Averyt v. Wal-Mart Stores, Inc.

• Decision Date: 12 December 2011
• Docket Number: No. 11SA66.,11SA66.
• Citation: 265 P.3d 456
• Parties: In re Holly AVERYT, Plaintiff v. WAL–MART STORES, INC., Defendant.
• Court: Colorado Supreme Court

265 P.3d 456

In re Holly AVERYT, Plaintiff

v.WAL–MART STORES, INC., Defendant.

No. 11SA66.

Supreme Court of Colorado, En Banc.

Nov. 7, 2011.Rehearing Denied Dec. 12, 2011.*

Perkins Coie LLP, Robert N. Miller, Stephanie E. Dunn, Michael A. Sink, Denver, Colorado, The Gold Law Firm, LLC, Gregory A. Gold, Greenwood Village, Colorado, Jeffrey R. Hill P.C., Jeffrey R. Hill, Colorado Springs, Colorado, Attorneys for Plaintiff.

Harris, Karstaedt, Jamison & Powers, P.C., Jamey W. Jamison, Alan Peter Gregory, Rita L. Booker, Englewood, Colorado, Greenberg Traurig, LLP, David G. Palmer, Brian L. Duffy, Denver, Colorado, Attorneys for Defendant.

Carter Boyle LLC, Nelson Boyle, Denver, Colorado, Attorneys for Amicus Curiae Colorado Trial Lawyers Association.Justice RICE delivered the Opinion of the Court.

In this original proceeding under C.A.R. 21, we review the trial court's order granting Wal–Mart a new trial based on a purportedly untimely disclosure and a jury verdict that allegedly was not supported by the evidence and instead was the result of prejudice. We hold that the trial court abused its discretion in holding that Holly Averyt's attorney violated discovery rules when he failed to disclose a document from the City of Greeley that he received while Wal–Mart was making its opening statement. Further, we hold that the jury's verdict is supported by the evidence and is not the result of unfair prejudice. Therefore, we make this rule absolute.

I. Facts and Proceedings Below

On December 13, 2007, petitioner, Holly Averyt, a commercial truck driver, slipped in grease while making a delivery to Wal–Mart Store # 980 in Greeley. The grease had accumulated in the grocery receiving area. As a result of her fall, Averyt ruptured a disc in her spine and injured her shoulder and neck. These injuries ended her career as a truck driver and have left her unable to perform many daily functions.

Averyt brought suit against Wal–Mart, alleging claims of negligence and premises liability. During discovery, Averyt's attorney unsuccessfully sought to obtain records from Wal–Mart documenting the grease spill. Wal–Mart, however, denied the existence of the grease spill, noting in its opening statement that there had been no grease spill and, if there had been, Wal–Mart would have records documenting it.

Despite Wal–Mart's persistent denial of the grease spill, Averyt's attorney continued to seek evidence to verify its existence. In the days leading up to the trial, Averyt's attorney sought to better understand how grease traps function. As a result of this last minute research, Averyt's attorney was advised to contact Weld County to determine if it had records documenting the grease spill. Averyt's attorney called Weld County during the lunch recess on the first day of trial. Although Weld County had no record of the grease spill, the representative suggested that Averyt's attorney contact the City of Greeley. A colleague then contacted the City of Greeley while Averyt's attorney returned to the trial.

While Wal–Mart was making its opening statement and claiming that there had been no grease spill, Averyt's attorney received an email on his mobile telephone from his colleague containing a memorandum referencing a grease spill and a related investigation and cleanup at a Greeley Wal–Mart (the Greeley report).¹ After both parties made opening statements, the court announced the evening recess. Averyt's attorney spent the evening attempting to decipher the relevance of the report, specifically whether it pertained to Store # 980.

The next day, Averyt called as a witness her doctor, who testified to her injuries, and called a fellow truck driver, who testified that he had noticed a grease spill at the Wal–Mart two days before Averyt's slip. Averyt then called as a witness Jonnie Shommer, who was Wal–Mart's corporate representative designated under C.R.C.P. 30(b)(6). After Shommer testified that there had been no grease spill, Averyt impeached her testimony with factual questions based on the Greeley report. Averyt did not specifically refer to the report, nor did he introduce the report into evidence. When Averyt concluded the direct examination of Shommer, Wal–Mart requested, and was granted, a recess.

During the recess, Wal–Mart's attorney asked Averyt's attorney whether he had been reading from a document when he questioned Shommer. Averyt's attorney then gave Wal–Mart's attorney a copy of the Greeley report. After this exchange, and before Wal–Mart began cross-examining Shommer, Wal–Mart objected outside the presence of the jury to Averyt's use of the report during direct examination. It did not, however, request a mistrial, a continuance, a curative instruction, or a limiting instruction.² The court overruled Wal–Mart's objection.

During cross-examination, Wal–Mart admitted the Greeley report into evidence. The court then announced the evening recess. By the next morning, before cross-examination of Shommer was to resume, Wal–Mart informed the court and Averyt that it had located an assistant manager who remembered the grease spill and numerous documents corroborating the existence of the spill, including documents from three companies who were involved in cleaning up the spill. From that point forward, Wal–Mart ceased to deny the existence of the grease spill and instead asserted that it exercised reasonable care to clean up the spill.

The jury found in Averyt's favor and awarded her $15 million in damages, including: $4.5 million in economic damages; $5.5 million in non-economic damages; and $5 million for her physical impairment. The trial court ultimately reduced the non-economic damages award to the statutory cap of $366,250 set forth in section 13–21–102.5(3), C.R.S. (2011).

After the verdict, Wal–Mart moved for a new trial based on surprise, non-disclosure, and unfair prejudice. The trial court granted Wal–Mart's motion, holding that Averyt should have disclosed the Greeley report before using it to question Wal–Mart's representative on the second day of trial. The court further held that the jury award was not supported by the facts, indicating that the jury had been unfairly prejudiced by the late disclosure of the Greeley report.

Averyt petitioned this Court to issue a rule to show cause which we granted.

II. Analysis

A. C.R.C.P. Disclosures

Wal–Mart contends that Averyt's attorney violated C.R.C.P. 26(e) by failing to disclose the Greeley report in a timely manner. Because the report is a public document equally available to both parties, we disagree. Instead, we hold that C.R.C.P. 26 does not apply to the report and that Averyt's attorney had no duty to disclose it.

Generally, this Court will review a decision by the trial court to grant a new trial for an abuse of discretion. People v. Wadle, 97 P.3d 932, 936 (Colo.2004). A trial court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair. Dunlap v. People, 173 P.3d 1054, 1094 (Colo.2007). Although we review the imposition of sanctions for discovery violations for an abuse of discretion, see, e.g., Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 702 (Colo.2009), we interpret the meaning of the discovery rules set forth in the Colorado Rules of Civil Procedure de novo, City and Cnty. of Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d 1270, 1274 (Colo.2010); Keenan ex rel. Hickman v. Gregg, 192 P.3d 485, 487 (Colo.App.2008) (interpretation of the rules of civil procedure involves questions of law, which this Court reviews de novo).

C.R.C.P. 26 governs disclosures during discovery. Section (a) describes the mandatory disclosures that a party must make, including, among other things, a “listing [and] copy of ... all documents ... in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings.” These disclosures must be made within thirty days after the case is at issue. C.R.C.P. 26(a)(1).

Because new information might be unearthed after the initial thirty-day deadline, section (e) requires a party to supplement its disclosures when it “learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.” The purpose of these disclosure rules is to promote accuracy, encourage settlements, and avoid surprises at trial. D.R. Horton, Inc.-Denver v. Bischof & Coffman Constr., LLC, 217 P.3d 1262, 1267–68 (Colo.App.2009).

As a general rule, however, discovery is not required for public documents that are equally available to all parties. 27 C.J.S. Discovery § 136 at 223 (2009); Tequila Centinela, S.A. de C.V. v. Bacardi & Co., 242 F.R.D. 1, 11 (D.D.C.2007) (“Typically, courts do not order discovery of public records which are equally accessible to all parties.”); Krause v. Buffalo & Erie Cnty. Workforce Dev. Consortium, Inc., 425 F.Supp.2d 352, 374–75 (W.D.N.Y.2006) ( “[D]iscovery need not be required of documents of public record which are equally accessible to all parties.”); SEC v. Samuel H. Sloan & Co., 369 F.Supp. 994, 995 (S.D.N.Y.1973) (“The purpose of discovery is to enable a party to discover and inspect material information which by reason of an opponent's control, would otherwise be unavailable for judicial scrutiny.”); Wolf v. Grubbs, 17 Neb.App. 292, 759 N.W.2d 499, 524 (2009) (quoting 27 C.J.S. Discovery § 91 at 177 (1999)) (“[A]s a general rule, under statutes authorizing discovery no discovery can be required of documents of public record, as they are equally accessible to all parties.”); see also Hendler v. United States, 952 F.2d 1364, 1380 (Fed.Cir.1991) (“For the Government to make requests which would require plaintiffs in turn to seek information from the Government itself, and then to seek dismissal with prejudice when plaintiffs failed to supply the...