Arizona Court of Appeals Division One Holds That Evidence of Manner of Death is Admissible to Prove Damages in Wrongful Death Claim But Only Insofar as Relevant to the Survivor’s Own Mental Anguish.

In a wrongful death trial limited to the issue of damages, Defendant filed a motion in limine to preclude evidence regarding the manner of death of the decedent, who was burned beyond recognition in a car crash. Despite Plaintiff’s claim that the evidence was relevant to Plaintiff’s own suffering resulting from the horrific death of his son, the trial court ruled to preclude the evidence and denied Plaintiff’s motion to reconsider. The jury awarded Plaintiff $250,000 in damages. Defendant requested an award of costs stemming from a joint offer of judgment under Rule 68(d), Ariz. R. Civ. P. The trial court entered judgment and awarded costs, finding that the offer of judgment did not need to be apportioned under the circumstances. Plaintiff appealed the preclusion of evidence and the award of costs under Rule 68(d).

The Court of Appeals reversed and remanded for a new trial, finding that the trial court erred by precluding evidence of the manner of death insofar as it was relevant to Plaintiff’s own mental anguish resulting from the death. The evidence was properly excludable to the extent that it bore relevance only to the pain and suffering of the decedent, which are not compensable in a wrongful death action. Addressing the award of costs as an issue that might arise again on remand, the Court held that the non-apportioned joint offer from both defendants did not preclude an award of costs under Rule 68(d). Failure to apportion liability between the defendants did not prohibit Plaintiff from making a meaningful choice between accepting the offer or proceeding to trial because the claim was brought against both defendants on a theory of joint and several liability and because one defendant admitted liability.

Judge Kessler wrote the opinion for the panel; Judges Snow and Barker concurred.