There is a nuggest here which makes some sense, which is that a new trial for failure to make disclosure or discovery has to be based on disclosure or discovery. Otherwise we’re not sure that the court’s analysis is particularly artful.
Plaintiff was hurt when a car in which he was a passenger ran off the road into a canal. He sued the Town of Gilbert alleging inadequate signs and barricades. He lost at trial but won his motion for new trial based on the Town’s failure to disclose an engineering report concerning the road. The Town appealed.
The Court of Appeals reverses and remands with instructions to reinstate the verdict.
The opinion recounts at length the facts of the accident (the driver was drunk and reckless), the facts of the entire evening of the accident, and, in one of the eleven footnotes, the facts of the driver’s criminal punishment. None has anything to do with the issue or the holding. Perhaps someone found them interesting, though they are standard teenage-one-car-accident stuff. Or perhaps this is another example of a phenomenon we remarked on recently — trying to make the holding emotionally satisfying — since the driver could perhaps have crashed regardless of how the Town signed the road. (Of course a causation defense, especially if there were a general verdict, could have raised issues in this appeal but this blog entry is going to be long enough as it is so we won’t worry about why they’re not here.)
The court gives us a lengthy section on “Applicable Law and Standard of Review.” The “applicable law” cited is that roads needn’t be perfectly safe and that their design can assume that drivers will follow the rules of the road. How that law is “applicable” to an appeal about new trial under Rule 26.1 is not explained. As for the standard-of-review section, we have said too much about those to repeat that rant here. This particular one is clearly intended to justify the result rather than to explain, however unnecessarily, the parameters of analysis.
There was a traffic study of the area from 2003, made in connection with a then-proposed subdivision. Plaintiff had filed a public-records request for studies of the road. The Town didn’t provide the 2003 study in response to the request nor under Rule 26.1. It apparently wasn’t clear whether the trial court granted new trial based on the request, on Rule 26.1, or on both. So the court addresses both.
A request for public documents is not a discovery request under the Rules of Civil Procedure. It is made under a statute that includes its own sanctions (39-121.02). It is thus not a basis for new trial even if the statue were violated.
Regarding Rule 26.1 the court examines the facts and the allegations and decides that the 2003 report had nothing to do with the case or “at best . . . contained marginally useful information” and so the Town “had no reason” to disclose it. The trial court therefore erred. What kind of error, you ask? Was it an error of law? Was there no substantial evidence to support it? Was it arbitrary and unreasonable? The opinion’s standard-of-review section had raised all as possibilities. One would normally expect the court to identify which one it had picked, especially since its disagreement with the trial court sounds so much like one of fact. But it doesn’t.
The court then says that even if the Town violated Rule 26.1 there was no prejudice. The 2003 study didn’t “materially” contradict the town’s expert witness. As for “speculation” that the report supported an additional theory of negligence, that’s not prejudicial because Plaintiff and his expert could have come up with it on their own. (The court cites no authority for this; we assume that it didn’t look for any since the cases don’t necessarily say that.) Plaintiff can’t, therefore, have a new trial because letting him use a report that raises a new issue that the Town kept secret until after the trial would mean that his disclosure of the issue would be untimely. (Don’t believe us? Read the last part of ¶38.) So the trial court abused its discretion (at least here the court identifies a legal basis of error).