9th Circuit Overturns Jury Verdict in Favor of Defense in Fatal Tour Bus Crash

A federal appellate court on Friday overturned a take-nothing jury verdict in favor of a tour bus company whose driver was accused of causing a deadly head-on collision on an Arizona highway.

In a 2-1 decision, a panel of the 9th Circuit Court of Appeals ruled that the District Court had improperly allowed testimony about inadmissible comments made by an Arizona Highway Patrol officer during cross examination. The state trooper said the bus driver had done nothing improper, while the plaintiffs’ expert witness concluded the bus driver caused the collision by crossing into the oncoming traffic lane.

The panel majority decided that discussion about the state trooper’s report prejudiced the jury.

“The fact that accident reconstructionists rely on police ‘reports’ does not

automatically mean that everything included in such a report is, without more, fair game for cross-examination,” the opinion says.

Butch Corey Johnson was killed on Sept. 21, 2004 when his Pontiac Sunfire collided with a tour bus on US Highway 160 in Kayenta, Arizona. The bus was owned by Conlon Garage and operated by EXC Inc., which does business as Express Charters. The collision injured Johnson’s common-law wife, Jamien Rae Jensen and the couple’s child, D.J. Jensen’s unborn fetus was also killed during the crash.

Jensen and Johnson’s family filed a wrongful death lawsuit against the bus driver, Russel J. Conlon, Conlon Garage, EXC and Go Ahead Vacations, which chartered the tour bus. The suit also names National Interstate Insurance Co. as a defendant. The action asserted claims under the laws of the Navajo Nation, where the accident occurred. Insurers can be sued directly under Navajo law, the plaintiffs said.

The suit alleges that the bus driver, Russel J. Conlon, caused the crash by crossing over the centerline of the highway into oncoming traffic.

The parties agreed that Conlon had pulled the bus out of the Hampton Inn parking lot onto Highway 160 and moved into the left-most westbound lane. A Chevrolet Tahoe was also driving west in the same lane. Apparently annoyed that the bus had pulled out in front of him, the Tahoe driver attempted to pass the bus on the right. Unfortunately, the right westbound lane ended a short distance away, giving the Tahoe little room to pass.

What happens next is in dispute. Jensen and the Johnson estate allege that Conlon, seeing that the Tahoe was trying to pass on his right, pulled into the center universal turning lane to let him by and crashed into Johnson’s Pontiac. An expert witness for the plaintiffs testified that Conlon violated Arizona traffic laws by pulling into the leftmost westbound lane rather than pulling into the right lane and allowing the Tahoe to pass.

According to testimony, the highway had recently been resurfaced. The lanes were marked with temporary yellow tabs and it may have been unclear whether the center lane was for turning vehicles or an eastbound travel lane.

A state trooper who investigated concluded “that there was no improper driving by the bus.” The District Court judge, however, did not allow the defense to enter the officer’s conclusions into evidence. The officer’s measurements and observations at the scene of the accident were allowed, but the officer’s opinions about who was at fault relied on inadmissible hearsay, the judge ruled.

The jury learned what was in the report anyway when a defense attorney asked the plaintiffs’ expert witness about it during cross examination. The attorney was able to inform the jury not only that the officer found that Conlon had done nothing wrong, but also that he believed Johnson was driving too fast for conditions.

The jury returned a verdict in favor of the defendants on Dec. 23, 2019. The defendants appealed, arguing that the jury had been prejudiced by inadmissible evidence.

The panel majority agreed, but Circuit Judge J. Clifford Wallace did not. He wrote a dissenting opinion that says the defense attorney’s questions about the state trooper’s opinions was proper because it gave the jury an opportunity to judge the credibility of the plaintiff’s expert witness.

The 9th Circuit panel majority reversed the jury verdict and remanded the case for a new trial. The panel, however, also denied the plaintiff’s request for a judicial finding that Conlon was negligent.

“Although Conlon’s original decision to proceed in the left lane was concededly negligent, a reasonable jury could find that it was not reasonably foreseeable that Johnson’s vehicle would enter that lane at precisely the moment in which Conlon could not safely change lanes,” the majority opinion says.