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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