## Facts

- Holly Averyt, a commercial truck driver, slipped in grease while making a delivery in a grocery receiving area at a Wal-Mart store in Greeley, Colorado.
- She suffered a ruptured spinal disc and shoulder and neck injuries, ending her truck-driving career and limiting daily activities; evidence also showed chronic pain and related psychological effects.
- Averyt sued Wal-Mart for negligence and premises liability and sought records documenting the grease spill; Wal-Mart denied the spill’s existence and suggested it would have records if a spill had occurred.
- During trial, Averyt’s counsel obtained a City of Greeley memorandum/report (a public record) describing a grease spill investigation and cleanup at the store.
- Averyt used the report at trial to impeach Wal-Mart’s corporate representative; Wal-Mart objected, claiming unfair surprise and a disclosure violation.
- After being confronted with the report, Wal-Mart admitted a spill occurred and argued it exercised reasonable care in cleanup.
- A jury awarded $15 million ($4.5 million economic damages, $5 million physical impairment, $5.5 million non-economic damages); the trial court reduced non-economic damages to a statutory cap.
- The trial court later granted Wal-Mart a new trial, reasoning the report was untimely disclosed and the verdict reflected prejudice rather than evidence.
- Averyt sought original relief from the Colorado Supreme Court to vacate the new-trial order and reinstate the capped judgment.

## Issues

1. Whether Colorado Rule of Civil Procedure 26 required Averyt to disclose, before use at trial, a public record equally available to both parties that was obtained during trial.
2. Whether the trial court abused its discretion in granting a new trial on the ground that the damages verdict was unsupported by the evidence or was the product of unfair prejudice.

## Decision

- The Colorado Supreme Court made the rule to show cause absolute in the original proceeding.
- The court held Rule 26 did not require automatic disclosure of the City of Greeley report because it was a public document equally available to both parties.
- The court held the jury’s verdict was supported by the evidence and was not the result of unfair prejudice.
- The court reversed the order granting a new trial and reinstated the jury’s verdict as reduced by the statutory cap.

## Legal Principles

- Automatic disclosure obligations under Colorado Rule of Civil Procedure 26(a)(1) do not extend to public documents equally available to all parties.
- A trial court abuses its discretion by granting a new trial based on a purported discovery violation when the discovery rule imposes no disclosure duty as to the material at issue.
- A large damages award may stand where the record contains sufficient evidence of economic loss, physical impairment, and life impacts; the amount alone does not establish passion, prejudice, or unfairness warranting a new trial.

## Conclusion

The Colorado Supreme Court vacated the new-trial order, ruling that Rule 26 did not require disclosure of an equally available public record obtained during trial and that the evidence supported the jury’s substantial damages verdict, which was reinstated subject to the statutory cap on non-economic damages.


Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456 (Colo. 2011)