January 28, 2020- Todd Lopez v. Devon Energy Production Company, No. A-1-CA-36044

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ________ _
3 Filing Date: JANUARY 28, 2020
4 No. A-1-CA-36044
5 TODD LOPEZ, as Personal
6 Representative of the ESTATE
7 	OF FERNANDO FLORES, and
8 CATALINA FLORES RICO,
9 	Plaintiffs-Appellants,
10 v.
11 	DEVON ENERGY PRODUCTION
12 	COMPANY, L.P.,
13 	Defendant-Appellee,
14 and
15 	MCVAY DRILLING CO. and
16 ARMANDO ARENIVAS,
17 	Defendants,
18 	ACUITY, a mutual insurance company,
19 	Plaintiff-In-Intervention,
20 v.
21 	TODD LOPEZ, as Personal
22 Representative of the ESTATE
23 	OF FERNANDO FLORES; CATALINA
Court of Appeals of New Mexico
Filed 1/28/2020 11:02 AM

1 FLORES RICO; MCVAY DRILLING
2 	CO.; ARMANDO ARENIVAS; DEVON
3 ENERGY PRODUCTION COMPANY, L.P.;
4 BATTLE ENERGY CORP.; PLASTER &
5 WALD CONSULTING, CORP.; BRUCE
6 HOLMAN; SIERRA ENGINEERING, LLC;
7 and ALLEN WIDTEPLUME,
8 	Defendants-In-Intervention.
9 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
10 David K. Thomson, District Judge
11 	Sanders & Westbrook PC
12 Maureen A. Sanders
13 	Albuquerque, NM
14 	Wray & Girard, PC
15 	Katherine Wray
16 Albuquerque, NM
17 for Appellants
18 Hinkle Shanor LLP
19 Andrew J. Cloutier
20 Roswell, NM
21 	McGuire Woods LLP
22 	Samuel L. Tarry, Jr.
23 	Richard C. Beaulieu
24 Richmond, VA
25 	for Appellee

1 	OPINION
2 B. ZAMORA, Judge.
3 	{I} 	Plaintiffs Todd Lopez, in his capacity as the personal representative of the
4 Estate of F emando Flores, and Catalina Flores Rico (collectively, the Estate) sued
5 Defendant Devon Energy Production Co., L.P. and others not parties to this appeal
6 for the wrongful death of F emando Flores, who was electrocuted while working for
7 a subcontractor of Defendant. Following a trial on the merits, a jury returned a
8 verdict of "no negligence" and the district court entered judgment for Defendant.
9 This appeal followed.
10 {2} 	The Estate contends the district court erred by failing to instruct the jury that
11 	Defendant owed duties of care to the decedent, failing to admit certain evidence and
12 	improperly excluding other evidence, and permitting Defendant to engage in an
13 	improper and prejudicial closing argument. Defendant contends the Estate failed to
14 preserve the errors complained of, the district court did not commit reversible error,
15 	and the Estate cannot demonstrate prejudice. Concluding the district court erred in
16 instructing the jury, we reverse and remand for a new trial.
17 BACKGROUND
18 	{3} 	This case arises from an accident on May 23, 2013, that caused the death of
19 Fernando Fl_ores. At the time of the accident, Defendant had just concluded drilling
20 at a wellsite in New Mexico known as Antares 23 4H well site (Antares 23).

1 Defendant had engaged several subcontractors to undertake the project, including
2 McVay Drilling Co. (McVay) and Battle Energy Services (Battle). McVay provided
3 drilling services for Defendant, using its own rigging equipment. Battle provided
4 "rigging down" services, a process of dismantling the drilling rig so that it may be
5 moved to a different location. On the day of the accident, Mr. Flores was working
6 for Battle as a helper, a position known in the industry as a "swamper."
7 {4} 	After completing drilling at Antares 23, Defendant planned to drill at Aquila
8 22, a site located a short distance away. In preparation for the transfer of drilling ·
9 operations, Defendant engaged Battle to provide "nipple-down services" for a
10 blowout preventer (BOP) attached to the rig at Antares 23. In the nippling down
11 	process, a team removes the BOP from the rig and relocates it to the edge of the
12 current wellsite. In a typical rig move, a second contractor then moves the BOP and
13 	other components of the rig from their location on the old wellsite to the new wellsite
14 using a flatbed truck.
15 	{5} 	On the day of the accident, two teams of Battle employees removed the BOP
16 	from the head of the rig and secured it to the hitch of a gin-pole truck. A gin-pole
17 truck is a vehicle equipped with an A-frame style crane that can be raised or lowered
18 	as needed. The crane was in the raised position to allow it to hold and transport the
19 attached BOP. A member of one of the Battle teams, Luis Perez Pinon, then began
20 driving the truck to the edge of the wellsite, while Mr. Flores walked behind to
2

1 ensure the BOP remained stable, was not damaged by the move, and did not cause
2 the truck to tip.
3 {6} 	While the truck was movmg, 	a McVay employee, 	Armando 	Arenivas,
4 instructed Perez to transport the BOP to Aquila 22, instead ofto the edge of Antares
5 23 	as originally planned. Arenivas was McKay's "toolpusher"-the second-in-
6 command on the wellsite behind the "company man[,]" who supervised operations
7 on behalf of Defendant. Perez testified that he initially resisted Arenivas' instruction,
8 because it contradicted the instruction of his crew chief, and because he was not
9 trained to transport a BOP offsite. However, after speaking with the Battle crew
10 chief, Perez acquiesced to Arenivas and began driving the gin-pole truck toward
11 	Aquila 22 along a road, as Mr. Flores continued to walk behind it. As the truck
12 	approached the entrance to Aquila 22, the extended crane struck an overhead power
13 	line and Mr. Flores was electrocuted.
14 {7} 	The Estate brought a wrongful death action against Arenivas and Mc Vay, and
15 	later amended its complaint to add Defendant. 1 The complaint alleged negligence by
16 all defendants and sought damages for wrongful death, intentional infliction of
17 emotional distress, and loss of consortium, as well as punitive damages. The
18 	allegations against Defendant were grounded in· theories of vicarious anq direct
1 The 	Estate 	subsequently 	amended 	its 	complaint 	to 	name 	additional
defendants, who were dismissed prior to trial and who are not parties to this appeal.
3

1 liability and 	specifically 	identified claims 	of premises 	liability 	and negligent
2 	supervision. The Estate settled with Mc Vay and Arenivas prior to trial. Following a
3 six-day trial, the jury returned a verdict in favor of Defendant, and the Estate
4 appealed.
5 DISCUSSION
6 I. 	The Jury Instructions
7 	{8} 	The Estate argues the district court erred by failing to instruct the jury that
8 Defendant owed Mr. Flores duties, "pursuant to the Restatement[] [(Second) of
9 Torts]." They contend that, under Rodriguez v. Del Sol Shopping Center Associates,
10 L.P., 2014-NMSC-014, 326 P.3d 465, the district court should have decided the duty
11 	question as a matter of law, instructed the jury that Defendant owed duties to Mr.
12 Flores, and "submitted all related factual disputes as questions of breach of those
13 	duties." Defendant argues that the Estate is estopped from arguing that the duty
14 question should have been decided by the district court because the Estate relied on
15 	authorities 	calling 	for 	fact-based 	determinations 	of duty 	in 	its 	opposition to
16 Defendant's motion for summary judgment. Defendant further argues Rodriguez is
17 not as sweeping as the Estate contends, and it merely stands for the proposition that
18 	foreseeability analysis should be assigned to the jury, not that all duty determinations
4

1 should be rendered by the court. 2 Finally, Defendant contends that, even if the
2 instructions were in error, the Estate cannot demonstrate prejudice.
3 {9} 	We review jury instructions de novo, seeking to determine whether the
4 instructions correctly stated the law and were supported by the evidence presented
5 at trial. Benavidez v. City of Gallup, 2007-NMSC-026, 119, 141 N.M. 808, 161 P.3d
6 853. "The purpose of instructions is to enlighten the jury." Gerrard v. Harvey &
7 Newman Drilling Co., 1955-NMSC-034, 1 23, 59 N.M. 262, 282 P.2d 1105. "An
8 instruction is correct, and thus proper to submit to a jury, when the instruction is
9 consistent with the law and articulates fairly, completely, and succinctly the relevant
10 	law applicable to the facts[.]" Mireles v. Broderick, 1994-NMSC-04 l, 1 15, 117
11 	N.M. 445, 872 P.2d 863 (citation omitted). We will affirm "if, as a whole, [the
12 	instructions] fairly represent the law applicable to the issue in question." Kennedy v.
13 Dexter Consol. Sch., 2000-NMSC-025, 128, 129 N.M. 436, 10 P.3d 115.
14 A. 	The Estate Is Not Estopped From Arguing the Duty Issue on Appeal
15 	{10} 	We first consider Defendant's argument that the Estate should be estopped
16 from arguing duty is a question of law to be decided by the district court because, in
17 response to Defendant's motion for summary judgment, the Estate relied on New
2We note that Defendant, save for a two-sentence footnote, seems to abandon
on appeal its position advanced below that it owed no duty to Mr. Flores. Given this
undeveloped argument, we do not consider it further. See Corona v. Corona, 2014-
NMCA-071, 128,329 P.3d 701 ("This Court has no duty to review an argument that
is not adequately developed.").
5

1 Mexico authorities that "based duties for the controllers of land or employers of
2 independent contractors on several sections of the Restatement (Second) of Torts
3 [Sections] 343, 411, and 414 [(Am. Law Inst. 1965)]." According to Defendant,
4 because the determination of duties under these authorities is "necessarily based on
5 case-specific facts[,]" the Estate's earlier reliance upon them precludes its argument
6 on appeal that the district court erred in failing to instruct the jury on duty. The Estate
7 asserts that it argued "[t]he [district] court should decide the duty question" and
8 crafted proposed jury instructions "reflect[ing] its position that the jury should not
9 be instructed to determine duty[,]" adequately preserving the issue for appeal. We
10 agree with the Estate.
11 	{11} 	The 	record 	reflects 	that 	the 	Estate 	argued 	repeatedly 	below 	that 	the
12 determination of a duty of care is a matter for the district court to decide. The record
13 	also reflects that the Estate first submitted instructions based on the Uniform Jury
14 Instructions (UJis) before crafting instructions based on sections of the Restatement
15 	(Second) of Torts in response to the district court's statement that it was inclined to
16 "stick with the Restatement with regard to these duties." Indeed, the Estate asserted
17 that it preferred the UJis over the Restatement language in part because the latter
18 	failed to adequately distinguish determinations of duty, breach, and liability. There
19 is no question that the district court was sufficiently alerted to the parties' arguments
20 and disagreements about whether the jury or court decides the question of duty and
6

1 the nature and source of the duty owed by Defendant to Mr. Flores. Based on our
2 review of the record, the district court was fully aware of the issues presented and
3 took full advantage of the parties' arguments prior to making its rulings. See Rule
4 	12-321(A) NMRA ("To preserve an.issue for review, it must appear that a ruling or
5 decision by the trial court was fairly invoked."). Accordingly, the Estate adequately
6 preserved its argument that duty should be decided as a matter of law through its
7 arguments and proffered instructions. It cannot be estopped from raising the issue
8 simply because it argued that issues of fact precluded summary judgment using the
9 few authorities available to it in New Mexico involving similar factual scenarios.
10 B.
11
12 	{12}
The Instructions Did Not Accurately Reflect New Mexico Law on the
Question of Duty
We next determine whether the jury instructions accurately reflected New
13 	Mexico law on the issues of duty and breach of duty under the circumstances of this
14 case. Because the Estate had settled with McVay and Arenivas, its vicarious claims
15 	arising under the doctrine of respondeat superior were no longer viable and only its
16 direct liability claims against Defendant remained at trial. Accordingly, our analysis
17 addresses only the law governing the determination of duty under direct liability
18 theories of negligence.
19 {13} 	The district court issued thirty-seven jury instructions, five of which relate to
20 the question of whether Defendant owed Mr. Flores a duty of care. Instruction 16
21 	stated, "[g]enerally speaking, the employer of an independent contractor is not liable
7

1 for injuries to an employee of the independent contractor" and that exceptions to the
2 rule would follow in subsequent instructions. Instructions 17, 18, and 19 explained
3 the three exceptions, tracking Restatement· (Second) 	of Torts rules 	governing
4 premises liability (Restatement (Second) of Torts Section 343), negligent selection
5 of a contractor (Restatement (Second) of Torts Section 411 ), and negligence in
6 exercising 	retained 	control 	(Restatement 	(Second) 	of 	Torts 	Section 414),
7 respectively. Instruction 21 included language from the UJI for the general duty of
8 ordinary care. See UJI 13-1604 NMRA.
9 	{14} 	The duty instructions were the end product of numerous discussions during
10 the hearing on Defendant's motion for summary judgment, the arguments offered
11 	during trial on Defendant's motion for directed verdict, and the jury instruction
12 conferences held after the close ofevidence. The nature of the duty owed-if any-
13 	by Defendant was discussed 'in detail at each stage ~f the case. For example, in
14 denying Defendant's motion for a directed verdict, the district court explained its
15 	inclination to frame the Estate's claims as potential exceptions to the no-duty rule
16 governing contractors stating:
17
18
19
20
21
22
23
24
[Sherman v. 	Cimarex Energy Co., 2014-NMCA-026, , 	8, 318 P.3d
729,] lays out the general rule in the case, which I am applying:
"Generally speaking, the employer of an independent contractor is not
liable for injuries to an employee of an independent contractor." ... t
disagree with [the Estate] that we lump this into a negligence basket. I
think the obligation is a little separate than the claim made here and the
general rules to be followed absent the exceptions, which I have
provided.
8

1 At 	the jury 	instruction 	conference, 	Defendant 	proposed 	a 	modified 	uniform
2 instruction defining "independent contractor[,]" UJI 13-404 NMRA, along with
3 several non-uniform instructions concerning the liability of hirers of independent
4 contractors. 	The 	Estate 	did 	not 	propose 	language 	concerning 	independent
5 contractors and .instead submitted UJis on premises liability, negligence per se,
6 negligent hiring, supervision, and retention. See UJI 13-1309 NMRA; UJI 13-1501
7 NMRA; UJI 13-1647 NMRA. The Estate stated it would agree to an instruction
8 defining independent contractor, provided the instructions on duty "stay[ed] with the
9 [UJI]s."
10 	{15} 	Having earlier stated that it would frame the Estate's claims in terms of the
11 	Restatement (Second) 	of Torts Sections 343, 411, and 414, the district court
12 approached the parties' proposed instructions in terms of their comportment with
13 	those provisions. However, the court noted that it-had found little guidance in New
14 Mexico 	authorities 	on 	the 	proper 	formulation 	of jury 	instructions 	in 	such
15 	circumstances:
16
17
18
19
20
The duty, as I read the cases, Talbott [v. Roswell Hospital Corp., 2008-
NMCA-114, 144 N.M. 753, 192 P.3d 267], I guess is one of the few-
I think it's Talbott that talks about the actual jury instructions on these.
In the other cases I've read, it's you should stick with the Restatement
with regard to these duties, so that is what I'm inclined to do.
21 	The resulting instructions combined elements of the rules from the Restatement
22 (Second) of Torts with language from New Mexico case law bearing on the liability
9

1 of hirers of contractors and subcontractors. The Estate contends the district court's
2 order to craft instructions based on the sections of the Restatement (Second) of Torts
3 was "contrary to the New Mexico Supreme Court's determination in Rodriguez[,
4 2014-NMSC-014, 125, that] duty is [a question of law] to be determined based on
5 policy considerations."
6 {16} 	New Mexico courts have long held that duty is a matter of law to be
7 determined by the court. See Tafoya v. Rael, 2008-NMSC-057, 1 11, 145 N.M. 4,
8 	193 	P.3d 551; Lester ex rel. 	Mavrogenis 	v. 	Hall, 	1998-NMSC-047, 11 9-10,
9 	126 N.M. 404, 970 P.2d 590. This is in part because determinations 	of duty,
10 	including limited-duty and no-duty determinations, are a function of policy and
11 	courts are better positioned than juries to make policy determinations in light of
12 "legal precedent, statutes, and other principles comprising the law." Calkins v. Cox
13 Estates, 1990-NMSC-044, 18, 110 N.M. 59, 792 P.2d 36.
14 {17} 	Our Supreme Court reaffirmed and elaborated upon these principles 	m
15 Rodriguez. 2014-NMSC-014, 111, 5-10, 22-25; see also Oakey, Estate of Lucero v.
16 May Maple Pharmacy, 	Inc., 	2017-NMCA-054, 1 22, 399 P.3d 939 	(quoting
17 Rodriguez for the proposition that " 'courts should focus on policy considerations
18 when determining the scope or existence of a duty of care'"). In Rodriguez, the
19 Court examined the question of what duty of care applied to claims arising from a
20 vehicle crash into the front glass of a medi_cal clinic located in a shopping center.
10

1 2014-NMSC-014, 112-3. The crash killed three people and injured several others,
2 and the plaintiffs sued the owners and operators of the shopping center, alleging
3 negligence based on premises liability. Id. 12. The original actions were dismissed
4 by two separate district courts on the grounds that no duty existed as a matter of law
5 because the accident was not foreseeable. Id.
6 	{18} 	This Court affirmed dismissal "not based on the foreseeability-driven duty
7 analysis employed by the district courts, but based on the policy-driven duty analysis
8 advanced by the Restatement (Third) of Torts[.]" Rodriguez v. Del Sol Shopping Ctr.
9 Assoc., L.P., 2013-NMCA-020, 1 1, 297 P.3d 334, rev'd on other grounds, 2014-
10 NMSC-014. 	We 	noted that New Mexico 	courts 	had 	moved 	away 	from 	the
11 	foreseeability rule embraced by Chief Judge Cardozo in Palsgraf v. Long Island
12 Railroad Co., 162 N.E. 99 (N.Y. 1928), toward the minority approach advocated by
13 	Judge Andrews, which would have imposed a general duty of care limited only by
14 policy imperatives. Rodriguez, 2013-NMCA-020, 11 6-10. However, we asserted
15 	that foreseeability continued to play some role in determining duty, based on our
16 	Supreme Court's holding in Edward C. v. City of Albuquerque, 2010-NMSC-043,
17 118, 148 N.M. 646,241 P.3d 1086, overruled on other grounds by Rodriguez, 2014-
18 NMSC-014.
19 	{19} 	Our Supreme Court in Rodriguez agreed that we had properly framed the duty
20 analysis as a question of policy, but found that we had erred in relying upon some
11

1 determinations of foreseeability in applying the framework. 2014-NMSC-O 14, 11 3,
2 24. Importantly, the Court indicated that it disapproved of courts engaging in
3 foreseeability analyses in making no-duty or modified-duty determinations because
4 doing so "often leads toward a discussion of the facts in a particular case" and
5 therefore "is not a discussion of policy." Id. 1 13. Such an approach, the Court
6 reasoned, "is inconsistent with the Restatement [(Third) of Torts] approach[.]" Id.
7 	{20} 	Defendant would have us read Rodriguez solely for the proposition that
8 foreseeability should not be part of a court's duty analysis. The Estate's position is
9 that Rodriguez requires courts to determine the existence of duties as a matter of law
10 based on policy determinations and that, to the extent liability is dependent upon
11 	case-specific facts, those factual determinations should be sent to the jury as
12 questions of breach or causation. We conclude that Defendant's interpretation is too
13 	narrow and the Estate's is too broad. Rodriguez affirms New Mexico's adoption of
14 the duty framework of the Restatement {Third) of Torts. That framework establishes
15 	a general duty of care, which fundamentally alters the approach New Mexico courts
16 	should take in determining the duty owed by hirers of contractors. But that change
17 does not necessarily mean all prior case law is simply swept away. We explain.
18 	{21} 	Rodriguez is one in a line of cases· marking the progressive adoption of
19 modem tort doctrine by New Mexico courts, with important consequences for the
20 determination of duty. In Scott v. Rizzo, 1981-NMSC-021, 1 15, 96 N.M. 682, 634
12

1 P.2d 1234, superseded by statute as stated in Safeway, Inc. v. Rooter 2000 Plumbing
2 & Drain SSS, 2016-NMSC-009,, 18,368 P.3d 389, for instance, our Supreme Court
3 adopted comparative fault principles, holding that "the contributory neglig~nce rule
4 ha[d] long since reached [the] point of obsolescence[.]" In Klopp v. 	Wackenhut
5 Corp., 1992-NMSC-008, ,, 10-12, 113 N.M. 153,824 P.2d 293, the Court held that
6 the "open and obvious danger" doctrine would no longer act as a bar to premises
7 liability, and in Ford v. Board of County Commissioners of County of Dona Ana,
8 1994-NMSC-077, ,, 8, 	12, 	118 N.M. 	134, 879 P.2d 766, it also rejected the
9 traditional, status-based scheme of premises liability-a scheme the United States
10 	Supreme Court had decried as a "semantic morass" grounded in "a heritage of
11 	feudalism." Id. , 8 (internal quotation marks and citation omitted). In each of these
12 cases, our Supreme Court rejected traditional doctrines that foreclosed recovery for
13 	entire categories of plaintiffs in favor of broad negligence principles that define the
14 duty of care in terms of the risks posed by an actor's conduct. See Ford, 1994-
15 	NMSC-077,, 12 (holding that "[a] landowner or occupier of premises must act as a
16 reasonable man in maintaining his property in a reasonably safe condition in view
17 of all the circumstances, including the likelihood of injury to another, the seriousness
18 	of the injury, and the burden of avoiding the risk"); Scott, 1981-NMSC-021,, 29
19 (stating that comparative negligence "holds all parties fully responsible for their own
20 respective acts to the degree that those acts have caused harm"); see also Klopp,
13

1 1992-NMSC-008, 1 	12 	(stating that "[s]imply by making hazards obvious to
2 reasonably prudent persons, the occupier of premises cannot avoid liability to a
3 business visitor for injuries caused by dangers that otherwise may be made safe
4 through reasonable means").
5 {22} 	The broader, more generally applicable concept of duty found in cases such
6 as Scott, Klopp, and Ford is reflected in Section 7(a) of the Restatement (Third) of
7 Torts (Am. Law Inst. 2010): "An actor ordinarily has a duty to exercise reasonable
8 care when the actor's conduct creates a risk of physical harm." Subsection (b) of that
9 provision establishes that this presumption of duty may be modified or eliminated
10 by a court "when an articulated countervailing principle or policy warrants [doing
11 	so] in a particular class of cases[.]" Restatement (Third) of Torts§ 7(b).
12 	{23} 	In Rodriguez, our Supreme Court embraced this duty framework. See 2014-
13 	NMSC-014, 1 1. While the role of foreseeability analysis was undoubtedly the
14 central issue in Rodriguez, the Court spoke clearly about the proper approach courts
15 	should take in examining duty as a matter of law, emphasizing conformity with the
16 Restatement (Third) of Torts' approach. 2014-NMSC-014, 11 8-9, 11-13, 16, 23.
17 Because the Rodriguez Court "overrule[ d] prior cases insofar as they conflict with
18 this opinion's clarification of the appropriate duty analysis in New Mexico[,]" id.
19 13, the question before this Court today is whether the district court's approach in
14

1 instructing the jury on duty can be reconciled with the Restatement (Third) of Torts
2 Section 7 framework.
3 {24} 	In this case, Defendant was engaged in drilling for oil, an activity that
4 undoubtedly creates a risk of harm to others if not undertaken with due care. See
5 	Tipton v. Texaco, Inc., 1985-NMSC-108, ,r,r 27-28, 103 N.M. 689, 712 P.2d 1351;
6 Hinger v. Parker & Parsley Petroleum Co., 1995-NMCA-069, ,r,r 4-8, 22, 120 N.M.
7 430,902 P.2d 1033. Pursuant to the framework endorsed in Rodriguez, this imposed
8 upon Defendant a duty to exercise ordinary care. See Restatement {Third) of Torts
9 	§ 55 cmt. a (Am. Law Inst. 2012) ("When an actor hires an independent contractor
10 for an activity that creates a risk of physical harm, the actor is subject to [Section]
11 	7.").
12 	{25} 	The Restatement (Third) of Torts, like the Restatement (Second) of Torts,
13 	includes specific rules for the hirers of independent contractors, recognizing the
14 policy-based modifications of duty that arose under the Restatement (Second) of
15 	Torts' approach. However, the Restatement (Second) ofTorts' approach is grounded
16 	in a "general principle" that, subject _to numerous exceptions, one who hires an
17 "independent contractor is not liable for physical harm caused" by the contractor.
18 Restatement (Second) 	of Torts 	§ 409 (Am. Law Inst. 	1965). In contrast, the	I
19 Restatement {Third) of Torts begins with the imposition of a general duty of care
20 and then crafts limitations based on "considerations of policy and principle that
15

1 warrant limiting the duty of care owed by the hirer." Restatement (Third) of Torts
2 	§ 55 cmt. a.
3 	{26} 	Instruction 16 framed the jury instructions on the Estate's theories of liability
4 as exceptions to a general rule exempting hirers of independent contractors from
5 liability. It stated: "Generally speaking, the employer of an independent contractor
6 is not liable for injuries to an employee of the independent contractor. As with any
7 general rule, however, there are exceptions. I will explain three of those exceptions
8 to you in subsequent instructions." In drafting this instruction, the district court relied
9 in part on language found in Sherman, a case decided prior to Rodriguez. See
10 Sherman, 	2014-NMCA-026, 	1 	8 	("Generally 	speaking, 	the 	employer 	of 	an
11 	independent contractor is not liable for injuries to an employee of the independent
12 contractor." (internal quotation marks and citation omitted)). In Sherman, we noted
13 	"there are exceptions" to the rule that hirers of independent contractors are generally
14 not liable for injuries to employees of the contractor, including (1) where the hirer
15 ·of the contractor controls the premises on which the work is performed; and (2)
16 where the hirer retains control over the independent contractor's performance of the
17 work. Id. The district court in this case then added a third "exception" to the rule: a
18 	hirer may 	be 	subject to 	liability 	for 	negligence 	in hiring 	or 	superv1s~g 	an
19 	independent contractor. See Restatement (Second) of Torts § 411.
16

1 {27} 	This framing of the instructions was in error. Consistent with Restatement
2 (Third) of Torts, while the instruction on retained control was properly framed as an
3 exception to a rule of no liability for hirers of contractors, see Restatement (Third)
4 	of Torts § 56 (Am. Law Inst. 2012), the instructions on premises liability, see
5 Restatement 	(Third) 	of 	Torts 	§ 51 	(Am. 	Law 	Inst. 	2012), 	and 	negligent
6 selection/retention, see Restatement (Third) of Torts § 55, should not have been
7 described as exceptions to a no-liability rule of law. We address each instruction in
8 turn.
9 	1. 	Premises Liability
10 	{28} 	Instruction 17 stated:
11 	The first exception applies if Plaintiffs prove by a preponderance of
12 	evidence the following:
13 	[Defendant] 	is subject to liability for physical harm caused to its
14 	invitees by a condition on the land if, but only if, Plaintiffs prove that
15 	[Defendant]:
16 	(a) 	knew or by the exercise· of reasonable care would discover
17 	the 	condition, 	and 	should 	realize 	that 	it 	involves 	an
18 	unreasonable risk of harm to such invitees, and
19 	(b) 	should have expected that it will not discover or realize the
20 	danger, or would have failed to protect themselves against it, and
21 	(c) 	failed to exercise reasonable care to protect them against
22 	the danger. 	:
23 	The extent of the duty owed by [Defendant] varies according to the
24 	visibility 	or the 	obviousness 	of the 	potential jobsite 	hazard 	and
17

1
2
according to the degree of control [Defendant] exercised over the
premises.
3 Instruction 17 hewed closely to Restatement (Second) of Torts Section 343, although
4 the last paragraph was drawn from Tipton, 1985-NMSC-108, 1 20. In Tipton, our
5 Supreme Court reversed a district court decision dismissing a well site operator's
6 third-party claims against several contractors, holding that the jury should have been
7 instructed to determine the extent of the operator's control over the worksite and the
8 work of the contractors to determine whether they should be subject to liability for
9 an employee's injuries. Id. 	11 6, 28. Although the Court in Tipton 	sometimes
10 described the relevant inquiry in terms of liability and sometimes in terms of duty,
11 	the language quoted by the district court in Instruction 17 concerned duty. Id. 120.
12 {29} 	At the conclusion of trial, the Estate's theory of premises liability was that a
13 	condition on the land-the power lines-posed a risk of harm to Mr. Flores, and
14 that, in its capacity as the land possessor, Defendant owed duties of care to Mr.
15 	Flores as it did to all visitors. The parties understood this claim to arise under
16 Restatement (Second) of Torts Section 343. The Estate did not claim that either
17 Mc Vay or Battle created the dangerous condition-this would have been advanced
18 under Restatement (Second) of Torts Section 414. Had the latter been the case, an
19 	instruction describing Defendant's duties as an exception to the general rule that
20 landowners are not liable for dangerous conditions created by subcontractors would
21 	have been appropriate. See Restatement (Third) of Torts§ 51 cmt. g ("Ordinarily, a
18

1 possessor of land does not owe a duty of reasonable care for risks arising from the
2 conduct of transients and independent contractors while on the possessor's land.").
3 Instead, the Estate was asserting a direct premises liability claim, which under
4 Restatement (Third) of Torts is based on "a specific application of [Restatement
5 (Third) of Torts Section 7(a)]." Restatement (Third) of Torts § 51 cmt. b. It was
6 therefore error to describe Defendant's duties as an exception to a no-liability rule.
7 {30} 	The error was compounded by the district court's inclusion of language from
8 Tipton. The reference to the visibility and obviousness of hazards invoked the jury's
9 consideration of foreseeability in the determination of Defendant's duties, which
10 was clearly improper under Rodriguez. See 2014-NMSC-014, 14. Put simply, if the
11 	land posed a danger to visitors, Defendant owed a duty of care. See Restatement
12 (Third) of Torts§ 51; see also UJI 13-1309 ("An [owner] [occupant] owes a visitor
13 	the duty to use ordinary care to keep the premises safe for use by the visitor[, whether
14 or not a dangerous condition is obvious]."). If the district court determined that
15 	Defendant's duty ought to have been modified or limited based on its status as a
16 hirer of independent contractors, the court was required to make that determination
17 based on policy considerations and not the foreseeability of the risk of harm or the
18 	openness or obviousness of the hazards. See Rodriguez, 2014-NMSC-014, 111, 4;
19 see also Restatement (Third) of Torts § ·51 cmt. k ("[T]he fact that a dangerous
19

1 condition is open and obvious bears on the assessment of whether reasonable care
2 was employed, but does not pretermit the land possessor's liability.").
3 {31} 	On remand we see no reason why UJI 13-1309, which lays out the general
4 duty of care owed by a landowner ·or possessor to visitors, would not adequately
5 instruct the jury on the issue of premises liability in this case. See Rule 1-051 (D)
6 N1\1RA ("Whenever New Mexico Uniform Jury Instructions Civil contains an
7 instruction applicable in the case and the trial court determines that the jury should
8 be instructed on the subject, the UJI Civil shall be used unless under the facts or
9 circumstances of the particular case the published UJI is erroneous or otherwise
10 	improper, and the trial court so finds and states of record its reasons."); see also
11 	Benavidez, 2007-NMSC-026, 119 (stating that applicable UJis shall be used unless
12 waived by the parties).
13 	2. 	Negligent Selection/Retention of Contractor
14 	{32} 	Instruction 18 stated:
15 	The second exception applies if Plaintiffs prove by a preponderance of
16 	evidence the following:
17 	[Defendant] is subject to liability for physical harm to third persons
18 	caused by its failure to exercise reasonable care to employ a compet~nt
19 	and careful contractor to do work which will involve a risk of physical
20 	harm unless it is skillfully and carefully done.
21 	The words "competent and careful contractor" denote a contractor whb
22 	possesses the knowledge, skill, ·experience, and available equipment
23 	which a reasonable man would realize that a contractor must have in
24 	order to do the work which he is employed to do without creating
20

1
2
3
4
5
6
7
8
9
10
11
12
unreasonable risk of injury to others, and who also possesses the
personal characteristics which are equally necessary.
The 	amount 	of care 	which 	should 	be 	exercised 	in 	selecting 	an
independent contractor is that which a reasonable man would exercise
under the circumstances, and therefore varies as the circumstances vary.
Certain factors are important: (1) the danger to which others will be
exposed if the contractor's work is not properly done; (2) the character
of the work to be done-whether the work lies within the competence
of the average man or is work which can be properly done only by
persons possessing special skill and training; and (3) the existence of a
relation between the parties which imposes upon the one a peculiar duty
of protecting the other.
13 	Instruction 18 was crafted partly from Restatement (Second) of Torts Section 41 l(a)
14 and partly from the comments and illustrations to 	Section 411. Although the
15 	reference to "duty" renders the import.of the last paragraph somewhat unclear, the
16 commentary to· Section 411 indicates that the "peculiar duty" language refers to
17 heightened or added duties of care, not the general duty of care, as described in
18 	Section 7 of the Restatement (Third) of Torts. See Restatement (Second) of Torts
19 	§ 411 cmt. c (stating that "there are a number of relations ... in which peculiar care
20 is required" and citing examples of additional duties owed from masters to servants
21 	and from common carriers to passengers).
22 	{33} 	Like 	the 	theory 	of 	premises 	liability, 	the 	theory 	of 	negligent
23 	selection/retention of a contractor flows directly from the general duty of care
24 attributable to any actor whose conduct gives rise to a risk of harm. See Restatement
25 	(Third) of Torts § 55 cmt. a ("Direct-negligence claims against one who hires an
21

1 independent contractor entail a specific application of the negligence principles of
2 this Restatement."); Restatement (Third) of Torts § 55 cmt. i ("Under this Section
3 and [Section] 56, when A hires B, A is subject to liability if A is under a duty of care
4 and negligently causes harm within the scope of liability. The involvement of
5 additional independent contractors (or subcontractors) is a fact that may be relevant
6 to the determination 'of negligence, factual cause, or scope of liability, but not to the
7 existence of a duty of reasonable care."). Accordingly, the jury should have been
8 instructed that Defendant owed a duty to select and retain a competent contractor,
9 unless the district court determined that its duty should have been limited or
10 modified on the basis of policy imperatives. In that case, the district court would
11 	have been obligated to articulate the reasons for that determination for the record.
12 See Rodriguez, 2014-NMSC-014, ,I 25.
13 	{34} 	On remand we see no reason'why the balance of Instruction 18-all but the
14 first paragraph identifying the duty of care as contingent and exceptional---could not
15 	be used to fairly instruct the jury as to the facts bearing on breach, causation, and
16 scope of liability.
17 3. 	Negligence as to Work Over Which the Hirer Has Retained Control
18 	{35} 	Instruction 19 stated:
19 	The third exception applies if Plaintiffs prove by a preponderance of
20 	the 	evidence 	that 	[Defendant] 	entrusted work to 	its 	independent
21 	contractor, McVay Drilling, but retained control of any part of the
22 	work, and is subject to liability for physical harm to others for whose
22

1
2
3
4
5
6
7
8
9
10
11
12
safety [Defendant] owes a duty to exercise reasonable care, which is
caused by its failure to exercise its control with reasonable care.
[Defendant] must have retained at least some degree of control over the
manner in which the work is done. It is not enough that it has merely a
general right to order the work stopped or resumed, to inspect its
progress or to receive reports, to make suggestions or recommendations
which need not necessarily be followed, or to prescribe alterations and
deviations. Such a general right is usually reserved to employers, but it
does not mean that the contractor is controlled as to his methods of
work, or as to operative detail. There must be such a retention of a right
of supervision that the contractor is not entirely free to do the work in
his own way.
13 	The first paragraph of Instruction 19 was derived from Restatement (Second) of
14 Torts Section 414, while the duty portion of the instruction was taken from the
15 	comments to that section. Unlike its framing of Instructions 17 and 18, the district
16 court's framing of Instruction 19 as an exception to the general rule of no-liability
17 for hirers of contractors was largely consistent with the approach taken by the
18 Restatement (Third) of Torts, which explicitly limits a hirer's duty to exercise care
19 in the performance of work undertaken by a contractor, provided that the hirer does
20 not retain control over the work. See Restatement (Third) of Torts§ 56.
21 	{36} 	The difficulty posed by this rule is that it requires a factual determination as
22 to the extent and nature of retained control prior to the determination of whether a
23 	duty exists. New Mexico courts have held that, where there are predicate factual
24 	determinations that bear on the existence of a duty of care, it is improper for the
25 	district court to determine duty as a matter of law at the. summary judgment stage.
23

l 	See Valdez v. Cillessen & Son, Inc., 1987-NMSC-015, ~ 27, 105 N.M. 575, 734 P.2d
2 	1258; Sherman, 2014-NMCA-026, ~ 7; Pollard v. Westinghouse Elec. Corp., 1995-
3 NMCA-038, ~ 6, 119 N.M. 783, 895 P.2d 683. The district court relied upon these
4 authorities in declining to determine as a matter of law whether a duty existed in this
5 case.
6 {37} 	The Estate urges us to find that a court may never instruct the jury to make
7 factual determinations bearing on the existence of a duty of care. We decline to do
8 so. Indeed, Section 56 explicitly contemplates such a scenario. Restatement (Third)
9 of Torts § 56 cmt. g ("Determining whether a duty limit applies under this Section
10 may 	involve 	a 	dispute 	over 	the 	existence 	of retained 	control. 	Most 	courts
11 	characterize the issue of retained control as a question for the fact[-]finder."). In this
12 case, the district court should have issued an instruction that clearly set apart the
13 	factual determinations necessary to the determination of the duty, if any, owed by
14 Defendant to Mr. Flores based on retained control. See Sherman, 2014-NMCA-026,
15 	~~ 17-18, 20. This might have been accomplished with alternative instructions based
16 on whether the facts supported imposing a duty or not. See Restatement (Third) of
17 Torts § 7 cmt. b ("When resolution of disputed adjudicative facts bears on the
18 	existence or scope of a duty, the case should be submitted to the jury with alternative
19 	instructions."); see also Eckhardt v. 	Charter Hosp. 	of Albuquerque, Inc., 	1998-
20 NMCA-017, ~~ 35-36, 124 N.M. 549, 953 P.2d 722 (holding that the district court's
24

1 use of a special interrogatory to determine predicate fact necessary to determination
2 of duty was proper).
3 	C. 	Plaintiffs Were Prejudiced by the Improper Instruction
4 	{38} 	Defendant contends that, even if the instructions were in error, the Estate
5 cannot demonstrate prejudice. More specifically, Defendant argues the factual
6 questions that determined the existence of a duty are the same questions that would
7 have been posed to the jury under breach or causation, and it does not matter to a
8 jury whether the questions are considered under a duty rubric or a breach/causation
9 rubric. We disagree.
10 {39} 	Defendant is correct that we will not reverse a jury verdict in a civil trial as a
11 	result of error in the instructions unless we determine the error is "inconsistent with
12 	substantial justice or affects the substantial rights of the parties." Kennedy, 2000-
13 	NMSC-025, 126 (internal quotation marks and citation omitted). However, reversal
14 is compelled where "the complaining party provides the slightest evidence of
15 	prejudice." Id The existence of a duty is a threshold inquiry of particular importance
16 to a plaintiffs claim of negligence. See Schear v. Bd. ofCty. Comm 'rs, 1984-NMSC-
17 079, 14, 101 N.M. 671, 687 P.2d 728 ("A finding of negligence ... is dependent
18 upon the existence of a duty on the part of the defendant."). Where, as her~, there
/
'
19 were multiple potential tortfeasors, the question of whether any particular defendant
20 owed a duty of care to the decedent was especially important. Indeed, the thrust of
25

1 Defendant's closing argument was that other actors-specifically, McVay and its
2 employee Arenivas-were the truly responsible parties, and that holding Defendant
3 liable for Mr. Flores's wrongful death would permit double recovery. Because the
4 district court simultaneously instructed the jury that hirers of contractors generally
5 owe no duty of care to employees (with certain exceptions) and that "[e]very person
6 has a duty to exercise ordinary care for the safety of the person and property of
7 others[,]" we conclude that the jury might well have been confused about the proper
8 starting point of its analysis of the Estate's negligence claims. This constitutes more
9 than "the slightest evidence" that the error was prejudicial. Kennedy, 2000-NMSC-
10 	025,, 26; see Adams v. United Steelworkers of Am., AFL-C/0, 1982-NMSC-014,
11 	, 29, 97 N.M. 369, 640 P.2d 475 (holding improper instruction was prejudicial
12 because "the jury might well have overlooked [the defendant's] most valuable
13 	theory").
14 {40} 	We conclude that the jury instructions given were erroneous and prejudicial,
15 	and therefore reverse and remand for a new trial.
16 II. 	Remaining Issues
17 	{41} 	Because we reverse for jury instruction error, we do not reach the Estate's
18 remaining issues pertaining to evidentiary rulings in the first trial. It is possible that
19 these evidentiary issues will not present themselves in the same way they were
20 presented at the first trial, and we think it unwise to foreclose the district court judge
26

1 from examining these issues in the context presented on retrial. Nevertheless, we
2 take this opportunity to express concern with several matters raised by the Estate.
3 A. 	The 	District 	Court's 	Exclusion 	of 	Defendant's 	Post-Incident
4 	Communications
5 {42} 	The Estate argues that the district court erred in excluding two exhibits at trial
6 concerning Defendant's actions following the May 23, 2013 accident. The first,
7 Exhibit 15, is a December 16, 2013, safety alert describing eight incidents involving
8 overhead power lines in that year and suggesting six corrective actions. 	The
9 suggested corrective actions include pre-move route assessments, the use of flags
10 and signs marking overhead power lines, the use of spotters, comrtlunication about
11 	overhead hazards in pre-task safety meetings, the requirement of at least a ten-foot
12 clearance for stationary equipment, and the requirement of at least a four-foot
13 	clearance when traveling under energized power lines. The second, Exhibit 16,
14 consists of an August 2013 email thread involving several employees of Defendant.
15 	The correspondence directs the recipients' attention to a June 2013 presentation on
16 overhead power line safety and instructs that "we need to comply 100% with these
17 guidelines for every rig move involving power lines. Anyone who does not comply
18 	will 	be 	subject 	to 	disciplinary 	action 	up 	to 	and 	including 	terminat~on 	of
19 employment." The email specifically refers to the "electrocution fatality 	[that]
20 occurred recently in New Mexico[.]"
27

1 {43} 	The district court addressed Exhibits 15 and 16 in conjunction with its ruling
2 on the proposed exhibits concerning prior incidents involving overhead power lines.
3 After it admitted fifteen of the thirty-three exhibits concerning prior incidents, the
4 district court excluded the two exhibits describing post-incident corrective actions,
5 finding the exhibits constituted evidence of subsequent remedial measures and were
6 barred under Rule 11-407 NMRA and Rule 11-403 NMRA.
7 	{44} 	The Estate argues that the district court erred because the excluded exhibits
8 do not constitute evidence of subsequent remedial measures implicating Rule 11-407
9 and even if they do, they were admissible as evidence of Defendant's control over
10 the premises and personnel at issue in the litigation. Defendant counters that the
11 	exhibits do concern subsequent remedial measures and that the exception does not
12 apply because the evidence does not demonstrate Defendant's control of the power
13 	lines.
14 	{45} 	We 	first consider whether the exhibits at issue constituted evidence 	of
15 	subsequent 	remedial 	measures. 	The 	Estate 	argues 	that 	the 	safety 	policies
16 	implemented after the May 23, 2013, accident· were not subsequent remedial
17 measures. Relying on our decision in Williams v. BNSF Railway Co., 2015-NMCA-
18 	109, 359 P.3d 158, the Estate argues that "[Defendant] knew about the danger of
19 moving equipment under overhead power lines long before Mr. Flores's death, just
20 as the Williams defendant developed and used [a safety measure] before the injury-
28

1 causing incident." Defendant contends this is a misreading of Williams and that "[a]t
2 most, [the Estate] can assert only that [Defendant] used other safety plans and other
3 corrective actions in the past."
4 {46} 	In 	Williams, 	we were presented with the question of whether a specific
5 corrective action known to and in use by the defendant at other railyard locations
6 could be considered a subsequent remedial measure when it was adopted by the
7 defendant at the railyard where the injury occurred. Id. 1 11. Here, the Estate seeks
8 to admit evidence of several different corrective actions, some of which were known
9 to Defendant prior to the incident, and others 	of which appear to have been
10 	introduced only after the incident. For example, several pre-accident incident reports
11 	admitted at trial refer to actions listed in Exhibits 15 and -16, including pre-move
12 route assessments, proper clearances for equipment, and the use of signs around
13 	power lines. These corrective actions 	do 	not appear to qualify as subsequent
14 remedial measures because, like the safety measure in Williams, they were known
15 	and available to Defendant prior to the incident giving rise to the litigation. See id.
16 (holding that a handbrake trailer that was "developed and used" prior to the incident
17 at issue "was not a subsequent remedial measure"). However, the Estate fails to
18 	identify 	any 	evidence 	in 	the 	record 	that 	other 	measures 	identified 	in 	the
19 correspondence-including 	a 	requirement 	that 	worksite 	visitors 	be 	given 	an
20 	orientation about potential hazards, a policy mandating repeat measurements of
29

1 loads and power lines during the day prior to any move, and a proposal to test a "high
2 voltage power line proximity alarm devic~ for trucks and cranes"-were in use prior
3 to the accident. Moreover, because the correspondence specifically refers to the
4 "recent electrocution in New Mexico," there is a strong inference that the measures
5 identified therein were intended to address the risks that gave rise to the accident at
6 issue in the litigation and were therefore within the scope of Rule 11-407. See
7 	Williams, 2015-NMCA-109, ,-r 10 (noting that one essential purpose of Rule 11_-407
8 is to encourage repairs and modifications after an accident).
9 {47} 	Even if the exhibits were considered subsequent remedial measures, such
10 evidence may still be admissible if offered "another purpose, such as impeachment
11 	or-if disputed-proving ownership, control, or the feasibility of precautionary
12 measures." Rule 11-407. Defendant claims that the excluded exhibits were not
13 	probative ofDefendant's control over the premises but, instead, "pertain[ed] to how,
14 in the future, labeling and flagging power lines might avoid incidents like the one
15 	involving Mr. Flores." This argument seems to overlook that the excluded exhibits
16 constitute evidence that Defendant could require drillers and movers to abide by
17 rules governing use of the premises; the correspondence in Exhibit 16 mandates
18 "100% compl[iance]" upon penalty of "disciplinary action up to and including
19 termination of employment."
30

1 {48} 	Given this, the evidence seems admissible under the "control" exception of
2 Rule 11-407. The district court still could exclude the evidence if it determined that
3 "its probative value is substantially outweighed by a danger of ... unfair prejudice,
4 confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
5 presenting cumulative evidence." Rule 11-403. Here, the district court determined
6 that the exhibits were prejudicial to Defendant because of the cumulative effect of
7 the evidence already admitted concerningprior incidents:
8
9
10
11
12
13
14
In addition, as part of my consideration, . . . I balance this document
with other exhibits that I have just let in. I have just let in a lot of
exhibits that talk about safety plans on separate incidents, separate
incidents, fatalities from separate incidents. So a lot of that I have
allowed in for the jury on prior accidents. And I think now to allow this,
on a balancing test of [Rule 11-]403, I think it is certainly prejudicial to
[D]efendant, especially in the application of [Rule] 11-407.
15 	Although the record is unclear, in finding Exhibits 15 and 16 cumulative of the
16 evidence of 'prior incidents, the district court seems to have failed to apprehend a
17 critical difference between the legal significance of each-the former was offered
18 by the Estate to demonstrate that Defendant had notice of the dangers existing on the
19 premises, while the latter was offered to demonstrate Defendant's control of the
20 premises.
21 	{49} 	We are unable to tell, on the record before us, the precise basis of the district
22 court's determination. For example, it is possible the district court determined that
23 	the evidence of prior incidents was probative of both notice and control, in which
31

1 case its determination that Exhibits 	15 	and 	16 were cumulative fell within its
2 discretionary authority. 	See City of Albuquerque v. 	Westland Dev. 	Co., 	1995-
3 NMCA-136, 127, 121 N.M. 144, 909 P.2d 25 (stating that there was no abuse of
4 discretion where the trial court refused to permit multiple witnesses to testify on
5 substantially the same matter). However, if it found that the exhibits amounted to
6 cumulative evidence without regard for the differential legal effect of pre-incident
7 and post-incident communications; such a determination would constitute error. See
8 N.M Right to Choose/NARAL v. Johnson, 1999-NMSC-028, 17, 127 N.M. 654,986
9 P.2d 450 (stating that "we may characterize as an abuse of discretion a discretionary
10 decision that is premised on a misapprehension of the law" (alteration, internal
11 	quotation marks, and citation omitted)).
12 {50} 	On remand and consistent with our discussion above, the district court·should
13 	make a specific finding as to whether evidence of subsequent remedial measures,
14 considered in light of any admitted evidence of prior similar incidents, presents a
15 	potential risk of unfair prejudice to Defendant. See Williams, 2015-NMCA-109, 126
16 ("The purpose of Rule 11-403 is not to guard against any prejudice whatsoever, but
17 only against the danger of unfair prejudice." (internal quotation marks and citation
18 omitted)).
32

B. 	Defendant's Argument in Closing Regarding the Settlement Agreement
1 {51} 	Although the Estate's contention that Defendant engaged in an improper and
2 prejudicial closing argument is unpreserved, we believe defense counsel's use of the
3 settlement agreement in closing warrants admonition. The Estate contends that,
4 having successfully moved for admission of the settlement agreement for the
5 purpose of casting doubt on McVay's credibility, Defendant's subsequent use of the
6 evidence for a different and improper purpose during closing argument was error.
7 	{52} 	Specifically, in closing, Defendant used the settlement agreement to (1) cast
8 doubt on the validity of the Estate's claim by pointing to the "doubtful and disputed"
9 claim 	language in the 	settlement agreement, 	which is typical 	in any release
10 agreement; (2) attack the testimony of one of the Estate's witnesses who testified
11 	that Mr. Flores's mother could not receive therapy because she did not have the
12 money to pay for it; (3) suggest that McVay and Arenivas were improperly r~leased
13 	from the claims against them and that it was wrong for counsel for the Estate to
14 suggest that nobody would be held accountable for the accident; and (4) allege that
15 	a witness was biased against Defendant. Only the last of these uses was authorized
16 by the district court in its decision to admit the settlement agreement.
17 {53} 	We agree with the Estate that Defendant's use of the settlement agreement
18 	during closing argument was at times improper and may have been calculated to cast
19 aspersions upon the Estate's counsel and Mrs. Flores. Had the Estate tendered a
33

1 proper objection during Defendant's closing argument, the district court could have
2 appropriately limited Defendant's argument or instructed the jury to disregard its
3 improper use of the evidence. See Fahrbach v. Diamond Shamrock, Inc., 	1996-
4 NMSC-063, 113, 122 N.M. 543, 928 P.2d 269 (stating that the policy behind Rule
5 	11-408 "applies with equal force to the comments of the court or of counsel made in
6 argument to the jury or in voir dire" (internal quotation marks and citation om.itted)).
7 However, the Estate failed to make such an objection and thereby deprived the
8 district court of an opportunity to rule on the issue.
9 	CONCLUSION
10 	{54} 	For the foregoing reasons, we reverse and remand for proceedings consistent
11 	with this opinion.
12 {55} 	IT IS SO ORDERED.
13
14
15 	WE CONCUR:
16 	~~17 JEN\*.~TtP,Judge
18 ~~----"--"-""~~~'-~~19 MICHAEL D. BUSTAMANTE, Judge Pro Tempore
34