2six issues related to the final jury instructions. For the reasonsstated below and in our separate memorandum decision, we reverseand remand for a new trial.
In May 2004, Defendant was completing a solo day-hike ina remote area of Coconino National Forest near Strawberry when henoticed the Victim off to the side of the trail thirty yards aheadof him at the top of a hill or grade apparently lying on the groundin front of a car. After Defendant waved to the Victim, two ofthree unleashed medium to large sized dogs near the Victim began torun down the hill at “full gallop” as if to attack the Defendant,barking and growling.
Defendant yelled to the Victim, a forty-three-year-old man, to restrain or control the dogs, but theDefendant did not recall the Victim at that point doing anything orat least Defendant concluded the Victim could not control the dogs.Perceiving the Victim would be unable to control the dogs,Defendant dropped his hiking stick, grabbed his ten millimeter
In a separate memorandum decision, we address otherissues raised on appeal which do not require reversal but which mayre-occur on remand.
Arizona Rule of Civil Appellate Procedure(“Ariz. R. Civ. App. P.”) 28(g).
We view the facts in the light most favorable tosustaining the verdict and we resolve all reasonable inferencesagainst Defendant.
State v. Greene
, 192 Ariz. 431, 436-37, ¶ 12,967 P.2d 106, 111-12 (1998) (citation omitted).
The Victim owned the dog, “Maggie,” that did not runtowards Defendant. On the day of the incident, the Victim pickedup the other dogs, “Sheeba” and “Hank,” from the Payson HumaneSociety to exercise them.