IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA,

Petitioner, 

v.

THE HONORABLE MARGARET MAHONEY, 

Judge of the SUPERIOR COURT OF 

THE STATE OF ARIZONA, in and for 

the County of MARICOPA,

Respondent Judge, 

CALVIN RAGSDALE and VIRGINIA

RAGSDALE,

Real Parties in Interest.

No. 1 CA-SA 19-0067 

Petition for Special Action from the Superior Court in Maricopa County

No. CV2016-015513

The Honorable Margaret R. Mahoney, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Brock J. Heathcotte, Christopher B. Davis

Counsel for Petitioner

Palumbo, Wolfe & Palumbo, PC, Phoenix

By Elliot G. Wolfe

Co-Counsel for Real Parties in Interest

FILED 5-16-2019
2

Severiano A. Rodarte, Esq., Phoenix

By Severiano A. Rodarte

Co-Counsel for Real Parties in Interest

OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in 

which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.

J O H N S E N, Judge:

¶1 A motorist died before dawn one day when his car slammed 

into some horses that had wandered onto State Route 77 near Dudleyville. 

Tracks showed the horses had passed through an open gate in a barbedwire fence maintained by the State of Arizona adjacent to the highway. 

Investigators also spotted tire tracks of one or more all-terrain vehicles 

("ATVs") leading through the gate. The motorist's parents sued several 

defendants, including the State, which filed a notice of nonparty at fault 

asserting that "unknown ATV riders were responsible for leaving" the gate 

open. The superior court struck the notice, noting the State had not tried to 

identify or locate the ATV riders and there was no evidence that any 

nonparty "was actually known" to be at fault. We hold the notice was valid. 

The claim against the State is that the highway gate was open because the 

State did not secure it. On these facts, the State may name as a nonparty at 

fault the individual who negligently left the gate open even though the 

State cannot identify that person by name.

FACTS AND PROCEDURAL BACKGROUND

¶2 Joseph Ragsdale was driving to work in Miami when his car 

collided with the horses. Ragsdale was killed, and four of the horses also 

perished. His parents (the "Plaintiffs") sued a couple that owned property

near the highway (the "Owners"), the couple who kept the horses in a 

fenced pasture on that property (the "Ranchers"), and the State. The 

Plaintiffs alleged the Owners and the Ranchers negligently failed to secure 

the gate to the pasture in which the Ranchers kept the horses. The Plaintiffs 

alleged the State negligently failed to secure a gate in another fence that ran 

along the highway about a half-mile beyond the pasture.

¶3 Discovery had revealed that hunters and hikers sometimes 

came and went through the pasture gate, and the State, joined by the 
STATE v. HON. MAHONEY/RAGSDALE

Opinion of the Court

3

Owners, filed a notice naming as nonparties at fault "unknown persons" 

who opened the pasture gate without closing it. The State separately filed 

another notice naming "Unknown ATV Riders" who, the State alleged, had 

left the highway gate open in disregard of a sign on the gate saying, "KEEP 

GATE CLOSED."

¶4 In support of its allegation about the ATV riders, the State 

cited a DPS report that stated as follows:

[T]he horses came from the pasture and traveled towards 

State Route 77, where they located the opened right-[of-way]

fence gate, traveled through it and up onto the highway 

where the collision occurred. It could not be determined who 

had left . . . either the pasture gate or the right-[of-way] fence 

gate open, but . . . a subject(s) operating [ATVs], based upon 

tire prints, had left the right-[of-way] fence gate open.

The Plaintiffs objected to the notices of nonparty at fault, and, after briefing 

and oral argument, the superior court struck them both.

JURISDICTION

¶5 The State petitioned for special action relief from the superior 

court's order striking its notice of the ATV riders as nonparties at fault. By 

prior order, we accepted jurisdiction of the State's petition because it raised

a purely legal question and, in the circumstances presented, the State lacked

an adequate remedy. See Ariz. R.P. Spec. Act. 1(a); Bowen Prods. v. French, 

231 Ariz. 424, 426-27, ¶ 8 (App. 2013); Ocotillo West Joint Venture v. Superior 

Court, 173 Ariz. 486, 488 (App. 1993).1

DISCUSSION

¶6 As our supreme court explained in Dietz v. Gen. Elec. Co., 169 

Ariz. 505 (1991), "[w]ith certain exceptions . . . the liability of tortfeasors in 

Arizona is several only." Id. at 506 (citing Ariz. Rev. Stat. ("A.R.S.") § 12-

2506(A) (2019) ("Each defendant is liable only for the amount of damages 

allocated to that defendant in direct proportion to that defendant's 

percentage of fault . . . .")).

2 "In assessing percentages of fault the trier of 

 

1 Our order vacated the ruling striking the State's notice and stated 

that we would issue an opinion in due course. This is that opinion.

2 Absent material revision after the relevant date, we cite the current 

version of a statute or rule.
STATE v. HON. MAHONEY/RAGSDALE

Opinion of the Court

4

fact shall consider the fault of all persons who contributed to the alleged 

injury, death or damage to property, regardless of whether the person was, 

or could have been, named as a party to the suit." A.R.S. § 12-2506(B).

¶7 Arizona Rule of Civil Procedure 26(b)(5) sets out the 

procedure by which a defendant may exercise its rights under the statute:

Notice of Nonparty at Fault. No later than 150 days after filing 

its answer, a party must serve on all other parties--and should 

file with the court--a notice disclosing any person: (A) not 

currently or formerly named as a party in the action; and (B) 

whom the party alleges was wholly or partly at fault under

A.R.S. § 12-2506(B). The notice must disclose the identity and 

location of the nonparty allegedly at fault, and the facts 

supporting the allegation of fault. . . . The trier of fact may not 

allocate any percentage of fault to a nonparty who is not 

disclosed in accordance with this rule except on stipulation of 

all the parties or on motion showing good cause, reasonable 

diligence, and lack of unfair prejudice to all other parties.

We review a superior court's rulings on discovery and disclosure issues for 

abuse of discretion. Bowen, 231 Ariz. at 427, ¶ 9. 

¶8 The Plaintiffs argue the superior court correctly struck the

State's notice because it did not identify the ATV riders by name, in 

violation of Rule 26(b)(5). In Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431 

(App. 1996), however, we held a defendant's failure to identify a nonparty 

by name was not fatal to its notice. The plaintiff in Rosner was injured in a 

nightclub brawl, but his assailants left the club before police arrived. Id. at

432. The plaintiff sued the nightclub, alleging its negligence caused the 

fight. Id. After the nightclub tried without success to locate the assailants, 

it filed a notice of nonparty at fault designating them as nonparties. Id. at 

432-33. On appeal from a defense verdict, the plaintiff argued the superior 

court should have struck the notice of nonparty at fault. Id. at 432. As here, 

the plaintiff argued the notice did not comply with Rule 26(b)(5) because it 

did not identify the nonparties nor give their location. Rosner, 188 Ariz. at 

432.

¶9 We held that, like any procedural rule, Rule 26(b)(5) "can only 

affect procedural matters and cannot abridge, enlarge, or modify 

substantive rights created by statute." Rosner, 188 Ariz. at 433. Under § 12-

2506(A), we explained, the issue is whether the defendant's notice discloses

"facts sufficient to establish the existence of another tortfeasor, despite the 
STATE v. HON. MAHONEY/RAGSDALE

Opinion of the Court

5

inability to further identify the tortfeasor." Rosner, 188 Ariz. at 433

(emphasis added); cf. McKillip v. Smitty's Super Valu, Inc., 190 Ariz. 61 (App. 

1997) (upholding allocation of fault to a nonparty in mode-of-operation case

against grocer without deciding whether evidence was sufficient to support 

fault of unknown person who dropped piece of paper on which plaintiff 

slipped); Smith v. Johnson, 183 Ariz. 38 (App. 1995) (jury allowed to consider 

fault of unidentified driver of a "red Mercedes" who negligently waved the 

defendant driver through an intersection, where the defendant collided 

with an oncoming car).

¶10 The nightclub in Rosner filed its notice only after going to 

"great lengths" to identify the patrons who had beaten up the plaintiff. 188 

Ariz. at 433. Here, the Plaintiffs assert that, by contrast, the State has done 

nothing to try to identify the ATV riders who left the tracks through the 

highway gate. Cf. Ariz. R. Civ. P. 26(b)(5) (court may grant relief from rule 

upon showing of "good cause, reasonable diligence, and lack of unfair 

prejudice to all other parties"). But while the existence of the ATV riders 

may be material to the jury's allocation of fault, the Plaintiffs do not argue 

the names of the riders are material to that determination. The State will 

have the burden at trial to prove that the horses made their way onto the 

highway because ATV riders left the gate open. The State's failure to try to 

learn the names of the ATV riders, and its resulting inability to offer 

specifics about how they left the gate open and when, are things the 

Plaintiffs may ask the jury to weigh at trial, but under these circumstances, 

they are not grounds for striking the notice of nonparty at fault.

¶11 Citing dictum in Scottsdale Ins. Co. v. Cendejas, 220 Ariz. 281 

(App. 2009), the Plaintiffs nevertheless argue we cannot disregard the 

requirement in Rule 26(b)(5) that a defendant provide the "identity and 

location" of the alleged nonparties at fault. See Cendejas, 220 Ariz. at 286, ¶ 

24 (noting the defendant's unsuccessful efforts in Rosner to locate the 

assailants and warning that Rosner "did not hold that a party could ignore 

the Rule's requirements"). But we did not rule in Cendejas that a notice of 

nonparty at fault that lacks the name and location of the nonparty 

necessarily fails under Rule 26(b)(5) unless the defendant can show it tried 

without success to find the nonparty. The notice in that case identified the 

nonparty by name but did not explain what the nonparty did that deserved 

fault. Id. Here, there is no doubt that the State alleges the ATV riders 

should bear fault because they opened the gate and did not close it behind 

them. 

¶12 In any event, we question any suggestion in Cendejas that Rule 

26(b)(5) must be applied in a way that ensures a plaintiff has sufficient 
STATE v. HON. MAHONEY/RAGSDALE

Opinion of the Court

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information "to bring [the nonparty] into the action before the statute of 

limitations expires." 220 Ariz. at 286. At its heart, Rule 26(b)(5) is in service 

of a defendant's substantive right to have the jury assess fault to a nonparty

– regardless of whether the plaintiff may hail that nonparty into court. See 

Dietz, 169 Ariz. at 510 (upholding defendant's right to name as a nonparty 

at fault an employer that is immune from suit by the plaintiff); Rosner, 188 

Ariz. at 433 ("[T]he comparative fault statute apportions fault, even at the 

expense of the plaintiff."); Ocotillo West, 173 Ariz. at 488 ("Essentially, a 

defendant can name a nonparty at fault even if the plaintiff is prohibited 

from directly naming or recovering from such a party.").

¶13 It follows that Rule 26(b)(5) may not be read to undermine a 

defendant's statutory right to be assessed no more than its proportionate 

share of fault. See Daou v. Harris, 139 Ariz. 353, 358 (1984) (when legislature 

creates substantive right, court may not diminish that right by procedural 

rule); Marsin v. Udall, 78 Ariz. 309, 312 (1955) ("Any rule of court that 

operates to lessen or eliminate the right is of no legal force."). Although a 

defendant will be better served at trial if it can offer detailed information 

about a nonparty it alleges should bear some share of fault, a notice of 

nonparty at fault is not necessarily defective if it lacks information that 

would enable the plaintiff to sue the nonparty directly. See Rosner, 188 Ariz. 

at 433 (§ 12-2506 was enacted "to allow the trier of fact . . . to apportion fault 

among all tortfeasors based on the facts presented at trial") (citing Dietz, 169 

Ariz. at 510 (§ 12-2506 "establish[ed] a system of several liability making 

each tortfeasor responsible for paying for his or her percentage of fault and 

no more")).

¶14 The Plaintiffs argue that, as the superior court reasoned, in 

Rosner and the other nonparty cases cited above, it was undisputed that a 

nonparty had in fact committed a fault-worthy act. The Plaintiffs contend 

that here, by contrast, as the superior court found, "there is no person who 

actually saw anyone leave open the gate." On the facts presented, however, 

the State need not support its notice with testimony by someone who saw 

ATV riders open the highway gate and leave without closing the gate 

behind them. It is undisputed that the highway gate was open; indeed, the 

Plaintiffs allege the State negligently failed to secure the gate so that horses 

could not come from the nearby ranch onto the highway. Although the 

Plaintiffs do not concede that a human being must have opened the gate, at 

oral argument, they admitted they have no evidence to support the notion 

that the gate could have been opened any other way. And one of the 

Owners testified that gates like the one in the highway fence are not easy to 

open and "generally . . . don't get opened very often by people that can't 

close them."
STATE v. HON. MAHONEY/RAGSDALE

Opinion of the Court

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¶15 As the superior court noted, the premise of the State's notice 

is that the horses came onto the highway because someone left the gate 

open. Tire tracks mixed with the tracks of the horses show it may have been 

ATV riders who did so. On this record, given the nature of the gate and the 

other evidence in the record, the superior court erred by concluding the 

State's notice was too speculative. The Plaintiffs' claim against the State 

presumes the highway gate was open, and the State is entitled to argue to 

the jury that it should apportion fault to the ATV riders if it finds they 

opened the gate without closing it. 

CONCLUSION

¶16 For these reasons, we accept jurisdiction of the State's petition 

for special action and grant relief by vacating the order of the superior court 

striking the State's notice of nonparty at fault concerning "unknown ATV 

riders."