Jose Luis Avalos v. TL Custom, LLC

¶1 Jose Luis Avalos appeals from a jury verdict in favor of TL

Custom, LLC (TLC). Avalos argues that the trial court exceeded its

discretion in admitting evidence that TLC had gone out of business.

He also argues that the jury's verdict that TLC was not negligent is

not supported by sufficient evidence. We affirm.

Avalos v. TL Custom

2. "On appeal from a jury verdict, we view the evidence and all

reasonable inferences drawn therefrom in the light most favorable

to that verdict.” Water & Energy Sys. Tech., Inc. v. Keil, 2002 UT 32,

¶ 2, 48 P.3d 888 (citation and internal quotation marks omitted).

"We present conflicting evidence only to the extent necessary to

understand the issues raised on appeal.” Patey v. Lainhart, 1999 UT

31, ¶ 2, 977 P.2d 1193 (citation and internal quotation marks

omitted).

20120791-CA 2 2014 UT App 156

BACKGROUND2

¶2 This case arises from a workplace injury that Avalos

suffered on October 26, 2007. While working as an employee for a

granite supplier, Avalos delivered a load of granite to TLC, a

company engaged in the business of installing granite and tile

countertops. While Avalos was helping TLC's employees move an

approximately five-by-nine-foot granite slab with a forklift, the

forklift caught his foot under its wheel, crushing and tearing the

skin from his foot. One of TLC's employees (Operator) was driving

the forklift at the time.

¶3 In September 2009, Avalos filed a negligence claim against

TLC. Prior to trial, Avalos moved to exclude any references to

collateral sources of compensation, including workers'

compensation, health insurance, and various other governmental

and charitable assistance. Avalos argued that TLC should not be

permitted to introduce evidence of collateral sources for the

purpose of escaping or minimizing its liability. The trial court

granted Avalos's motion. Similarly, TLC filed a pretrial motion in

limine to exclude any references to its liability insurance on the

ground that rule 411 of the Utah Rules of Evidence bars the

introduction of evidence of liability insurance in most instances.

Avalos's counsel later indicated to the trial court that Avalos had

no objection to TLC's motion.

Avalos v. TL Custom

20120791-CA 3 2014 UT App 156

¶4 A jury trial was held in April 2012. During opening

statements, TLC's counsel made three references to the fact that

TLC was no longer in business. In the first instance, TLC's counsel

stated,

You may say, Well, [Operator] has a bias or

motive to protect his job or his employer and that's

why he's saying that. Well, that's what really

happened. But nine months ago [TLC] closed. It's not

in business anymore. There's no reason for

[Operator] to come in here and tell you anything

other than what really happened.

Avalos's counsel did not object to this statement. In the second

instance, TLC's counsel explained that the owner of TLC (Owner)

has been a countertop installer for fifteen years and "[t]hat's what

he's doing now even though [TLC] is closed.” TLC's counsel

continued to explain that "the economy was so bad people . . .

weren't remodeling kitchens and [Owner] had to go out of

business.” Again, Avalos's counsel did not object. In the third

instance, TLC described its expert witness's preparations for trial:

"What he did was he went out to [TLC] before they closed down,

operated the forklift, . . . and he even built a model . . . of the

granite slabs . . . .” Yet again, Avalos's counsel did not object to

TLC's counsel's statement that TLC had closed.

¶5 During Avalos's presentation of his case, Operator testified

that he was driving the forklift when Avalos was struck. Operator

indicated that when using the forklift, he typically would have a

ground crew control the granite slab and guide him when the slab

was perpendicular to the forklift and blocked his view. Operator

testified that on the day of the incident, another TLC employee

(Spotter) was helping move the granite slab and holding the left

side of the slab. According to Operator, Avalos was on the right

side of the forklift, facing away from the forklift and holding the

slab with his left hand. Operator testified that he could see Avalos

but told Avalos that "he shouldn't be standing that close to the

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20120791-CA 4 2014 UT App 156

forklift.” Avalos heard him and answered that he would be fine.

Shortly thereafter, when Operator moved the forklift to the right,

Avalos's left foot was caught under the right front wheel of the

forklift. Although Operator never lost sight of Avalos, Operator

admitted that he could not see Avalos's feet.

¶6 Operator also offered testimony regarding his own training

and TLC's supervision of him. For example, Operator indicated

that TLC did not have anyone supervising the floor at the time of

the incident and that he had not read the signs on the forklift or the

operating manual for the forklift. On cross-examination, TLC's

counsel asked Operator why Operator no longer worked for TLC,

and prompted Avalos's first objection regarding TLC's closure:

[TLC's Counsel: W]hen did you last work at [TLC]?

[Operator:] I believe June or July.

[TLC's Counsel:] And what's the reason you stopped

working there?

[Operator:] Ran out of—

[Avalos's counsel:] Objection, Your Honor.

Relevance. What's the relevance whether or not

[TLC] is still a—

The Court: I understand relevance. Sustained.

Operator then testified that before working for TLC he had

received training on operating forklifts from his previous employer

and had driven forklifts daily for four or five years. According to

Operator, he did not need a second spotter when moving slabs and

had never had a spotter on each side before the incident. Operator

also testified that some time after the incident Avalos returned to

the shop and told Operator that "it wasn't [Operator's] fault.”

¶7 Avalos testified that he had been working for the granite

supplier for approximately ten months prior to the October 26,

2007 incident and that he made thirty to forty deliveries per week.

He also testified that his work involved operating a forklift and

working as part of the ground crew. Avalos indicated that he had

Avalos v. TL Custom

3. In lieu of live testimony, the transcript of Spotter's deposition

testimony was read to the jury.

20120791-CA 5 2014 UT App 156

helped unload slabs at TLC several times with Operator at the

wheel of the forklift. Avalos testified that on the day of the

incident, no one at TLC told him to stay in the truck or not to help

move the slabs. Rather, according to Avalos, Operator told him

where he wanted the slabs to go. Avalos testified that as Operator

slowly drove the forklift forward he grabbed the slab with his left

hand and stood on Operator's right side while Spotter acted as a

spotter on Operator's left side. Avalos indicated that the slab was

perpendicular to the forklift, blocking Operator's forward view.

Avalos further testified that he first became aware that the forklift

was moving right when the forklift caught the back of his left foot.

¶8 Spotter testified that TLC trained him on the proper loading

and unloading of granite slabs and that he had worked at TLC for

about a month before the incident.3 Spotter indicated that Avalos

helped the TLC employees move a granite slab and that a woman

who arrived with Avalos walked along with them. Spotter

indicated that he did not tell Avalos not to assist them with moving

the slab. According to Spotter, Operator drove the forklift straight,

not right, and Avalos was behind Spotter. Spotter testified that

Avalos was wearing tennis shoes and was closer to the wheels of

the forklift than he should have been. Spotter testified that no one

had helped them before from that position. Spotter testified that he

noticed Avalos's shoelace was untied because he saw the shoelace

go underneath the forklift wheel before Avalos's foot did.

¶9 According to Avalos, he did not contribute to the accident.

Avalos testified that he was wearing tennis shoes at the time and

that his employer did not require him to wear steel-toed boots

when working with the granite. Avalos maintained that his

shoelaces were tied. Avalos maintained that Operator never told

him not to be where he was standing. Avalos denied that he said

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that the incident was all his fault when he was in the hospital or

that he said the incident was not Operator's fault.

¶10 Avalos offered testimony from an expert who trains forklift

operators. Although Avalos's expert witness did not suggest that

the methodology used at TLC was "inherently unsafe,” the expert

testified that Operator lacked adequate training for his job as a

forklift operator at TLC. Avalos's expert explained that spotters are

necessary and that forklift operators should have a full body view

of any spotters. The expert testified that federal regulations require

operators to be trained with the specific piece of equipment used

and that TLC did not satisfy that requirement. Avalos's expert

further testified that the forklift should generally travel in reverse

when carrying a granite slab except when setting the slab down

because the slab can obstruct forward visibility when

perpendicular to the forklift. Therefore, Avalos's expert opined that

Operator should have been moving the forklift in reverse to

eliminate the possibility of running over the spotters.

¶11 At a sidebar conference held before Owner testified,

Avalos's counsel expressed concern that TLC's counsel indicated

in opening statements that TLC had gone out of business.

Specifically, Avalos argued that TLC's closure was not relevant and

that it would suggest to the jury that if TLC were held liable, then

any damages would come out of Owner's pockets. TLC responded

that its closure was important to establish the credibility of

Operator and TLC's shop manager (Manager) by showing they

were not motivated to protect their employer. The trial court ruled,

stating,

I'm going to let you—because you mentioned it in

opening statements and I think it is marginally

relevant for that purpose, I'm going to let you make

the point that they are out of business, but I

absolutely will not let you even insinuate and go

beyond that. I think [Avalos's counsel has] . . . a

legitimate concern.

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The trial court also indicated that Owner's testimony about TLC's

closure was to be "very . . . circumspect.” Avalos's counsel asked

the trial court whether it would consider informing the jury that

TLC had premises insurance at the time of the incident. The trial

court indicated it would not.

¶12 On direct examination, the following exchange took place

between TLC's counsel and Owner:

Q. Have you—did you own [TLC]?

A. I did.

Q. For how long?

A. Six.

Q. And when did that end?

A. June of last year.

Q. Since June of last year you have not been

doing business as [TLC]?

A. Correct.

When asked how long Operator worked for TLC, Owner

answered, "[Operator] worked for me for a few years. I laid him off

once because of the economy and then brought him back because

he was a good employee. And then eventually I had to lay him off

again.” On cross-examination, Avalos's counsel inquired about

Owner's occupation, asking, "[TLC] is out of business. But you're

not out of business. You're still going?” Owner answered, "[TLC]

is out of business. At one time they had 20 employees, and now it's

just me. [TLC], it's just me. I just install . . . countertops.” Owner

also indicated that TLC would receive deliveries of slabs on an

almost daily basis and required its employees working in the shop

to wear steel-toed boots. Owner admitted on cross-examination

that TLC had written policies concerning internet usage and theft

and that TLC could have had a written policy stating that no one

could assist TLC employees in moving granite. Owner also

admitted that TLC's employment files did not include any safety

policies.

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¶13 Manager testified for the defense. Manager explained TLC's

procedures for moving granite slabs and that he would use only

one spotter when moving granite slabs because two spotters were

"not necessary.” Manager testified that TLC employees drove the

forklifts in reverse just ten percent of the time because the driver

has a better view of the slab and the spotter when moving forward.

Manager testified that he trained TLC's employees who served as

forklift drivers and spotters. Manager indicated that a spotter

should always have a hand on the slab to guide it and should stand

at the far end of the slab. Manager explained that when a slab is at

a mostly parallel position, a spotter is eleven to twelve feet from

the forklift's wheels when standing at the far end of the slab but

only about two feet from the wheels when standing at the closer

end. Manager stated that it was standard procedure for TLC's

employees to handle its equipment and material because a slab was

TLC's responsibility once it was removed from the vendor's truck.

Manager also testified that he visited Avalos in the hospital on the

night of the incident. According to Manager, Avalos said that

Operator was not at fault, that Avalos knew that he should not

have been in the place where he was at the time of the accident, and

that Avalos's training taught him not to stand there. Manager also

testified that he saw Avalos three months later and Avalos

indicated that the incident was not anyone's fault.

¶14 Avalos's employer at the time (Employer) testified as a

defense witness. During direct examination, TLC's counsel asked

whether Employer's business was still operating, prompting

Avalos's objection. The trial court sustained the objection,

instructed the jury to disregard Employer's statement that his

business had closed, and admonished TLC's counsel to phrase his

question "very carefully.” Employer testified that he provided

training to Avalos on driving forklifts and acting as a spotter for

moving granite slabs. Employer indicated that typically two

employees at his business would be involved in moving slabs, "one

on the forklift and one stabilizing the material.” Employer further

indicated that it was not typical for his business to have two

spotters. Employer testified that his employees were trained to be

Avalos v. TL Custom

20120791-CA 9 2014 UT App 156

spotters at the far end of the slab, as far away as possible from the

forklift. Employer indicated that his business did not have a policy

stating that Avalos could not help other vendors and that he did

not tell Avalos to help as a spotter when delivering slabs. Employer

also acknowledged his deposition testimony wherein he stated that

Avalos was not paying attention to where he was in relation to the

forklift and described how Avalos explained his positioning before

the accident.

¶15 TLC presented a safety professional as its expert witness.

TLC's expert testified that Operator did not violate referenced

Occupational Safety and Health regulations in any regard.

Furthermore, Operator did not violate applicable manufacturer

standards. TLC's expert testified that in the lead up to the incident,

Operator did not deviate from how the expert would have trained

him to operate the forklift but that Operator should have been

more forceful in telling Avalos to step away from the forklift. TLC's

expert testified that Avalos, in contrast, put himself in harm's way

and did a number of things that contributed to the accident. TLC's

expert testified that only one spotter is needed in such situations

and that Avalos's presence made it more difficult for Operator, but

the expert did acknowledge that it was Operator's responsibility to

make sure there was only one spotter. TLC's expert testified that

Avalos knew the dangers of his position and had training that he

should not have been on the end of the slab closer to the forklift.

TLC's expert also testified that Avalos should have been wearing

steel-toed footwear.

¶16 During the course of the trial, the court permitted the jurors

to submit questions for witnesses. Some of the jurors' questions

pertained to insurance and collateral sources of compensation. For

instance, one juror asked, "Did [TLC] have liability insurance and

was it active at this time[?] If so what were the liability limits[?]”

Another asked if Avalos was covered by workers' compensation

insurance. Similarly, another juror asked why this case was not a

workers' compensation claim, and another inquired about whether

Avalos had health insurance to cover costs. Because these subject

Avalos v. TL Custom

20120791-CA 10 2014 UT App 156

areas had been excluded, the trial court did not pose any of these

questions to the witnesses.

¶17 Avalos requested that the trial court issue a curative

instruction pertaining to TLC's ability to satisfy a judgment. Avalos

maintained that TLC's business status was not relevant under rule

401 of the Utah Rules of Evidence, but because TLC had introduced

that evidence, Avalos argued that the proper remedy would be to

inform the jury that TLC was closed but had ample assets available

to satisfy a judgment. Avalos also argued that TLC had opened the

door to evidence of its liability insurance. Specifically, Avalos

proposed the following instruction:

You must not consider whether any of the

parties in this case has insurance. The presence or

absence of insurance is totally irrelevant. Likewise,

the continuation of the Defendant's business is totally

irrelevant. The fact that Defendant claims to be out of

business is irrelevant to your verdict. You must

decide this case based only on the law and the

evidence, and not on any sympathy to either party.

However, the trial court chose to issue a different instruction

(Instruction 20), which stated,

Your responsibility [in] this case is to

determine liability and damages. The potential or

actual source of payment for any damages is not part

of that analysis. Ability to pay or the possibility of a

source for payment of the damages must not play

any part in your determination of liability and total

damages. You must decide this case based only on

the law and evidence, and not on sympathy to either

party.

¶18 When the case was submitted to the jury, the special verdict

form asked the jury, "Was [TLC] negligent as alleged by Mr.

Avalos v. TL Custom

4. Avalos also argues that the trial court should have permitted him

to introduce evidence of TLC's liability insurance in response to the

asserted improper admission of TLC's business status. Given our

resolution of this appeal and our conclusion that any assumed

error in the admission of TLC's closure was harmless, we need not

address this argument. See infra ¶¶ 26–28.

20120791-CA 11 2014 UT App 156

Avalos?” The jury answered, "No.” Accordingly, the trial court

entered judgment in favor of TLC. Avalos filed a motion for a new

trial, arguing that the jury's verdict was not supported by sufficient

evidence and that the trial court erred by preventing him from

introducing evidence of TLC's liability insurance to cure the

express impression given by TLC that it had no ability to satisfy a

judgment. The trial court denied Avalos's motion. Avalos now

appeals.

ISSUES AND STANDARDS OF REVIEW

¶19 First, Avalos challenges the trial court's admission of

evidence that TLC had gone out of business since the incident.4 The

trial court has broad discretion to admit or exclude evidence, and

we "will disturb its ruling only for abuse of discretion.” Daines v.

Vincent, 2008 UT 51, ¶ 21, 190 P.3d 1269. "[W]e will not reverse a

trial court's ruling on evidence unless the ruling was beyond the

limits of reasonability.” Id. (citation and internal quotation marks

omitted). Even when evidence is improperly admitted, reversal is

required only where the admission of the evidence amounted to

prejudicial error. Larsen v. Johnson, 958 P.2d 953, 958 (Utah Ct. App.

1998); see also Utah R. Civ. P. 61 ("The court at every stage of the

proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.”).

¶20 Second, Avalos challenges the sufficiency of the evidence in

support of the jury's verdict that TLC was not negligent. "In

reviewing a jury verdict, we view the evidence in the light most

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supportive of the verdict[] and assume that the jury believed those

aspects of the evidence which sustain its findings and judgment.”

Stevensen 3rd E., LC v. Watts, 2009 UT App 137, ¶ 26, 210 P.3d 977

(alteration in original) (citation and internal quotation marks

omitted). "As a result, we will upset a jury verdict only upon a

showing that the evidence so clearly preponderates in favor of the

appellant that reasonable people would not differ on the outcome

of the case.” Id. (citation and internal quotation marks omitted).

ANALYSIS

I. Admission of Evidence of TLC's Closure

¶21 Avalos first argues that the trial court exceeded its discretion

in admitting evidence that TLC had gone out of business. Avalos

argues that this evidence was inadmissible and prejudicial because

it permitted the jury to infer that TLC would be incapable of paying

any damages. This issue was first introduced into the trial when

TLC's counsel made three references to TLC's closure during

opening statements. Although Avalos did not object at that time,

the trial court sustained his objection to the relevance of the

evidence when TLC's counsel asked Operator on cross-examination

why Operator no longer worked for TLC. When the issue was

raised again before Owner testified, the trial court ruled that TLC

could "make the point that [TLC is] out of business” because TLC

mentioned it in opening statements and because it was "marginally

relevant for [the] purpose” of establishing the credibility of

Operator and Manager, who were both former employees of TLC.

The trial court then cautioned TLC to be "circumspect” and not to

"go beyond that.” As a result of the trial court's ruling, Owner

testified that TLC had closed since the time of Avalos's injury.

¶22 We begin our analysis by acknowledging that the trial

court's pretrial evidentiary rulings limited the ability of both

parties to introduce evidence of any compensation that Avalos had

received or might be awarded. In particular, the trial court

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20120791-CA 13 2014 UT App 156

restricted TLC from referring to collateral sources that may have

compensated Avalos, including workers' compensation, health

insurance, and other sources of assistance. See generally Wilson v.

IHC Hosps., Inc., 2012 UT 43, ¶ 31, 289 P.3d 369 (indicating that

"[u]nder the common law collateral source rule, 'a wrongdoer is

not entitled to have damages, for which he is liable, reduced by

proof that the plaintiff has received or will receive compensation or

indemnity for the loss from an independent collateral source'”

(quoting Mahana v. Onyx Acceptance Corp., 2004 UT 59, ¶ 37, 96 P.3d

893)). In turn, Avalos was restricted from referring to whether TLC

had liability insurance. See generally Utah R. Evid. 411 ("Evidence

that a person was or was not insured against liability is not

admissible to prove whether the person acted negligently” but this

evidence may be admissible for other purposes). Our review of the

record indicates that the trial court consistently adhered to these

rulings.

¶23 On appeal, Avalos argues that the evidence of TLC's closure

was irrelevant and prejudicial because it "elicit[ed] sympathy from

the jurors” by "implying that any adverse judgment would fall

solely on [Owner].” TLC, in contrast, maintains that the evidence

was relevant and properly admitted for the "legitimate purpose”

of showing that "Avalos had less credibility than TLC's former

employees” because the former employees had no motive to

protect TLC. In response to this argument, Avalos contends that

the evidence was improper rebuttal evidence and witness

bolstering because he had not attacked the credibility of TLC's

former employees prior to its admission.

¶24 Even if we assume that the trial court exceeded its discretion

in admitting the evidence of TLC's closure, Avalos has the burden

to show that the error was "substantial and prejudicial in that [he]

was deprived in some manner of a full and fair consideration of the

disputed issues by the jury.” Ashton v. Ashton, 733 P.2d 147, 154

(Utah 1987); see also Stevenett v. Wal-Mart Stores, Inc., 1999 UT App

80, ¶ 8, 977 P.2d 508 ("[T]he person asserting error has the burden

to show not only that error occurred but also that it was substantial

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and prejudicial.”). Indeed, "reversal is not warranted where the

trial court's error is harmless.” Hull v. Wilcock (In re Estate of

Wilcock), 2012 UT App 223, ¶ 43, 285 P.3d 815 (citation and internal

quotation marks omitted). "'Harmless error is defined . . . as an

error that is sufficiently inconsequential that we conclude there is

no reasonable likelihood that the error affected the outcome of the

proceedings.'” Id. ¶ 44 (omission in original) (quoting Covey v.

Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553). "[I]n other words, an

error is harmful only if the likelihood of a different outcome is

sufficiently high as to undermine our confidence in the verdict.”

Covey, 2003 UT App 380, ¶ 21 (citation and internal quotation

marks omitted). In evaluating whether an error is prejudicial, we

consider the totality of the evidence and proceedings. See Steffensen

v. Smith's Mgmt. Corp., 820 P.2d 482, 489 (Utah Ct. App. 1991), aff'd,

862 P.2d 1342 (Utah 1993); see also Kelson v. Salt Lake Cnty., 784 P.2d

1152, 1157 (Utah 1989) (indicating that in analyzing whether an

error is prejudicial, "we must consider the impact of that error in

the context of the whole proceeding”).

¶25 In some instances, jury instructions may cure any error

resulting from the improper admission of certain evidence. See

Wilson, 2012 UT 43, ¶ 54. For example, the Utah Supreme Court

addressed similar circumstances in Child v. Gonda, 972 P.2d 425

(Utah 1998). In Child, the plaintiff's daughter was a passenger in

her friend's car when she was killed in a two-vehicle collision. Id.

at 427. The plaintiff subsequently settled with the daughter's friend

and sued the driver of the second vehicle. Id. Before trial, the trial

court ruled that the jury was entitled to know that the plaintiff and

his daughter's friend had "'resolved their differences'” but that

counsel could not mention anything about the settlement. Id. at 428.

Nevertheless, the second driver's counsel suggested during

opening statements that the plaintiff was suing the second driver

to "'get paid some more money.'” Id. The jury returned a verdict

finding that the second driver was not negligent. Id. On appeal, the

plaintiff argued that he was entitled to a new trial because

counsel's remark constituted an irregularity in the proceedings. Id.

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20120791-CA 15 2014 UT App 156

at 429. Although our supreme court agreed with the plaintiff that

counsel's remark violated the trial court's pretrial order, the court

concluded that the plaintiff "failed to present any compelling

arguments . . . that the offending remark denied him a fair trial.” Id.

at 430. In support of its conclusion, the supreme court cited an

instruction given to the jury at the conclusion of the evidence. Id. at

430 & n.5. That instruction provided, in relevant part,

In your deliberation in this case, you are not to

concern yourself with the question of whether [the

plaintiff] received funds from any source in

connection with the role that [his daughter's friend]

played in the collision in question. Your sole job is to

concern yourself with the questions involving

responsibility for the collision and the resultant death

of [the plaintiff's daughter], and the amount of the

damages suffered by [the plaintiff] as a result of his

daughter's death.

Id. at 430 n.5. Ultimately, the supreme court was not persuaded by

the plaintiff's argument that this instruction did not cure the

misconduct and therefore affirmed the jury's verdict. Id. at 430.

¶26 In our case, the trial court permitted limited evidence that

TLC had gone out of business. To the extent the jury could have

inferred from this evidence that TLC would not have been able to

satisfy any adverse judgment, the jury instructions effectively

mitigated against that possibility. Specifically, the trial court

instructed the jury in Instruction 20 that TLC's potential ability to

pay for damages could not play any part in the jury's

determinations:

Your responsibility [in] this case is to

determine liability and damages. The potential or

actual source of payment for any damages is not part

of that analysis. Ability to pay or the possibility of a

source for payment of the damages must not play

Avalos v. TL Custom

20120791-CA 16 2014 UT App 156

any part in your determination of liability and total

damages. You must decide this case based only on

the law and evidence, and not on sympathy to either

party.

We presume that the jury followed this instruction. See Tooele

Assocs. Ltd. P'ship v. Tooele City, 2012 UT App 214, ¶ 11, 284 P.3d

709; Ortiz v. Geneva Rock Prods., Inc., 939 P.2d 1213, 1216 (Utah Ct.

App. 1997) ("In the absence of the appearance of something

persuasive to the contrary, we assume that the jurors were

conscientious in performing to their duty, and that they followed

the instructions of the court.” (citation and internal quotation

marks omitted)).

¶27 Nevertheless, Avalos argues that Instruction 20 did not cure

the harm from the evidence of TLC's closure because it was given

at the end of trial and because it was "vague[]” and did not

explicitly direct the jurors to disregard evidence that TLC had gone

out of business. However, we are not persuaded that the timing of

Instruction 20 inhibited its efficacy. See Child, 972 P.2d at 429–30

(rejecting the argument that a jury instruction given at the close of

evidence was not sufficient to cure misconduct that occurred in

opening statements). Moreover, the import of Instruction 20 is

clear; the plain language of this instruction informed the jury that

the "[a]bility to pay or the possibility of a source for payment of the

damages must not play any part in [its] determination of liability

and total damages.” Accordingly, the jury was effectively

instructed that it should not consider evidence of TLC's closure and

any resulting implication regarding TLC's ability to pay.

¶28 In light of the limited nature of the evidence pertaining to

TLC's closure and the instruction given to the jurors that they

could not consider any source of payment, we are not convinced

that the exclusion of the evidence of TLC's closure would have

resulted in a more favorable verdict for Avalos. We therefore

conclude that any assumed error in admitting this evidence was

not prejudicial to Avalos.

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II. Sufficiency of the Evidence That TLC Was Not Negligent

¶29 Next, Avalos contends that there is insufficient evidence to

support the jury's verdict that TLC was not negligent. "In

reviewing a jury verdict, we view the evidence in the light most

supportive of the verdict, and assume that the jury believed those

aspects of the evidence which sustain its findings and judgment.”

Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 24, 311 P.3d

564 (citation and internal quotation marks omitted). As the party

challenging the verdict, Avalos "must carry the heavy burden of

establishing that the evidence so clearly preponderates in [his]

favor . . . that reasonable people would not differ on concluding

that [TLC] was negligent.” See id. (omission and first alteration in

original) (citation and internal quotation marks omitted); see also

Stevensen 3rd E., LC v. Watts, 2009 UT App 137, ¶ 49, 210 P.3d 977

("The burden on an appellant to establish that the evidence does

not support the jury's verdict and the factual findings implicit in

that verdict . . . is quite heavy.” (citation and internal quotation

marks omitted)). In undertaking our review, we bear in mind that

"[i]t is the exclusive function of the jury to weigh the evidence and

to determine the credibility of the witnesses.” Child, 972 P.2d at 433

(alteration in original) (citation and internal quotation marks

omitted). Thus, "[t]he existence of conflicting evidence, alone, does

not justify overturning a verdict for insufficient evidence,”

Stevensen 3rd E., 2009 UT App 137, ¶ 49 (citation and internal

quotation marks omitted), and "[s]o long as some evidence and

reasonable inferences support the jury's findings, we will not

disturb them,” Child, 972 P.2d at 433.

¶30 In support of his contention that the evidence is insufficient

to support the jury's verdict, Avalos concedes that "[t]he evidence

may support a finding that Mr. Avalos contributed, in part, to his

own injuries,” but he asserts that the evidence does not "negate the

uncontested evidence [he] presented regarding [TLC's]

negligence.” In particular, Avalos argues that there was

uncontested evidence that conclusively established at least some

negligence, including evidence (1) that Operator should have been

Avalos v. TL Custom

20120791-CA 18 2014 UT App 156

more forceful in telling Avalos to move away from the forklift,

(2) that Operator had an unobstructed view of Avalos and turned

the forklift toward him, running over his foot, (3) that TLC's

employees had not read the forklift's operating manual, and (4)

that TLC violated federal safety regulations in its training of drivers

and in its operation of the forklift. We disagree.

¶31 "The standard upon which negligence is gauged is that of

ordinary, reasonable care under the circumstances, which standard

it is peculiarly fitting that juries determine.” Canfield v. Albertsons,

Inc., 841 P.2d 1224, 1227 (Utah Ct. App. 1992) (citation and internal

quotation marks omitted). The jury was instructed that

"[n]egligence means that a person did not use reasonable care,”

which is "simply what a reasonably careful person would do in a

similar situation.” Accordingly, the jury's verdict indicates that the

jury determined that TLC did exercise reasonable care under the

circumstances.

¶32 Contrary to Avalos's assertion, the evidence that Avalos

relies on does not necessarily establish that TLC was negligent.

First, the evidence that Operator should have been more assertive

when warning Avalos not to stand so close to the forklift does not

prove that TLC failed to exercise reasonable care. Although TLC's

expert testified that Operator erred by not demanding that Avalos

step away from the forklift, TLC's expert also testified that

Operator acted in accordance with how the expert would have

trained him. In addition, the jury's apparent conclusion that

Operator's actions were reasonable is supported by Operator's

testimony that Avalos heard the warning and that Avalos

responded by stating he would be fine. See generally Proctor, 2013

UT App 226, ¶ 24 (indicating that we "assume that the jury

believed those aspects of the evidence which sustain its findings

and judgment” (citation and internal quotation marks omitted)).

¶33 Second, and for the same reasons, TLC's alleged negligence

was not established by Operator's testimony that Operator had a

clear view of Avalos, turned the forklift toward him, and ran over

Avalos v. TL Custom

5. In addition, we observe that in order to recover anything, Avalos

had to establish that TLC's negligence exceeded his own. See Utah

Code Ann. § 78B-5-818(2) (LexisNexis 2012) ("A person seeking

(continued...)

20120791-CA 19 2014 UT App 156

his foot. TLC's expert's testimony supports the conclusion that

even though Avalos was injured, TLC and its employees did not

operate the forklift in a manner contrary to protocol.

¶34 Third, TLC's alleged lack of reasonable care was not

established by the evidence that its employees had not read the

forklift's operating manual. Rather, other evidence supports the

jury's apparent conclusion that this failure was not unreasonable.

Specifically, TLC's expert testified that, despite this oversight,

TLC's employees had adequate training and experience with the

forklift. Although there was conflicting evidence in this regard, it

was the jury's role to weigh that evidence. Child v. Gonda, 972 P.2d

425, 433 (Utah 1998).

¶35 Fourth, the evidence that TLC violated federal safety

regulations did not establish TLC's alleged negligence because

there was evidence to the contrary. See Stevensen 3rd E., LC v. Watts,

2009 UT App 137, ¶ 49, 210 P.3d 977. In particular, there was

testimony that TLC did not violate the regulations and that TLC's

employees did not do anything that would have been proscribed

by the regulations. Moreover, even if the jury believed Avalos's

evidence that TLC did violate federal safety regulations, the jury

evidently concluded that TLC's failure was not unreasonable under

the circumstances. Cf. Ames v. Maas, 846 P.2d 468, 475 (Utah Ct.

App. 1993) ("This court has held that the violation of a statute is

evidence of negligence but subject to justification or excuse if the

evidence is such that it reasonably could be found that the conduct

was nevertheless within the standard of reasonable care under the

circumstances.”). Viewing the evidence in the light most favorable

to the verdict, we conclude that there is evidence to support the

jury's finding of no negligence on the part of TLC.5

Avalos v. TL Custom

5. (...continued)

recovery may recover from any defendant . . . whose fault . . .

exceeds the fault of the person seeking recovery . . . .”). In other

words, Avalos could not recover on his negligence claim if the

evidence did not compel a finding that TLC was more than fifty

percent at fault. Because the evidence is sufficient to support the

jury's finding of no negligence, the evidence here clearly does not

dictate a finding that TLC was more than fifty percent at fault.

20120791-CA 20 2014 UT App 156

¶36 In sum, Avalos has not persuaded us that the evidence in

this case clearly preponderates in his favor. Accordingly, Avalos's

insufficiency claim fails because sufficient evidence was introduced

at trial to support the jury's conclusion that TLC exercised

reasonable care under the circumstances.

¶37 We conclude that any error in the admission of TLC’s

closure was harmless because the evidence of the closure was

limited and the jury was instructed that TLC’s ability to pay for any

damages could not play any role in its determinations. We also

conclude that there was sufficient evidence to support the jury’s

verdict that TLC was not negligent. We therefore affirm.