                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                  ANTHONY and VICTORIA GARCIA,
                a married couple; and ZIEARA RAMIREZ,
                   a single person, Plaintiffs/Appellants,

                                        v.

           ALFONSO SAAVEDRA; FOWLER ELEMENTARY
         SCHOOL DISTRICT #45, a political subdivision of the
        State of Arizona; and FIRST STUDENT, INC. a Delaware
                    corporation, Defendants/Appellees.

                             No. 1 CA-CV 14-0153
                               FILED 5-5-2015


        Appeal from the Superior Court in Maricopa County
 Nos. CV2009-038093, CV2010-000544, CV2010-002547, CV2010-002550
   CV2010-031675, CV2010-050096, CV2010-050741, CV2010-054390
                  CV2011-000071, CV2011-002491
                          (Consolidated)
            The Honorable Robert H. Oberbillig, Judge

                                  AFFIRMED


                                   COUNSEL

O’Steen & Harrison, PLC, Phoenix
By Ward B. Rasmussen and Paul D. Friedman
Counsel for Plaintiffs/Appellants
Renaud Cook Drury Mesaros, PA, Phoenix
By William W. Drury, Jr., J. Scott Conlon, Kevin R. Myer
Counsel for Defendants/Appellees



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.


B R O W N, Judge:

¶1             Anthony Garcia, Victoria Garcia, and Zieara Ramirez
(“Plaintiffs”) appeal the trial court’s judgment entered on a defense verdict
in favor of Alfonso Saavedra, Fowler Elementary School District #45, and
First Student Inc. (collectively, “the District”). Plaintiffs argue the court
erred by permitting the District to untimely assert the “affirmative defense”
of sudden incapacity and by failing to accurately instruct the jury as to that
defense. We conclude that (1) the court acted within its discretion in
allowing the District to assert the sudden incapacity defense; and (2) even
though the court’s instruction to the jury was incomplete, the omission does
not constitute reversible error. We therefore affirm.

                             BACKGROUND

¶2             In 2009, Saavedra was employed as a school bus driver by
First Student, Inc., a company that contracted with Fowler Elementary
School District #45 to provide school bus transportation services for the
District. On January 28, Saavedra was driving a school bus taking children
from school to their homes when he rear-ended a vehicle that was slowing
to stop for traffic, injuring Plaintiffs. Shortly before the collision with
Plaintiffs, the school bus was traveling northbound on 67th Avenue at
approximately forty miles per hour when the bus “sideswiped” a van and
continued accelerating northbound. Four seconds after the initial impact
with the van, the bus collided with the rear end of a Dodge pickup truck
also traveling northbound on 67th Avenue. The bus rear-ended the truck
two more times while accelerating northbound before colliding first with a
Mitsubishi and then with Plaintiffs’ vehicle as it slowed to stop for traffic.
After colliding with Plaintiffs’ vehicle, the bus traveled an additional 1900
feet, crossing into the southbound lanes and reentering the northbound
lane before finally stopping.



                                      2
                    GARCIA et al. v. SAAVEDRA et al.
                         Decision of the Court

¶3            After the incident, Saavedra told the investigating officer he
had been driving northbound on 67th Avenue in the inside lane when a
dark-colored car turning onto 67th Avenue from a trailer park got in his
way and made contact with the front of the bus. He reported being awake
during the accident but could not focus well after the initial collision and,
at the time of the interview, was experiencing pain on the left side of his
head where it hit the bus window. When recounting the incident at trial,
Saavedra testified that the dark-colored car crossed in front of him from the
universal turn lane while the bus was traveling at about forty to forty-five
miles per hour. Saavedra stated that he tried to brake with the pedal while
swerving left, and that as he reached for the hand brake, he felt a blow to
the head that caused everything to go “black.” He then explained that he
heard multiple impacts as he regained his eyesight, but soon after he “lost
it” and could not remember anything that happened until the bus came to
a stop.

¶4            In January 2010, Plaintiffs sued the District, alleging Saavedra
caused them serious bodily injuries by negligently operating the school bus
at unsafe speeds and failing to yield to other vehicles. Plaintiffs also alleged
the District was negligent per se for Saavedra’s violation of Arizona Revised
Statutes (“A.R.S.”) section 28-701(A), which requires drivers to “control the
speed of [their] vehicle[s] as necessary to avoid colliding with any object,
person, vehicle, or other conveyance . . . in compliance with legal
requirements and the duty of all persons to exercise reasonable care for the
protection of others.” In their answer to Plaintiffs’ amended complaint, the
District generally denied the allegations of the complaint and asserted
comparative negligence, but did not reference sudden incapacity. The
District subsequently filed notices of nonparty at fault, naming first the
unidentified operator of the dark-colored vehicle described by Saavedra
and later the driver of the van (a former co-defendant) as potential
nonparties at fault.

¶5           Various pending lawsuits filed by other individuals who
were injured in the incident were consolidated with the present case.
Eventually each of the other claims were resolved and only Plaintiffs’
claims were tried to a jury. The matter was originally set for trial in May,
2012, but was continued twice until June 2013, when the case proceeded to
trial.

¶6             In May 2012, prompted by factual allegations included in the
District’s motion for partial summary judgment, Plaintiffs moved to strike
the District’s sudden incapacity defense, arguing the District had failed to
plead the affirmative defense as required by Arizona Rule of Civil


                                       3
                    GARCIA et al. v. SAAVEDRA et al.
                         Decision of the Court

Procedure (“Rule”) 8(c). Plaintiffs asserted that because the District did not
disclose its intent to argue the affirmative defense until 60 days before the
original trial date and after discovery had closed, they were unable to
conduct discovery on the issues and were unfairly prejudiced.

¶7             The District countered that sudden incapacity is not an
affirmative defense to which Rule 8(c) applies and, even if it is, Plaintiffs
had acknowledged Saavedra’s potential incapacity was at issue in their July
22, 2010 initial disclosure statement and thus were not prejudiced by any
late disclosure. In their reply, Plaintiffs asserted that the District’s sudden
incapacity theory rested on testimony from a medical expert, Dr. Charles
Bain, that Saavedra may have suffered a “vasovagal episode” while
driving.1 While Saavedra had previously claimed that his incapacity was
the result of striking his head on the bus window during the sideswipe
incident, Plaintiffs argued that the newly-asserted theory that Saavedra
experienced a vasovagal episode may have been the product of a
preexisting condition and that they were prejudiced by their inability to
conduct discovery into his medical history. In July 2012, the trial court
denied Plaintiffs’ motion. At that time, trial was scheduled for January
2013.

¶8            At various times, the parties submitted proposed jury
instructions. In May 2012, when trial was originally scheduled to begin
later that month, the parties jointly submitted proposed jury instructions
but did not include any instruction addressing the sudden incapacity
defense. In January 2013, prior to the second trial setting, Plaintiffs filed a
request for non-RAJI jury instructions and presented a two-part instruction
for sudden incapacity, which provided as follows:

       [#1] A sudden loss of consciousness or physical capacity
       experienced while driving which is not reasonably
       foreseeable is a defense to a negligence action.

       Loss of consciousness means a state of impaired
       consciousness in which one shows no responsiveness to
       environmental stimuli.



1     At trial, Dr. Bain explained that a vasovagal episode, or
“neurocardiogenic syncope,” occurs when a person suffers decreased blood
flow to the brain. Symptoms of a vasovagal event include, dizziness,
blurred vision, fatigue, and possible fainting.



                                      4
                  GARCIA et al. v. SAAVEDRA et al.
                       Decision of the Court

     Loss of physical capacity means the quality or state of being
     incapable, the lack of physical or intellectual power.

     If one’s own negligence is a cause of the sudden loss of
     consciousness or physical incapacity, the sudden incapacity
     defense does not apply.

     [#2] For the sudden incapacity defense to apply, you must
     find from the evidence that:

     1. Alfonso Saavedra lost control of the school bus because of
     some physical incapacity; and,

     2. The physical incapacity, which caused Alfonso Saavedra to
     lose control of the school bus, was one that came upon him
     suddenly and was of a kind that he should not reasonably
     foresee would occur at that time.2



2      At the same time, the District submitted its own proposed
instruction in support of the sudden incapacity defense:

     A driver who is suddenly stricken by an unforeseen
     physically incapacitating event is not negligent if the event
     was not reasonably foreseeable. You must consider this in
     determining whether the driver acted with reasonable care
     under the circumstances.

     [The District is] not negligent if Mr. Saavedra, while driving
     the school bus, was suddenly stricken by a physical event
     which he could not reasonably foresee, which rendered him
     unable to control the school bus.

     To determine if Mr. Saavedra could reasonably foresee the
     possibility of sudden incapacity, you may consider whether
     or not the evidence shows that Mr. Saavedra knew or should
     have known his health was such that a reasonably prudent
     person would not risk driving at the time he got behind the
     wheel to drive the bus.

     If you determine that Mr. Saavedra became suddenly
     incapacitated, and that the incapacity was not reasonably
     foreseeable to him, [the District is] not negligent, even if you



                                    5
                     GARCIA et al. v. SAAVEDRA et al.
                          Decision of the Court

       3. The physical incapacity, which caused Alfonso Saavedra to
       lose control of the school bus, was not caused by Alfonso
       Saavedra’s own negligence.

¶9            The trial court declined to use either parties’ proposed
instructions, opting instead to use the following as part of its preliminary
and final instructions to the jury:

       A driver who is suddenly stricken by an unforeseen
       physically incapacitating event is not at fault for any
       negligence if the physically incapacitating event was not
       reasonably foreseeable and the driver’s own negligence was
       not a cause of the physically incapacitating event.

       To determine if Mr. Saavedra could reasonably foresee the
       possibility of sudden incapacity, you should consider
       whether or not the evidence shows that Mr. Saavedra knew
       or should have known his health was such that a reasonably
       prudent person would not risk driving at the time the person
       first began to drive the bus.

The court also included an instruction that the District had the burden of
establishing the sudden incapacity defense.

¶10           After the jury returned its verdict in favor of the District,
Plaintiffs moved for a new trial arguing, among other things, (1) they were
deprived of a fair trial due to the “surprise” defense of sudden incapacity;
and (2) the court failed to properly instruct the jury regarding sudden
incapacity because the instruction given did not adequately define “loss of
consciousness” or “loss of physical capacity.” After oral argument, the
court denied Plaintiffs’ motion for new trial and this timely appeal
followed.

                                DISCUSSION

       A.     Assertion of Sudden Incapacity Defense

¶11            Plaintiffs argue the trial court erred in allowing the District to
present the “affirmative defense” of sudden incapacity at trial because the
District failed to plead the defense in its answer. The District counters that


       find that Mr. Saavedra drove improperly or violated traffic
       laws after he became incapacitated.



                                       6
                    GARCIA et al. v. SAAVEDRA et al.
                         Decision of the Court

the court had the discretion to impliedly amend the pleadings to include
the defense, and Plaintiffs were neither surprised nor prejudiced.

¶12            As a general rule, a person operating a vehicle has a duty to
exercise reasonable care for the protection of others, and a person who
drives in an unreasonable manner may be liable for any damages caused
by his or her negligence. See Restatement (Second) of Torts § 282 (1965);
A.R.S. § 28-701(A). The plaintiff has the burden of proving duty, breach of
that duty, proximate cause, and damages. Smith v. Johnson, 183 Ariz. 38, 41
(App. 1995). However, a driver who suffers a sudden medical emergency
resulting in the driver’s incapacity is not liable for negligence when the
driver loses control of his vehicle and drives it in a manner that would
otherwise be unreasonable if the medical emergency was unforeseeable at
the time the person began driving. Restatement (Second) of Torts § 283C
(1965); 1 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts
§ 129 at 406 (2d ed. 2011). Although the plaintiff has the burden of proving
that the defendant was negligent, the defendant has the burden of proving
that his or her sudden and unforeseeable medical incapacity led to a loss of
control that caused the accident. See Goodrich v. Blair, 132 Ariz. 459, 461
(1982).

¶13            Here, we assume without deciding that a defendant’s
assertion of sudden incapacitation is an affirmative defense to a complaint.
See Ariz. R. Civ. P. 8(c) (stating that an answer to a complaint must set forth
“any . . . matter constituting an avoidance or affirmative defense.”); see also
Dobbs, The Law of Torts § 129 (Sudden incapacity “has sometimes been
referred to as an affirmative defense, but it actually rests on the proposition
that the defendant is judged by his own physical capacity and is simply not
negligent unless he knows or should know that he may become
incapacitated”); Timothy E. Travers, Annotation, Liability for Automobile
Accident Allegedly Caused by Driver’s Blackout, Sudden Unconsciousness, or the
Like, 93 A.L.R. 3d 326 (1979) (“[C]ourts in a number of cases have held that
such a defense is an affirmative defense which usually must be specially
pleaded, and is not raised by a general denial.”). Affirmative defenses
omitted from an answer or Rule 12 motions are generally waived. See Ariz.
R. Civ. P. 12(h); City of Phoenix v. Fields, 219 Ariz. 568, 574, ¶ 27 (2009).

¶14           Aside from the four specific defenses enumerated in Rule
12(h)(1) (lack of jurisdiction, improper venue, insufficiency of process or
insufficiency of service of process), a trial court retains discretion to allow
amendment of the pleadings at any time. Sirek v. Fairfield Snowbowl, Inc.,
166 Ariz. 183, 185-86 (App. 1990) (citing Baxter v. Harrison, 83 Ariz. 354
(1958)). The purpose of the Rule 8(c) pleading requirement is to provide


                                      7
                     GARCIA et al. v. SAAVEDRA et al.
                          Decision of the Court

notice of a defendant’s assertion of an affirmative defense and to prevent
unfair surprise to the plaintiff. City of Phoenix v. Linsenmeyer, 86 Ariz. 328,
333 (1959); Gerow v. Covill, 192 Ariz. 9, 18, ¶ 42 (App. 1998) (explaining the
purpose of requiring disclosure is to provide “the parties ‘a reasonable
opportunity to prepare for trial or settlement—nothing more, nothing less’
and to ‘maximize the likelihood of a decision on the merits’”) (citations
omitted). Thus, “a court may properly allow a defendant to amend an
answer to include an omitted defense as long as the plaintiff is not surprised
or prejudiced thereby.” Sirek, 166 Ariz. at 186. A plaintiff is not surprised
or prejudiced by a late pretrial disclosure as long as the plaintiff is given
“adequate notice and time to prepare.” Gerow, 192 Ariz. at 18, ¶ 43.

¶15             Because a trial court has discretion to allow parties to amend
the pleadings, “failure to formally amend the pleadings will not affect a
judgment based upon competent evidence[,]” and if “an amendment to
conform the pleadings to the proof should have been made, an appellate
court will presume that it was so made to support the judgment.” Elec.
Adver., Inc. v. Sakato, 94 Ariz. 68, 71 (1963). Furthermore, in the exercise of
its discretion, a trial court may treat as an amendment subsequent filings
that include defenses or allegations not made in the defendant’s answer in
lieu of actual amendment of the pleadings. Baxter, 83 Ariz. at 356 (holding
“it was proper for the court to treat the allegations in the affidavit in support
of the motion for summary judgment as amending the answer” when
defendant failed to raise plaintiffs’ lack of capacity to sue in initial Rule 12
response).

¶16           According to Plaintiffs, the District first disclosed the sudden
incapacity defense in March 15, 2012, when it filed its motion for partial
summary judgment, alleging that Saavedra became physically
incapacitated and “remained in this physical state during collisions with
other vehicles.” Plaintiffs fail to acknowledge, however, that Saavedra’s
capacity to control the bus was at issue as early as July 22, 2010, when
Plaintiffs submitted their initial disclosure statement. But even assuming
the District disclosed the sudden incapacity defense for the first time in
their motion for partial summary judgment, we conclude the trial court
acted within its discretion in finding Plaintiffs had suffered “no unfair
prejudice” at the time it denied their motion to strike the affirmative
defense.

¶17          Although the trial was originally set for May, 2012, the trial
court vacated that trial setting on its own motion and twice the trial was
reset. Once the case proceeded to trial in June 2013, more than a year had
passed in which Plaintiffs had the opportunity to request additional


                                       8
                     GARCIA et al. v. SAAVEDRA et al.
                          Decision of the Court

discovery as to Saavedra’s physical state before, during, and after the
incident, and to prepare to contest the District’s affirmative defense at trial.3
Thus, we find no abuse of discretion with the trial court’s decision to allow
the District to present the sudden incapacity defense to the jury.

       B.     Sudden Incapacity Jury Instruction

¶18            Plaintiffs argue the sudden incapacitation instruction given
was “legally deficient” because it did not instruct the jury it would be
required to find that Saavedra was incapable of controlling the bus as a
result of his incapacitation if the jury were to accept the sudden incapacity
defense. Plaintiffs therefore assert that the court’s failure to specifically
instruct the jury on inability to control the bus constitutes an erroneous
statement of law that caused them prejudice.

¶19           We review de novo whether jury instructions properly set
forth the law, State v. Orendain, 188 Ariz. 54, 56 (1997), but review the trial
court’s denial of requested jury instructions for abuse of discretion,
Brethauer v. Gen. Motors Corp., 221 Ariz. 192, 198, ¶ 24 (App. 2009). When a
party challenges a jury instruction on appeal, reversal is only justified if the
instruction is erroneous and prejudices the substantial rights of the
appealing party. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 504, (1996).
Prejudice “must affirmatively appear from the record” and will not be
presumed. Id.

¶20             “Jury instructions are viewed as a whole, with an eye toward
determining whether the jury has been given the proper rules to apply in
arriving at its decision.” Catchings v. City of Glendale, 154 Ariz. 420, 424 (App.
1987). A party “is not entitled to the use of any specific words, but merely
to have the jury fairly and adequately apprised of the applicable law.”
Petefish By and Through Clancy v. Dawe, 137 Ariz. 570, 576 (1983) (internal
quotations omitted). The lack of a particular instruction is not fatal when
the instructions, read as a whole and in light of the evidence presented at


3      Plaintiffs argue they were unfairly prejudiced because no discovery
was undertaken regarding Saavedra’s medical condition nor did Plaintiffs
have experts to challenge the medical opinions of Dr. Bain because the
discovery deadline had already expired when it became apparent that the
District would be asserting the sudden incapacity defense. However,
consistent with the trial court’s observation at oral argument on the motion
for new trial, Plaintiffs did not ask for reopening of the discovery period or
otherwise seek to obtain additional discovery relating to Saavedra’s
medical history or to retain a medical expert.


                                        9
                     GARCIA et al. v. SAAVEDRA et al.
                          Decision of the Court

trial, adequately set forth the law. Thompson v. Better-Bilt Aluminum
Products Co., Inc., 187 Ariz. 121, 127 (App. 1996); see also State v. Poland, 144
Ariz. 388, 403 (1985). Additionally, arguments of counsel may be
considered in assessing the adequacy of a particular instruction. See State
v. Bruggeman, 161 Ariz. 508, 510 (App. 1989). A jury verdict will not be
overturned based on an allegedly improper jury instruction unless there is
substantial doubt as to whether the jury was properly guided in its
deliberations. Petefish, 137 Ariz. at 576.

¶21            Citing Pacific Employers Ins. Co. v. Morris, 78 Ariz. 24 (1954),
and Goodrich v. Blair, 132 Ariz. 459 (App. 1982), Plaintiffs argue that the
sudden incapacity defense requires a defendant to prove the following: (1)
the driver must be stricken with a sudden incapacitation; (2) the
incapacitation was unforeseeable to the driver; (3) the driver was not
capable of independent action or any action in controlling the vehicle as a
result of the incapacitation; and (4) the incapacitation caused the accident
and injured the plaintiff. Without the third element (inability to control the
vehicle), Plaintiffs contend the court’s instruction inaccurately stated the
elements of the sudden incapacitation defense under Arizona law. We
express no opinion as to the precise elements of the sudden incapacitation
defense because the parties, each of whom included a reference to loss of
control in their proposed instructions, do not dispute that a complete
sudden incapacitation jury instruction should require proof that the
defendant driver lost control of the vehicle. The trial court’s decision to
omit the phrase “incapable of control” from the final jury instruction in this
case, however, does not necessarily mean the court committed reversible
error.

¶22            In Pacific Employers, an individual suffered a heart attack and
died while driving, which caused his vehicle to travel into oncoming traffic
and collide with a truck. 78 Ariz. at 28. Regarding the driver’s negligence,
the trial court instructed:

       The standard required is that of a reasonably prudent person
       under all the circumstances. If some unforeseen emergency
       or act of God occurs which overpowers the judgment of the
       ordinary careful driver, or renders him incapable of control of
       a motor vehicle, so that for a time he is not capable of
       independent action or any action in controlling a motor
       vehicle, and as a result injuries are inflicted upon another or
       his property, then such driver is not negligent[.]




                                       10
                    GARCIA et al. v. SAAVEDRA et al.
                         Decision of the Court

Id. at 29-30 (emphasis added). After discussing the instruction, the supreme
court determined that nothing therein “could be considered as reversible
error.” Id. at 30.

¶23            In Goodrich, another case in which an individual suffered a
fatal heart attack while driving, this court clarified that the defense of
sudden incapacity “shifts the point of inquiry away from the moment of
negligent driving, and causes the jury to consider the defendant’s decision
to drive at all.” 132 Ariz. at 461. In doing so, we specifically declined to
determine the adequacy of the jury instructions given in Goodrich, which
provided, in part:

       For this defense to apply, you must find from the evidence
       that:

       1. [Defendant] lost control of his automobile because of some
       physical incapacity; and,

       2. The physical incapacity, which caused [Defendant] to lose
       control of his automobile, was one that came upon him
       suddenly and was of a kind that he should not reasonably
       foresee would occur at that time.

Id. Pacific Employers and Goodrich are the only two Arizona reported
decisions directly addressing the sudden incapacity defense. Neither case,
however, holds that a particular instruction for the defense is required nor
does either case specify the precise elements. And, because both cases
involved situations where the drivers had clearly lost control of the vehicles
they were driving, neither case is helpful here in determining whether the
trial court’s instruction in this case misled the jury such that a new trial is
required. Instead, we look to the evidence presented at trial, the statements
and arguments from counsel, and the instructions as a whole to determine
whether the jury properly understood its role in evaluating the sudden
incapacity defense.

¶24            Throughout trial, Plaintiffs and the District focused on
whether Saavedra was incapacitated and thereby lost control over the
school bus when striking the numerous vehicles, and in particular,
Plaintiffs’ car. During opening statements, Plaintiffs’ counsel introduced
the sudden incapacity defense to the jury and asserted that Saavedra did
not lose control over the bus because he kept driving it straight and
eventually came to a “controlled stop.” Counsel for the District repeated
the court’s sudden incapacity instruction to the jury and stated that “Mr.



                                      11
                    GARCIA et al. v. SAAVEDRA et al.
                         Decision of the Court

Saavedra became mentally impaired and lost control of his vehicle before
any vehicle impact or bus swerving occurred.”

¶25            In summarizing the elements of the sudden incapacity
defense during closing arguments, Plaintiffs’ counsel explained to the jury
the District has to “prove that the physically incapacitating event was not
reasonably foreseeable” and that Saavedra’s “own negligence was not a
cause of the physically incapacitating event.” Plaintiffs’ counsel quoted
from an expert biomechanist’s trial testimony, stating that “Mr. Saavedra
became mentally impaired and lost control of his vehicle before any vehicle
impact or bus swerve occurred.” Counsel also quoted from two
dictionaries, defining “incapacity” as “[t]he want of capacity” and “[t]he
quality or state of being incapable,” and based on these definitions, argued
to the jury that physical incapacity means a complete lack of capability, not
“partial incapacity” or “altered consciousness.” These statements from
counsel were consistent with the definition of “physical incapacity” that
Plaintiffs sought in their first alternative instruction. Additionally, the
District’s counsel explained in closing argument that incapacitated means
Saavedra “wasn’t able to control his vehicle.” Given these explanations, we
cannot say there is a substantial doubt the jury was properly guided in its
deliberations. See Petefish, 137 Ariz. at 576.4

¶26            Moreover, Plaintiffs have failed to establish prejudice. They
merely assert that the trial court’s failure to instruct on loss of control
“makes the Jury instruction erroneous and prejudiced the Plaintiffs.” The
jury entered a general verdict in favor of the District. Absent a special
verdict articulating the jury’s findings as to each claim and defense, the jury
may have found that Plaintiffs failed to prove each element of their
negligence claim against the District, or, the jury may have decided that the
District adequately proved its sudden incapacity defense. With only a
general verdict, the jury was not obligated to indicate its finding. As such,
Plaintiffs have not met their burden of establishing prejudice. See Walters
v. First Fed. Sav. and Loan Ass’n of Phoenix, 131 Ariz. 321, 326 (1982) (“The

4      Evidence presented at trial, particularly the testimony of Dr. Bain,
also supports our conclusion that the jury was informed that Saavedra’s
alleged incapacity had to be tied to losing his ability to control the bus.
Plaintiffs argue that Saavedra experienced only “diminished capacity,”
which does not equate to “incapacity.” But the jury, as the trier of fact, was
responsible for resolving factual disputes, including the degree to which
Saavedra became incapacitated while driving and whether that incapacity
caused him to lose control of his ability to drive in a non-negligent manner.



                                      12
                   GARCIA et al. v. SAAVEDRA et al.
                        Decision of the Court

prejudicial nature of the [trial] error will not be presumed but must
affirmatively appear from the record.”). Accordingly, we conclude that no
reversible error occurred regarding the court’s jury instruction.

                             CONCLUSION

¶27          For the foregoing reasons, we affirm the trial court’s judgment
and grant the District’s request for taxable costs on appeal contingent upon
compliance with Arizona Rule of Civil Appellate Procedure 21.




                                 :ama




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