Haines v. Get Air Tucson Incorporated et al
Filing
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ORDER Defendant Get Air, LLCs Motion to Bifurcate (Doc. 329 ) is partially granted, as set forth in the attached Order. Trial in the above-captioned matter will be bifurcated into liability and damage phases, as described in the Order (see attached Order for complete details). Signed by Judge Rosemary Marquez on 9/25/2019. (MFR)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Blake Haines,
No. CV-15-00002-TUC-RM (EJM)
Plaintiff,
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v.
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ORDER
Get Air LLC,
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Defendant.
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Pending before the Court is Defendant Get Air LLC’s (“GALLC”) Motion to
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Bifurcate Trial. (Doc. 329.) The Motion is fully briefed. (Docs. 334, 336.) For the
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reasons that follow, the Motion will be partially granted as set forth below.1
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I.
Background
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The procedural history of the above-captioned matter dates back to January 2015;
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the Court will summarize only the portions of that history that are relevant to the pending
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Motion to Bifurcate.
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Plaintiff Blake Haines alleges that on September 8, 2013, he suffered a
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catastrophic cervical injury resulting in paralysis while attempting a multiple flip into a
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foam pit at a Tucson, Arizona trampoline park known as Get Air Tucson. (Doc. 84 at 1-
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2, 4, 10.)2 On March 1, 2016, GALLC moved for its dismissal from this action for lack
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of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), arguing that
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The Court finds that the Motion is suitable for decision without oral argument.
All record citations herein refer to the page numbers generated by the Court’s
electronic filing system.
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it is a Utah company, that it has conducted no business in Arizona, and that it was not
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involved in the design, construction, or operation of the trampoline park at which
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Plaintiff was injured.
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Markovich issued a Report and Recommendation, recommending that this Court deny
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GALLC’s Motion to Dismiss. (Doc. 158.) Judge Markovich found that Plaintiff had
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established a prima facie case of personal jurisdiction because there was evidence
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indicating that GALLC created a generic employee handbook for use at other Get Air
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trampoline parks and Plaintiff’s claims arose from allegedly defective safety rules
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contained in that employee handbook.
(Doc. 97.)
On February 13, 2017, Magistrate Judge Eric J.
(Id. at 15-17)
This Court adopted Judge
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Markovich’s Report and Recommendation, finding that there was “a factual dispute
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regarding” whether the generic employee handbook had been created on behalf of
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GALLC or another company called Trampoline Parks, LLC, and that Judge Markovich
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had “appropriately resolved the factual dispute in Plaintiff’s favor” for purposes of a Rule
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12(b)(2) motion to dismiss resolved without an evidentiary hearing. (Doc. 172 at 6.)
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GALLC thereafter moved for summary judgment (Doc. 238), and Judge
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Markovich issued a Report and Recommendation, recommending that summary
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judgment be granted as to Plaintiff’s punitive damages claim but otherwise denied (Doc.
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266). In adopting that Report and Recommendation, this Court found—in relevant part—
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that GALLC’s “undertaking to create safety rules for other Get Air trampoline parks” in a
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generic employee handbook gave rise to a “duty to exercise reasonable care in the
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development of the safety rules” contained in that handbook. (Doc. 276 at 3-6.)
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Motions in limine have been resolved and this action has been scheduled for a
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two-week jury trial commencing November 5, 2019. (Doc. 300; see also Docs. 318,
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321.)
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II.
Standard of Review
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Pursuant to Rule 42 of the Federal Rules of Civil Procedure, the Court may, “[f]or
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convenience, to avoid prejudice, or to expedite and economize . . . order a separate trial
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of one or more separate issues . . . .” Fed. R. Civ. P. 42(b). Rule 42 “confers broad
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discretion” upon district courts, Hangarter v. Provident Life & Accident Ins. Co., 373
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F.3d 998, 1021 (9th Cir. 2004) (internal quotation omitted), and clearly authorizes district
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courts “to separate trials into liability and damage phases,” Estate of Diaz v. City of
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Anaheim, 840 F.3d 592, 601 (9th Cir. 2016) (internal quotation omitted). Bifurcation is
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appropriate “to avoid the risk of prejudice,” Estate of Diaz, 840 F.3d at 601, or to “permit
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deferral of costly and possibly unnecessary proceedings pending resolution of potentially
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dispositive preliminary issues,” Jinro Am. Inc. v. Secure Investments, Inc., 266 F.3d 993,
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998 (9th Cir. 2001).
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III.
Discussion
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GALLC argues that bifurcation of the trial in this matter into separate liability and
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damage phases would prevent unfair prejudice to GALLC, promote judicial economy,
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and not result in any prejudice to Plaintiff. (Doc. 329 at 1.) GALLC argues that liability
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in this case is hotly contested and that the liability issues are “nuanced and complex,”
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requiring the jury to determine (1) whether GALLC “tried to influence the safety
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protocols at a park in another state,” (2) whether the employee monitoring the foam pits
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at the time of Plaintiff’s injury would have attempted to prevent Plaintiff from
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performing a multiple flip had the employee handbook contained a prohibition on that
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maneuver; and (3) whether Plaintiff would have stopped before attempting the maneuver
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if the employee had intervened. (Id. at 2-3.) GALLC argues that “this extended liability
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analysis will be unfairly overshadowed” by detailed, lengthy, and emotional descriptions
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of Plaintiff’s alleged damages, creating a substantial risk the jury will determine liability
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based on sympathy and emotion. (Id. at 3, 5-6.) GALLC further argues that Plaintiff’s
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injury and damages “have absolutely nothing to do with liability” since GALLC admits
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that Plaintiff’s injury was caused “by an unsuccessful triple flip maneuver.” (Id. at 4-5.)
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Finally, GALLC argues that bifurcation will promote judicial economy because it may
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eliminate the need for extensive evidence and testimony concerning Plaintiff’s injury and
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damages. (Id. at 7-8.)
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In response, Plaintiff argues that none of the justifications for bifurcation exist in
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this case, and that GALLC’s Motion hinges upon inaccurately portraying “an enormous
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gap between the strength of liability and the severity of damages.” (Doc. 334 at 1-2.)
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Plaintiff argues that his liability theory is easily understandable and that the jury will not
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be tasked with determining whether GALLC tried to influence the safety protocols at Get
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Air Tucson because that issue was already decided in the context of GALLC’s
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jurisdictional challenge. (Id. at 2-3, 5-10.) Plaintiff also argues that issues of liability
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and injury are intertwined, as Plaintiff will present expert testimony that his injury is “the
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result of the very reason” why the employee handbook should have included a “rule
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against double or triple flips.” (Id. at 2, 8.)
Plaintiff also avers that multiple lay
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witnesses who will testify to his injury will also provide testimony establishing that he
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would have heeded a warning against performing multiple flips into the foam pits. (Id. at
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8-9.) Plaintiff argues that bifurcation will not result in any savings in litigation costs,
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time, and judicial resources and that any risk of prejudice to GALLC can be mitigated
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with jury instructions. (Id. at 9-11.) Finally, Plaintiff argues that bifurcation would
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prejudice him by creating a subtle incentive for the jury to return a defense verdict if it is
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informed of the bifurcation, or by causing unfair surprise to the jury if it is not so
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informed. (Id. at 9, 11.)
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In its Reply, GALLC argues that whether it or Trampoline Parks, LLC prepared a
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generic employee handbook for wider dissemination to other Get Air trampoline parks is
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a disputed issue of material fact, and that the Court’s summary judgment finding on the
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existence of a duty did not take that disputed preliminary factual issue from the jury.
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(Doc. 336 at 5-8.) GALLC also continues to argue that other liability issues—including
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whether the Get Air Tucson employee monitoring the foam pits at the time of Plaintiff’s
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injury would have enforced a rule against multiple flips if the employee handbook had
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contained one—are hotly contested. (Id. at 8-10.) GALLC maintains that this action is a
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classic case for bifurcation because Plaintiff’s damages are severe, the liability evidence
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is wholly separate from the emotionally charged evidence of damages, and jury
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instructions will be ineffective in preventing unfair prejudice to GALLC. (Id. at 2-3.)
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A.
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Before turning to the merits of GALLC’s Motion for Bifurcation, the Court
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addresses the implications of its prior rulings on GALLC’s Rule 12(b)(2) Motion to
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Dismiss and GALLC’s Motion for Summary Judgment. The Court clarifies that the
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jurisdictional facts in this case were not conclusively determined in the context of
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GALLC’s Rule 12(b)(2) Motion to Dismiss. When such a motion is decided without an
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evidentiary hearing—as was the case here—the Plaintiff is required only to make a prima
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facie case of personal jurisdiction, and all factual disputes are resolved in the Plaintiff’s
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favor. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). If a Rule
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12(b)(2) motion is denied, the plaintiff must later establish the jurisdictional facts by a
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preponderance of the evidence at a preliminary hearing or at trial. Data Disc, Inc. v. Sys.
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Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). Thus, whether GALLC created
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a generic employee handbook for use in other Get Air trampoline parks—making its use
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in Tucson reasonably foreseeable—remains a disputed factual issue for the jury to
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determine at trial. The Court’s October 19, 2018 Order denying GALLC’s Motion for
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Summary Judgment should not be read as removing this disputed factual issue from the
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jury’s consideration. Although the existence of a duty is determined by the Court as a
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matter of law, it may hinge on preliminary factual questions that must be determined by
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the trier of fact. See Quiroz v. Alcoa Inc., 416 P.3d 824, 828 (Ariz. 2018); Estate of
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Maudsley v. Meta Servs., Inc., 258 P.3d 248, 255 (Ariz. App. 2011). In accordance with
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the Court’s summary-judgment Order, the jury will be instructed at trial that, if it finds
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that GALLC created a generic employee handbook for use in other Get Air trampoline
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parks, then GALLC had a duty to exercise reasonable care in the development of safety
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rules contained in the employee handbook.
Preliminary Matters
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B.
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The Court finds that bifurcation is appropriate here given its potential to save
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litigation costs, time, and judicial resources. The trial in this case is anticipated to
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involve extensive evidence and testimony concerning damages.
Bifurcation
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The need for the
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presentation of such evidence and testimony may be eliminated if the issues of liability
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and damages are tried separately.
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Bifurcation is also appropriate to avoid the risk of prejudice. Given Plaintiff’s
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extensive damages evidence—including the anticipated emotional testimony concerning
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his life before and after his injury—there is a possibility that, absent bifurcation, even a
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properly instructed jury will decide issues of liability not on the merits but out of
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sympathy for Plaintiff. Accordingly, trying the issues of liability and damages together
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poses a risk of unfair prejudice to GALLC. That risk outweighs any minimal risk that
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bifurcation into liability and damage phases would cause to Plaintiff.
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The liability issues in this case are separate and distinct from issues concerning the
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amount of damages, such as Plaintiff’s past, present, and future medical costs; Plaintiff’s
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lost earning capacity; Plaintiff’s quality of life before and after his injury, and Plaintiff’s
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pain and suffering. However, the liability issues are not entirely separate from Plaintiff’s
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injury itself. To establish GALLC’s negligence, Plaintiff must prove that GALLC failed
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to exercise reasonable care by creating a generic employee handbook that omitted a rule
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prohibiting multiple flips into the foam pits, and that GALLC’s conduct caused Plaintiff’s
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injury. To that end, Plaintiff intends to present expert testimony that injuries such as the
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one Plaintiff sustained are the very reason why reasonable safety rules prohibit multiple
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flips into foam pits. A jury deciding liability should, in fairness, be informed of the type
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of injury sustained by Plaintiff when he attempted a triple flip into the foam pit at the Get
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Air Tucson trampoline park. Accordingly, Plaintiff may present testimony and evidence
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during the liability phase of the trial in this matter concerning the type of injury that he
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sustained at Get Air Tucson. However, testimony and evidence relevant only to the
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amount of Plaintiff’s damages shall be reserved for the damage phase of the trial.
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Although testimony and evidence during the liability phase of the trial concerning the
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type of Plaintiff’s injury poses some risk of prejudice to GALLC, that risk is significantly
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less than the risk of prejudice inherent in the presentation of extensive testimony and
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evidence concerning the amount of Plaintiff’s damages. Any prejudice resulting from
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informing the jury of the type of injury during the liability phase can be adequately
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alleviated with proper jury instructions.
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IT IS ORDERED that Defendant Get Air, LLC’s Motion to Bifurcate (Doc. 329)
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is partially granted, as set forth above. Trial in the above-captioned matter will be
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bifurcated into liability and damage phases, as described above.
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Dated this 25th day of September, 2019.
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