Free Proposed Jury Instructions - District Court of Arizona - Arizona

Garvey M. Biggers, 9932 S. Lee White, 17551

Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche;Karolyn Vanden Bossche; and Vandy's Transportation, Inc.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) Darrell Lee Ekdahl and ) Jane Doe Ekdahl, ) husband and wife; ) George Vanden Bossche ) and Karolyn Vanden Bossche, ) husband and wife; and Vandy's ) Transportation, Inc., a ) California corporation, ) ) Defendants. ) ______________________________) Palma Baca Urrutia; Patricia Urrutia-Baca; Luis Javier Urrutia-Baca; Elizabeth UrrutiaBaca; Javier Arturo Urrutia-Arrieta; and Gloria Estela Sandate, NO. cv-03-1990-PHX-PGR

DEFENDANTS' PROPOSED REVISED ARIZONA JURY INSTRUCTIONS CIVIL FOURTH EDITION

(Assigned to the Honorable Paul G. Rosenblatt)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 14 PRELIMINARY 1 DUTY OF JURORS Ladies and Gentlemen: Now that you have been sworn, I will briefly tell you something about your duties as jurors and give you some instructions. At the end of the trial, I will give you more detailed instructions, and those instructions will control your deliberations. It will be your duty to decide the facts. You must decide the facts only from the evidence presented in court. You must not speculate or guess about any fact. You must not be influenced by sympathy or prejudice. You will hear the evidence, decide the facts, and then apply the law I will give you to those facts. That is how you will reach your verdict(s). In doing so you must follow that law whether you agree with it or not. You must not take anything I may say or do during the trial as indicating any opinion about the facts. You, and you alone, are the judges of the facts.

_____________________________ SOURCE: Bench Book for Superior Court Judges. REVISED ARIZONA JURY INSTRUCTIONS (CIVIL), 4th (January, 2005)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 15 PRELIMINARY 6 EXPERT WITNESS

A witness qualified as an expert by education or experience may state opinions on matters in that witness's field of expertise, and may also state reasons for those opinions. Expert opinion testimony should be judged just as any other testimony. You are not bound by it. You may accept or reject it, in whole or in part, and you should give it as much credibility and weight as you think it deserves, considering the witness's qualifications and experience, the reasons given for the opinions, and all the other evidence in the case.

_____________________________ SOURCE: Bench Book for Superior Court Judges. REVISED ARIZONA JURY INSTRUCTIONS (CIVIL), 4th

(January 2005)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 16

PRELIMINARY 12 EXCLUSION OF WITNESSES

The rule of exclusion of witnesses is in effect and will be observed by all witnesses until the trial is over and a result announced. This means that all witnesses will remain outside the courtroom during the entire trial except when one is called to the witness stand. They will wait in the areas directed by the bailiff unless other arrangements have been made with the attorney who has called them. The rule also forbids witnesses from telling anyone but the lawyers what they will testify about or what they have testified to. If witnesses do talk to the lawyers about their testimony, other witnesses and jurors should avoid being present or overhearing. The lawyers are directed to inform all their witnesses of these rules and to remind them of their obligations from time to time as may be necessary. The parties and their lawyers should keep a careful lookout to prevent any potential witness from remaining in the courtroom if they inadvertently enter.

______________________________ SOURCE: Bench Book for Superior Court Judges, Revised Arizona Jury Instructions (Civil) 4th

(January 2005)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 17

STANDARD 2 Burden of Proof (More Probably True)

Burden of proof means burden of persuasion. On any claim, the party who has the burden of proof must persuade you, by the evidence, that the claim is more probably true than not true. This means that the evidence that favors that party outweighs the opposing evidence. In determining whether a party has met this burden, consider all the evidence that bears on that claim, regardless of which party produced it.

________________ SOURCE: Revised Arizona Jury Instructions (Civil), 4th Standard 2, RAJI (CIVIL) 3d Standard 9.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 18 STANDARD 4 CORPORATE PARTY A corporation is a party in this lawsuit. Corporations and individuals are entitled to the same fair and impartial consideration and to justice reached by the same legal standards. When I use the word "person" in these instructions, or when I use any personal pronoun referring to a party, those instructions also apply to Vandy's Transportation.

__________________________________ SOURCE: Revised Arizona Jury Instructions (Civil), 4th Standard 4.

(January 2005)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 19 STANDARD 5 Respondeat Superior Liability In this case, Vandy's Transportation, Inc. as employer is responsible for the actions of its employee, Darrell Ekdahl.

______________ SOURCE: Revised Arizona Jury Instructions (Civil) 4th, Standard 5. Stone v. Arizona Highway Comm'n, 93 Ariz. 384, 381 P.2d 107 (1963); Love v. Liberty Mut. Ins. Co., 158 Ariz. 36, 760 P.2d 1085 (Ct. App. 1988); Duncan v. State, 157 Ariz. 56, 754P.2d 1160 (Ct. App. 1988); Nava v. Truly Nolen Exterminating, 140n Ariz. 497, 683 P.2d 296 (Ct. App. 1984); Robarge v. Bechtel Power Corp., 131 Ariz. 280, 640 P.2d 211 (Ct. App. 1982); Scott v. Allstate Ins. Co., 27 Ariz. App. 2367, 553 P.2d 1221 (1976); Olson v. Staggs-Bilt Homes, Inc., 23 Ariz. App. 574, 534 P.2d 1073 (1975); RESTATEMENT (SECOND) OF AGENCY § 288 (1958).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 20 STANDARD 9 INSURANCE

In reaching your verdict, you should not consider or discuss whether a party was or was not covered by insurance. Insurance or the lack of insurance has no bearing on whether or not a party was at fault, or the damages, if any, a party has suffered.

________________________________ SOURCE: Revised Arizona Jury Instruction (Civil), 4th Standard 9. Modified version of the insurance instruction proposed in 87 VA. L. REV. 1857, at 1910 (Dec. 2001). See also JUDICAL COUNSEL OF CALIFORNIA CIVIL JURY INSTRUCTIONS (2003-04), CACI No. 105.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 21 FAULT 5 Statement of Claims, Definition of Fault; Definition of Negligence (Comparative Fault)

Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo UrrutiaArrieta, and Gloria Estela Sandate claim that Darrell Ekdahl and Vandy's Transportation were at fault. Darrell Ekdahl and Vandy's Transportation claim that Jose Luis Arrieta Urrutia was at fault. Darrell Ekdahl and Vandy's Transportation also claim that Javier Arturo Urrutia was at fault. Fault is negligence that was a cause of Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo Urrutia-Arrieta, and Gloria Estela Sandate's injuries. Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. Negligence is the failure to act as a reasonably careful person would act under the circumstances.

________________ SOURCE: Arizona Revised Jury Instruction (Civil) 4th,Fault 5. RAJI (CIVIL) 3d Fault 5, A.R.S. § 12-2506(F)(2).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 22 FAULT 6 Definition of Causation (Comparative Fault) Before you can find any person at fault, you must find that person's negligence was a cause of plaintiff's injury. Negligence causes an injury if it helps produce the injury, and if the injury would not have happened without the negligence. There may be more than one cause of an injury.

_________________ SOURCE: Revised Arizona Jury Instructions (Civil) 4th, Fault 6, RAJI (CIVIL) 3d Fault 6; Ontiveros v. Borak, 136 Ariz. 500, 505, 677 P.2d 200, 205 (1983); Porterie v. Peters, 111 Ariz. 452, 456, 532 P.2d 514, 519 (1975); McDowell v. Davis, 104 Ariz. 69, 72, 448 P.2d 869, 872 (1968).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 23 FAULT 7 Burden of Proof (All Parties) (Comparative Fault)

Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo UrrutiaArrieta, and Gloria Estela Sandate must prove: 1. Darrell Ekdahl or Vandy's Transportation was at fault; 2. Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo UrrutiaArrieta, and Gloria Estela Sandate were injured; and 3. Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo UrrutiaArrieta, and Gloria Estela Sandate's damages. Darrell Ekdahl or Vandy's Transportation must prove: 1. Jose Luis Urrutia- Arrieta or Javier Arturo SandateUrrutia was at fault.

_______________ SOURCE: Revised Arizona Jury Instruction (Civil) 4th, Fault 7, RAJI (CIVIL) 3d Fault 7.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 24 FAULT 8 Statement of Liability Issues (Comparative Fault)

If you find that Darrell Ekdahl was not at fault, then your verdict must be for Darrell Ekdahl and Vandy's Transportation, Inc. If you find that Darrell Ekdahl was at fault, then Darrell Ekdahl and Vandy's Transportation are liable to plaintiffs and your verdict must be for plaintiffs. You should then determine the full amount of each plaintiff's damages and enter that amount on the verdict form. You should then consider Darrell Ekdahl and Vandy's Transportation, Inc.'s claim that Jose Luis Urrutia-Arrieta or Javier Arturo Sandate-Urrutia were at fault.

_______________ SOURCE: Revised Arizona Jury Instruction (Civil) 4th Fault 8, RAJI (CIVIL) 3d Fault 8.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 25 FAULT 9 Plaintiff's Fault (Contributory Negligence)

On Darrell Ekdahl and Vandy's Transportation's claim that Jose Luis Urrutia-Arrieta or Javier Arturo Sandate-Urrutia was at fault, you must decide whether Darrell Ekdahl or Vandy's Transportation has proved that Jose Luis UrrutiaArrieta or Javier Arturo Sandate-Urrutia were at fault and, under all circumstances of this case, whether any such fault should reduce Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo Urrutia-Arrieta, and Gloria Estela Sandate's full damages. These decisions are left to your sole discretion. If you decide that Jose Luis Urrutia-Arrieta or Javier Arturo Sandate-Urrutia's fault should reduce Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo Urrutia-Arrieta, and Gloria Estela Sandate's full damages, the court will later reduce those damages by the percentage of fault you have assigned to Jose Luis Urrutia-Arrieta or Javier Arturo Sandate-Urrutia.

___________ SOURCE: Revised Arizona Jury Instructions (Civil) 4th, Fault 9, RAJI (CIVIL) 3d Fault 9; A.R.S. § 12-2506(B) and (C); ARIZ. CONST., art. 18, § 5; Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 26 FAULT 10 Plaintiff's Fault (Assumption of Risk)

Darrell Ekdahl and Vandy's Transportation claim that Jose Luis Urrutia-Arrieta or Javier Arturo Sandate-Urrutia were at fault by assuming the risk of injury. A person assumes the risk of injury when he has knowledge of a particular risk, appreciates its magnitude, and voluntarily subjects himself to the risk under circumstances that show his willingness to accept that particular risk. As to this claim, Darrell Ekdahl and Vandy's Transportation must prove: 1. Jose Luis Urrutia-Arrieta or Javier Arturo SandateUrrutia assumed a particular risk of injury; and 2. The particular risk was a cause of Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo Urrutia-Arrieta, and Gloria Estela Sandate's injuries. You must decide whether Darrell Ekdahl and Vandy's Transportation has proved that Jose Luis Urrutia-Arrieta or Javier Arturo Sandate-Urrutia were at fault by assuming the risk of injury and, under all circumstances of this case, whether any such fault should reduce Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo Urrutia-Arrieta, and Gloria Estela Sandate's full damages. These decisions are left to your sole discretion. If you apply the defense of assumption of risk, the court will later reduce Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo Urrutia-Arrieta, and Gloria Estela Sandate's full damages by the percentage of fault you have assigned to Jose Luis Urrutia-Arrieta or Javier Arturo Sandate-Urrutia. _____________ SOURCE: Revised Arizona Jury Instruction (Civil) 4th, Fault 10, RAJI (CIVIL) 3d Fault 10 Hildebrand v. Minyard, 16 Ariz.

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App. 583, 585, 494 P.2d 1328, 1330 (1982); Chavez v. Pima County, 107 Ariz. 358, 360, 488 ).2d 978, 980 (1971)' ARIZ. CONST., art 18, § 5.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 27 FAULT 11 Determining Relative Degrees of Fault (Comparative Fault)

If you find more than one person at fault for Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo Urrutia-Arrieta, and Gloria Estela Sandate's injury, you must then determine the relative degrees of fault of all those whom you find to have been at fault. The relative degrees of fault are to be entered on the verdict form as percentages of the total fault for Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo Urrutia-Arrieta, and Gloria Estela Sandate's injury. The fault of one person may be greater of lesser than that of another, but the relative degrees of all fault must add up to 100%. This will be clear from the verdict form.

____________ SOURCE: Revised Arizona Jury Instruction (Civil) 4th, Fault 11, RAJI (CIVIL) 3d Fault 11.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 28 NEGLIGENCE 1 Violation of Statute (Negligence Per Se) I am now going to instruct you on certain laws of the State of Arizona. If you find from the evidence that a person has violated any of these laws, that person is negligent. You should determine whether that negligence was a cause of injury to Jose Luis Urrutia-Arrieta or Javier Arturo SandateUrrutia.

_________________________ SOURCE: Revised Arizona Jury Instruction (Civil) 4th, Negligence 1, Orlando v. Northcutt, 103 Ariz. 298, 300, 441 P.2d 58, 60 (1968). Good v. City of Glendale, 150 Ariz. 218, 221, 722 P.2d 386, 389 (Ct. App. 1986). Griffith v. Valley of the Sun Recovery & Adjustment Bureau, Inc., 126 Ariz. 227, 229, 613 P.2d 1283, 1285 (Ct. App. 1980), RESTATEMENT (SECOND) OF TORTS §286 (1965).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 29

A person shall not drive a motor vehicle at a speed that is less than the speed that is reasonable and prudent under existing conditions.

Source:

A.R.S. §28-701(E)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 30 A person shall not drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.

Source:

A.R.S. §28-704(A)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 31 On all roadways, a person driving a vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall drive the vehicle in the right-hand lane then available for traffic or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.

Source: A.R.S. §28-721(B) Kauffman v. Schroeder 116 Ariz. 104 (1977), Sisk v. Ball 91 Ariz. 239 (1962).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 32 A person shall not stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided by this article to the driver of any vehicle immediately to the rear when there is opportunity to give the signal.

Source: A.R.S. §28-754(C) Worthington v. Funk 7 Ariz. App. 595, 442 P.2d 153 (1968); Stearman v. Miranda 97 Ariz. 55; 396 P.2d 622 (1964).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 33 A person shall give a stop or turn signal if required by this article by means of the hand and arm or by a signal lamp or lamps or mechanical signal device of a type approved by the department. If a vehicle is constructed or loaded so that a hand and arm signal would not be visible both to the front and rear of the vehicle, the signals must be given by a lamp or lamps or signal device.

Source: A.R.S. §28-755 Niecikowski v. Davis 152 Ariz. 261, 731 P.2d 626 (Ariz.App., 1986.)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 34 Intersecting road crossings between the main roadway of a freeway and acceleration lanes, ramps or any other approach roads are not intersections as defined in Section 28-601 and Subsection A of this section does not control questions of right-of-way at the crossings. A vehicle entering a freeway from an acceleration lane, a ramp or any other approach road shall yield the right-of-way to a vehicle on the main roadway of the freeway entering the merging area at the same time.

Source: A.R.S. §28-771(C) Defendants suggest only the language that is bolded. It is the only known specific language controlling the movement of vehicles "entering freeway" included in the Arizona Revised Statutes. Gage v. Kuhlmeier 132 Ariz. 465, 646 P.2d 896 (Ariz.App., 1982.)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 35 "Right-of-way" when used within the context of the regulation of the movement of traffic on a highway means the privilege of the immediate use of the highway.

Source:

A.R.S. §28-101(45)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 36 The driver of a vehicle shall stop as required by Section 28-855 at the entrance to a through highway and shall yield the right-of-way to other vehicles that have entered the intersection from the through highway or that are approaching so closely on the through highway as to constitute an immediate hazard, but the driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on the through highway shall yield the right-of-way to the vehicle that is proceeding into or across the through highway.

Source: A.R.S. §28-773 (A) Defendants recommend only those portions that have been bolded. Defendants' modification is based upon the fact that this Arizona Statute controls the entrance of vehicles on a through highway at intersections but also includes the general safety practices expected of drivers of motor vehicles on highway entrances in relation to other vehicles that are approaching that constitute an immediate hazard and the duty to yield to such vehicles. Boudreaux v. Edwards, 7 Ariz. 178, 437 P.2d 430, (Ariz.App. 1968)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 37 "Drive" means to operate or be in actual physical control of a motor vehicle.

Source:

A.R.S. §28-101(17)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 38 "Driver" means a person who drives or is in actual physical control of a vehicle.

Source:

A.R.S. §28-101(18)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 39 "Street" or "highway" means the entire width between the boundary lines of every way if a part of the way is open to the use of the public for purposes of vehicular travel.

Source:

A.R.S. §28-101(51)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 40 "Owner" means: a. b. A person who holds the legal title of a vehicle. If a vehicle is the subject of an agreement for the conditional sale or lease with the right of purchase on performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, the conditional vendee or lessee.

Source:

A.R.S. §28-101(39)(a)(b)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 41 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 approaching vehicles on the highway.

Source:

A.R.S. §28-774

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 42 A person shall not: 1. Drive or move and the owner shall not knowingly cause or permit to be driven or moved on a highway a vehicle or combination of vehicles that: a. Is in an unsafe condition that endangers a person. b. Does not contain those parts or is not at all times equipped with lamps and other equipment in proper condition and adjustment as required in this article.

Source:

A.R.S. §28-921(A)(1)(a)(b)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 43 At any time from sunset to sunrise and at any other time when there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead, a vehicle on a highway in this state shall display lighted lamps and illuminating devices as required by this article for different classes of vehicles, subject to exceptions for parked vehicles as provided in this article.

Source: A.R.S. §28-922 Defendants recommend only the bolded section of this statute.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 44 A motor vehicle, trailer, semi-trailer and pole trailer and any other vehicle that is being drawn at the end of a train of vehicles shall be equipped with at least one tail lamp mounted on the rear. When lighted as required by this article, the tail lamp shall emit a red light plainly visible from a distance of 500 feet to the rear, except that in the case of a train of vehicles, only the tail lamp on the rearmost vehicle need actually be seen from the distance specified.

Source:

A.R.S. §28-925(A)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 45 In addition to other equipment required in this article, the following vehicles shall be equipped with the following equipment under the condition stated in Section 28-928: 1. On a bus or truck regardless of size, on the rear, two reflectors, one at each side, and one stop light.

Source: A.R.S. §28-929(1) Defendants recommend that only the bolded portions of this statute be given as an instruction.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 46 "Truck" means a motor vehicle designed or used primarily for the carrying of property other than the effects of the driver or passengers and includes a motor vehicle to which has been added a box, a platform or other equipment for such carrying.

Source:

A.R.S. §28-101(54)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 47 A reflector on a vehicle referred to in Section 28-929 shall be of such size and characteristics and so maintained as to be readily visible at nighttime from all distances within 500 feet to 50 feet from the vehicle when directly in front of lawful upper beams of headlamps. Reflectors required to be mounted on the sides of the vehicle shall reflect the required color of light to the sides, and reflectors mounted on the rear shall reflect a red color to the rear.

Source: A.R.S. §28-933(A) Defendants recommend only the bolded portion of this statute.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 48 Front and rear clearance lamps shall be capable of being seen and distinguished under normal atmospheric conditions at the times lights are required at a distance of 500 feet from the front and rear, respectively, of the vehicle.

Source:

A.R.S. §28-933(B)

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 49 A motor vehicle may be equipped and if required under this article shall be equipped with the following: 1. A stop lamp on the rear that emits a red or yellow light, that is actuated on application of the service or foot brake and that may be incorporated with a tail lamp. One or more lamps or a mechanical signal device that is capable of clearly indicating an intention to turn either to the right or to the left and that is visible both from the front and the rear.

2.

Source: A.R.S. §28-939(a)(1)(2) Defendants only recommend only the portion of the statute that is bolded.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 50 In addition to other equipment required in this article, the following vehicles shall be equipped with the following equipment under the condition stated in Section 28-928: 2. On a bus or truck eighty inches or more in overall width, in addition to the requirements in paragraph 1 of this section: a) On the front, two clearance lamps, one at each side. b) On the rear, two clearance lamps, one at each side. c) On each side, two side marker lamps, one at or near the front and one at or near the rear. d) On each side, two reflectors, one at or near the front and one at or near the rear.

Source: A.R.S. §28-929(2)(a)(b)(c)(d) Defendants recommend only those portions of this statute that are bolded.

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 51 A motor vehicle that is constructed or loaded in a manner that obstructs the driver's view to the rear of the vehicle from the driver's position shall be equipped with a mirror located in a manner to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of the vehicle.

Source:

A.R.S. §28-956

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 52 NEGLIGENCE 6 Sudden Emergency In determining whether a person acted with reasonable care under the circumstances, you may consider whether such conduct was affected by an emergency. An "emergency" is defined as a sudden and unexpected encounter with a danger, which is either real or reasonably seems to be real. If a person, without negligence on his or her part, encountered such an emergency and acted reasonably to avoid harm to self or others, you may find that the person was not negligent. This is so even though, in hindsight, you feel that under normal conditions some other or better course of conduct could and should have been followed. The existence of a sudden emergency and a person's reaction to it are only some of the factors you should consider in determining what is reasonable conduct under the circumstances.

________________ SOURCE: Revised Arizona Jury Instructions (Civil) 4th Negligence 6, Myhaver v. Knutson, 189 Ariz. 286, 942 P.2d 445 (1997).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 53 PERSONAL INJURY DAMAGES 3 Damages for Wrongful Death of Spouse, Parent, or Child If you find Darrell Ekdahl and Vandy's Transportation liable to plaintiffs, you must then decide the full amount of money that will reasonably and fairly compensate plaintiffs separately for each of the following elements of damages proved by the evidence to have resulted from the deaths of Jose Luis Urrutia-Arrieta or Javier Arturo Sandate-Urrutia. 1. The loss of love, affection, companionship, care, protection, and guidance since the death and in the future. 2. The pain, grief, sorrow, anguish, stress, shock, and mental suffering already experienced, and reasonably probable to be experienced in the future. 3. The reasonable expenses of funeral and burial. 4. The reasonable expenses of necessary medical care and services for the injury that resulted in the death.

___________ SOURCE: Revised Arizona Jury Instruction (Civil) 4th, Personal Injury Damages 3 as modified, A.R.S. § 12-613; City of Tucson v. Wondergem, 105 Ariz. 429, 466 P.2d 383 (1970); Jeffery v. United States, 381 F. Supp. 505 (Ariz. 1974); Salinas v. Kahn, 2 Ariz. App. 181, 407 P.2d 120 (1965).

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DEFENDANT'S PROPOSED JURY INSTRUCTION NO. 54 PERSONAL INJURY DAMAGES 4 Punitive Damages If you find Darrell Ekdahl and Vandy's Transportation liable to Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth Urrutia-Baca, Javier Arturo UrrutiaArrieta, and Gloria Estela Sandate, you may consider assessing additional damages to punish Darrell Ekdahl and Vandy's Transportation or to deter Darrell Ekdahl and Vandy's Transportation and others from similar misconduct in the future. Such damages are called "punitive" or "exemplary" damages. To recover such damages, Palma Baca Urrutia, Patricia Urrutia-Baca, Luis Javier Urrutia-Baca, Elizabeth UrrutiaBaca, Javier Arturo Urrutia-Arrieta, and Gloria Estela Sandate have the burden of proving by clear and convincing evidence, either direct or circumstantial, that Darrell Ekdahl and Vandy's Transportation acted with an evil mind. This required state of mind may be shown by any of the following: 1. Intent to cause injury; or 2. Wrongful conduct motivated by spite or ill will; or 3. Darrell Ekdahl or Vandy's Transportation consciously pursued a course of conduct knowing that they created a substantial risk of significant harm to others. To prove this required state of mind by clear and convincing evidence plaintiffs must persuade you that the punitive damages claim is highly probable. This burden of proof is more demanding than the standard of more probably true than not true, which applies to all other claims in this case, but it is less demanding than the standard of proof beyond a reasonable doubt, which is used in criminal cases. The law provides no fixed standard for the amount of punitive damages you may assess, if any, but leaves the amount to your discretion. However, if you assess punitive damages, you may consider the character of Darrell Ekdahl and Vandy's Transportation's conduct or motive, the nature and extent of the harm to plaintiff that Darrell Ekdahl and Vandy's Transportation caused, and the nature and extent of defendants' financial wealth.

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_________________ SOURCE: 1.Revised Arizona Jury Instruction (Civil) 4th, Personal Injury Damages 4, Elements of Punitive Damages: Volz v. Coleman Co., Inc., 155 Ariz. 567, 748 P.2d 1191 (1987); Gurule v. Illinois Mut Life & Cas. Co., 152 Ariz. 600, 734 P.2d 85 (1987); Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 733 P.2d 1073 (1987); Rawlings v. Apodaca, 151 Ariz. 149, 725 P.2d 565 (1986); Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 732 P.2d 675 (1986); Bradshaw v. State Farm Mut. Auto Ins., 157 Ariz. 411, 758 P.2d 1313 (Ct. App. 1988).

2. Definition of Clear and Convincing: State v. King, 158 Arizona 419, 422, 763 P.2d 239, 242 (1988); State v. Renforth; 155 Ariz. 385, 746 P.2d 1315 (Ct App. 1987), rev. denied, 158 Ariz. 487, 763 P.2d 983 (1988), see also U.S. v. Owens, 854 Fed. 2d 432, 436 (11th Cir. 1988), which accepted the Renforth definition of the clear and convincing standard of proof. 3. 3. Constitutional Issues: Because of the developing constitutional law in this area, the Committee has elected not to make substantive modifications to the RAJI Instruction on Punitive Damages. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.408, 123 S.Ct. 1513 (2003), BMW of North America, Inc., v. Gore, 517 U.s.559, 116 St. Ct. 1589 (1996); TXO Production Corp. v. Alliance Resources Corp., 509 U.S.443, 113 S. Ct. 2811 (1993), Pacific Mut. Life Ins. Co., v. Haslip, 449 U.S.1, 111 S. Ct. 1032 (1991). The trial court should assess whether changes to the instruction are appropriate based on Campbell and other decisions addressing constitutional issues. Saucedo v. Salvation Army, 200 Ariz. 179, 24 P.3d 1274 (Ct. App. 2001).

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RESPECTFULLY SUBMITTED this 9th day of March, 2006. STRUCKMEYER & WILSON

s/Garvey M. Biggers__________ Garvey M. Biggers S. Lee White Attorneys for Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche; Karolyn Vanden Bossche; and Vandy's Transportation, Inc. ORIGINAL of the foregoing DEFENDANTS' PROPOSED REVISED ARIZONA JURY INSTRUCTIONS CIVIL FOURTH EDITION electronically submitted using the CM/ECF System for filing and transmittal of a Notice of Filing to the following CM/ECF registrants: Augustine B. Jimenez III AUGUSTINE B. JIMENEZ III, P.C. 3200 N. Central Ave., Suite 2550 Phoenix, AZ 85012 (Attorney for Plaintiffs) COPY (paper) of the foregoing mailed/hand-delivered (*) this 9th day of March, 2006 to: (*) The Honorable Paul G. Rosenblatt UNITED STATES DISTRICT COURT Sandra Day O'Connor US Courthouse 401 W. Washington St. Phoenix, AZ 85003

s/Garvey M. Biggers______________

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