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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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
2

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.
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¶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 
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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. 
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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 
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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.
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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 
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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 
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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. 
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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[.]
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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. 
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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. 
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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.