274 P.3d 97
N.M.2012Background
- Durand, while at Meteor Monument, L.L.C., consumed substantial alcohol and drugs before driving, causing Gutierrez's death.
- Gutierrez's estate sued Durand and Meteor for dram shop liability, negligent supervision, vicarious liability, and punitive damages.
- Court of Appeals reversed the dram shop verdict and remanded negligent supervision for a new trial; did not address punitive damages.
- NM Supreme Court held identification of the server not essential; circumstantial evidence can show reasonably apparent intoxication.
- Court held Meteor was on notice that negligent supervision claim included Durand; scope of employment instruction invited error.
- Court remanded only for punitive damages issue; affirmed trial court on other points and reversed Court of Appeals accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dram Shop: sufficiency of reasonably apparent intoxication | Gutierrez argues evidence shows server should have known Durand was intoxicated. | Meteor contends no server identity and no evidence of apparent intoxication at service. | Sufficient evidence; server identity not essential; objective reasonably apparent standard applies. |
| Circumstantial evidence to prove reasonably apparent intoxication | Circumstantial evidence may prove what server should have known. | Only witnesses present at service can prove apparent intoxication. | Circumstantial evidence admissible; remote evidence can establish what should have been apparent. |
| Negligent supervision: notice and scope of employment | Gutierrez alleged Meteor negligently supervised Durand; scope of employment may be relevant. | No clear notice of negligent supervision claim; scope of employment issues misapplied. | Notice found; scope of employment may be factor; error invited due to joint instruction. |
| Fundamental error and scope of employment instruction | No fundamental error; trial preserved issues; instructions proper. | Instruction confused vicarious liability with negligent supervision; fundamental error warranted remand. | No fundamental error; invited error and consented instructions; remand not required for negligent supervision. |
| Punitive damages remand | Court should address punitive damages on appeal. | Punitive damages depend on underlying liability findings. | Court of Appeals should address punitive damages on remand. |
Key Cases Cited
- Plummer v. Devore, 114 N.M. 243 (Ct.App.1992) (server identity not required; reasonably apparent standard is objective)
- State v. Rudolfo, 144 N.M. 305 (2008-NMSC-036) (objective standard for reasonable action)
- Perseus, Inc. v. Canody, 995 S.W.2d 202 (Tex.App.1999) (apparent to provider requires objective analysis)
- Miller v. Ochampaugh, 191 Mich.App. 48 (1991) (apparent to an ordinary observer is objective)
- Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963 (2002) (visible intoxication supported by circumstantial evidence)
- Studer v. Veterans of Foreign Wars Post 3767, 185 Ohio App.3d 691 (2009) (circumstantial evidence shows what was apparent to server)
- Becks v. Pierce, 282 Ga.App. 229 (2006) (apparent intoxication requires reasonable care by provider)
- Riley v. H & H Operations, Inc., 263 Ga. 652 (1993) (subjective knowledge would undermine dram shop action)