Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20124614 The Honorable Stephen C. Villarreal, Judge
Doug Zanes & Associates, PLLC By James E. Abraham, Tucson Counsel for Plaintiff/Appellant
Brisbois, Bisgaard & Smith LLP Michael B. Smith, Tucson Counsel for Defendants/Appellees
Judge Espinosa authored the decision of the Court, in which Presiding Judge Miller and Chief Judge Eckerstrom concurred.
¶1 In this appeal from a judgment in a motor vehicle tort action, appellant Aberdeen Thompson seeks a new trial, contending the trial court abused its discretion by refusing her requested negligence per se jury instruction. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "In determining whether a jury instruction should be given, this court views the evidence in the light most favorable to the requesting party." Cotterhill v. Bafile, 177 Ariz. 76, 79, 865 P.2d 120, 123 (App. 1993). On April 11, 2012, Thompson was driving her green Hyundai Accent west on Golf Links Road in Tucson. At the time of the collision, she was in the middle lane of three westbound lanes approaching Pantano Parkway. The posted speed limit on that section of road was forty miles per hour, and Thompson was traveling thirty-five miles per hour. Thompson testified:
[B]efore I approach[ed] the Domino's [Pizza] parking lot area where [appellee Corey Pickens's vehicle] c[a]me out of, I was headed straight and I'm looking straight ahead of myself. The light was green and the next thing I know is like boom. Something hit me right in the side there by the passenger side . . . fender.
¶3 Just before the collision, Pickens was leaving the restaurant of his employer, appellee Domino's Pizza, to make deliveries. The restaurant is on the north side of Golf Links. Pickens planned to travel west on Golf Links "intend[ing] . . . to get into the . . . farthest left westbound lane of traffic, before [he] made it to the bridge" in order to turn left "to head south on Camino Seco." He "pulled up to the drive of Domino's, " "stopped, " and "looked to the east [and] saw two vehicles coming"-a "white Ford Taurus in the middle lane that was closer to [him]" and a "green Hyundai Accent in the left-most lane that was slightly farther back." He "pulled out, slower than usual, " into "the right-most lane, the one closest to the northbound turn lane, and waited for the white vehicle to pass [him]." "The white vehicle had passed [him], then [he] checked [his] mirror to make sure the middle lane was clear, and, then, [he] began to merge into the middle lane." His intention, he said, "was to wait for the green Hyundai to pass on that farthest left lane, and then tuck in behind it . . . [, but o]nce [he] got about halfway in the middle lane . . . the collision occurred."
¶4 Before trial, Thompson requested a negligence per se instruction based on A.R.S. § 28-774, which stated:
Highway access from private road or driveway
The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all closely ...