NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS DIVISION ONE

ANDREA HAVEN, Plaintiff/Appellant,

v.

KEVIN R. TAYLOR and JANE DOE TAYLOR, husband and wife; TSI 

TOWER SERVICES, INC., an Arizona corporation, Defendants/Appellees.

No. 1 CA-CV 13-0337

Appeal from the Superior Court in Maricopa County

No. CV2007-022422

The Honorable J. Richard Gama, Judge

AFFIRMED

COUNSEL

Jack Levine, P.C., Phoenix

By Jack Levine

Skeens & Anderson, Glendale

By Norman E. Skeens

Co-Counsel for Plaintiff/Appellant

Schneider & Onofry, P.C., Phoenix

By Jon D. Schneider, Timothy B. O’Connor

Counsel for Defendants/Appellees
HAVEN v. TAYLOR et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which 

Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.

P O R T L E Y, Judge:

¶1 Andrea Haven (“Haven”) appeals the judgment after trial 

and the denial of a motion for new trial. She contends that the superior

court erred by excluding testimony, medical bills, and medical records 

from evidence. She also argues that insufficient evidence supports the 

jury’s verdict. Finding no error, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Kevin Taylor (“Taylor”) was driving a truck for his 

employer, TSI Tower Services, Inc., and attempted to turn left onto a road 

encircling the Fiesta Mall parking lot. The truck struck Haven when she 

walked in front of it and knocked her down. She was taken to the hospital 

by an ambulance and her husband took her home.

¶3 Haven, who had preexisting and radiating back pain,1

testified by deposition that the pain in her left leg was “very different” 

after the accident. She stopped working about three months after the 

accident, saw about seven doctors, and incurred some $80,000 in medical 

costs. 

¶4 After the discovery cutoff date, Taylor filed a motion in 

limine to limit the testimony of Haven’s primary care physician, Daniel 

Freberg, D.O., to his treatment of Haven because he had not been 

disclosed as an expert. The superior court granted the motion, but also 

ruled that the doctor could testify about the medical records from other 

 1 Haven’s lower back pain, which caused numbness to her left leg, started 

in 2001 and had been increasing over the years. Before the accident, she 

had been referred to surgeons, neurologists, and pain management 

experts; back surgery had been recommended; and she had missed several 

days of work due to the pain. The pain was getting worse just two days 

before the accident.
HAVEN v. TAYLOR et al.

Decision of the Court

3

doctors that he relied on and were in his file when last subpoenaed. The 

issue was unsuccessfully revisited during trial. As a result, Dr. Freberg 

did not testify that all of Haven’s medical records after the accident were 

related to the accident and a number of Haven’s medical bills and records

were excluded.2

¶5 The trial proceeded and the jury found Taylor was negligent 

and awarded Haven $20,000 in damages, but found that she was eightyfive percent at fault. Because Haven had rejected an Arizona Rule of Civil 

Procedure (“Rule”) 68 offer of judgment, Taylor was awarded $35,322.12. 

Haven filed an unsuccessful motion for new trial, and now appeals. 

DISCUSSION

I. Expert Witness Disclosure and Testimony

¶6 Haven first argues that the superior court erred by 

precluding Dr. Freberg from testifying about the medical bills from her 

other doctors, who were specialists. Specifically, she argues that her 

doctor should have been allowed to testify about all of her medical 

treatment after the accident, and that the bills were necessary, reasonable, 

and related to the accident.

¶7 We review the ruling excluding the testimony and exhibits

for an abuse of discretion and will affirm absent prejudice, Golanka v. 

General Motors Corp., 204 Ariz. 575, 580, ¶ 9, 65 P.3d 956, 961 (App. 2003), 

or the incorrect application of the law. Larsen v. Decker, 196 Ariz. 239, 241, 

¶ 6, 995 P.2d 281, 283 (App. 2000). We view the excluded evidence in the 

light most favorable to its proponent. Larsen, 196 Ariz. at 241, ¶ 6, 995 

P.2d at 283.

¶8 The superior court precluded Dr. Freberg from testifying 

that the bills and records from the other doctors were reasonable, 

 2 In her opening brief, Haven complains about the exclusion of the 

following numbered exhibits: 3-5, 7, 10, 12-18, 20-26, 28-35, 38-43, and 47. 

In her reply brief, she discusses the following exhibits: 12-43 and 46-48. 

The record indicates that exhibit 10 was admitted, so we need not consider 

arguments regarding it. Haven also disputes the admissibility of exhibits 

27, 46, and 48, but only raised the challenge in her reply brief. As a result, 

we will not consider the admissibility of those exhibits on appeal. ARCAP 

13(c) (“The appellant may file a reply brief, but it shall be confined strictly 

to rebuttal of points urged in the appellee’s brief.”). 
HAVEN v. TAYLOR et al.

Decision of the Court

4

necessary, and causally connected to the accident because Haven did not 

timely disclose that Dr. Freberg would be her expert or the substance of 

his opinions. When the issue resurfaced during trial, the court implicitly

agreed with Taylor that he would be prejudiced if Dr. Freberg were 

allowed to testify about the reasonableness and necessity of all Haven’s 

medical bills given that she had not disclosed that Dr. Freberg would be 

her expert or his expert opinions.

¶9 Rule 26.1 required Haven to disclose any expert witness she 

anticipated calling at trial, as well as “the subject matter on which the 

expert is expected to testify, the substance of the facts and opinions to

which the expert is expected to testify, [and] a summary of the grounds 

for each opinion.” See Ariz. R. Civ. P. 26.1(a)(6). She had a continuing 

duty to disclose any additional information, but needed to get the court’s 

permission if she wanted to use information that had not been disclosed 

sixty days before trial. See Ariz. R. Civ. P. 26.1(b)(2) (“A party seeking to 

use information which . . . [was] disclosed later than sixty (60) days before 

trial shall seek leave of court to extend the time for disclosure as provided 

in Rule 37(c)(2) or (c)(3).”). She could not use the late disclosed 

information unless the court found that the failure to timely disclose was

harmless or otherwise found good cause to grant relief and allow use of 

the late disclosed evidence. See Ariz. R. Civ. P. 37(c); see also Allstate Ins. 

Co. v. O’Toole, 182 Ariz. 284, 287-88, 896 P.2d 254, 257-58 (1995). 

¶10 Although Haven failed both to list Dr. Freberg as an expert 

witness and to disclose his opinions, she argues that she did not have to 

list him as an expert because he was her treating doctor. We disagree.

¶11 The substance of anticipated testimony governs whether a 

witness is a fact or expert witness. Sanchez v. Gama, 233 Ariz. 125, 131, 

¶ 16, 310 P.3d 1, 7 (App. 2013) (citing Gomez v. Rivera Rodriguez, 344 F.3d 

103, 113 (1st Cir. 2003)). Haven initially disclosed that Dr. Freberg was 

going to testify about his treatment of her; thus, at that point, he was a fact 

witness. See Sanchez, 233 Ariz. at 128, ¶ 8, 310 P.3d at 4 (“Fact-based 

testimony is derived from the five senses, i.e., what the treating doctor 

saw, heard, or felt, and typically is given in response to the ‘who, what, 

when, where and why’ questions.” (quoting State ex rel. Montgomery v. 

Whitten, 228 Ariz. 17, 21, ¶ 15, 262 P.3d 238, 242 (App. 2011))); see also 

Duquette v. Superior Court, 161 Ariz. 269, 271 n.2, 778 P.2d 634, 636 n.2 

(App. 1989) (“A plaintiff’s treating physician is not an expert witness 

within the meaning of Rule 26(b)(4) . . . because the facts known and 

opinions held by a treating physician are not acquired or developed in 

anticipation of litigation or for trial.” (internal quotation marks omitted)). 
HAVEN v. TAYLOR et al.

Decision of the Court

5

Haven, however, decided after the discovery cutoff that she wanted Dr. 

Freberg to review medical records and bills from the other doctors and 

opine that the treatment and bills were necessary, reasonable, and related 

to the accident.3 Thus, for these purposes, Dr. Freberg was an expert 

medical witness. See Sanchez, 233 Ariz. at 128, ¶ 9, 310 P.3d at 4

(“Testimony would constitute expert testimony . . . if the questions 

required ‘a physician to review records or testimony of another health 

care provider or to opine regarding the standard of care or treatment 

given by another provider.’” (quoting State ex rel. Montgomery, 228 Ariz. at

21, ¶ 16, 262 P.3d at 242)). 

¶12 The court advised the parties in its February 2012 minute 

entry that it would “not allow expert opinions to be admitted at the time 

of trial which have not been fairly disclosed [before] trial” and advised the 

parties “to prepare a comprehensive outline of each expert’s separate 

opinions and the factual/substantive basis for each such opinion.” 

(Emphasis omitted.) Haven never disclosed that Dr. Freberg would be 

called as a medical expert and did not disclose his expert report or any of 

his opinions on any update to the disclosure statement before trial. 

Taylor’s lawyer was told a month before trial that Dr. Freberg would 

testify about the other doctors’ treatment, records, and bills. Additionally, 

Haven never sought to expand the disclosure time period by filing a 

motion pursuant to Rule 37(c)(2). The court, as a result, did not abuse its 

discretion by limiting Dr. Freberg to testifying as a fact witness and 

precluding him from testifying that the medical records and bills from the 

other doctors were necessary, reasonable, and causally related to the 

accident. See Solimeno v. Yonan, 224 Ariz. 74, 78-81, ¶¶ 13-27, 227 P.3d 481, 

485-88 (App. 2010) (noting that the court properly excluded an expert’s 

testimony because his opinions and the facts relied on were not 

adequately disclosed); see also Link v. Pima Cnty., 193 Ariz. 336, 338-39, 

¶¶ 1, 8, 972 P.2d 669, 671-72 (App. 1998) (noting that trial court did not 

abuse its broad discretion by precluding testimony because the facts 

 3 In Larsen, we stated that foundation needs to demonstrate that “bills 

were caused by and were reasonable and necessary results of 

the . . . accident.” 196 Ariz. at 244, ¶ 21, 995 P.2d at 286. Although Larsen

did not specifically define the terms “reasonable” and “necessary,” the 

Utah Supreme Court in Gorostieta v. Parkinson, restated the general rule 

and then stated that “once injuries have been shown, evidence is required 

to show that the medical expenses accurately reflect the necessary 

treatment that resulted from the injuries and that the charges are 

reasonable.” 17 P.3d 1110, ¶ 35, 1117-18 (Utah 2000). 
HAVEN v. TAYLOR et al.

Decision of the Court

6

underlying an expert’s opinion were not disclosed until after the 

disclosure deadline).

II. Medical Bills

¶13 Haven also contends the court abused its discretion by 

refusing to allow the medical bills into evidence. She argues that the bills, 

which had been disclosed, should have been admitted without expert 

medical testimony to demonstrate the necessity of the medical care and

the reasonableness of the charges. She specifically claims that Larsen does 

not require foundational physician testimony when there is a clear causal 

connection between the injuries obtained and the resulting treatment

because the bills create an inference of necessity and reasonableness. We 

disagree.

¶14 Although there may be a case where medical testimony is 

not required to show the link between an accident and medical treatment, 

this is not the case. Here, the jury had to decide whether Haven’s injury 

from the accident had resolved, or whether the accident exacerbated her 

preexisting medical problems. The medical bills alone would not allow 

the jury to decide the issue without expert medical testimony because the 

jury would not know whether the bills reflected needed medical treatment 

for Haven’s preexisting condition, the accident, or any aggravation of her 

preexisting condition caused by the accident. See City of Scottsdale v. 

Kokaska, 17 Ariz. App. 120, 128, 495 P.2d 1327, 1335 (1972) (“[A] plaintiff 

[can] recover for any aggravation of a preexisting condition caused by a 

negligent defendant.”); cf. W. Bonded Prods. v. Indus. Comm’n, 132 Ariz. 526, 

528, 647 P.2d 657, 659 (App. 1982) (“While there may be other such injuries 

that are readily apparent to a layman, typical conditions of the back and 

spine clearly are not.”); see also, e.g., Chapman v. Powers, 331 N.E.2d 593, 597 

(Ill. App. 1975) (“We agree with appellant that the hospital bill was 

improperly admitted in evidence since there was no medical testimony to 

establish that the charge was reasonable or that the entire bill was related 

to the injury claimed.”); Dennis v. Prisock, 181 So. 2d 125, 127-28 (Miss. 

1965) (noting that the court erred in admitting medical bills when the 

plaintiff did not show the services were necessary because of the accident 

in question, especially because she had been in at least five other 

accidents); Williams v. Safeway Stores, Inc., 515 P.2d 223, 227-28 (Okla. 1973)

(finding the court erred by admitting medical bills when there was no 

evidence the bills resulted from the accident in question); Poltorak v. Sandy, 

345 A.2d 201, 204 (Pa. Super. 1975) (“[J]udge did not abuse his discretion 

in refusing to admit into evidence bills for medical expenses when neither 

plaintiff nor her physician could make a reasonable showing of which bills 
HAVEN v. TAYLOR et al.

Decision of the Court

7

were for accident-related treatments and which were for unrelated 

treatments.”). Consequently, the court did not abuse its discretion by 

refusing to allow Haven to admit the medical bills without medical 

testimony linking the bills to necessary medical treatment as a result of the 

accident. See Larsen, 196 Ariz. at 243, ¶ 19, 995 P.2d at 285 (“To be 

relevant, however, the medical records must be linked to the issues in this 

case. If the records and bills themselves do not establish the necessary 

connection, other evidence may be needed.”); Williams v. Jacobs, 972 

S.W.2d 334, 340 (Mo. App. 1998) (“[W]hen the injury is a ‘sophisticated 

injury, which requires surgical intervention or other highly scientific 

technique for diagnosis, and particularly where there is a serious question of 

pre-existing disability and its extent, the proof of causation is not within the 

realm of lay understanding. . . .’” (quoting Griggs v. A. B. Chance Co., 503 

S.W.2d 697, 704 (Mo. App. 1973) (emphasis added)). 

¶15 Haven also contends that if there is evidence that certain 

medical bills were paid those bills should have been admitted into 

evidence because payment demonstrates the reasonableness of those bills. 

She cites cases from other jurisdictions where evidence that a medical bill 

was paid is sufficient foundation to admit it as being reasonable. See, e.g.,

Baker v. Hutson, 775 N.E.2d 631, 638 (Ill. App. 2002); Elberts v. Nussbaum 

Trucking, Inc., 422 N.E.2d 1040, 1043 (Ill. App. 1981); Stanley v. State, 197 

N.W.2d 599, 606 (Iowa 1972); Williams v. Jacobs, 972 S.W.2d 334, 342 (Mo. 

App. 1998).

¶16 Even if we assume that the evidentiary ruling in those cases 

should apply in a negligence case where an unresolved preexisting 

condition is not an issue, the jury in this case could not determine whether 

the bills that were disclosed and paid were reasonable or reasonably

related to the accident or any aggravation of her preexisting condition. 

Because there was no medical testimony that the treatment reflected in the 

medical bills was causally related to the accident, we see no reason to 

depart from the analysis in Larsen. 196 Ariz. at 243-44, ¶ 20, 995 P.2d at 

285-86 (citing Patterson v. Horton, 929 P.2d 1125, 1130 (Wash. App. 1997)

for the proposition that a “negligence plaintiff cannot rely only on medical 

records and bills to show medical expenses were necessary and 

reasonable; other evidence must establish the latter”). Moreover, even 

though several medical bills (exhibits 6, 9, 27, and 29) indicate payment in 

part or full on the document, Haven never testified about payment of 

those medical bills and they were not otherwise admitted. As a result, if 

we were to depart from Larsen, which we do not, Haven’s deposition 

testimony does not provide the factual predicate to allow us to consider 

her argument that other jurisdictions allow the jury to consider a
HAVEN v. TAYLOR et al.

Decision of the Court

8

plaintiff’s testimony that the medical bills incurred were reasonable and 

necessary.4

¶17 Finally, Haven also urges us to adopt the reasoning in cases

from other jurisdictions that bills are some evidence of their own 

reasonableness. Some of those cases, however, rely on a statute or court

rule, which are not applicable here. See, e.g., Wood v. Elzoheary, 462 N.E.2d 

1243, 1245 (Ohio App. 1983) (noting that a statute in Ohio causes medical 

bills “to be prima facie evidence of their own reasonableness, while 

affording opposing counsel an opportunity to challenge their 

reasonableness with contrary evidence”); Burge v. Teter, 808 N.E.2d 124, 

132 (Ind. 2004) (noting that Indiana Rule of Evidence 413 allows medical 

bills to be prima facie proof the expenses are reasonable).5 And, as for the 

 4 Haven cites to a number of cases to support her argument, including for 

example, East West Karate Ass’n v. Riquelme, 638 So. 2d 604, 605 (Fla. App. 

1944), which states that:

Florida requires more than just evidence of the amount of 

the bills to establish . . . reasonableness. However, it is not 

necessary for the plaintiff to provide expert testimony. 

When a plaintiff testifies as to the amount of his or her 

medical bills and introduces them into evidence, it becomes 

a question for the jury to decide, under proper instructions, 

whether these bills represented reasonable and necessary 

medical expenses. 

(citations omitted) (internal quotation marks omitted). She also cited Van 

Brunt v. Stoddard, 39 P.3d 621, 626 (Idaho 2001), which states that 

“testimony by the patient . . . on the amounts . . . paid for medical services 

is sufficient evidence of the reasonable value of the services in the absence 

of some showing to the contrary.” 

5 Moreover, Haven cites to three cases that fail to support her argument. 

In Farmer v. International Harvester Co., the Idaho Supreme Court found 

that whether the trial court had erred by admitting the evidence was 

waived because there had not been a specific objection to the evidence at 

trial. 553 P.2d 1306, 1309 (Idaho 1976). In Biddle v. Riley, 176 S.W. 134, 136 

(Ark. 1915), there is no discussion about the admissibility of medical bills. 

And in McDonald v. Miller, 518 N.W.2d 80, 86 (Neb. 1994), the medical bills 

were stipulated to being fair and reasonable. 
HAVEN v. TAYLOR et al.

Decision of the Court

9

cases that do not rely on a statute or rule,6 we see no reason in this case to 

depart from Larsen. 

III. Medical Records

¶18 Haven also argues that the court erred by excluding some of 

her medical records based on misstatements from Taylor’s counsel that 

the records had not been disclosed and that the records were admissible

under Arizona Rules of Evidence 803(4), (6).7 We disagree.

¶19 Haven contends that the court erroneously relied on Taylor’s

statement in the motion in limine and at the pretrial conference that 

Haven did not disclose any medical records or bills after August 27, 2008. 

Although Haven disclosed all of her medical bills and records before the 

discovery cutoff date, at trial Taylor advised the court that the last report 

from Dr. Freberg was dated April 24, 2009, and the last record from a 

specialist in Dr. Freberg’s file was from August 2008. The court allowed 

Dr. Freberg to testify about his treatment of Haven through April 2009

and to testify about the records from other doctors that were in his file

through August 2008 that he relied on in his assessment of Haven. The 

court did not, however, let Dr. Freberg testify as an expert because Haven 

had failed to disclose Dr. Freberg’s opinions, as noted above. See supra

¶ 12. As a result, the court did not abuse its discretion by allowing Dr. 

Freberg to testify only as a fact witness about his treatment of Haven 

through April 2009 or by precluding him from providing expert testimony 

necessary to establish the foundation for the medical records not in his 

file.

 6 Bell v. Stafford, 680 S.W.2d 700, 702 (Ark. 1984) (“[E]vidence of expense 

incurred in good faith is some evidence that the charges were 

reasonable.”); Walters v. Littleton, 290 S.E.2d 839, 842 (Va. 1982)

(“[E]vidence presented by the bills regular on their face of the amounts 

charged for medical service is itself some evidence that the charges were 

reasonable and necessary.”); Figgs v. City of Milwaukee, 342 N.W.2d 254,

257 (Wis. App. 1983) (allowing recovery of small medical bills without 

proof of reasonableness when treatment and payment are proved), rev’d, 

357 N.W.2d 548 (Wis. 1984).

7 Haven’s argument that the medical records were admissible under Rule 

803(4) is waived because it was not raised below. See Cont’l Lighting & 

Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386, ¶ 12, 

258 P.3d 200, 204 (App. 2011). 
HAVEN v. TAYLOR et al.

Decision of the Court

10

¶20 Moreover, although the records from the other doctors were 

disclosed, a certification or witness was needed to establish that they were 

business records under Arizona Rule of Evidence 803(6). Haven, 

however, did not provide any certification or call any witness to establish 

the foundation that the records were medical business records, routinely 

prepared and kept in the ordinary course of business. See Ariz. R. Evid. 

803(6). Because there were no stipulations, no certifications, and no 

witnesses called to establish the medical business exception to the hearsay 

rule, the court did not abuse its discretion by excluding exhibits outside of 

Dr. Freberg’s subpoenaed file. See Glaze v. Marcus, 151 Ariz. 538, 540, 729 

P.2d 342, 344 (App. 1986) (noting that we will uphold a trial court’s 

decision if correct for any reason, even if the trial court did not consider 

that reason). 

IV. Motion for New Trial

¶21 Finally, Haven contends that there was no evidence to 

support the apportionment that she was eighty-five percent responsible 

for her injury. She argues that Taylor, as a truck driver, “owed a higher 

standard of conduct” than she did as a pedestrian. To the extent Haven 

wanted a higher standard of care to apply to Taylor, Haven failed to ask 

for such a jury instruction and has waived the argument on appeal. See 

State v. Lockett, 107 Ariz. 598, 600, 491 P.2d 452, 454 (1971) (noting that the 

failure to request an instruction “constitutes a waiver of any right to have 

[it] given”); see also Romero v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 6, 119 

P.3d 467, 471 (App. 2005) (noting that the only objections which can be 

raised on appeal were those raised at trial); cf. Briscoe v. United Metro 

Materials & Concrete Co., 24 Ariz. App. 165, 166-67, 536 P.2d 1057, 1058-59 

(1975) (noting that it was not error for a court to refuse to give an 

instruction which would have resulted in two different standard of care 

definitions when the court properly instructed the jury on negligence). 

¶22 We review the denial of a motion for new trial based on the 

verdict being against the weight of evidence for an abuse of discretion. 

Dawson v. Withycombe, 216 Ariz. 84, 95, ¶ 25, 163 P.3d 1034, 1045 (App. 

2007) (citing Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d 1164, 1166 (App. 

1996)). And in reviewing a jury verdict, we view the evidence in the light 

most favorable to sustaining the verdict, do not reweigh the evidence, and 

will affirm if there is substantial evidence supporting the verdict. 

Warrington v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68, 69, ¶ 4, 3 P.3d 

988, 989 (1999); Hutcherson v. City of Phx., 192 Ariz. 51, 53, 56, ¶¶ 10-11, 

26-27, 961 P.2d 449, 451, 454 (App. 1998) (noting that the court should not 

“second-guess” the jury allocating seventy-five percent fault to a 911 
HAVEN v. TAYLOR et al.

Decision of the Court

11

operator and twenty-five percent to someone who shot two people). 

Substantial evidence is proof that permits reasonable persons to reach the 

jury’s result. In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704, 

709 (1999); Styles, 185 Ariz. at 450, 916 P.2d at 1166. 

¶23 Although Taylor was driving a truck, he and Haven each 

owed the duty to exercise reasonable care under the circumstances. Cf.

Nunez v. Prof’l Transit Mgmt. of Tucson, Inc., 229 Ariz. 117, 122, ¶ 23, 271 

P.3d 1104, 1109 (2012) (holding that common carriers owe the objective, 

reasonable person standard of care instead of a heightened standard); see 

Terzis v. Miles, 90 Ariz. 120, 121-22, 366 P.2d 683, 683-84 (1961) (noting that 

a pedestrian hit by a car could be contributorily negligent). 

¶24 Here, there is substantial evidence to support the jury’s fault 

apportionment. Taylor stopped his truck at the end of a row of cars in the 

mall parking lot, even though there was no stop sign, and he had his left 

turn signal on. He also looked both directions before letting his foot off 

the brake, but never saw Haven. Conversely, Haven saw the truck before 

the accident, but assumed Taylor was parking, so she stopped looking at 

the truck and looked ahead trying to find her parked car. She walked four 

or five steps in front of the truck before it struck her. The truck moved 

less than a foot before the accident, and Haven said the truck was “just on 

[her.]”

¶25 Although Haven was knocked to the ground, the jury had to 

look at the witnesses, consider the evidence, decide credibility, decide the 

facts, and determine any comparative fault. See Harris v. Murch, 18 Ariz. 

App. 466, 467-68, 503 P.2d 821, 822-23 (1972) (“[T]he credibility of the 

witnesses and the weight to be given their testimony are matters 

peculiarly within the province of the jury.”). The jury did, and given the 

evidence, we do not find that the apportionment amounted to an abuse of 

discretion. Accordingly, the court did not abuse its discretion by denying 

the motion for new trial. 

¶26 Taylor has requested his costs on appeal pursuant to 

Arizona Revised Statutes section 12-342.8 Because he has prevailed, we 

award him his costs on appeal upon compliance with ARCAP 21.

 8 We cite to the current version of the statute absent material changes.
HAVEN v. TAYLOR et al.

Decision of the Court

12

CONCLUSION

¶27 For the foregoing reasons, we affirm the court’s evidentiary 

rulings, the judgment, and the denial of a motion for new trial.