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Reyes v. Town of Gilbert

Court of Appeals of Arizona, First Division

July 25, 2019

CINDY REYES, et al., Plaintiffs/Appellees,
v.
TOWN OF GILBERT, Defendant/Appellant.

          Appeal from the Superior Court in Maricopa County Nos. CV2013-016971 CV2015-004464 CV2015-006176 (Consolidated) The Honorable Dawn M. Bergin, Judge

          Breyer Law Offices, P.C., Phoenix By Mark P. Breyer, Edward M. Ladley, Brian C. Fawber Counsel for Plaintiffs/Appellees

          Grasso Law Firm, P.C., Chandler By Robert Grasso, Jr., Kim S. Alvarado, Stephanie L. Samuelson Counsel for Defendant/Appellant

          Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.

          OPINION

          WINTHROP, JUDGE

         ¶1 In this personal injury action, a jury trial resulted in a defense verdict in favor of the Town of Gilbert ("the Town"). The plaintiff, Joseph Reyes ("Reyes"), then moved for a new trial, which the superior court granted, finding the Town had violated Arizona Rule of Civil Procedure ("Rule") 26.1. The Town appeals the court's new-trial order. For the following reasons, we reverse the order for a new trial and direct the superior court on remand to reinstate the jury verdict in favor of the Town.

         FACTS AND PROCEDURAL HISTORY

         I. The Underlying Incident

         ¶2 Reyes suffered injuries in a single-car accident in which Albert Lopez was the driver. On the night of May 18, 2013, Reyes, then sixteen years old, went with some friends to an unsupervised party in Chandler, where they drank a substantial amount of alcohol. Lopez arrived at the party after midnight. He had been drinking alcohol throughout the day, and he had also smoked marijuana and used cocaine.

         ¶3 At approximately 1:00 a.m., Lopez announced the party was moving to his house. Lopez and three other teenagers, including Reyes, got into Lopez' truck. The truck sped eastbound on Ocotillo Road, ran a stop sign at the Greenfield Road intersection, and continued recklessly speeding through a residential subdivision. Two passengers, including Reyes, asked Lopez to slow down, but he did not do so, even after the pavement ended and Ocotillo Road transitioned to a narrow dirt path/road. Instead, Lopez continued on; the passengers later estimated the truck was going between sixty and ninety miles per hour.

         ¶4 A canal intersected the road 765 feet east of the end of the pavement. As Lopez continued toward the canal, he eventually braked, but was unable to stop. The truck vaulted the canal and slammed into the east embankment.

         ¶5 Lopez, who had a blood alcohol level of .198 and tested positive for cocaine, later testified he could not remember the crash or driving after leaving the party.[1] Reyes, who was not wearing a seatbelt, was seriously injured in the crash. II. The Legal Proceedings

         ¶6 In December 2013, Reyes' mother, Cindy, timely filed a complaint, individually and on behalf of her minor son, naming numerous defendants, including the Town. The complaint alleged the Town was negligent because it "failed to properly light the area, provide signage on the road or have adequate warnings to alert travelers that Ocotillo Road was ending and that an open canal existed across the roadway" at the end of the dirt road.

         ¶7 By the time of trial, Reyes had turned eighteen and the only claim remaining was his negligence claim against the Town. During the course of the litigation, Reyes filed twenty-four supplemental Rule 26.1 disclosure statements, and in each he continued to allege as the basis for his claim that the Town had "failed to properly light the area, provide signage on the road or have adequate warnings to alert travelers that Ocotillo Road was ending and that an open canal existed across the roadway."

         ¶8 Before trial, the superior court granted the Town's unopposed motion to exclude the expert testimony of Todd Springer, Reyes' "lighting expert." Reyes thereafter proceeded on a single liability theory-that the Town was negligent in maintaining Ocotillo Road east of Greenfield Road. Relying on a traffic engineering expert, Dr. Robert Bleyl, Reyes argued that the Town failed to provide proper warning signs and that this failure was a cause of his injuries. Specifically, Dr. Bleyl opined that the Manual on Uniform Traffic Control Devices ("MUTCD") required the Town to place diamond-shaped reflective objects, known as Type 4 markers, in certain areas to warn drivers they were approaching a hazard.

         ¶9 Shortly before trial, the parties filed their Joint Pretrial Statement, and Reyes filed an Amended Joint Pretrial Statement. In each, Reyes alleged as his sole theory of liability that the Town "fail[ed] to follow the standard of care and state law requiring specific signage or barriers to warn of a canal that sits where Ocotillo [Road] ends."

         ¶10 The superior court addressed numerous pretrial motions in limine, including a motion by the Town to preclude Reyes "from offering testimony or written documentation and questioning witnesses concerning other possible ways that the Town was 'negligent' because such other 'negligence theories' go beyond the opinions of [Dr. Bleyl]."[2] The Town noted Dr. Bleyl's opinions had "focused on whether the Town adequately warned [] Lopez that the roadway ended and a canal was ahead, "[3] but asserted Reyes had nonetheless "implied that the Town was negligent in other ways, including: (1) the lack of lighting along the dirt area or at the canal; (2) the lack of fencing/barriers before the canal; (3) other types of signage not [testified to by Dr. Bleyl in his March 31, 2016 deposition]; and (4) not constructing an overpass over/across the canal." The Town argued Reyes "should not be permitted to argue negligence theories . . . on issues that even [Reyes'] own expert does not identify as negligence." In response, Reyes argued he should be "allowed to discuss the MUTCD and demonstrate that Type 4 signage was required (and not used) and Type 3 barriers were to be considered (but were not used) by the [Town]." Reyes conceded he had "no claim" "about the lighting on Ocotillo [R]oad approaching the canal where this incident occurred," but also argued he should be allowed to speculate about the benefits of an overpass over the canal. The superior court granted the Town's motion in limine "excluding evidence of other negligence theories" and ruled that Reyes' "negligence theories shall be limited to those contained in [his] expert disclosures or depositions."

         ¶11 The case went to trial in December 2016. Consistent with his written report and disclosed opinions, Dr. Bleyl testified that the MUTCD required the Town to place Type 4 markers on Ocotillo Road east of Greenfield Road to warn drivers they were approaching a hazard. The Town called Dr. Andrzej Kwasniak, a traffic and transportation operations engineer, to rebut Dr. Bleyl's opinions. As disclosed during discovery, Dr. Kwasniak had conducted on-site traffic counts on two days in September 2015 and used the data he gathered about the volume and speeds of the traffic to conclude that the existing signage, or lack of it, on Ocotillo Road did not render the road unreasonably unsafe. Consistent with its pretrial disclosures, the Town's primary defense was that the May 2013 accident was caused by Lopez' reckless intoxicated behavior, and that Reyes' own reckless behavior contributed to his injuries.

         ¶12 The jury returned a defense verdict. In January 2017, the superior court entered judgment in favor of the Town.

         ¶13 Reyes then moved for a new trial pursuant to Rule 59(a)(1)(B), Ariz. R. Civ. P., alleging the Town committed misconduct by failing to disclose a 2003 traffic impact study involving some of the area at issue ("the 2003 TIS"). That study had been completed by Kenneth Howell, an engineer with TASK Engineering, under contract with a potential developer who in 2003 was considering building a subdivision (the "Freeman Farms development"). Reyes asserted that, approximately ten months before trial, he had sent a public records request to the Town asking for "[a]ll field reviews and traffic studies for Ocotillo Road east of Greenfield until the Canal that is Town of Gilbert right of way," and that, in responding, the Town had failed to provide the 2003 TIS, but instead stated it had already provided a general study of the area, and further stated, "The Town's responses to these requests are complete."[4] Reyes argued that the 2003 TIS, which was ...


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