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Zuluaga v. Bashas', Inc.

Court of Appeals of Arizona, Second Division

February 3, 2017

Maricruz Zuluaga, a minor, by and through her next friend, Guadalupe Zuluaga, Plaintiff/Appellant,
Bashas', Inc., an Arizona corporation doing business as Food City, Defendant/Appellee.

         Appeal from the Superior Court in Pima County No. C20124313 The Honorable Gus Aragón, Judge


          Hollingsworth Kelly, Tucson By Louis Hollingsworth, Michael F. Kelly, and John F. Kelly Counsel for Plaintiff/Appellant

          Burch & Cracchiolo, P.A., Phoenix By Daryl Manhart and Susie Ingold Counsel for Defendant/Appellee

          Judge Vásquez authored the opinion of the Court, in which Presiding Judge Howard and Judge Staring concurred.


          VÁSQUEZ, Judge

         ¶1 In this negligence action, Maricruz Zuluaga appeals from the trial court's judgment in favor of Bashas', Inc. and the denial of her motion for a new jury trial. On appeal, Zuluaga argues the court erred by unreasonably limiting the scope of voir dire. Zuluaga also contends the court erred by giving a curative instruction after plaintiffs counsel referred during opening statements to the manner and timing of Bashas' disclosure of certain information. For the following reasons, we affirm the court's judgment.

         Factual and Procedural Background

         ¶2 "We view the evidence and all reasonable inferences in the light most favorable to upholding the jury's verdict." Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 2, 119 P.3d 467, 469 (App. 2005). On June 2, 2011, six-year-old Zuluaga and her parents were shopping at a Food City location, operated by Bashas'. While in the store, Zuluaga briefly separated from her mother and went to the produce department. At the same time, a Food City employee, Carlos Martinez, passed through the produce department on his way to the back of the store. The two collided, and Zuluaga fell and sustained a skull fracture and subdural hemorrhage.

         ¶3 Zuluaga's mother brought this action on her behalf in July 2012, claiming Zuluaga suffered damages because of Martinez's negligence, for which Bashas' was vicariously liable. During the seven-day trial, the parties disputed whether Martinez had been running or walking through the produce department and whether he ran into Zuluaga or she ran into him. The jury returned a defense verdict in favor of Bashas'. The trial court denied Zuluaga's motion for a new trial, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 (A)(1) and 12-2101(A)(1), (5)(a).

         Scope of Voir Dire

         ¶4 Zuluaga argues the trial court "unreasonably limited her voir dire by refusing to allow questions about grocery store employment." We will not overturn a trial court's ruling on the scope of voir dire absent an abuse of discretion. State v. Burns, 237 Ariz. 1, ¶ 19, 344 P.3d 303, 314 (2015).[1] In addition, we will not reverse a judgment unless the error was prejudicial. See Ariz. Const. art. VI, § 27; United Cal. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 295, 681 P.2d 390, 447 (App. 1983).

         ¶5 The trial court conducted the initial portion of voir dire in this case, asking prospective jurors if they, a close family member, or a close friend "work[ed] for Bashas or Food City." One juror responded affirmatively and was later dismissed for cause. During Zuluaga's portion of voir dire, counsel asked a similar, but broader, question: "Who here, or a family member, or a close friend, has ever worked in a grocery store? This could be 30 years ago, checkout clerk; cashier manager; surveillance." Five jurors responded affirmatively, and the first four briefly explained their connections. The court stopped Zuluaga's counsel before he could address the fifth juror, however, and the following exchange occurred:

The Court: You're getting to some areas here that are so long and I don't know how helpful it is. I'm surprised you haven't asked who hasn't worked at a grocery store because that's such a common way of kids to advance to adults. It doesn't really matter whether somebody has worked at a grocery store or has a good friend that has.
You can ask for similar specific areas, but I'm going to ask you to be more explicit asking the questions and move things along.
[Zuluaga's counsel]: Your Honor, thank you.
For the record, this case involves the actions of a grocery store with [an] employee and a manager, and whether or not their testimony is reasonable under the circumstances and upon the evidence the jury is going to hear, I believe it's very important to know which jurors have worked in that environment of a grocery store . . . .
And I'm not going into this to each individual person. I'm trying to get answers and the jurors saying yes, and then I'll move past that. And I'm ...

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