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Rosner v. Denim & Diamonds Inc.10/31/1996
good Samaritan, Ocotillo . In each case, there were facts sufficient to establish the existence of another tortfeasor, despite the inability to further identify the tortfeasor.
In the case at bar, appellee went to great lengths to specifically identify and locate appellant's assailants, and the parties had stipulated early in the lawsuit as an uncontested fact that "the other individuals involved in the altercation were not identified and neither Plaintiff nor Defendant knows their current whereabouts." Prior to trial, appellee timely provided all information it had obtained about the unknown attackers. It hired a private investigator to attempt to find the people who had actually attacked appellant. Testimony was presented at trial about the existence and involvement of the unknown attackers. The jury was instructed that appellee had the burden of proving any fault of appellant and unidentified persons involved in the fight. The jury was allowed to decide whether and how to apportion fault among appellant, appellee, and the unknown assailants.
The trial court determined that appellee had sufficiently complied with Rule 26(b)(5)'s requirement to identify (people in the bar who attacked appellant who were not employees or friends), locate (appellee's nightclub on the night of the incident), and state facts supporting the claimed liability (assault) of the nonparties at fault to permit the jury to apportion fault to them. The trial court has broad discretion in ruling on discovery and disclosure matters. Plattner v. State Farm Mutual Auto. Ins. Co. , 168 Ariz. 311, 812 P.2d 1129 (App. 1991). We will not disturb these decisions on appeal absent an abuse of the court's discretion. LyphoMed, Inc. v. Superior Court , 172 Ariz. 423, 837 P.2d 1158 (App. 1992). The court did not abuse its discretion in reaching its Conclusion. The jury verdict is affirmed. Appellee's cross-appeal for a new trial in the event of a reversal is thus moot.
M. JAN FLOREZ, Judge
Concurring
JOHN PELANDER, Presiding Judge
JOSEPH M. LIVERMORE, Judge
Page 1 2 3 Arizona Personal Injury Attorneys
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