468 P.3d 887
N.M. Ct. App.2020Background
- Fernando Flores, a helper (swamper) employed by Battle Energy Services, was electrocuted when a gin-pole truck transporting a blowout preventer struck an overhead power line during a rig move; McVay (the drilling subcontractor) and its employee Arenivas were involved in directing the move. The Estate settled with McVay and Arenivas before trial and proceeded against Devon Energy (the hirer/operator).
- The Estate sued for wrongful death alleging direct negligence theories (premises liability, negligent selection/supervision) against Devon; after a six-day trial a jury returned a verdict of no negligence and the district court entered judgment for Devon.
- On appeal the Estate argued, inter alia, the district court erred by (1) failing to instruct the jury that Devon owed duties of care (misframing duty questions), (2) excluding certain post-incident safety communications, and (3) permitting improper uses of a settlement in closing argument.
- The district court instructed the jury using language framing hirers’ liability as a general no-liability rule for employers of independent contractors with three exceptions (premises liability, negligent selection/retention, and retained control), relying in part on Restatement (Second) formulations and pre-Rodriguez case law.
- The Court of Appeals held the duty instructions were legally erroneous and prejudicial: under Rodriguez and the Restatement (Third) framework a hirer generally owes a duty of ordinary care unless the court, on policy grounds, limits that duty; the district court improperly framed some theories as exceptions to a default no-duty rule and improperly invited foreseeability into the duty analysis. The Court reversed and remanded for a new trial, leaving evidentiary rulings for the trial court to revisit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who decides whether Devon owed a duty (court as matter of law vs. jury)? | Duty is a legal question for the court; any fact disputes should be submitted to jury as breach/causation. | Estate is estopped on appeal; foreseeability questions may belong to jury; Rodriguez not so sweeping. | Court: Duty is ordinarily a question of law (Rodriguez/Restatement (Third)); factual predicates that bear on duty (e.g., retained control) can be submitted to jury with alternative instructions. |
| Were the jury instructions on duty legally correct (did court err by framing a general no-liability rule with exceptions)? | Instructions misapplied law; restated duty should start with general duty of ordinary care, not a no-liability default. | District court’s framing followed prior NM cases and was within discretion. | Court: Error. Premises liability and negligent-selection theories flow from the general duty (Restatement (Third)) and should not be presented as exceptions to a no-duty rule; instructions therefore misleading and prejudicial. |
| Admissibility of post-incident safety communications (Exs. 15 & 16) | Communications show Devon knew of hazards and exercised control over site/personnel; not purely subsequent remedial measures. | Exhibits are subsequent remedial measures barred by Rule 11-407 and cumulative/prejudicial under Rule 11-403. | Court: Record unclear; some measures were pre-existing (not barred) but others likely post-incident and within Rule 11-407; evidence of control could fall within Rule 11-407 exception. Trial court should reassess admissibility and Rule 403 prejudice on remand. |
| Use of settlement agreement in closing argument | Settlement admitted only to show witness bias; Devon later used it for other improper purposes in closing. | Admission allowed limited use; Estate failed to timely object to closing remarks. | Court: Use was at times improper and concerning; error unpreserved, but counsel’s closing warranted admonition; district court could have limited or cured had timely objection been made. |
Key Cases Cited
- Rodriguez v. Del Sol Shopping Ctr. Assoc., L.P., 326 P.3d 465 (N.M. 2014) (adopted Restatement (Third) duty framework: courts decide existence/scope of duty based on policy, not factual foreseeability)
- Sherman v. Cimarex Energy Co., 318 P.3d 729 (N.M. Ct. App. 2014) (applied pre-Rodriguez language describing general no-liability rule for hirers of independent contractors)
- Tipton v. Texaco, Inc., 712 P.2d 1351 (N.M. 1985) (inquiry into operator control over a wellsite pertinent to liability/duty questions)
- Williams v. BNSF Ry. Co., 359 P.3d 158 (N.M. Ct. App. 2015) (analysis whether a safety measure is a subsequent remedial measure or preexisting practice)
- Benavidez v. City of Gallup, 161 P.3d 853 (N.M. 2007) (standard of review and purpose of jury instructions)