony . . . that Defendant Foley violated" various codes, including the "Life Safety Code (LSC), 2006 Edition." In opposing the motion, the Taylor-Bertlings conceded the LSC had never been adopted by Pima County. Noting the potential for a jury to accord "more import" to an opinion "[a]s soon as they hear [reference to] a code, " the trial court granted Foley's motion with respect to the LSC, concluding expert testimony about "the existence of this nonadopted life safety code ha[s] a real potential for confusing . . . the issues" and causing prejudice.

¶5 The Taylor-Bertlings assert that, at the outset of the case, the probative value of the evidence outweighed any potential prejudice and that any prejudice could have been averted by defense counsel. They also claim that after Foley "opened the door" to admission of the LSC "by asking if there was a code that dealt directly with furniture placement, " the balance of probative value versus prejudice tipped further in favor of admission.

¶6 Under Rule 703 of the Arizona Rules of Evidence, facts or data that form the basis for an expert's opinion that are otherwise inadmissible may nonetheless be disclosed to the jury "only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect." The Taylor-Bertlings' argument essentially asks us to re-weigh the balance of prejudice versus probative value, which we will not do. Cf. Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, ¶ 26, 10 P.3d 1181, 1190 (App. 2000) ("[T]he balancing of factors . . . is peculiarly a function of trial courts, not appellate courts."). Because the Taylor-Bertlings have not asserted any errors of law or ...


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