Civil Procedure: Offer of Judgment/Taxable Costs/ Torts: Negligence Per Se

Reyes v. Frank's Service & Trucking, 695 Ariz. Adv. Rep. 17 (App. Div. I, September 16, 2014) (J. Downie)

TAXABLE COSTS INCLUDE REASONABLE COSTS OF TAKING DEPOSITIONS INCLUDING IN AND OUT OF STATE TRAVEL, INTERPRETER FEES, “NO SHOW” COSTS AND VIDEOTAPE AND/OR STENOGRAPHIC COSTS (HOWEVER SEEKING BOTH VIDEO AND STENOGRAPHIC COSTS IS NOT ALWAYS REASONABLE). WHERE JURY AWARD PLUS TAXABLE COSTS INCURRED AS OF DATE OF OFFER OF JUDGMENT EXCEED THE OFFER, RULE 68(g) SANCTIONS ARE NOT AWARDABLE. NEGLIGENCE PER SE ONLY APPLIES WHERE STATUTE REQUIRES A SPECIFIC ACT AND NOT WHERE IT MERELY REQUIRES PARTY TO ACT REASONABLY.

Plaintiff was injured in a tractor trailer collision on the freeway when defendant drove his rig from an emergency lane into the plaintiff's lane of travel. Defendant made a $200,001 offer of judgment which plaintiff ignored. The jury returned a verdict of $370,000 which was reduced to $188,700 based upon a finding of 49% fault on the plaintiff.  The trial court awarded plaintiff $32,052.12 in taxable costs and then denied defendant's request for Rule 68(g), Civ. Proc. Sanctions finding that when these costs were added to the reduced judgment it exceeded the amount of the offer. The Arizona Court of Appeals affirmed in part and reversed in part.   A.R.S. §12-332(A) provides: Costs in the superior court include: Fees of officers and witnesses. Cost of taking depositions. . . . . Other disbursements that are made or incurred pursuant to an order or agreement of the parties.   First the court of appeals held that reasonable and necessary travel costs both out of state and in state, incurred by the attorneys to attend depositions, are taxable costs, including the depositions of independent fact witnesses.   Next the court held that when a person requires the assistance of an interpreter to testify at a deposition, the interpreter's reasonable fee is a cost of taking the deposition that may be recovered as a taxable cost under A.R.S. §12-332(A)(2).   Next, as to the cost of videotaping depositions the court found that  when a party chooses to both videotape and stenographically record the deposition the trial court must, on a case by case basis, decide if both means of recording were necessary and reasonable. While it doesn't matter whether the transcript or video was ever actually used in the litigation to establish the right to recover one or the other expense as a taxable cost, where a party seeks to recover both expenses this factor may be considered.  Additionally the court should evaluate whether the opposing party objected to both methods of memorializing the deposition, whether the objecting party also purchased both a transcript and video recording, the need for both for appellate purposes, and any witness-specific issues that made dual modes of recording reasonable.   The court further held that where nonparty witnesses are subpoenaed and don't show up at the scheduled time, the reasonable cost of travel and “no show” fees charged by the court reporter are taxable costs.   Next the court found that where the parties agreed to mediate the case and to share the mediation fee, this too was a legitimate taxable costs.   Finally, where the judgment for plaintiff and taxable costs incurred up to the date of the offer of judgment exceed the offer, Rule 68(g) sanctions should not be awarded.   Plaintiff cross-appealed claiming the trial court erred by not giving a negligence per se instruction for violation of California Vehicle Code §22106, which states: "No person shall start a vehicle stopped, standing, or parked on a highway, nor shall any person back a vehicle on a highway until such movement can be made with reasonable safety." (Emphasis added).  The court of appeals held, “Negligence per se applies when a person violates a specific legal requirement. The statute ‘must proscribe certain or specific acts . . . . ‘ Therefore, if a statute defines only a general standard of care . . . negligence per se is inappropriate." Here the trial court properly found the statute to only define a general standard of care—to operate your vehicle with “reasonable safety.”