                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                    BRIDGET FUQUA, Plaintiff/Appellant,

                                          v.

          DOLLAR TREE STORES, INC., an Arizona corporation
               dba DOLLAR TREE, Defendant/Appellee.

                              No. 1 CA-CV 12-0720
                               FILED 4-17-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2008-001621
                The Honorable Michael J. Herrod, Judge

       AFFIRMED IN PART; VACATED IN PART; REMANDED


                                     COUNSEL

Law Office of Scott E. Boehm PC, Phoenix
By Scott E. Boehm

Arly Richau, Scottsdale

Co-Counsel for Plaintiff/Appellant
The Herzog Law Firm PC, Scottsdale
By Michael W. Herzog

Jones Skelton & Hochuli PLC, Phoenix
By Eileen Dennis GilBride

Co-Counsel for Defendant/Appellee



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.


D O W N I E, Judge:

¶1            Bridget Fuqua appeals from a jury verdict in her lawsuit
against Dollar Tree Stores, Inc., dba Dollar Tree (“Dollar Tree”) and from
the denial of her motion for new trial. We affirm the evidentiary rulings
Fuqua challenges but conclude that the issue of comparative fault was
improperly submitted to the jury. We therefore affirm the jury’s damages
award but vacate its determination that Fuqua was 75% at fault and the
corresponding reduction in her recovery.

                FACTS AND PROCEDURAL HISTORY 1

¶2           As Fuqua was exiting a handicapped-accessible restroom at
a Dollar Tree store on February 13, 2006, the door closed rapidly, striking
her in the back and causing her to fall and fracture her right hip. Fuqua
sued Dollar Tree for negligence.

¶3            Before the Dollar Tree fall, Fuqua had significant and long-
standing medical problems. During the 1990s, she underwent surgical
procedures that led to spinal cord injury, leg weakness, a drop foot on the
right side, and chronic pain syndrome. Fuqua also suffered from severe

1      We view the facts and reasonable inferences therefrom in the light
most favorable to upholding the verdict. Romero v. Sw. Ambulance, 211
Ariz. 200, 202, ¶ 2, 119 P.3d 467, 469 (App. 2005).




                                    2
                        FUQUA v. DOLLAR TREE
                          Decision of the Court

osteoporosis, a limited and painful gait, curvature of the spine,
degenerative disc disease, autonomic dysreflexia, cardiac disease, chronic
headaches, right leg atrophy, impaired hip flexor strength, and a
“circumducted gait on the right.” As far back as 2000, Fuqua was
diagnosed with “progressive problems with mobility of the right leg.” In
2004, one of her physicians wrote:

       The patient continues with pain, which is diffuse. It is an
       aching, throbbing, shooting, stabbing, gnawing, tender,
       burning, exhausting, tiring, nagging, numb, miserable, and
       unbearable pain that is continuous and worst throughout the
       day. It is fixed at about 10. She does take Talwin for pain.
       She also has diazepam and Soma, which she takes which has
       allowed for at least functionality with ambulation with a
       walker.

¶4            Dollar Tree conceded that its restroom door closed too fast,
that it was too heavy, and that it hit Fuqua, causing her to fall and fracture
her hip. But Dollar Tree contended Fuqua was partially at fault for the
accident and persuaded the court to instruct jurors regarding comparative
fault.

¶5            The jury found in favor of Fuqua and set her damages at
$170,000. It apportioned 75% of the fault to Fuqua and 25% to Dollar Tree.
After unsuccessfully moving for a new trial, Fuqua timely appealed. We
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(1).

                               DISCUSSION

I.     Comparative Fault

¶6            Fuqua contends the court erred by denying her motion for
judgment as a matter of law (“JMOL”) on the issue of comparative fault.
She also challenges the denial of her motion for new trial on the grounds
that the 75% fault allocation was not supported by the evidence.




                                      3
                         FUQUA v. DOLLAR TREE
                           Decision of the Court

¶7            We agree that the trial evidence was insufficient to submit
the issue of comparative fault to the jury. Based on that determination,
we need not reach the allocation issue. 2

¶8            Dollar Tree argued that jurors should apportion fault to
Fuqua because she had used the restroom at the store on previous
occasions and knew that the door was heavy. It contended that despite
this knowledge and a physician’s warning she was at increased risk for
fractures due to osteoporosis, Fuqua did not use a cane or walker when
visiting the restroom on February 13, 2006 and did not take reasonable
precautions for her own safety upon exiting the restroom.

¶9              We review de novo the denial of a motion for judgment as a
matter of law, considering the evidence in the light most favorable to the
non-moving party. Desert Mountain Properties Ltd. P’ship v. Liberty Mut.
Fire Ins. Co., 225 Ariz. 194, 200, ¶ 12, 236 P.3d 421, 427 (App. 2010). A trial
court should grant a motion for judgment as a matter of law “if the facts
produced in support of the claim or defense have so little probative value,
given the quantum of evidence required, that reasonable people could not
agree with the conclusion advanced by the proponent of the claim or
defense.” Salica v. Tucson Heath Hospital — Carondelet, L.L.C., 224 Ariz.
414, 417, ¶ 11, 231 P.3d 946, 949 (App. 2010) (citation omitted).

¶10           As relevant to the comparative fault issue, the final jury
instructions stated:

       Fault is [] negligence that was a cause of Plaintiff’s injury.
       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.

       ....



2      We also do not address Fuqua’s contention that the court erred by
refusing to give a spoliation instruction. Fuqua sought such an instruction
only in the event comparative fault was before the jury. Because we are
vacating the reduction in Fuqua’s recovery based on comparative fault,
the spoliation issue is moot.




                                      4
                        FUQUA v. DOLLAR TREE
                          Decision of the Court

       Before you can find any party at fault, you must find that
       party’s negligence was a cause of Bridget Fuqua’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 any
       injury.

See also A.R.S. § 12-2506(F) (“’Fault’ means an actionable breach of legal
duty, act or omission proximately causing or contributing to injury or
damages sustained by a person seeking recovery.”).

¶11           Viewing the evidence in the light most favorable to Dollar
Tree, Desert Mountain, 225 Ariz. at 200, ¶ 12, 236 P.3d at 427, reasonable
jurors might conclude that Fuqua failed to “use reasonable care” by not
utilizing a cane or walker when visiting the store’s restroom. Nothing in
the record, though, establishes that such a failure proximately caused or
contributed to Fuqua’s injury. There is no evidence, for example, that
Fuqua could have avoided being knocked to the ground with the same
force by the fast-closing restroom door had she been using a cane or
walker. Nor did Dollar Tree ever make such an assertion. In arguing
against Fuqua’s JMOL motion, Dollar Tree’s counsel stated simply: “The
causation is the door hit her. The question is, was she acting unreasonably
in using the restroom given the fact that it always has been as heavy as it
was. She had been there earlier, and she knew it was heavy. I think that's
enough to lead the jury to decide that she acted unreasonably. . . .” 3




3      Dollar Tree’s closing argument regarding Fuqua’s purported fault
was:
        All we’re saying is, look, she’s been there a lot of times
       before. She knows the door is heavy. She knows she’s got
       all of these physical problems. And we say, should she look
       out for herself a little bit? You might say, no, you’re full of
       beans or something. Okay. You say that, you say that. But
       that’s what the case is about, and that’s why there’s a line on
       that form, the verdict form for Ms. Fuqua, for you to decide,
       should she have been more careful?              Did she act
       unreasonably under the circumstances? . . . It’s your
       decision entirely.




                                     5
                       FUQUA v. DOLLAR TREE
                         Decision of the Court

¶12            There was no evidence that the weight of the restroom door
would lead a reasonable person to understand that it was dangerous or
would close more than three times faster than permitted by the Americans
with Disabilities Act (“ADA”). Indeed, the only evidence on that point
came from Fuqua’s expert, Brent Beals, who characterized the door-
closing speed as “unsafe” and drastically out of compliance with the
ADA. He further testified that the door’s weight would not signal to a
patron that it was dangerous.

¶13            There was insufficient evidence of comparative fault to
submit the issue to the jury. We therefore vacate the determination that
Fuqua was 75% at fault. On remand, the court shall enter an amended
judgment in accordance with the jury’s verdict that is not reduced by any
fault attributable to Fuqua.

II.   Evidentiary Rulings

¶14           At trial, Fuqua attempted to elicit testimony from several
witnesses to the effect that her 2006 hip fracture caused numerous
subsequent falls and injuries. The trial court generally sustained Dollar
Tree’s objections to such evidence, ruling that the proffered witnesses
lacked foundation to opine about the cause of the falls and injuries.

¶15            Only one of Fuqua’s witnesses potentially had foundational
information sufficient to offer opinions about the cause of falls and
injuries occurring after February 13, 2006. As noted supra, Fuqua had
chronic and significant medical problems that pre-dated the Dollar Tree
incident, including right leg weakness and atrophy, a drop foot on the
right side, and deteriorating mobility on the right side. Fuqua admitted
she had “permanent injuries” from her spinal cord issues, and her
orthopedic surgeon acknowledged “permanent disabilities” from those
injuries.     Additionally, in 2002, Fuqua applied for Social Security
disability benefits. She described 24-hour-a-day pain throughout her
entire body. She avowed that it had progressively worsened since her
second spinal cord surgery and described her pain as “indescribably so
bad – constantly burning [throughout] my entire-disabled-paralyzed
body.” Fuqua stated that she required “constant help” for tasks such as
lifting her leg into bed, shopping, getting dressed, and household chores.
She was using leg braces, walking canes, and a wheeled walker at the
time. She labeled herself “almost helpless” and stated that her life was
“unbearable.” Fuqua remained on Social Security disability status at the
time of the Dollar Tree fall.




                                    6
                           FUQUA v. DOLLAR TREE
                             Decision of the Court

¶16            Fuqua’s medical records describe numerous falls prior to
February 13, 2006, and one of her witnesses conceded Fuqua was “at a
high risk for falling” before the Dollar Tree incident due to her right-sided
weakness and spastic hemiparetic gait. Less than three months before the
Dollar Tree fall, one of Fuqua’s long-time physicians wrote:

          She is having a labored gait and antalgic gait using the front-
          wheel walker. . . . As far as her mobility, she is still
          ambulating with difficulty. . . .

          The patient is also having spasticity, which is a result of the
          central nervous system upper motoneuron injury due to an
          ependymoma that required resection x2.

¶17           It is against this backdrop that we assess whether the trial
court abused its discretion by sustaining foundation objections to
testimony about the cause of post-Dollar Tree falls. In order for any
medical expert to testify that such falls were caused by the 2006 hip
fracture, as opposed to Fuqua’s significant pre-existing conditions, he or
she would necessarily need to be knowledgeable about Fuqua’s medical
history. Yet only one of Fuqua’s proffered witnesses — Dr. Deborah
Heath — had reviewed medical records pre-dating the Dollar Tree fall.
The trial court could reasonably conclude that physicians who had not
reviewed Fuqua’s prior medical records lacked foundation to opine about
whether falls and injuries occurring after February 13, 2006 were caused
by the Dollar Tree hip fracture.

¶18             The incidents Fuqua wanted Dr. Heath to testify about
were 4:

                •   In May 2006, Fuqua fell while leaning over
                    the bathtub.

                •   In September 2006, Fuqua stumbled in the
                    bathroom and fractured her right kneecap.

                •   In November 2007, Fuqua fell at a
                    restaurant when the wheel of her walker
                    stuck on a curb.


4      Fuqua sustained other injuries, including stress fractures, that
occurred independently of specific falls.



                                        7
                         FUQUA v. DOLLAR TREE
                           Decision of the Court


              •   In March 2008, Fuqua fell while walking in
                  her house.

              •   In October 2008, Fuqua            fell   while
                  dismounting a treadmill.

              •   In March 2010, a rolling chair moved when
                  Fuqua attempted to sit on it, and she
                  fractured her femur.

¶19           The trial court heard extensive argument about the
foundation for Dr. Heath’s opinions. Outside the jury’s presence, the
court emphasized the need for Fuqua to offer adequate foundation. Its
primary rationale for ultimately excluding Dr. Heath’s causation opinions
was that she lacked knowledge about how the falls occurred.

¶20            We will not overturn a trial court’s ruling excluding
evidence absent a clear abuse of discretion and resulting prejudice.
Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33, 38, 800 P.2d 20, 25 (App.
1990). In reviewing for an abuse of discretion, “[t]he question is not
whether the judges of this court would have made an original like ruling,
but whether a judicial mind, in view of the law and circumstances, could
have made the ruling without exceeding the bounds of reason. We cannot
substitute our discretion for that of the trial judge.” Associated Indem. Corp.
v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985). Whether a party
has offered sufficient foundation for specific evidence is a determination
that lies within the sound discretion of the trial court. See State v. Jackson,
170 Ariz. 89, 93, 821 P.2d 1374, 1378 (App. 1991).

¶21          Fuqua argues that a “known and expected risk of standing
and walking on the surgically-repaired hip was falling.” But given
Fuqua’s significant pre-existing disabilities, the trial court could
reasonably conclude that an expert opining about the cause of post-
February 2006 injuries must have adequate information about how the
incidents occurred in order to distinguish, where possible, between falls
caused by pre-existing disabilities versus hip fracture-related causes. 5 Dr.
Heath lacked such information. Even assuming the accuracy of Fuqua’s

5      Dr. Hofstedt conceded that he could not say to a reasonable degree
of medical probability that any specific fall after February 13, 2006 “was
the result of that hip fracture injury as opposed to other conditions.”



                                      8
                        FUQUA v. DOLLAR TREE
                          Decision of the Court

descriptions of some of the incidents, simply knowing that her leg
“buckled” or “gave way” and that her right side was weak offered little to
no foundation for testimony about the actual cause of the falls. Fuqua’s
medical records offered no greater specificity, and, at times, contradicted
the “buckling” premise. 6

¶22            Moreover, the record demonstrates that Fuqua was
permitted to present — to a significant degree — causation testimony
from Dr. Heath. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506, 917
P.2d 222, 235 (1996) (“We will not disturb a trial court's rulings on the
exclusion or admission of evidence unless a clear abuse of discretion
appears and prejudice results.”). On several occasions, Dr. Heath told the
jury that Fuqua’s lack of recovery from the hip fracture contributed to the
later falls, changed her gait, and negatively affected her balance. She
opined that Fuqua never regained the strength or ability to walk that she
possessed before the Dollar Tree fall and that the later falls were typical of
a person in her weakened condition. At one point, Dr. Heath testified:

       After the February 2006 fracture, then whenever she had her
       falls –- first of all, the falls were generally because of
       weakness and what had been described as buckling, but that
       means that it would just give out and just a simple now
       collapse would actually translate into either bigger bruises,
       but then eventually they began to result in lacerations, so
       cutting of the actual skin, but also fractures.

¶23           During direct examination, Fuqua’s counsel asked Dr. Heath
whether an opinion she had offered about the March 2008 incident was
“consistent with your belief that all of these injuries were causally
connected to the hip fracture on February 13, 2006,” to which the doctor
responded, “Yes.” Dr. Heath also testified that Fuqua’s “lack of recovery
due to her [hip] injury then contributed to her falls, and she never
regained strength and never recovered prior to her February 13, 2006
ability to walk or gain strength.” Other doctors also testified that the 2006




6     Dr. Heath’s records, for example, describe the mechanics of the May
2006 fall as a slipping incident.        And Fuqua provided varying
explanations for how specific incidents occurred — particularly the
October 2008 treadmill fall.



                                      9
                         FUQUA v. DOLLAR TREE
                           Decision of the Court

hip fracture caused pain and weakness that rendered Fuqua more
susceptible to falls and stress fractures. 7

¶24           The fact that Dollar Tree stipulated Dr. Heath’s report into
evidence did not preclude subsequent objections to the scope of her
testimony. In pertinent part, that report states that the “health problems
Ms. Fuqua has encountered since February 13, 2006 and that are discussed
in my report are causally connected to her injuries she suffered on
February 13, 2006.” Even assuming that this statement and the precluded
causation testimony are one and the same, the authorities Fuqua cites do
not stand for the proposition that a party who stipulates to admission of a
document may not object to testimony offered on the same topic. See
Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286-87, 9 P.3d
314, 317-18 (2000) (defense counsel who purposely did not object to expert
witness’ qualifications or the foundation for his opinions during
testimony waived those legal objections); State v. Walton, 159 Ariz. 571,
583, 769 P.2d 1017, 1029 (1989) (Defendant who stipulated to foundation
for admission of murder weapon could not later complain of insufficient
foundation.), aff'd, 497 U.S. 639 (1990), overruled on other grounds by Ring v.
Arizona, 536 U.S. 584 (2002); Pulliam v. Pulliam, 139 Ariz. 343, 344-45, 678
P.2d 528, 529-30 (App. 1984) (parties were bound by stipulation that a
child counselor would not be called as a witness).

¶25           Furthermore, although Fuqua’s counsel stated that he was
attempting to elicit testimony explaining Dr. Heath’s report, he did not
argue — as Fuqua does on appeal — that Dr. Heath’s testimony was
admissible, and any foundational objection waived, simply because Dollar
Tree had stipulated to admission of the report. Cf. State v. Moody, 208
Ariz. 424, 455, ¶ 120, 94 P.3d 1119, 1150 (2004) (“[I]f evidence is objected to
on one ground in the trial court and admitted over that objection, other
grounds raised for the first time on appeal are waived.”); Trantor v.
Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (“absent

7     Dr. Stephen Brown, who performed an independent medical
examination at Dollar Tree’s request, testified that Fuqua had a “very nice
recovery” from the hip fracture, which healed “without consequence,”
and stated that her ongoing problems were attributable to pre-existing
medical conditions. Dollar Tree did not ask Dr. Brown to opine at trial
about the cause of falls occurring after February 13, 2006 — something
Fuqua’s counsel pointed out to the jury in his closing argument.




                                      10
                        FUQUA v. DOLLAR TREE
                          Decision of the Court

extraordinary circumstances, errors not raised in the trial court cannot be
raised on appeal”). Finally, during closing arguments, Fuqua was free to
discuss any evidence of record, including Dr. Heath’s report, which she
did repeatedly.

III.   Life Care Plan

¶26           Fuqua disclosed the opinions of Loretta Lukens, a
rehabilitation nurse who prepared a “life care plan” detailing medical and
daily care assistance Fuqua would reportedly need for the remainder of
her life. Dollar Tree moved in limine to preclude that evidence. Before
trial, the court granted Dollar Tree’s motion in part, ruling that Lukens
could not opine regarding future care costs without proper foundation.
During trial, the court excluded Lukens’ report and limited her testimony
based on Dollar Tree’s relevance and foundation objections. The court
concluded there was “no testimony that the costs of the life care plan are
causally related to the hip injury alone.”

¶27           We find no abuse of discretion. The trial court could
reasonably conclude that Lukens’ report and proffered opinions lacked
foundation. And if Fuqua’s future needs were not causally linked to the
2006 hip fracture, they were irrelevant.

¶28            Lukens was not qualified to offer medical causation
testimony. She instead relied on Dr. Anthony Lee, who reportedly agreed
that her life care plan was “a reasonable treatment plan for Bridget Fuqua
and is medically necessary.” 8 The problem, though, is that the record
establishes no foundation for Dr. Lee’s opinion. Dr. Lee first treated
Fuqua in 2007. The only information he had about her prior medical
conditions came from Fuqua herself. Dr. Lee conceded that some of
Fuqua’s ongoing pain was attributable to pre-existing problems, and he
testified that even without the 2006 hip fracture, she likely would have
required pain management and physical therapy.

¶29          Fuqua also suggests that Dr. Heath provided the necessary
foundation for Lukens’ report and opinions. But neither Dr. Heath nor
any other physician opined that all of the future care needs detailed in


8      At deposition, Lukens testified that she relied to a lesser extent on
Dr. Sellers, who first treated Fuqua in February 2007 and did not review
medical records pre-dating the Dollar Tree fall.




                                    11
                        FUQUA v. DOLLAR TREE
                          Decision of the Court

Lukens’ report were necessitated by the 2006 hip fracture. 9 And Lukens
confirmed that her plan was based on the assumption that all falls
occurring after February 13, 2006 were caused by the Dollar Tree hip
fracture — an assumption unsupported by the trial record. Under these
circumstances, the court did not abuse its discretion by excluding Lukens’
report and limiting her trial testimony. See City of Kingman v. Havatone, 14
Ariz. App. 585, 588, 485 P.2d 574, 577 (1971) (doctor’s testimony as to
future medical expenses had the requisite foundation of an affirmative
medical opinion and recommendation).

                             CONCLUSION

¶30          We affirm the jury’s verdict in favor of Fuqua and the
amount of the damages award. We vacate the determination that Fuqua
was 75% at fault and remand to the superior court for entry of an
amended judgment that does not reduce Fuqua’s recovery based on
comparative fault. We award Fuqua her appellate costs upon compliance
with ARCAP 21.




                                         :MJT




9      Dr. Hofstedt agreed during his deposition that it was “impossible to
tell how much of [Fuqua’s] current problems are related to the February
13, 2006 hip fracture as opposed to anything else.”



                                    12
