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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA WING, et al., Plaintiffs/Appellants,

v.

U-HAUL INTERNATIONAL, INC., et al, Defendants/Appellees.

No. 1 CA-CV 18-0765

Appeal from the Superior Court in Maricopa County

No. CV 2016-050917

The Honorable Theodore Campagnolo, Judge

VACATED AND REMANDED

COUNSEL

Wagstaff & Cartmell, LLP, Kansas City, MO

By Jonathan P. Kieffer, Jack T. Hyde

Co-Counsel appearing Pro Hac Vice for Plaintiffs/Appellants

Garrey Woner Hoffmaster & Peshek PC, Scottsdale

By D. Reid Garrey, Erin M. Evans 

Co-Counsel for Plaintiffs/Appellants

FILED 2-18-2020
2

Bowman and Brooke LLP, Phoenix

By Travis M. Wheeler

Co-Counsel for Defendants/Appellees

Thorpe Shwer PC, Phoenix

By Ryan S. Patterson

Co-Counsel for Defendants/Appellees

Lightfoot Franklin White LLC, Birmingham, AL

By J. Banks Sewell, III, Joel Chandler Bailey, David A. Rich

Co-Counsel appearing Pro Hac Vice Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 Joshua and Clayton Wing (collectively, “the Wings”) appeal 

from a judgment entered in favor of U-Haul International, Inc., et al., 

(“U-Haul”) following a jury verdict. Because the negligence per se jury 

instructions contained erroneous “no fault” language, we vacate the 

judgment and remand for a new trial on the Wings’ claim of negligence per 

se. 

BACKGROUND

¶2 After loading a Toyota 4Runner onto a single axle tow dolly 

rented from U-Haul and attached to a Dodge Ram pickup truck by U-Haul 

personnel, Mathew Delcollo and Joshua Wing embarked on a road trip 

from Oregon to Texas. While traveling on an Arizona highway on the 

second day of their journey, Delcollo lost control of the Dodge Ram and the

vehicle combination (pickup truck and tow dolly) careened off the highway

and repeatedly rolled. Wing was ejected from the truck and sustained 

severe injuries, including paralysis. 

¶3 The Wings sued U-Haul, alleging the tow dolly’s lack of 

brakes substantially contributed to the accident. Following protracted 

litigation, the superior court granted the Wings’ motion for partial 

summary judgment and found, as a matter of law, that A.R.S. § 28-952(A)(3) 

required the tow dolly at issue “to be equipped with brakes.” At trial, the 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

3

parties presented competing expert opinion testimony on the primary issue 

―whether the absence of tow dolly brakes caused and/or contributed to the 

accident. After a 14-day trial, the jurors returned a general verdict in favor 

of U-Haul. In its final judgment, the superior court confirmed the jury’s 

defense verdict and awarded U-Haul its taxable costs. The Wings timely 

appealed. 

DISCUSSION

¶4 The Wings argue the jury’s verdict, upon which the judgment 

is based, must be overturned because the superior court: (1) provided 

erroneous negligence per se jury instructions; (2) improperly excluded 

evidence that U-Haul’s representatives lied to the Arizona legislature when 

they lobbied to amend A.R.S. § 28-952; and (3) erroneously excluded 

evidence of other similar accidents. We address each claim in turn.

I. Negligence Per Se Jury Instructions

¶5 The Wings contend the superior court included erroneous 

language in its preliminary and final instructions to the jury on negligence 

per se. According to the Wings, these erroneous instructions allowed 

U-Haul to improperly argue that it was not at fault for violating the 

statutory brake requirement. In response, U-Haul argues: (1) the given

instructions properly stated the law; (2) the Wings waived their challenge 

by failing to move for a new trial; and (3) the Wings were not entitled to 

negligence per se instructions and therefore any error in the given 

instructions was necessarily harmless. 

¶6 Based on the superior court’s partial summary judgment 

ruling that U-Haul was statutorily required to equip the tow dolly at issue

with brakes, the Wings proposed the following preliminary instructions:

On Plaintiffs’ claim of fault for negligence per se, Plaintiffs 

have the burden of proving:

1. U-Haul[‘s] negligence was a cause of Plaintiffs’ injuries; 

and 

2. Plaintiffs’ damages. 

. . . 

NEGLIGENCE 1 Violation of Statute (Negligence Per Se)
WING, et al. v. U-HAUL, et al. 

Decision of the Court

4

I am now going to instruct you on certain laws of the State of 

Arizona. When a person violates these laws, that person is 

negligent.

When it is operated on a highway, a trailer or semitrailer with 

a gross weight of three thousand pounds or more shall be 

equipped with brakes that are adequate to control the 

movement of and to stop and to hold the vehicle.

It has been established as a matter of law that Defendants’ tow 

dolly at issue in this case was a trailer or semitrailer, had a 

gross weight of three thousand pounds or more, and was 

required to be equipped with brakes that were adequate to 

control the movement of and to stop and to hold the vehicle.

The tow dolly at issue in this case was not equipped with 

brakes.

You should determine whether Defendants’ negligence was a 

cause of injury to Plaintiffs. 

¶7 U-Haul objected to the proposed instructions, primarily 

challenging the superior court’s ruling that the tow dolly was subject to 

A.R.S. § 28-952(A)(3)’s brake requirement. Without relinquishing that

claim, U-Haul urged the court to include language that would permit the

jury “to find that the [statutory] violation was excusable.” In response, the 

Wings argued that inclusion of “excuse” language was inappropriate 

because U-Haul had made no attempt to comply with the statutory 

requirement. 

¶8 Acknowledging that “excuse” language did not entirely “fit” 

the “facts” of the case, the superior court nonetheless “err[ed] on the side of 

caution” and fashioned the following negligence per se preliminary 

instruction for the jury:

It has been established as a matter of law that the tow dolly in 

this case loaded with a Toyota [4R]unner, which exceeded a 

total weight of 3,000 pounds, was required to be equipped 

with brakes that were adequate to control the movement of 

and to stop and to hold the vehicle and that were designed to 

either be applied by the driver of the towing motor vehicle 

from its cab or be of a type that operates automatically when 

the service brakes of the towing motor vehicle are applied. 

The tow dolly in this case was not equipped with brakes.
WING, et al. v. U-HAUL, et al. 

Decision of the Court

5

Defendants have the burden of proving that their failure to 

equip the tow dolly with brakes as required by law was not 

Defendants’ fault. If Defendants do not meet their burden, 

then on Plaintiffs’ claim of fault for negligence per se, 

Plaintiffs have the burden of proving:

1. U-Haul[‘s] negligence was a cause of Plaintiffs’ injuries; 

and

2. Plaintiffs’ damages. 

¶9 During opening statements, defense counsel told the jurors 

the evidence would show that U-Haul’s tow dolly was safe and “didn’t 

need brakes.” According to defense counsel, the statutory requirement for 

brakes was enacted to ensure that vehicles meet a certain “stopping 

distance standard,” and because the tow dolly design met that standard, 

brakes were unnecessary. In addition, and notwithstanding the superior 

court’s partial summary judgment ruling, defense counsel presented the 

jury with U-Haul’s understanding that A.R.S. § 28-952 does not apply to 

tow dollies. 

¶10 Consistent with this opening statement, defense counsel 

elicited testimony from both U-Haul’s chairman and director of 

engineering that, to their knowledge, no individual or entity had previously 

asserted tow dollies are subject to A.R.S. § 28-952. In fact, when questioned 

specifically about governmental regulation, the chairman testified that no 

law enforcement authority had ever cited U-Haul or a renting customer for 

operating tow dollies in Arizona without brakes.

¶11 Over the Wings’ objection, the superior court provided the 

jury the following final instruction regarding negligence per se:

Violation of Statute

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 Defendants’ negligence was a 

cause of injury to Plaintiffs.

When it is operated on a highway, a trailer or semitrailer with 

a gross weight of three thousand pounds or more shall be 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

6

equipped with brakes that are adequate to control the 

movement of and to stop and to hold the vehicle.

This Court has already determined as a matter of law that this 

tow dolly, under the laws of the State of Arizona, was 

required to be equipped with brakes.

The tow dolly in this case did not have brakes. Ignorance of 

the law is not an excuse for a violation of the law.

Defendants have the burden of proving that their failure to 

equip the tow dolly with brakes was not Defendants’ fault. If 

Defendants do not meet their burden, then on Plaintiffs’ claim 

of fault for violation of the statute, Plaintiffs have the burden 

of proving:

1. U-Haul[‘s] negligence was a cause of Plaintiffs’ injuries; 

and

2. Plaintiffs’ damages. 

¶12 Alluding to this final jury instruction during closing 

argument, defense counsel told the jurors that U-Haul disagreed with the 

superior court’s ruling that tow dollies are statutorily required to have 

brakes. Citing the trial testimony that no governmental entity had 

previously applied the statutory brake requirement to tow dollies, defense

counsel asserted no fault could be ascribed to U-Haul for its failure to install

brakes on the tow dolly at issue. 

¶13 We review de novo whether jury instructions accurately state 

the law. Stafford v. Burns, 241 Ariz. 474, 478, ¶ 10 (App. 2017). In assessing 

accuracy, “the test is whether, considering the instructions as a whole, the 

challenged instructions mislead the jury as to the proper rules of law.” Life 

Inv’rs Ins. Co. of Am. v. Horizon Res. Bethany, Ltd., 182 Ariz. 529, 532 (App. 

1995) (internal quotation omitted). “An instruction will warrant reversal 

only if it was both harmful to the complaining party and directly contrary 

to the rule of law.” State Farm Fire & Cas. In. Co. v. Grabowski, 214 Ariz. 188, 

192, ¶ 13 (App. 2007). “We will not overturn a jury verdict on the basis of 

an improper instruction unless there is substantial doubt regarding 

whether the jury was properly guided in its deliberations.” Id.

¶14 Negligent conduct “falls below the standard established by 

law” to protect “others against unreasonable risk of harm.” Tellez v. Saban, 

188 Ariz. 165, 169 (App. 1996). Upon determining that a “statute’s purpose 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

7

is in part to protect a class of persons that includes the plaintiff” from “the 

type of harm that occurred,” a court may adopt the statute as the relevant 

standard of care in a negligence action. Id.

¶15 The negligence per se doctrine allows a plaintiff to establish 

the elements of duty and breach in a negligence claim by proving the 

defendant violated the statute that supplies the relevant duty of care. See

Crown v. Raymond, 159 Ariz. 87, 89 (App. 1988). “Violation of the statute 

thus stamps the defendant’s conduct as negligence per se[] but will not 

render the defendant liable to the plaintiff unless the violation is the legal 

cause of the plaintiff’s injury and no other defenses negate liability.” Tellez, 

188 Ariz. at 169 (internal quotation omitted).

¶16 To evaluate whether the challenged instructions correctly 

informed the jurors that a party may overcome a technical violation of the 

statutory brake requirement by demonstrating lack of fault for noncompliance, we consider a series of cases involving negligence per se under 

A.R.S. § 28-952. In Dayton v. Palmer, 1 Ariz. App. 184, 185 (1965), a driver 

caused an accident after his brakes failed. Notwithstanding the driver’s 

technical violation of A.R.S. § 28-952, the superior court denied the 

plaintiff’s motion for a directed verdict on negligence. Id. On appeal, this 

court upheld the superior court’s denial, reasoning the specific facts of the 

case presented “sufficient evidence of lack of fault on the [driver’s] part to 

present a jury question on liability.” Id. at 187. In reaching this conclusion, 

the court acknowledged that a violation of A.R.S. § 28-952 constitutes 

negligence per se, but determined that “the mere fact that [a] defendant’s 

brakes failed is not necessarily a violation within the intended meaning of 

[the statute] when there was sufficient evidence from which the jury might 

find that the brake failure was not due to any fault of the defendant.” Id.

Likewise, in O’Donnell v. Maves, 108 Ariz. 98, 99 (1972), the supreme court 

upheld the denial of a directed verdict on an A.R.S. § 28-952 violation, 

explaining a directed verdict is only warranted when the defendant admits 

the violation and “fails to offer any legal excuse” for the negligence. In that 

case, the defendant’s brakes “had failed due to a rupture caused by the 

rubbing of the gasoline tank against the brake line,” a circumstance the 

defendant could not have reasonably detected. Id. The supreme court held 

that once a technical violation of A.R.S. § 28-952 has been established, “the 

burden shifts to [the] defendant” to prove “his failure to comply with the 

statute was without fault.” Id. at 100. “[I]f there is sufficient evidence from 

which the jury could find that the brake failure was not due to the fault of 

the defendant, it then becomes a question of fact for the jury to decide 

whether fault in fact existed.” Id.
WING, et al. v. U-HAUL, et al. 

Decision of the Court

8

¶17 Turning from cases involving requests for directed verdicts to 

requests for jury instructions, in Platt v. Gould, 26 Ariz. App. 315, 316 (1976), 

the defendant had trouble with her brakes the day before she caused the 

accident at issue. After a jury verdict for the plaintiff, the defendant 

appealed the denial of her request for a jury instruction that a brake failure, 

alone, is not a violation of A.R.S. § 28-952. Id. This court upheld the denial 

of her requested instruction, holding a violation of A.R.S. § 28-952, absent 

some “legal excuse,” constitutes negligence as a matter of law, and the 

defendant’s prior knowledge of her brake problem foreclosed any “issue of 

legal excuse to submit to the jury.” Id. at 316–17. By comparison, in Bliss v. 

Treece, 134 Ariz. 516, 518 (1983), the defendant was unable to prevent his 

vehicle’s collision with the plaintiff’s car, notwithstanding his application 

of his vehicle’s brakes. After a defense verdict, the plaintiff appealed the 

superior court’s denial of her request for a negligence per se instruction. Id.

at 517, 520. The supreme court affirmed, however, concluding there was no 

clear evidence of brake failure, and reasoning that “the legislature intended 

to impose liability only if the motorist knew or should have known of the 

problem and/or otherwise failed to operate or maintain his brakes in a 

reasonable manner.” Id. at 520.

¶18 Distilled, these cases hold that a violation of A.R.S. § 28-952 is 

negligence per se, but such statutory non-compliance may be excused when 

a defendant, though diligent and reasonable, was unable to comply with 

the statute. See Brannigan v. Raybuck, 136 Ariz. 513, 517 (1983). In other 

words, when circumstances beyond a defendant’s knowledge or control 

prevent compliance, the statutory violation is legally excused. See id.

Importantly, none of these cases suggest a statutory violation is legally 

excused when a defendant is merely ignorant of the law or the scope of its 

application.

¶19 Read in light of these cases, the superior court’s negligence 

per se jury instructions correctly stated the law. In both the preliminary and 

final instructions, the court told the jurors that U-Haul had violated the law 

by failing to equip the tow dolly at issue with brakes and therefore bore the 

burden of proving that it was not at fault for its statutory non-compliance.

These instructions are entirely consistent with the governing caselaw.

¶20 The Wings do not contest the legal accuracy of the given 

instructions. Rather, the Wings contend, as a matter of law, that U-Haul was 

not entitled to legal excuse language because no evidence supported a 

finding that U-Haul had reasonably and diligently attempted to comply 

with the law and somehow failed to do so through no fault of its own. 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

9

¶21 While a party must move for a new trial to preserve a claim 

that insufficient evidence supported a given jury instruction, a purely legal 

challenge to a jury instruction may be preserved for appellate review 

through a specific objection in the superior court. See A.R.S. § 12-2102(A) 

(“Upon an appeal from a final judgment, the supreme court shall review 

any intermediate orders involving the merits of the action and necessarily 

affecting the judgment, and all orders and rulings assigned as error, 

whether a motion for a new trial was made or not.”); see also Lewis v. S. Pac. 

Co., 105 Ariz. 582, 583 (1970) (explaining a party need not move for a new 

trial to preserve a challenge to “the legality” of given instructions on 

appeal).

¶22 In this case, U-Haul failed to present any evidence that it 

attempted to comply with A.R.S. § 28-952 but was unable to do so. Instead, 

and notwithstanding the superior court’s partial summary judgment 

ruling, U-Haul argued A.R.S. § 28-952 does not apply to tow dollies, or at a 

minimum, that U-Haul reasonably believed it does not. Although U-Haul 

admitted it was aware of the statutory brake requirement and asserted it 

complied with A.R.S. § 28-952 with respect to its other rental vehicles, at its 

core, U-Haul nonetheless presented an “ignorance of the law” argument. In 

other words, defense counsel put forward an alternative interpretation of 

A.R.S. § 28-952 that absolved U-Haul of fault and argued U-Haul’s 

ignorance of the scope and application of the statute was excusable. This is 

not the type of “legal excuse” contemplated by any of the controlling 

caselaw. Instead, read together, the cases stand only for the proposition that 

an inability to comply with the statute, notwithstanding one’s diligent and 

reasonable attempts to do so, may be excused. In contrast to the controlling 

caselaw, U-Haul, without question, made no attempt to comply with A.R.S. 

§ 28-952 with respect to its tow dollies, having previously adopted a policy 

to systematically remove its tow dollies’ brakes. 

¶23 Because U-Haul failed to present the type of evidence that 

could support a legal excuse instruction, the superior court did not engage 

in a qualitative evidentiary inquiry to evaluate U-Haul’s request for “no 

fault” language, and therefore the Wings were not required to move for a

new trial to preserve their challenge. On this record, and as a matter of law, 

the inclusion of the “no fault” language in the negligence per se jury 

instructions was legally incorrect.

¶24 Nonetheless, asserting the Wings were not entitled to 

negligence per se jury instructions, U-Haul argues any error in the given 

instructions was necessarily harmless. Specifically, U-Haul contends, as it 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

10

did in opposition to the motion for partial summary judgment, that tow 

dollies are not subject to A.R.S. § 28-952’s brake requirement. 

¶25 “We interpret statutes and review summary judgment rulings 

de novo.” Wilks v. Manobianco, 237 Ariz. 443, 446, ¶ 8 (2015). “When 

interpreting a statute, our primary goal is to give effect to the legislature’s 

intent.” Id. (internal quotation omitted). “We derive that intent by 

examining the statute’s language; if the language is ambiguous, we look to 

the statute’s history, context, consequences, and purpose.” Id. When 

statutes relate to the same subject or the same general purpose, they 

“should be read in connection with, or should be construed with other 

related statutes, as though they constituted one law.” Pinal Vista Properties, 

L.L.C. v. Turnbull, 208 Ariz. 188, 190, ¶ 10 (App. 2004) (internal quotation 

omitted). “Further, each word or phrase of a statute must be given meaning 

so that no part is rendered void, superfluous, contradictory or 

insignificant.” Id. (internal quotation omitted).

¶26 Under A.R.S. § 28-952(A)(3), trailers and semitrailers operated 

on highways, “with a gross weight of three thousand pounds,” must “be 

equipped with brakes that are adequate to control the movement of and to 

stop and to hold the vehicle.” To comply with the statute, the brakes must 

be “designed to either be applied by the driver of the towing motor vehicle 

from its cab or be of a type that operates automatically when the service 

brakes of the towing motor vehicle are applied.” Id. 

¶27 Pursuant to the definitional statutes in effect at the time of the 

accident: (1) a “vehicle” is “a device in, on or by which a person or property 

is or may be transported or drawn on a public highway”; (2) a “semitrailer” 

is “a vehicle that is with or without motive power, other than a pole trailer, 

that is designed for carrying persons or property and for being drawn by a 

motor vehicle and that is constructed so that some part of its weight and 

that of its load rests on or is carried by another vehicle”; and (3) a “trailer” 

is “a vehicle that is with or without motive power, other than a pole trailer, 

that is designed for carrying persons or property and for being drawn by a 

motor vehicle and that is constructed so that no part of its weight rests on 

the towing vehicle.” A.R.S. § 28-101(48), (55), (58) (2013); 2013 Ariz. Sess. 

Laws, ch. 129, § 1. 

¶28 Reading A.R.S. § 28-952(A)(3) in light of these definitional 

provisions, a device that is designed to be drawn by a motor vehicle and 

carry persons or property, whether some or none of its weight rests on a 

towing vehicle, must be equipped with brakes when operated on highways 

if the total weight of the loaded device is three thousand pounds or more. 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

11

It is undisputed that tow dollies are devices designed to be drawn by a 

motor vehicle and transport property. Therefore, on its face and given a 

plain reading, A.R.S. § 28-952(A)(3) encompasses tow dollies, whether 

classified as trailers or semitrailers.

¶29 Despite the broad statutory definitions of vehicle, semitrailer, 

and trailer set forth in A.R.S. § 28-101 (2013), U-Haul contends that other, 

related statutory language clarifies that a tow dolly may not be classified as 

a trailer or semitrailer. First, U-Haul points to A.R.S. § 28-101(55)’s 

definition of trailer, which also states that a “semitrailer equipped with an 

auxiliary front axle commonly known as a dolly is deemed to be a trailer.” 

2013 Ariz. Sess. Laws, ch. 129, § 1. According to U-Haul, this additional 

language in the definitional provision demonstrates that a tow dolly is 

statutorily distinct from a semitrailer or trailer. Advancing the same 

reasoning, U-Haul cites A.R.S. § 28-1095(G)(1), which states that the 

limitations on the length of various trailer and semitrailer combinations set 

forth in subsections (B) and (C) do not preclude a motor vehicle from 

pulling “one single-axle tow dolly on which a motor vehicle may be 

transported.” While these provisions demonstrate that a tow dolly is not

statutorily synonymous with a trailer or a semitrailer, neither statute 

excludes tow dollies from either the semitrailer or trailer classifications. 

Instead, read in harmony with A.R.S. § 28-101’s other provisions clearly 

encompassing a tow dolly, the language cited in A.R.S. §§ 28-101(55), 

-1095(G) reflects that tow dollies fall within a subset category of either 

trailers or semitrailers. 

¶30 Furthermore, as noted by the Wings, had the Arizona 

legislature intended to exempt tow dollies from the statutory brake 

requirement, it could have expressly done so. For example, in A.R.S. 

§ 28-2153(A) and A.R.S. § 28-2153(D)(8)(d), the legislature made clear that 

single axle tow dollies are not subject to the general registration 

requirement for motor vehicles, trailers, and semitrailers. Likewise, the 

statutory definitions of semi-trailer and trailer set forth in A.R.S. 

§ 28-101(48) and A.R.S. § 28-101(55) expressly exclude pole trailers, 

demonstrating that the legislature contemplated the vehicles that fell within 

those broad definitions and opted to exempt only one.

¶31 Given the plain language of A.R.S. § 28-952(A)(3), the 

definitional provisions in effect at the time of the accident, and the broader 

statutory scheme regulating transportation, the tow dolly at issue was 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

12

statutorily required to be equipped with brakes.1 Therefore, contrary to 

U-Haul’s contention, the superior court did not err by providing negligence 

per se jury instructions, but, as noted above, its inclusion of legal excuse 

language was erroneous. Specifically, the portion of the instruction stating, 

“Defendants have the burden of proving that their failure to equip the tow 

dolly with brakes was not the Defendants’ fault,” was incorrect.

¶32 Citing Golonka v. Gen. Motors Corp., 204 Ariz. 575, 584, ¶ 27 

(App. 2003) and Gomulka v. Yavapai Mach. & Auto Parts, Inc., 155 Ariz. 239, 

242–43 (App. 1987), U-Haul contends the jury’s defense verdict on the 

Wings’ product liability claim refutes any argument that the jurors may 

have reached a different verdict on the Wings’ negligence per se claim had 

the superior court provided proper jury instructions. The cases U-Haul cites 

are inapposite, however, and stand only for the proposition that a jury 

cannot logically and consistently find for a defendant on a claim of strict 

liability while simultaneously finding for a plaintiff on a claim of negligent 

design. Golonka, 204 Ariz. at 584, ¶ 27; Gomulka, 204 Ariz. at 243. Had the 

jurors properly been instructed in this case that the negligence elements of 

duty and breach had been categorically established, they may have found 

that the Wings proved causation on the negligence per se claim—without 

contradicting their verdict on the strict liability claim. Likewise, U-Haul’s 

reliance on Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 341 (App. 

1983), for the proposition that the instructional error at issue was harmless, 

is misplaced. In that case, this court upheld the superior court’s denial of a 

defense motion for a judgment as a matter of law after several counts were 

submitted to the jury and the jurors returned a general verdict against the 

defense. Id. In affirming the court’s denial, we noted that the general verdict 

could be upheld if there was sufficient evidence to sustain the verdict on 

any count, even if there was insufficient evidence to sustain the verdict on 

other counts. Id. In this case, the inverse is true—the general verdict for the 

defense must be overturned if the instructional error invalidated the verdict 

as to any count.

¶33 On this record, we cannot say that the errant jury instructions 

were harmless. Had the jurors properly been instructed, the only issue 

before them on the Wings’ negligence per se claim would have been 

causation (as relevant here, damages were not disputed). Because the 

parties submitted competing expert opinion testimony regarding 

causation, it is not clear on this record that the jury would have returned a 

1 Although U-Haul initially challenged the superior court’s partial 

summary judgment ruling that the loaded tow dolly at issue weighed in 

excess of 3,000 pounds, it has not challenged that ruling on appeal. 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

13

general defense verdict absent the faulty instruction. Therefore, reversal is 

warranted. See Salt River Project Agric. Imp. and Power Dist. v. Westinghouse 

Elec. Corp., 176 Ariz. 383, 388 (App. 1993) (“Whe[n] an erroneous instruction 

has been given on the law, and a correct instruction might have produced 

a different result, the error is not cured by the fact that the jury might have 

found for the prevailing party on some basis unaffected by the error.”) 

(internal quotation omitted).

II. Evidence of Legislative Lobbying

¶34 The Wings contend the superior court improperly excluded 

evidence that a U-Haul representative lobbied the Arizona legislature to 

amend A.R.S. § 28-101’s definitions of semitrailer and trailer to expressly 

exclude tow dollies. In making this claim, the Wings challenge both the 

court’s initial determination that the lobbying evidence was irrelevant, 

post-accident conduct and its subsequent finding that U-Haul did not 

“open the door” to the evidence at trial. 

¶35 While the parties litigated the Wings’ motion for partial 

summary judgment on the scope and application of A.R.S. § 28-952(A)(3), a 

lobbyist representing U-Haul appeared before a legislative committee and 

introduced a bill to amend the statutory definitions of trailer and 

semitrailer. Before voting on the measure, a legislator specifically asked the 

lobbyist, for purposes of “full disclosure,” whether any event had 

precipitated U-Haul’s interest in the amendment. In response, the lobbyist 

did not advise of pending litigation concerning this issue but told the 

committee that U-Haul had simply reviewed the statutes governing 

transportation in the ordinary course of business and determined the 

definitional provisions required clarification. The legislature later amended 

the statute as requested by U-Haul.

¶36 During pretrial litigation, U-Haul moved in limine to exclude 

any evidence of its lobbying efforts. The Wings, in turn, moved in limine to 

exclude any evidence of the statutory amendments to A.R.S. § 28-101. After 

a hearing, the superior court granted both motions.

¶37 At trial, the Wings’ attorney called U-Haul’s director of 

engineering to testify and asked about the tow dolly’s design, eliciting an 

admission that U-Haul had never conducted testing to determine whether 

tow dollies would be safer with a brake system. Although the director

acknowledged that brakes “shorten the stopping distance,” he testified that 

brakes can cause “many problems.” Shortly after this exchange, the Wings’ 

attorney asked the director how U-Haul had responded after discovering it 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

14

had been found in violation of the statutory brake requirement. Over 

defense counsel’s objection, the director stated that U-Haul did not 

implement any changes. 

¶38 As a follow-up, the Wings’ attorney asked whether U-Haul 

had conducted any studies to determine the expense of bringing the tow 

dollies into statutory compliance, and the director testified he was not 

aware of any such report. On cross-examination, however, the director 

testified that since the superior court’s A.R.S. § 28-952 partial summary 

judgment ruling, U-Haul had investigated and evaluated a variety of 

braking systems, claiming that U-Haul was “actively looking” for a 

functional tow dolly brake. Likewise, when later asked whether tow dollies 

are safer with brakes, U-Haul’s chairman testified that the company had a 

team of employees researching a tow dolly braking system. 

¶39 Based on this testimony, the Wings urged the superior court 

to reconsider its pretrial ruling precluding the lobbying evidence, arguing 

U-Haul had moved “the goal posts” by introducing evidence of its postaccident efforts to comply with the statute. Specifically, the Wings asked 

the court to admit the lobbying evidence to impeach the director and 

chairman’s testimony that U-Haul had actively attempted to comply with 

the statutory brake requirement after the court’s partial summary judgment 

ruling. The court denied the Wings’ request, finding the lobbying evidence 

did not directly contradict the challenged testimony. The court also 

reaffirmed its earlier findings that the lobbying evidence was irrelevant and 

unfairly prejudicial. 

¶40 “We review evidentiary rulings for an abuse of discretion and 

generally affirm a [superior] court’s admission or exclusion of evidence 

absent a clear abuse or legal error and resulting prejudice.” John C. Lincoln 

Hosp. & Health Corp. v. Maricopa Cty., 208 Ariz. 532, 543, ¶ 33 (App. 2004).

Prejudice from the erroneous exclusion of evidence “will not be presumed 

but must be evident from the record.” Town of Paradise Valley v. Laughlin, 

174 Ariz. 484, 487 (App. 1992). In other words, “an error is harmless if there 

is no reasonable probability the verdict might have been different.” Id.

¶41 Relevant evidence is admissible unless it is otherwise 

precluded by the federal or state constitution, an applicable statute, or rule. 

Ariz. R. Evid. 402. Evidence is relevant if it has “any tendency” to make a 

fact of consequence in determining the action “more or less probable than 

it would be without the evidence.” Ariz. R. Evid. 401. Nonetheless, even 

relevant evidence “may be excluded if its probative value is substantially 

outweighed by [the] danger of . . . unfair prejudice.” Ariz. R. Evid. 403.
WING, et al. v. U-HAUL, et al. 

Decision of the Court

15

¶42 Applying these rules here, the lobbying evidence did not tend 

to prove any element of the Wings’ claims or otherwise make any fact of 

consequence in the action more or less probable. That is, evidence of 

U-Haul’s post-accident efforts to amend the governing statutes neither 

increased nor decreased the probability that U-Haul violated the statutory 

brake requirement without legal excuse. At trial, U-Haul asserted it 

reasonably believed tow dollies were exempt from the statutory brake 

requirement and maintained that no individual or entity had ever claimed 

otherwise. Contrary to the Wings’ contention, U-Haul’s efforts to lobby the 

legislature to amend the relevant statutes after the Wings’ filed the 

underlying complaint have no bearing on the reasonableness of U-Haul’s 

purported belief, at the time of the accident, that tow dollies were exempt 

from the statutory brake requirement. Moreover, as reflected in their 

statements to the superior court and their appellate briefing, the Wings 

intended to use the evidence for an improper purpose—to show that 

U-Haul’s representative was dishonest with the legislature—not to prove 

that U-Haul knew tow dollies were subject to the statutory brake 

requirement at the time of the accident. Therefore, on this record, the 

superior court did not abuse its discretion by excluding the lobbying 

evidence as both irrelevant and unfairly prejudicial.

¶43 Nonetheless, the Wings argue the superior court improperly

precluded them from using the lobbying evidence to impeach U-Haul’s 

representatives at trial. Specifically, the Wings contend U-Haul “opened the 

door” to the lobbying evidence when its representatives testified that the 

company had actively investigated tow dolly brake systems after the court’s 

A.R.S. § 28-952 partial summary judgment ruling. According to the Wings, 

the lobbying evidence was necessary to refute the suggestion that U-Haul 

had attempted to bring its tow dollies into statutory compliance when, in 

fact, the reverse was true—U-Haul had successfully lobbied to amend the 

law and bring the governing statutes into conformity with U-Haul’s 

practices. 

¶44 When “one party injects improper or irrelevant evidence or 

argument, the ‘door is open,’ and the other party may have a right to 

retaliate by responding with comments or evidence on the same subject.” 

Pool v. Superior Court, 139 Ariz. 98, 103 (1984) (citations omitted). “The rule 

is most often applied to situations where evidence adduced or comments 

made by one party make otherwise irrelevant evidence highly relevant or 

require some response or rebuttal.” Id.

¶45 Notwithstanding the Wings’ contention that U-Haul “opened 

the door” to the lobbying evidence, the record reflects that the Wings’ 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

16

attorney, not defense counsel, first posed questions regarding U-Haul’s 

post-accident conduct. These initial questions improperly called for 

information about subsequent remedial measures and defense counsel’s 

objection should have been sustained. Ariz. R. Evid. 407. While defense 

counsel followed up on that line of questioning, he did not materially 

broaden the scope of the inquiry beyond what had been posed on direct 

examination. A party may not circumvent a preclusive evidentiary ruling 

by questioning witnesses about tangentially-related matters and then 

arguing that follow-up questions on cross-examination, which did not 

broaden the scope of the initial questioning, “opened the door” to the 

precluded evidence. 

¶46 Furthermore, we reject the Wings’ assertion that the lobbying 

evidence was admissible for impeachment purposes. While the chairman 

and director testified that U-Haul actively pursued tow dolly braking 

systems in response to the superior court’s A.R.S. § 28-952 partial summary 

judgment ruling, neither denied that U-Haul had engaged in lobbying 

efforts. Stated differently, the lobbying evidence does not directly 

controvert the chairman and director’s testimony that U-Haul researched 

and evaluated various tow dolly brake systems.

¶47 In summary, U-Haul’s post-accident conduct was irrelevant 

to the Wings’ claims and the probative value of the lobbying evidence was 

outweighed by its prejudicial effect. To the extent U-Haul’s representatives 

testified to matters tangentially-related to the lobbying evidence, they did 

so in response to a line of questioning first posed by the Wings’ attorney, 

and the lobbying evidence did not directly contradict their testimony. 

Therefore, the superior court did not abuse its discretion by precluding the 

lobbying evidence.

III. Evidence of Similar Incidents

¶48 The Wings contend the superior court made a series of 

improper evidentiary rulings regarding other similar tow dolly incidents. 

Although the Wings do not challenge the court’s initial ruling excluding 

such evidence, they argue the court improperly: (1) permitted a U-Haul 

witness to testify that he was unaware of any similar tow dolly incidents; 

(2) precluded the Wings’ attorney from confronting a U-Haul witness with 

statistical evidence of similar incidents; and (3) allowed defense counsel to 

argue in closing that the Wings had failed to present any evidence of similar 

incidents. 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

17

¶49 Before trial, U-Haul moved in limine to exclude evidence of 

any other tow dolly accidents, incidents, claims, or lawsuits. In response, 

the Wings avowed they would not “introduce . . . the details of another 

accident” but asserted statistical evidence—demonstrating that nearly all 

“loss of control tow dolly accidents” occurred when a passenger vehicle, 

sport-utility vehicle, or pickup truck pulled a tow dolly rather than a sixwheel truck—was admissible. After oral argument, the superior court 

granted U-Haul’s motion in part, precluding evidence of specific tow dolly 

incidents unless the Wings showed “sufficient similarity” but expressly 

authorizing the use of statistical evidence to demonstrate U-Haul’s 

knowledge of tow dolly safety. 

¶50 At trial, the Wings’ attorney questioned the engineering 

director regarding a study that purportedly showed 99 percent of U-Haul 

tow dolly accidents involve passenger vehicles. In response, the director

testified that the study was not consistent with his “own experience” and 

explained that U-Haul’s “accident statistics” were “very low” compared to 

national standards and other companies. When pressed, however, the 

director acknowledged he did not have any data comparing the percentage 

of tow dolly accidents that involved “passenger vehicles” with “six wheel 

trucks.” 

¶51 Later, defense counsel called the former president of the 

U-Haul Company of Oregon to testify and asked him whether, based on his 

own experience, U-Haul’s tow dollies are safe. Although the former 

president expressly disclaimed any mechanical or engineering expertise, he 

testified that he and his family members have used tow dollies and, based 

on his personal experience, he believes that they are safe. Defense counsel 

then asked the former president whether he was personally aware of any 

tow dolly accidents involving injury or death, and he testified, without 

objection, that he was not aware of any such accidents occurring in Oregon.

On cross-examination, defense counsel objected when the Wings’ attorney 

attempted to impeach the former president’s testimony with statistical 

evidence of tow dolly accidents. At a sidebar, the superior court 

admonished the Wings’ attorney that he could only use the statistical 

evidence to impeach the former president’s testimony if it specifically 

related to tow dolly accidents in Oregon. When cross-examination 

resumed, the Wings’ attorney moved to another line of questioning. 

¶52 During closing argument, defense counsel challenged the 

Wings’ safety expert’s testimony that U-Haul’s tow dollies were unsafe and 

“the worst,” noting the Wings had failed to present any evidence of other 

lawsuits involving U-Haul’s tow dollies. Overruling the Wing’s objection, 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

18

the superior court stated the jury had “heard the evidence” and “[t]his is 

argument.” Moments later, at the outset of rebuttal, the Wings’ attorney 

told the jurors that he “would love to talk . . . about other accidents” but 

could not because “[t]hey’re not admissible in this case.” Arguing defense 

counsel “knew” evidence of other incidents was inadmissible, the Wings’ 

attorney asserted defense counsel had “attempt[ed] to mislead” the jurors. 

¶53 First, the Wings contend the superior court improperly 

permitted the former president to testify that he was unaware of any tow

dolly incidents in Oregon. We are perplexed that the court allowed a fact 

witness to testify regarding his personal belief in the safety of U-Haul tow 

dollies and general lack of knowledge of tow dolly accidents in Oregon. 

However, the Wings failed to object to the testimony that they now allege 

was improper, and therefore waived the issue on appeal. See Sobol v. Marsh, 

212 Ariz. 301, 303, ¶ 7 (App. 2006).

¶54 Second, the Wings argue the superior court improperly 

precluded them from impeaching the former president’s testimony with 

statistical evidence. The record reflects that the court instructed the Wings’ 

attorney that he could confront the witness with statistical evidence if it 

related to the given testimony—the absence of tow dolly accidents in 

Oregon. This restriction denied the Wings’ attorney the ability to impeach 

the lay witness about the overall safety of the equipment based on the small 

sample size—the State of Oregon. The Wings should have been allowed to 

cross-examine this witness to demonstrate that the number of tow dolly 

accidents in Oregon or lack thereof is not consistent with the national 

average of accidents involving tow dollies. Again, this witness disclaimed 

being an expert and this entire line of questioning was improper. 

¶55 When questioning resumed, the Wings’ attorney moved on to 

another line of questioning. Because the statistical evidence did not 

controvert the witness’s testimony, it was not admissible for impeachment 

purposes. Moreover, as the Wings acknowledge, they had the opportunity 

to present the statistical evidence to the jury while questioning the director 

of engineering. 

¶56 Third, the Wings contend the superior court improperly 

permitted defense counsel to argue that the Wings’ failure to present 

evidence of other similar incidents negated their claim that U-Haul’s tow 

dollies are unsafe. Although the court’s pretrial ruling excluding evidence 

of other tow dolly incidents permitted the Wings to prove that particular 

incidents were sufficiently similar to warrant admission, and they failed to 
WING, et al. v. U-HAUL, et al. 

Decision of the Court

19

do so, defense counsel’s argument, at a minimum, violated the spirit of the 

ruling. 

CONCLUSION

¶57 For the foregoing reasons, we vacate the judgment and 

remand for a new trial on the Wings’ claim of negligence per se. Because it 

has not prevailed on appeal, we deny U-Haul’s request for an award of its 

appellate costs.