Plaintiffs were the adult children of John White, who died in an accident during a bicycling event sponsored by defendant. A jury found defendant liable for the death and 25% at fault. The jury awarded damages of $250,000 to John’s wife, Elaine, but zero dollars to the children. The children filed a Rule 59 motion for a new trial as to their damages, which the superior court denied. They appealed.
The Majority, relying on the Division One decision in Sedillo v. City of Phoenix, 153 Ariz. 478 (App. 1987), reversed. The Majority noted that here, as in Sedillo, there was no evidence contradicting the childrens’ testimony to their emotional loss. Under such circumstances, the children, statutory beneficiaries, are entitled to “some damages.” The Majority noted that the strength of the childrens’ testimony is relevant to the amount of their damages, but not to the existence thereof.
Because the jury awarded no damages to the children, statutory plaintiffs whose testimony as to their loss was uncontradicted, the Majority reversed and remanded.
Judge Brammer authored the decision in which Eckerstrom joined.
Judge Espinosa dissented. He first argued that Sedillois split decision of Division One, “an outlier” in Arizona law, and thus of diminished precedential value. He also distinguished Sedillo on its facts. Further he criticized the Majority for disregarding the jury’s decision about damages to the children.
Judge Espinosa would rely on the role given to the jury under ARS 12-612(C) and 12-613 to determine and apportion the damages due the children. He would further rely on Hernandez v State, 128 Ariz. 30, 32 (App. 1980) which noted that intangible, emotional losses are within the particular province of the jury to determine.