February 23, 2023- Gildardo Camarena v. Superior Contracting Corporation, No. A-1-CA-39598

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: February 23, 2023	3
No. A-1-CA-39598	4
GILDARDO CAMARENA, by and through his	5
Guardians, Rosa Cruz Camarena and Bianca	6
Camarena,	7
Plaintiff-Appellant,	8
v.	9
SUPERIOR CONTRACTING CORPORATION	10
d/b/a AMERICAN NATIONAL INSULATION &	11
SEALANTS (ANI); and JOHN DOE, SWG	12
Foreman/Manager,	13
Defendants-Appellees.	14
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	15
Benjamin Chavez, District Court Judge	16
Gorence & Oliveros PC	17
Robert J. Gorence	18
Albuquerque, NM	19
Durham, Pittard & Spalding, LLP	20
Caren I. Friedman	21
Justin R. Kaufman	22
Rosalind B. Bienvenu	23
Santa Fe, NM	24
Court of Appeals of New Mexico
Filed 2/23/2023 8:48 AM

Bowles Law Firm	1
Jason Bowles	2
Albuquerque, NM	3
for Appellant	4
Modrall, Sperling, Roehl, Harris & Sisk, P.A.	5
Earl E. DeBrine, Jr.	6
Jeremy K. Harrison	7
Elizabeth A. Martinez	8
Bayard Roberts	9
Albuquerque, NM	10
for Appellees Superior Contracting Corporation d/b/a American National	11
Insulation and Sealants	12

OPINION	1
BUSTAMANTE, Judge, retired, sitting by designation.	2
{1} 	This case presents another opportunity for this Court to address the contours	3
of a Delgado claim—the assertion that an employer willfully injured its employee,	4
thus subjecting it to general tort liability rather than the exclusivity provision of the	5
Workers’ Compensation Act (WCA). Delgado v. Phelps Dodge Chino, Inc., 2001-	6
NMSC-034, ¶ 1, 131 N.M. 272, 34 P.3d 1148. The claim before us involves a	7
scaffolding that was ninety-five feet high and overloaded two to four times its	8
capacity with sixteen tons of masonry block. The scaffolding collapsed and as a	9
result, Gildardo Camarena, the plaintiff in this case, suffered permanent, serious	10
bodily injury. The district court granted summary judgment in favor of Camarena’s	11
employer, after determining that Camarena failed to establish a genuine issue of	12
material fact regarding the objective and subjective prongs of the Delgado test. We	13
affirm.	14
BACKGROUND	15
Factual Background	16
{2} 	McCarthy Building Companies NM, Inc. (McCarthy) served as the general	17
contractor for the construction of an addition to Rust Presbyterian Medical Center	18
(the 	project). 	Defendant 	Superior Contracting 	Corporation, 	which 	was 	doing	19
business as American National Insulation and Sealants (ANI) was a subcontractor	20

2
hired 	to 	provide 	insulation, 	waterproofing, 	and 	fireproofing 	for 	the 	project.	1
Camarena worked for ANI on the project for two and a half months before the day	2
of the incident that gave rise to this case. Les File Drywall, Inc. and its affiliate Les	3
File LP (collectively, Les File) were hired to construct the walls of the building and	4
provide scaffolding for McCarthy, ANI, and other subcontractors, including Little	5
Enterprises, Inc. d/b/a Stone Cold Masonry (Stone Cold) that installed a block façade	6
on the building and Southwest Glass & Glazing, Inc. (SGG) that installed windows.	7
{3} 	Les File owned, designed, and constructed the scaffolding for the project. Les	8
File and McCarthy established a scaffold safety protocol, which required Les File to	9
inspect the scaffold to ensure it met OSHA regulations and was safe for use. The	10
protocol required Les File to affix a green tag to the scaffold ladder designating it as	11
safe for use or to affix a red tag if it was not safe to use. The tag was required to	12
include the date and time the scaffolding was inspected. The record reveals there	13
was a green tag on the scaffolding the day of the incident.	14
{4} 	On the day in question, scaffolding was set up against a six-story building.	15
The scaffolding was sixteen levels high, and the top level was approximately ninety-	16
five feet above the ground. Stone Cold employees had loaded 31,783 pounds—	17
almost sixteen tons and two to four times the scaffolding’s capacity—of block onto	18
the scaffolding several levels below where ANI employees were working. Camarena	19
and four other ANI employees were on the fourteenth level of the scaffolding, while	20

3
two other ANI employees were on the ground level. The scaffolding collapsed, and	1
Camarena sustained a permanent traumatic brain injury that left him incapacitated.	2
{5} 	The parties provided conflicting evidence regarding when the block was	3
loaded 	onto 	the 	scaffolding. 	Camarena 	provided 	evidence 	from 	Stone 	Cold	4
employees that testified the block was loaded onto the scaffolding two to three days	5
before the incident in question. He also provided evidence that loading blocks onto	6
the scaffolding was discussed each morning at safety meetings, which ANI’s	7
foremen were required to attend. ANI presented testimony from its supervisors, Paul	8
Gomez and Jose Garcia, that they inspected the scaffolding a few hours before the	9
incident and saw no significant amount of block on the scaffolding. It is undisputed	10
that there was no block on the level Camarena was working on.	11
Procedural Background	12
{6} 	Camarena, through his guardians, filed an amended complaint in this case	13
against SGG; John Doe, an SGG “Foreman/Manager”; ANI; Gomez, an ANI	14
foreman; and Garcia, another ANI foreman, making claims for negligence against	15
all the defendants and a Delgado claim against ANI, Gomez, and Garcia. Camarena	16
voluntarily dismissed SGG, Gomez, and Garcia, leaving only its Delgado claim	17
against ANI and negligence claims against John Doe.	18
{7} 	Both Camarena and ANI filed motions for summary judgment. ANI’s motion	19
advanced two main arguments. The first was that, as a matter of law, ANI’s liability	20

4
was based on the actions of Gomez and Garcia, and by voluntarily dismissing with	1
prejudice his claims against Gomez and Garcia, Camarena’s claim against ANI was	2
extinguished. The second was that the actions of Gomez and Garcia were not	3
sufficient to meet the Delgado standard for willful and egregious conduct.	4
{8} 	Broadly, ANI argued that in order to sustain a Delgado claim, a plaintiff must	5
present evidence that demonstrates a degree of egregiousness comparable to the facts	6
in Delgado. That is, the employers’ actions must include a combination of deadly	7
conditions, profit-motivated disregard for easily implemented safety measures,	8
complete lack of worker training or preparation, and outright denial of assistance to	9
a worker in a terrifying situation. With regard to the subjective prong of the Delgado	10
test, ANI argued that Camarena presented no evidence that ANI employees knew	11
the scaffolding had been overloaded beyond its capacity and that the scaffolding was	12
in danger of collapsing. ANI pointed to evidence that ANI employees had seen a	13
green tag and that Camarena’s expert testified that he was unable to determine the	14
capacity of the scaffolding. With regard to the objective prong of the Delgado	15
standard, ANI noted that Camarena was sent to do a routine task he had been doing	16
for years, on a project he had been working on for two and a half months, he	17
expressed no safety concerns, and, therefore, sending Camarena onto the scaffold	18
was not sending him into a hazardous situation that was virtually certain to result in	19
serious injury or death.	20

5
{9} 	Responding to ANI’s factual presentation, Camarena objected to testimony	1
from ANI employees saying they saw a green tag the day of the incident, arguing	2
that it was inadmissible because it came from depositions taken in a different case.	3
He also provided evidence that the block was loaded over a two- to three-day period	4
before the collapse, despite ANI foremen Gomez and Garcia testifying they did not	5
see the block the morning of the incident. Regarding ANI’s Delgado argument,	6
Camarena incorporated the arguments set forth in his motion for summary judgment	7
to argue there was an issue of fact regarding whether the Delgado standard was met.	8
Garcia, the ANI supervisor, testified that he would not have let workers onto the	9
scaffold if there were more than five blocks on it, yet the ANI supervisors ordered	10
their workers onto the scaffold even though it was loaded with almost 32,000 pounds	11
of block. Camarena also argued that ANI’s assertion that its foremen did not see the	12
block was contradicted by multiple witnesses.	13
{10} 	The district court denied Camarena’s motion and granted ANI’s motion.	14
Addressing Camarena’s motion first, the district court noted that his argument that	15
the facts conclusively showed that ANI was aware of the danger posed by the	16
overloaded scaffold was predicated on “inferring that ANI supervisors testified	17
untruthfully at their depositions.” The district court refused to make this inference,	18
citing the rule that inferences can only be made in favor of the nonmoving party.	19
Thus, it ruled Camarena did not meet his burden.	20

6
{11} 	Addressing 	ANI’s 	motion, 	the 	district 	court 	determined 	that, 	even 	if	1
Camarena could establish that Gomez and Garcia saw the block on the scaffold,	2
ANI’s conduct did not exemplify a degree of egregiousness or conduct that	3
approximated the employer’s conduct in Delgado. The district court determined the	4
objective prong was not met because ANI employees had been working on the	5
project for several months and on the specific scaffolding for over two weeks. It	6
pointed to evidence that employees testified the scaffolding was green tagged and	7
did not think the scaffolding was unsafe. The district court also noted that Camarena	8
was an experienced worker. For the subjective prong, it noted ANI employees saw	9
a green tag on the scaffolding the day in question, and despite seeing the block on	10
the scaffold, they did not think it was unsafe. It noted that Camarena presented no	11
evidence that he lacked training or preparation to work on the scaffolding or that	12
ANI denied him assistance in a terrifying situation. The district court determined	13
that, to avoid summary judgment, Camarena had to demonstrate a combination of	14
deadly 	conditions, 	profit-motivated 	disregard 	for 	easily 	implemented 	safety	15
measures, complete lack of worker training or preparation, and outright denial of	16
assistance to a worker in a terrifying situation. Finally, the district court determined	17
that Camarena’s Delgado claim was extinguished when Gomez and Garcia were	18
dismissed with prejudice.	19
DISCUSSION	20

7
{12} 	We address finality, the Delgado issue, and Camarena’s motion for sanctions.1
1
I. 	Finality	2
{13} 	When Camarena filed his amended complaint, he named numerous parties	3
including an unnamed “John Doe, [SGG] Foreman/Manager.” The unnamed John	4
Doe was never served or identified and never appeared in the case. As the case	5
proceeded, Camarena dismissed his claims against most of the parties, leaving only	6
ANI and John Doe as named parties. Once the district court granted summary	7
judgment in favor of ANI, John Doe was the only remaining named party in the suit.	8
After Camarena appealed to this Court, we directed “the parties to brief the issue of	9
whether a ‘John Doe’ party, even if not served, must be explicitly dismissed via	10
district court order so as to render a dismissal order final and therefore appropriate	11
for appellate review.” Camarena argues, and ANI agrees, that the district court was	12
not required to dismiss John Doe to render its dismissal order final. We agree.	13
{14} 	“[O]ur appellate jurisdiction is limited to review of ‘any final judgment or	14
decision, any interlocutory order or decision which practically disposes of the merits	15
of the action, or any final order after entry of judgment which affects substantial	16
1 Camarena 	also 	challenges 	the 	admissibility 	of 	deposition 	testimony
concerning whether there were green tags on the scaffolding the day of the collapse,
the grant of summary judgment regarding vicarious liability, and the grant of costs.
Because we affirm the district court’s grant of summary judgment on the Delgado
issue, we need not address Camarena’s arguments regarding evidence, vicarious
liability, or costs.

8
rights.’” Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 17, 140	1
N.M. 920, 149 P.3d 1017 (quoting NMSA 1978, § 39-3-2 (1966)). Generally, “an	2
order or judgment is not considered final unless all issues of law and fact have been	3
determined and the case [is] disposed of by the trial court to the fullest extent	4
possible.” Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, ¶ 14, 113 N.M.	5
231, 824 P.2d 1033 (internal quotation marks and citation omitted). Finality in this	6
case is affected by Rule 1-054(B) NMRA, which states that “any order or other	7
decision . . . that adjudicates . . . the rights and liabilities of fewer than all the parties,	8
does not end the action for any of the claims or parties.” The fact that John Doe was	9
not considered in the order on ANI’s motion for summary judgment does not prevent	10
the decision of the district court from being final. We explain.	11
{15} 	“Proper service of process is required before a court can exercise jurisdiction	12
over a defendant and render a binding judgment.” Ortiz v. Shaw, 2008-NMCA-136,	13
¶ 17, 145 N.M. 58, 193 P.3d 605; see Rule 1-001(B)(3) NMRA (defining “process”	14
as “the means by which jurisdiction is obtained over a person to compel the person	15
to appear in a judicial proceeding”). John Doe was never properly served and never	16
voluntarily appeared in the case, thus the district court never properly exercised	17
jurisdiction over him and there was never a claim pending against him. An order	18
dismissing him prior to an entry of the order on ANI’s motion for summary judgment	19
was unnecessary. This result tracks the approach of the federal courts in determining	20

9
finality regarding unserved defendants pursuant to Fed. R. Civ. P. 54(b)—which is	1
substantially similar to Rule 1-054(B). See Bristol v. Fibreboard Corp., 789 F.2d	2
846, 847-48 (10th Cir. 1986) (per curiam) (“These unserved defendants were never	3
made parties to this lawsuit. It was not necessary for the district court to enter an	4
order dismissing them prior to its entry of the order and judgment [from which the	5
appeal was taken].”). Because of this, even though John Doe remains named in the	6
caption, in looking to the “substance and not its form,” see Kelly Inn No. 102, Inc.,	7
1992-NMSC-005, ¶ 15, the decision of the district court granting ANI’s motion for	8
summary judgment was final.	9
II. 	Delgado Claim	10
A. 	Standard of Review	11
{16} 	“Summary judgment is reviewed on appeal de novo.” Juneau v. Intel Corp.,	12
2006-NMSC-002, ¶ 8, 139 N.M. 12, 127 P.3d 548. We view the evidence in the light	13
most favorable to Camarena, as the party opposing summary judgment. See City of	14
Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.	15
717, 213 P.3d 1146. “In New Mexico, summary judgment may be proper when the	16
moving party has met its initial burden of establishing a prima facie case for	17
summary judgment.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148	18
N.M. 713, 242 P.3d 280. “Once this prima facie showing has been made, the burden	19
shifts to the non-movant to demonstrate the existence of specific evidentiary facts	20

10
which would require trial on the merits.” Id. (internal quotation marks and citation	1
omitted).	2
{17} 	Delgado claims belong to a rare class of actions in which we require the	3
district court to determine as a matter of law whether the circumstances of an	4
occurrence and the conduct of a defendant are sufficiently aggravated to allow	5
submission to the jury. Morales v. Reynolds, 2004-NMCA-098, ¶ 14, 136 N.M. 280,	6
97 P.3d 612. The importance and primacy of the exclusivity aspect of the WCA	7
counsel in favor of allowing the district court a wider range of responsibility for	8
winnowing the cases that may be allowed to proceed to trial in order to strike a more	9
predictable balance of the interests of the employers and employees. See id. ¶¶ 15-	10
16 (analogizing to the treatment of summary judgment motion in cases asserting	11
intentional infliction of emotional distress claims). We are mindful that evaluation	12
of the potential risk for injury, the employer’s knowledge and appreciation of the	13
risk, in light of the need to balance the intent of the parties, is of necessity a case and	14
context specific endeavor.	15
B. 	Analysis	16
{18} 	The WCA generally provides the exclusive remedy for a worker when he or	17
she suffers an accidental injury at work. NMSA 1978, § 52-1-9 (1973). In Delgado,	18
our Supreme Court recognized the importance of the exclusivity provision in the	19
WCA and the benefits it provides to both employees and employers. 2001-NMSC-	20

11
034, ¶ 12. But, it also noted that to prevent abuse of those benefits by employees and	1
employers, the WCA limits the availability of the benefits to “workers injured by	2
accident arising out of and in the course of his or her employment.” Id. ¶ 13	3
(alteration, internal quotation marks, and citation omitted). Our Supreme Court	4
expressed concern over the imbalance of the potential for loss of WCA benefits: an	5
employer could only lose the benefit of the bargain if its actions met the actual intent	6
test, while workers could lose out if their injuries resulted from intoxication,	7
willfulness, or intentional self-infliction. Id. ¶¶ 14-15, 17. To remedy this imbalance	8
and to effectuate the provision of the WCA that stated it should not be construed to	9
favor either employers or workers, our Supreme Court held that willful acts by an	10
employer could also result in an employer’s loss of immunity from tort liability. Id.	11
¶ 24.	12
{19} 	Under Delgado’s three-prong test, a worker is not limited to the WCA remedy	13
if (1) he or she can establish that the employer engaged in an intentional act or	14
omission without just cause that is reasonably expected to result in the injury to the	15
worker—commonly referred to as the objective prong; (2) the employer expected	16
the intentional act or omission to result in the injury—commonly referred to as the	17
subjective prong; and (3) the intentional act or omission proximately caused the	18
injury. Id. ¶ 26. Our Supreme Court’s reassessment of the commonly accepted actual	19

12
intent rule was presumably prompted by the particularly horrific facts in Delgado.	1
This Court summarized those facts in Morales as follows:	2
The worker was employed at a smelting plant that distilled copper ore	3
by heating rock to temperatures greater than 2,000 degrees so that	4
usable ore would separate from unusable slag. [Delgado, 2001-NMSC-	5
034,] ¶ 3. The slag drained into a 15-foot tall, 35-ton iron cauldron	6
known as a “ladle,” which workers would ordinarily empty on a regular	7
basis by using a “mudgun” to stop the flow of molten slag long enough	8
for a specialized device called a “kress-haul” to remove the ladle. Id.	9
On the night that [the plaintiff employee] died, the work crew was	10
shorthanded and was under pressure to work harder to recoup recent	11
losses. Id. ¶ 4. The ladle was filling at an unusually fast pace and had	12
reached the point where it would normally need to be emptied, but the	13
mudgun was not working. Id. Although the employer’s supervisors had	14
the option of shutting down the furnace in order to stop any more	15
molten slag from accumulating in the ladle while the workers emptied	16
it, they did not. Id. Instead, they ordered [the plaintiff employee] to	17
remove the ladle of molten slag using the kress-haul alone, despite the	18
fact that molten slag was continuing to accumulate in the ladle and	19
spilling over its brim and despite the fact that he had never done such a	20
task before. Id. When [the plaintiff employee] saw the situation, he	21
radioed for help, explaining that he was neither qualified nor able to	22
perform the removal task. Id. ¶ 5. [The plaintiff employee’s] requests	23
were denied. Id. He again protested and asked for help, and again his	24
supervisors insisted that he perform the dangerous operation. Id. [The	25
plaintiff employee] eventually came up from the tunnel “fully engulfed	26
in flames” and sustained third-degree burns all over his body that led to	27
his death. Id.	28
Morales, 2004-NMCA-098, ¶ 9.	29
{20} 	It is important to note that the appeal in Delgado was from an order of	30
dismissal under Rule 1-012(B)(6) NMRA for failure to state a claim upon which	31
relief can be granted. Delgado, 2001-NMSC-034, ¶ 7. Since our Supreme Court did	32
not have a developed factual record, it appropriately accepted as true the facts	33

13
properly pleaded in the complaint. See id. ¶ 2; see also Derringer v. State, 2003-	1
NMCA-073, ¶ 5, 133 N.M. 721, 68 P.3d 961 (noting that appellate courts accept “all	2
well-pleaded factual allegations as true” when reviewing a motion to dismiss for	3
failure to state a claim). Our Supreme Court did not provide any specific guidance	4
as to types of conduct or circumstances necessary to allow a case to be submitted to	5
a jury. Delgado, 2001-NMSC-034, ¶¶ 26-31. It certainly did not state—or even	6
imply—that circumstances as aggravated as those present in Delgado were required	7
to avoid dismissal as a matter of law. Id. After announcing the test, our Supreme	8
Court simply remanded to the district court to apply the test articulated in the case.	9
Id. ¶ 32.	10
{21} 	Nevertheless, the facts detailed in Delgado have served as a touchstone	11
against which the circumstances in later cases have been compared. As this Court	12
stated in Morales, “plaintiffs must plead or present evidence that the employer met	13
each of the three Delgado elements through actions that exemplify a comparable	14
degree of egregiousness as the employer in Delgado in order to survive a pre-trial	15
dispositive motion.” Morales, 2004-NMCA-098, ¶ 14. This Court has noted in	16
several cases that “[o]ur Supreme Court’s decision in Delgado stems from this	17
egregious employer conduct: a combination of deadly conditions, profit-motivated	18
disregard for easily implemented safety measures, complete lack of worker training	19
or preparation, and outright denial of assistance to a worker in a terrifying situation.”	20

14
Id. ¶ 10; Dominguez v. Perovich Props., Inc., 2005-NMCA-050, ¶ 15, 137 N.M. 401,	1
111 P.3d 721 (quoting 	Morales, 2004-NMCA-098, ¶ 10); 	Chairez v. James	2
Hamilton Constr. Co., 2009-NMCA-093, ¶ 30, 146 N.M. 794, 215 P.3d 732 (quoting	3
Morales, 2004-NMCA-098, ¶ 10); May v. DCP Midstream, L.P., 2010-NMCA-087,	4
¶ 8, 148 N.M. 595, 241 P.3d 193 (quoting Morales, 2004-NMCA-098, ¶ 10); Richey	5
v. Hammond Conservancy Dist., 2015-NMCA-043, ¶ 14, 346 P.3d 1183 (quoting	6
Morales, 2004-NMCA-098, ¶ 10).	7
{22} 	Camarena argues that the district court misapplied and misused the facts in	8
Delgado when it measured the circumstances here. ANI, of course, disagrees. Part	9
of our analysis will examine anew what kind of circumstances may be sufficient to	10
allow a Delgado claim to avoid dismissal as a matter of law.	11
{23} 	Our appellate courts first addressed the new willfulness test in Morales, which	12
included the first cases “to reach us from what appears to be a growing pool of	13
Delgado claims” that “highlight[ed] the need to determine whether an accident	14
meets the requirements of Delgado as a matter of law.” Morales, 2004-NMCA-098,	15
¶ 10. In Morales,2 the plaintiff employee was fixing a pump that carried a chemical	16
from a storage tank to a mix head. Id. ¶ 2. While the employee was fixing the pump,	17
2Morales resolved two cases from the district courts. Id. ¶ 1. Here, we outline
only the case that was resolved at the summary judgment stage. See id. ¶¶ 19-24.

15
some of the chemical was released, causing the plaintiff employee’s protective hood	1
to pop up, ultimately resulting in the plaintiff’s personal injury. Id.	2
{24} 	This Court held the defendant employer made a prima facie showing that its	3
actions did not meet the objective or subjective prongs of the Delgado test for several	4
reasons. Id. ¶ 20. First, there was no issue of worker inexperience because the	5
plaintiff employee had done the same job and used the same equipment six to twelve	6
times before. Id. Second, the defendant employer countered a potential attack on the	7
safety equipment with testimony from the plaintiff employee that he had never been	8
told to not change his protective hood and not use standard safety procedures, and	9
he did not remember if he followed standard safety procedures that day. Id. Third,	10
the defendant employer also presented testimony from another employee that he was	11
unaware of pressure to get the job done quickly, and that another safety device was	12
available but not preferable. Id. The plaintiff employee presented evidence that his	13
safety hood had popped off on other occasions, he had suggested the employer do	14
repairs on the other safety equipment (but he had not used that equipment in the	15
incident), and he presented evidence the defendant employer knew the chemical was	16
a dangerous chemical. Id. ¶ 22. This Court concluded that these circumstances were	17
not sufficient to create a genuine issue of material fact regarding either the subjective	18
or objective prongs of the willfulness test, though we did not distinctly analyze each	19
prong of the test. Id. ¶ 23. We instead reasoned that neither the presence of a	20

16
dangerous chemical alone nor the availability of other, better safety equipment was	1
sufficient to show employer willfulness. 	Id. 	Further, we considered that the	2
defendant employer considered their actions and made a rational choice based on a	3
number of factors. Id.	4
{25} 	This Court next addressed Delgado in Dominguez, 2005-NMCA-050. 3 In	5
Dominguez, the plaintiff employee worked at the defendant employer’s gravel	6
processing operation. Id. ¶ 2. The plaintiff employee’s job was to operate a front end	7
loader by feeding raw gravel and rock material into screening equipment, which	8
needed to be cleaned from time to time. Id. During the incident at issue, the plaintiff	9
employee was performing the routine maintenance task of cleaning the screens,	10
when the defendant employer’s supervisor turned on the machine, which lead to the	11
plaintiff employee being carried down a conveyor belt and getting injured. Id. ¶¶ 2-	12
3.	13
{26} 	We concluded that “[the p]laintiff has failed to measure [the e]mployer’s	14
conduct up to the employer’s conduct in Delgado.” Id. For the objective prong, this	15
Court noted that the plaintiff employee was performing a routine task, “a task with	16
which he was familiar and he has performed in the past,” and there was no inherent	17
probability of injury. Id. ¶ 21. This Court noted that though it could be foreseeable	18
3Many of the facts alleged by both parties in Dominguez were unsupported in
the briefing. Id. ¶¶ 2-4.

17
that another employee would negligently start the equipment, “such foreseeability	1
does not rise to the level contemplated under the first prong of the Delgado test.” Id.	2
For the subjective prong, this Court noted that the plaintiff employee did not show a	3
“modicum of intent on [the e]mployer’s part to send [the p]laintiff into harm’s way”	4
and the intentional failure to provide safety devices did “not reach the standard	5
contemplated under the second prong of the Delgado test.” Id. It noted that the	6
general failure to provide safety devices “was not in and of itself a probable injury	7
for [the p]laintiff on the occasion in question.” Id.	8
{27} 	The crux of the decision in Dominguez was that our “Supreme Court in	9
Delgado intended more than the disregard of preventative safety devices as occurred	10
in the present case” to meet the willfulness standard. Id. ¶ 22. This Court determined	11
that a failure to provide safety devices is not a situation where “the employer has	12
specifically and wil[l]fully caused the employee to enter harm’s way, facing virtually	13
certain serious injury or death, as contemplated under Delgado.” Id. ¶ 22. This Court	14
concluded that the critical measure “is whether the employer has, in a specific	15
dangerous circumstance, required the employee to perform a task where the	16
employer is or should clearly be aware that there is a substantial likelihood the	17
employee will suffer injury or death by performing the task.” Id. It was clear that the	18
possibility “that an accident might occur because of an unexpected careless act of a	19
co-employee does not meet the Delgado standard.” Id.	20

18
{28} 	The last reported case in which this Court addressed Delgado in the summary	1
judgment context was May, 2010-NMCA-087. In May, the plaintiff employee	2
worked at a facility that received gas pipe inspection gauges (pig) that were sent	3
through pipeline to clean buildup. Id. ¶ 2. The defendant employer’s pig receiver	4
was modified to accept a “smart” pig, which was ten feet long and weighed	5
approximately eight hundred pounds. Id. The plaintiff employee, a plant operator,	6
was tasked with retrieving the pig, but due to the modification he was unaware that	7
there was two hundred fifty pounds of pressure from behind the pig. Id. ¶ 3. The pig	8
became dislodged while the plaintiff employee was working in front of the receiver	9
opening and the pig struck him at ninety miles per hour resulting in significant	10
personal injuries. Id.	11
{29} 	In May, the plaintiff employee based his argument on an internal investigative	12
report that established that workers were unable to determine where the pig was in	13
the receiver or if pressure was trapped behind the pig, they were unable to relieve	14
any 	pressure 	trapped 	behind 	the 	pig, 	the 	personnel 	lacked 	fundamental	15
understanding of operating the pig receiver, and the training the plaintiff employee	16
received was for the original receiver, not the reconfigured receiver. Id. ¶ 10.	17
{30} 	This Court affirmed the grant of summary judgment in favor of the defendant	18
employers but did so without explicitly analyzing each prong of the test. Id. ¶¶ 12-	19
15. Regarding the objective prong, this Court determined that the plaintiff employee	20

19
was performing a routine task on unsafe equipment that he had performed before,	1
which was not the same as sending an employee to face certain injury. Id. ¶¶ 12-13.	2
Regarding the subjective prong, this Court noted (1) there was no proof the	3
employers’ “decision to keep the [pig] in its modified state was profit-motivated in	4
disregard for safety”; (2) the absence of safety measures did not show an intent; and	5
(3) although the defendant employers allowed a negligently dangerous condition to	6
persist, there was no indication that in leaving the pig in the reconfigured state, they	7
knew or expected the plaintiff’s injuries to occur. Id.	8
{31} 	The crux of the conclusion was that though the employer defendants “were	9
negligent, perhaps even grossly negligent, . . . negligence is not enough.” Id. ¶ 15.	10
This Court concluded the evidence did not “create material issues of fact for a jury	11
to decide whether [the employer d]efendants’ actions and omissions exemplif[ied] a	12
comparable degree of egregiousness as the employer in Delgado.” Id. ¶ 12.	13
{32} 	As we reexamine the willfulness test, we note our agreement with the outcome	14
in each of these cases. It was relatively easy to conclude in Morales and Dominguez	15
that the facts adduced constituted run-of-the-mill employment hazards that did not	16
meet the Delgado objective prong and thus did not call for a judicial response outside	17
the WCA. See Morales, 2004-NMCA-098, ¶ 23; Dominguez, 2005-NMCA-050,	18
¶ 21. Comparison to the situation in Delgado was in a practical sense not necessary	19
to decide the cases other than to acknowledge the seminal case in the area. May	20

20
presents us a more difficult issue from the standpoint of the objective test. See 2010-	1
NMCA-087. The danger posed by the modified pig would likely allow the physical	2
circumstance to be submitted to a jury to determine if it met the Delgado standard	3
for egregiousness. Id. ¶¶ 2-3. The combination of an eight hundred-pound projectile	4
subject to an unknown but likely dangerously high amount of pressure might meet	5
the objective Delgado prong. Id. But, there was no evidence of the employers’	6
knowledge or callousness to the danger posed, and, thus, the subjective prong could	7
not be met. Id. ¶¶ 11, 13-14. The cases illustrate the cautious approach this Court	8
has taken to protect WCA exclusivity as we attempt to balance the interests of	9
workers and employees. We now turn to the present case.	10
{33} 	A question before us is whether the same level of horrific circumstance and	11
egregious employer conduct found in Delgado is required to establish willfulness.	12
Stated another way, does a “comparable degree of egregiousness” require the	13
“combination 	of 	deadly 	conditions, 	profit-motivated 	disregard 	for 	easily	14
implemented safety measures, complete lack of worker training or preparation, and	15
outright denial of assistance to a worker in a terrifying situation”? See Morales,	16
2004-NMCA-098, ¶¶ 10, 14. In short, have these metrics morphed into elements of	17
a Delgado claim? And finally, if the matter does not require a combination of those	18
exact conditions, do the circumstances here meet the Delgado test? We address the	19
first question before moving to the facts of this case.	20

21
{34} 	We start by noting that the district court appears to have treated the four	1
descriptors listed above as elements. It quoted the list from Morales in its opinion	2
and order and then used them as a guide for its analysis. And, ANI explicitly argues	3
that the Morales summation of the circumstance in Delgado represents elements of	4
the test and that there can be no Delgado claim unless the facts in each case are as	5
aggravated and horrific as those in Delgado.	6
{35} 	While Morales can be read to support ANI’s position, the Court in Morales	7
was clearly concerned about what appeared “to be a growing pool of Delgado	8
claims” and the potential for disruption of the well-established system under the	9
WCA for compensation of on-the-job injuries. Id. ¶¶ 10, 14-16. That concern	10
continues unabated, but we conclude that the cases following 	Morales 	have	11
improperly conflated the language in paragraph ten describing the factual setting of	12
Delgado with the general language of paragraph fourteen requiring plaintiffs to	13
“plead or present evidence that the employer met each of the three Delgado elements	14
through actions that exemplify a comparable degree of egregiousness.” Id. ¶¶ 10, 14.	15
{36} 	Morales started its analysis by quoting the three-prong test formulated in	16
Delgado. Id. ¶ 8. It then noted that, “[b]eyond this test, the Court did not elaborate	17
on the boundaries of what type of conduct qualifies under the exception to	18
exclusivity.” Id. ¶ 9. The Morales opinion summarized the facts plead in Delgado,	19
and distilled those facts down to four categories of circumstances that ANI argues	20

22
are elements of a Delgado claim, which have to be present in every case. See id.	1
¶¶ 9-10.	2
{37} 	The difficulty with this interpretation of 	Morales 	is twofold. First, the	3
language in paragraph ten is on its face no more than a reflection of the situation in	4
Delgado. Id. ¶ 10. The opinion in Morales does not state that these facts are required	5
in every case in order for a viable Delgado claim to be asserted. Id. Rather, in	6
paragraph fourteen, Morales refers back to the general three-prong test set forth in	7
Delgado and requires “comparable”—not exact—evidence of egregiousness. Id.	8
¶¶ 8, 14.	9
{38} 	Second, to treat the descriptive factors of paragraph ten as elements of the	10
willfulness test would limit Delgado claims to circumstances essentially identical to	11
the type of facts present there. See id. ¶ 10. We see no policy need to limit the	12
potential relief recognized by our Supreme Court to situations that border on the	13
criminal. That interpretation would tend to push the balance sought by the Court	14
back to the actual intent test it specifically rejected. See Delgado, 2001-NMSC-034,	15
¶ 23. A more nuanced approach is to take the factors into account as appropriate	16
given the factual setting of each case. See Morales, 2004-NMCA-098, ¶ 10. One or	17
more of the factors might not be relevant depending on the factual circumstances	18
presented. For example, in this case, failure to give aid in a terrifying situation would	19
not apply simply because there would have been no time to do so in the face of the	20

23
sudden collapse of the scaffolding. This approach preserves the concededly high bar	1
needed to prove willfulness under Delgado. See id. ¶ 14. By doing so, we also	2
preserve the exclusivity of the WCA for almost all on-the-job injuries.4 We now turn	3
to the facts of this case.	4
{39} 	We start with the objective prong. ANI asserts that block on the scaffolding	5
was a normal condition. It asserts Camarena presented no objective evidence the	6
scaffolding was overloaded, and the scaffold was green tagged, so it makes a prima	7
facie showing that there was no action that was “reasonably expected to result in the	8
injury.” See Delgado, 2001-NMSC-034, ¶ 26. ANI argues that Camarena “was	9
performing the routine job of applying waterproof membrane to the building he had	10
been [working on for two and a half] months.” (Emphasis omitted.) ANI notes	11
Camarena was an experienced journeyman and his safety training courses included	12
scaffolding training. The district court and ANI also point to the testimony that	13
workers on the project saw green tags. The green tag evidence is relevant in that they	14
saw the green tag, but we note that no one testified that the green tag contained the	15
proper date. Finally, ANI notes there is no evidence that Camarena objected to or	16
expressed concern about working on the scaffolding. See Chairez, 2009-NMCA-	17
093, ¶ 32 (noting it was the plaintiff employee’s own choice that placed him in	18
4To the extent that Threadgill v. 6001, Inc., A-1-CA-34785, mem. op. ¶ 13
(N.M. Ct. App. Jul. 2, 2018) (nonprecedential), conflicts with our holding, it is
overruled.

24
harm’s way, unlike “in Delgado, where the employer ordered the worker into a	1
molten inferno despite the worker’s protestations”). While each of these assertions	2
are true, ANI wholly disregards the evidence that demonstrates how dangerous the	3
overloaded scaffolding was.	4
{40} 	Sixteen tons of masonry block were stacked among sixteen different levels of	5
untethered scaffolding that was six stories and approximately ninety-five feet high.	6
The scaffolding was overloaded by two to four times its capacity. This is a specific	7
dangerous circumstance where a jury could reasonably find that there was a	8
substantial likelihood that workers on the scaffold would suffer injury or death. See	9
Dominguez, 2005-NMCA-050, ¶ 22 (“The critical measure . . . is whether the	10
employer has, in a specific dangerous circumstance, required the employee to	11
perform a task where the employer is or should clearly be aware that there is a	12
substantial likelihood the employee will suffer injury or death by performing the	13
task.”). A jury could also find that the overloaded scaffolding presented a situation	14
with an “inherent probability of injury.” See id. ¶ 21. Thus, we conclude that the	15
objective test has been satisfied by Camarena.	16
{41} 	We next move to the subjective prong. Camarena’s complaint alleged that at	17
all relevant times, ANI and its employees and agents had notice of a dangerous	18
condition with respect to the scaffolding, but despite such notice, ANI willfully,	19
wantonly, and intentionally disregarded a known risk and danger and directed its	20

25
workers, including Camarena, to perform work on the scaffold. ANI moved for	1
summary judgment, arguing Camarena provided no evidence that Garcia, Gomez,	2
or any other ANI employee knew that the scaffold had been overloaded beyond its	3
capacity, and that, to the contrary, they knew—albeit not precisely when—the	4
scaffold had been green tagged as safe for use. ANI argued Camarena was an	5
experienced journeyman with training in scaffold security, who never objected to	6
working on the scaffold. This evidence is sufficient to establish a prima facie case	7
in favor of ANI with regard to the subjective intent prong of the Delgado test. It	8
facially demonstrated that ANI did not know the scaffold had been overloaded by	9
the Stone Cold employees, and, thus, it could not have the subjective intent required	10
to prove the willfulness that Delgado provided.	11
{42} 	It was Camarena’s burden to show that there was a genuine issue of material	12
fact as to whether ANI was on notice of the dangerous condition of the scaffold. See	13
Morales, 2004-NMCA-098, ¶ 14. Camarena argues that testimony from multiple	14
Stone Cold employees that they saw the block on the scaffolding creates a genuine	15
issue of material fact on the subjective inquiry, because it demonstrates ANI knew	16
or should have known that the scaffolding was overloaded.	17
{43} 	Even viewing the evidence in the light most favorable to Camarena as the	18
nonmoving party, see Knapp v. Fraternal Order of Eagles, 1987-NMCA-064, ¶ 7,	19
106 N.M. 11, 738 P.2d 129, and assuming this testimony demonstrates that Garcia	20

26
and Gomez must have seen the block on the scaffolding, Camarena fails to create a	1
question of fact as to whether ANI “expect[ed] the intentional act or omission to	2
result in the injury, or . . . utterly disregarded the consequences.” See Delgado, 2001-	3
NMSC-034, ¶ 26. There is no testimony that Garcia and Gomez knew how much	4
block had been loaded onto the scaffolding or how much it weighed. Similarly, there	5
is no testimony that they knew the design load capacity of the scaffolding. The	6
testimony regarding the general knowledge on the construction site indicated that no	7
one on the site understood the danger created by the block weight. There was no	8
testimony from Les File employees concerning the capacity or limits of the	9
scaffolding they erected. The Stone Cold employees who placed the block on the	10
scaffolding believed there was no problem connected to the weight they placed.	11
Camarena did not present any evidence that anyone raised concerns about the weight	12
of the block at the regular planning and safety meetings held on the site. If the other	13
trades and subcontractors on the job did not appreciate the danger, it is difficult to	14
see how culpable knowledge could be attributed to ANI.	15
{44} 	Garcia testified that, if Stone Cold employees had loaded block on the	16
scaffold, he would only allow his employees on the scaffolding if there was “an	17
extremely small amount [of block] placed out of the way of [his employees’] path	18
of travel.” Garcia clarified that it would have to be less than five blocks on the	19
scaffolding. He did not explain why he would not allow his employees on the	20

27
scaffolding in such a situation. Thus, it is simply unknown if his concern was at all	1
related to the weight of the blocks or the capacity of the scaffolding.	2
{45} 	Camarena’s expert testified ANI probably should have known the load	3
capacity of the scaffolding, but there was no basis for his testimony. Garcia and	4
Gomez did not testify about their knowledge concerning the load capacity of	5
scaffolding in general or this scaffolding in particular. And, as noted above, there	6
was no indication in the record that anyone on the job knew or suspected that the	7
scaffolding had been dramatically and dangerously overloaded.	8
{46} 	The 	evidence 	does 	not 	demonstrate 	that 	ANI 	“utterly 	disregarded 	the	9
consequences” of its choice to send Camarena up on the overloaded scaffolding. See	10
id. Camarena simply presents no evidence that a reasonable jury could infer that ANI	11
had specific knowledge about the danger or disregarded the consequences of a	12
dangerous situation.	13
{47} 	As Camarena did not meet the subjective prong of the willfulness test, the	14
district court did not err in granting ANI’s motion for summary judgment on his	15
Delgado claim.	16
III. 	Sanctions	17
{48} 	In its answer brief to this Court, ANI referred to Camarena’s settlements with	18
other parties—parties not part of this litigation—related to the incident that gave rise	19
to this case. After the answer brief was filed, Camarena filed a motion, pursuant to	20

28
Rule 12-309 NMRA and Rule 12-314(D) NMRA, to seal an unredacted version of a	1
motion for sanctions it intended to file, that directly quoted ANI’s reference to the	2
settlement figures. Without explanation, this Court denied the motion. Plaintiff filed	3
an unredacted motion for sanctions that referenced the information but did not quote	4
the objectionable material.	5
{49} 	Camarena argues ANI violated the rules of appellate procedure by referencing	6
information that is not in the record proper, and the rules of professional conduct by	7
disclosing confidential information when it referred to the settlement amounts.	8
Camarena requests an award of reasonable attorney fees and costs for the filing of	9
its motion for sanctions, a monetary fine, that we strike ANI’s answer brief, and that	10
we order ANI to file an amended answer brief that excises the reference to that	11
information but that is otherwise identical to the answer brief currently on file. In	12
response, ANI requested this Court deny the motion and award ANI its attorney fees	13
in responding to the motion. We decline to grant Camarena’s motion and ANI’s	14
request. We explain.	15
{50} 	We start by noting that ANI mentioned the information Camarena objects to	16
in multiple pleadings to the district court. This is relevant to two distinct but	17
overlapping parts of our analysis. First, Camarena’s argument is simply too late. He	18
did not address the statements or attempt to remove the information from the record	19
below. As it did not merit attention in the district court and the circumstances have	20

29
not changed, Camarena tacitly established that it was not an issue worth pursuing.	1
Granting 	Camarena’s 	motion 	for 	sanctions 	now 	would 	ignore 	the 	multiple	2
opportunities he had to establish ANI’s wrongdoing, but failed to pursue. Second,	3
because the information is mentioned throughout the record, Camarena fails to	4
establish any prejudice to ANI’s reference to the settlement in its briefing to this	5
Court. The information is irrelevant to our analysis and does not make a difference	6
to the outcome of the proceedings. Camarena does not establish the reference	7
harmed or prejudiced him sufficiently that it would warrant sanctions.	8
{51} 	Although referencing the settlement amount may be a technical violation of	9
the rules, granting sanctions for such a violation is a discretionary act. Based on the	10
foregoing analysis, we decline to impose sanctions on ANI. We also deny ANI’s	11
request for attorney fees for responding to the motion.	12
{52} 	IT IS SO ORDERED.	13
_________________________________	14
MICHAEL D. BUSTAMANTE, Judge,	15
retired, sitting by designation.	16
WE CONCUR:	17
_________________________________	18
J. MILES HANISEE, Judge	19
_________________________________	20
JACQUELINE R. MEDINA, Judge	21