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State v. Mahoney

Court of Appeals of Arizona, First Division

July 23, 2019

STATE OF ARIZONA, Petitioner,
v.
THE HONORABLE MARGARET MAHONEY, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, CALVIN RAGSDALE and VIRGINIA RAGSDALE, Real Parties in Interest.

          Petition for Special Action from the Superior Court in Maricopa County No. CV2016-015513 The Honorable Margaret R. Mahoney, Judge.

          Arizona Attorney General's Office, Phoenix By Brock J. Heathcotte, Christopher B. Davis Counsel for Petitioner

          Palumbo, Wolfe & Palumbo, PC, Phoenix By Elliot G. Wolfe Co-Counsel for Real Parties in Interest

          Severiano A. Rodarte, Esq., Phoenix By Severiano A. Rodarte Co-Counsel for Real Parties in Interest

          Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.

          OPINION

          JOHNSEN, JUDGE

         ¶1 A motorist died before dawn one day when his car slammed into some horses that had wandered onto State Route 77 near Dudleyville. Tracks showed the horses had passed through an open gate in a barbed-wire fence maintained by the State of Arizona adjacent to the highway. Investigators also spotted tire tracks of one or more all-terrain vehicles ("ATVs") leading through the gate. The motorist's parents sued several defendants, including the State, which filed a notice of nonparty at fault asserting that "unknown ATV riders were responsible for leaving" the gate open. The superior court struck the notice, noting the State had not tried to identify or locate the ATV riders and there was no evidence that any nonparty "was actually known" to be at fault. We hold the notice was valid. The claim against the State is that the highway gate was open because the State did not secure it. On these facts, the State may name as a nonparty at fault the individual who negligently left the gate open even though the State cannot identify that person by name.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Joseph Ragsdale was driving to work in Miami when his car collided with the horses. Ragsdale was killed, and four of the horses also perished. His parents (the "Plaintiffs") sued a couple that owned property near the highway (the "Owners"), the couple who kept the horses in a fenced pasture on that property (the "Ranchers"), and the State. The Plaintiffs alleged the Owners and the Ranchers negligently failed to secure the gate to the pasture in which the Ranchers kept the horses. The Plaintiffs alleged the State negligently failed to secure a gate in another fence that ran along the highway about a half-mile beyond the pasture.

         ¶3 Discovery had revealed that hunters and hikers sometimes came and went through the pasture gate, and the State, joined by the Owners, filed a notice naming as nonparties at fault "unknown persons" who opened the pasture gate without closing it. The State separately filed another notice naming "Unknown ATV Riders" who, the State alleged, had left the highway gate open in disregard of a sign on the gate saying, "KEEP GATE CLOSED."

         ¶4 In support of its allegation about the ATV riders, the State cited a DPS report that stated as follows:

[T]he horses came from the pasture and traveled towards State Route 77, where they located the opened right- [of-way] fence gate, traveled through it and up onto the highway where the collision occurred. It could not be determined who had left . . . either the pasture gate or the right-[of-way] fence gate open, but . . . a subject(s) operating [ATVs], based upon tire prints, had left the right-[of-way] fence gate open.

         The Plaintiffs objected to the notices of nonparty at fault, and, after briefing and oral argument, the superior court struck them both.

         JU ...


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