{1} This is an appeal from a civil jury verdict in favor of Defendants denying Plaintiffs damages for personal injury and property loss. Plaintiffs raise seven points of error: (1) refusing a jury instruction for ultrahazardous activity; (2) instructing the jury that the Liquefied Petroleum Gases Handbook of the National Fire Protection Association No. 58 (NFPA 58) applied to Plaintiffs and their employer, Cañada, Inc. (Cañada); (3) allowing the admission of a hospital statement; (4) denying their motions to amend complaint against LP Gas Equipment, Inc. (LPGE); (5) denying separate peremptory challenges for Plaintiff-spouses; (6) excluding expert testimony pertaining to loss of enjoyment of life; and (7) dismissing punitive damages claim against LPGE.
{2} On cross-appeal, Defendant AAA Gas Company (AAA Gas) objects to the trial court’s rulings: (1) allowing the jury to consider punitive damages, (2) allowing the jury to consider strict liability for nondelegable duty, and (3) denying them costs. 1
{3} We affirm the judgment of the trial court as to Plaintiffs’ points one through five, as well as its denial of costs. Because we affirm, we do not reach Plaintiffs’ expert testimony and punitive damages issues or the jury instruction issues raised by AAA Gas. FACTS
{4} On July 29, 1997, Plaintiffs Gilbert Apodaca and Jeffrey Velasquez suffered serious personal injuries when a propane tank they were repairing leaked liquid propane and exploded. A third mechanic, Joe Salazar, suffered severe injuries which led to his death on August 14, 1997. Apodaca, Velasquez,
{5} On July 14, 1997, AAA Gas delivered one of its delivery trucks to Cañada for repair of a belly valve that would not close. Cañada requested AAA Gas to pick up the truck to empty the propane from the tank so the valve and pump coul$ be replaced. After retrieving and emptying the truck, it was returned to Cañada, and Cañada performed certain repairs. AAA Gas retrieved the truck on July 25 and after testing the system, discovered that the tank still would not pump propane. After several attempts to troubleshoot the problem, AAA Gas called Cañada, which instructed AAA Gas to bring the truck back to the shop a third time.
{6} At trial the parties disputed whether AAA Gas informed Cañada that there was propane in the track when it arrived at Cañada’s garage the third time. However, it was undisputed that the truck was about eighty percent full of propane. Salazar moved the loaded truck into the garage for repair. When Salazar loosened the bolts under the pump, there was a sudden release of liquid propane. The propane reached an ignition source after Salazar and Apodaea made their way to the back of the truck. Salazar died of his injuries, Apodaea suffered severe third degree burns to twenty percent of his body, and Velasquez suffered second degree “flash” burns to over thirteen percent of his body. PROCEEDINGS
{7} Salazar’s estate filed a complaint for wrongful death in Valencia County. Jarner ex rel. Salazar v. AAA Gas Co., No. VA-97-1403-CV. Plaintiffs intervened in the Valencia County suit on May 25, 1999. However, Plaintiffs’ claims were dismissed without prejudice for improper venue on February 21, 2000, after Salazar’s claims were settled and his suit against Defendants was dismissed.
{8} Plaintiffs filed the present action in Bernalillo County. The complaint alleged negligence and products liability against AAA Gas, LPGE, and Fisher Controls. Specifically, Plaintiffs alleged AAA Gas was directly and vicariously liable under theories of common law negligence, negligence per se, and products liability for failing to remove propane from the truck before delivering it for repair. Plaintiffs alleged LPGE and Fisher Controls were negligent or strictly liable for providing a defective valve. In addition to compensatory and punitive damages sought by Apodaea and Velasquez, their wives sought damages for loss of consortium and spousal services.
{9} Some three months later, on May 15, 2000, Plaintiffs moved to amend their complaint against LPGE after discovering that Fisher Controls had not supplied the valve involved in the explosion. The amended complaint alleged LPGE had violated the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -22 (1967, as amended through 1999), by misrepresenting the valve actually involved as new and unused. The amended complaint also alleged AAA Gas had created an ultra-hazardous condition by delivering the truck for repair loaded with propane in violation of the Albuquerque Fire Code, which prohibits the repair of a cargo tank system inside a building unless all liquid propane gas is removed and the system purged. A supplemental motion to amend complaint was filed on May 22, 2000, to detail claims against LPGE and withdraw allegations against Fisher Controls.
{10} The trial court dismissed Fisher Controls with prejudice on May 26, 2000, as a result of a settlement agreement with Plaintiffs and, on June 6, 2000, the trial court then denied Plaintiffs’ motions to amend. Plaintiffs in turn filed a second complaint against LPGE in the Bernalillo County District Court on June 28, 2000, essentially restating the allegations contained in their motions to amend — that LPGE misrepresented the valve involved as new and unused, and charging LPGE with one count for the UPA violation and one count of misrepresentation. On
{11} The first complaint was tried before a jury of twelve. At the conclusion, the jury answered special interrogatories in favor of Defendants on all theories of liability. The jury answered “no” to whether AAA Gas was negligent and “no” to whether AAA Gas failed to take reasonable precautions necessary to avoid harm. The jury also answered “no” to whether LPGE was negligent and “no” to whether LPGE was liable under products liability. The trial court-entered a judgment on the verdict and denied Plaintiffs’ motion for a new trial. Plaintiffs timely filed this appeal, which is a consolidation of the two eases filed in Bernalillo County District Court.
{12} We review each of the above issues in the order presented on appeal.
I. Ultrahazardous Activity
{13} Plaintiffs contend that the trial court erred in refusing to instruct the jury on strict liability for ultrahazardous activity. See UJI 13-1627 NMRA 2003. Instead of submitting Plaintiffs’ requested instruction 13-1627, the court instructed the jury under UJI 13-1601 NMRA 2003 (negligence) and UJI 13-1634 NMRA 2003 (strict liability for nondelegable duties). These instructions, Plaintiffs argue, were inadequate and confusing because they are theories based in negligence rather than strict liability.
{14} Plaintiffs argue that AAA Gas alone had special responsibilities for any hazard arising from the extremely volatile and explosive nature of the propane. Whereas AAA Gas was licensed, trained in the safe handling and storage of propane gas, and specifically knowledgeable in the safety requirements for having their trucks repaired in a mechanics garage, Plaintiffs correctly note that they were not required to be licensed and assert they had no special training in the safe handling of propane gas. Plaintiffs characterize the ultrahazardous activity as the “delivery of a loaded truck for [mechanical] repairs to those not expert and trained in handling l.p. gas ... [at a repair shop located in the heart of Albuquerque].”
Standard of Review
{15} The question whether an activity is ultrahazardous or “abnormally dangerous” is determined by the court. Restatement (Second) of Torts § 520 cmt. 1 (1977) (hereinafter Restatement). Abnormally dangerous activity as referred to in Restatement (Second) of Torts §§ 519-20 (1977) is recognized to be the same as what was previously referred to as “ultrahazardous activity” in the first edition of Restatement of Torts §§ 519-20 (1938). Saiz v. Belen Sch. Dist.,
Analysis
{16} The doctrine of strict liability for an abnormally dangerous activity derives from the notion that “ ‘one who conducts [the activity] should prepare in advance to bear the financial burden of harm proximately caused to others by such activity.’ ” Arlington Forest Assocs. v. Exxon Corp.,
{17} Strict liability was developed “to govern accidents that negligence liability cannot adequately control.” Indiana Harbor Belt R.R. Co. v. Am. Cyanamid Co.,
{18} New Mexico first recognized the doctrine of strict liability for ultrahazardous activities in Thigpen v. Skousen & Hise,
{19} Defendants argue that ultra-hazardous activity should be limited to dynamite blasting, asserting that because our courts have refused to extend the doctrine beyond such cases, we should not do so here. However, this Court is not foreclosed from such a finding, if the facts warrant. See Thigpen,
{20} Section 519 of the Restatement sets forth the general rule regarding strict liability in tort for abnormally dangerous activities as follows:
(1) [o]ne who carries on an abnormally dangerous activity is subject to liability for harm ... resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
{21} Section 520 of the Restatement defines “abnormally dangerous” as “abnormal dangers [that] arise from activities that are
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Restatement § 520. The commentary explains that the court must consider each factor, apportioning weight to each in accordance with the evidence. See id. cmts. f & 1. While each factor need not be present, “ordinarily several of them will be required for strict liability____[although] it is not necessary that each of them be present, especially if others weigh heavily.” Id. cmt. f. According to Restatement Section 520, “[t]he essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even ... without the need of a finding of negligence.” Id.
High Degree of Risk and Likelihood of Harm Will Be Great
{22} Defendants concede that factors (a) and (b) are satisfied because propane is a flammable gas that explodes when ignited by the smallest spark. Plaintiffs’ recitation of the facts highlights these factors:
[A]ny escape of propane ... has a virtual certainty of exploding because the tiniest spark will ignite it. It expands from its liquid state 270 times its volume into a gaseous state the instant it is released into the atmosphere. It is heavier than air and therefore develops vapor clouds from the ground up ... Once it is in an unconfined gas form, l.p. gas is no longer controllable and can easily be ignited by any number of unsuspicious ignition sources, including static electricity produced by clothing or a dropped tool; indeed, “l.p. gas seeks an ignition source.”
Given these facts and Plaintiffs’ injuries, the likelihood of great harm from a propane explosion is obvious. Factors (a) and (b) have been satisfied.
Elimination of Risk by the Exercise of Reasonable Care
{23} Although the Restatement instructs courts to consider each factor, the question of whether reasonable care can eliminate the high degree of risk is often central to the determination of whether an activity is abnormally dangerous. Arlington Forest Assocs.,
{24} While some jurisdictions read Restatement § 520(e) to require a complete elimination of the risk, see, e.g., McLane,
{25} Undeniably, propane is a dangerous substance, but reasonable precautions can
{26} To avoid the necessary consequences of these facts, Plaintiffs define the activity subject to strict liability to include characteristics of the Plaintiffs that made the situation more dangerous handing over a fully loaded propane truck for repair to mechanics, who are unlicensed and inexperienced in the safe handling of propane, at a repair shop located in the heart of Albuquerque. In short, Plaintiffs’ position is that no amount of reasonable care can make the repair safe when the truck is fully loaded and handed over to inexperienced mechanics. However, Plaintiffs’ characterization would swallow the rule.
For strict liability purposes, the danger cannot be predicated on mere causal or collateral negligence of others with respect to [the activity] under the particular circumstances .... [Plaintiffs] particularized approach to defining the nature of an activity would, in effect, enable plaintiffs to invoke strict liability for all negligently-conducted activity.
Arlington Forest Assocs.,
{27} The fact remains that if Defendants had delivered the tank unloaded and purged of gas, or if Plaintiffs had repaired the truck outside the garage, the risk of an explosion would likely have been greatly reduced. See NFPA 58, §§ 6-6.2.2(a), 6-6.2.3(c). This is not a case where the risk of harm is impossible to predict because serious injuries may result despite every reasonable precaution. See Thigpen,
{28} The high degree of risk inherent in an activity can be reduced to a minimum by compliance with adequate regulations. The handling of liquid propane is heavily regulated by a nationally recognized regulatory code that was adopted by state law and city ordinance at the time of the accident. See NFPA 58; State Liquefied Petroleum Gas and Compressed Natural Gas Act (“LPG & CNG Act”), NMSA 1978, §§ 70-5-1 to -23 (1947, as amended through 1999); Albuquerque Fire Code, § 14-2-l(B)(3) (1993). As discussed below, the national standard, as adopted by New Mexico, applies to the general public within the state, and, as adopted by the City of Albuquerque, it applies to all commercial businesses within the city. Propane
{29} Moreover, Plaintiffs have offered no reason why the negligence regime is inadequate to remedy or deter accidental explosions resulting from the repair of a loaded propane truck. Propane is highly flammable, but there is no evidence it is so corrosive or otherwise destructive that it will unpredictably damage or weaken a tanker’s valve or delivery system. The cause of the explosion in this case was carelessness — whether it was a defective valve supplied by LPGE, or the delivery of a loaded propane tank by AAA Gas, or the mechanics’ decision to pull the truck into the garage for repair, or any combination of these factors. “Accidents that are due to a lack of care can be prevented by taking care; and when a lack of care can ... be shown in court, such accidents are adequately deterred by the threat of liability for negligence.” See Indiana Harbor Belt R.R. Co.,
Uncommon Usage
{30} The Restatement defines common usage as an activity “customarily carried on by the great mass of mankind or by many people in the community.” Restatement § 520 cmt. i. It is the activity, not the substance, that must be of common usage. Indiana Harbor Belt R.R. Co.,
{31} AAA Gas cites to the widespread use of propane in every town, home, and business, noting that anyone can buy propane at the convenience store. However, the focus of factor (d) is not on the substance but on whether the activity is commonplace. Thus, Plaintiffs’ argument that repairing a loaded propane truck is uncommon to the mass of our citizenry is appropriate. The more accurate question here, however, is whether delivering loaded propane trucks for repair is uncommon industrial activity across the country. Plaintiffs have offered no such evidence. To the contrary, at least two witnesses testified that delivering a propane truck for repair with propane in the tank and delivery system to assist in troubleshooting is common in the industry. Therefore, on balance, this factor is not satisfied.
Appropriateness of Locale
{32} Restatement Section 520(e) considers the appropriateness of an activity to its location. According to the Restatement, this factor is sometimes referred to as strict liability for a “ ‘non-natural’ use of the defendant’s land.” Restatement § 520 cmt. j. In other words, the activity “must be ... inappropriate to the place where it is maintained,
{33} Plaintiffs, in effect, argue that then-own employer’s business was situated in a locale that was inappropriate for working on propane tanks, yet two to five percent of their business, about six trucks in the six months prior to the accident, involved such woi'k. The remaining business involved heavy industrial equipment. At the time of the accident, Cañada was located a few hundred feet from the Wyoming gate of Kirtland Airforce Base, surrounded by residential and commercial property. An Albuquerque Fire Department investigator testified that he believed there were some repair shops like Cañada around town but he was unsure of the number.
{34} Given that the property was surrounded by commercial property and that Plaintiffs do not argue otherwise, we assume the property was zoned for commercial use. Thus, Cañada was not improperly located from that standpoint. The record reveals no information either about the location of Cañada’s customers or other shops providing the same services as Cañada. It can reasonably be said that Defendants have no choice but to take their trucks to locations where there are shops to service them. It would be unrealistic to hinge imposition of strict liability on the existence of a hypothetical mechanic in the countryside or to expect mechanics to move their businesses out of town and away from other customers. The simple proximity of residences to Cañada’s garage is not enough to meet the requirements of this factor.
Value to the Community
{35} “Even though the activity involves a serious risk of harm that cannot be eliminated with reasonable care and it is not a matter of common usage, its value to the community may be such that the danger will not be regarded as an abnormal one.” Restatement § 520 cmt. k. Propane has clear value to the community given its prevalent use in industry, residential heating, and recreation. See New Meadows Holding Co.,
Conclusion
{36} We are compelled by our precedent and the policy behind the doctrine of strict liability for abnormally dangerous activities to hold that the repair of propane trucks is not an ultrahazardous activity in New Mexico.
II. Application of NFPA 58 to Plaintiffs
{37} The second issue on appeal is whether the trial court erred by instructing the jury that NFPA 58 applied to “any person or company,” which included Plaintiffs or their employer. At trial, Plaintiffs tendered two negligence per se instructions relating to an asserted violation of the Albuquerque Fire Code, § 14-2-l(B)(3) and NFPA 58, § 6-6.2.3 by “defendant” AAA Gas. Modifying Plaintiffs’ instructions, the trial court created one instruction, added another section of NFPA § 6-6.2.2 and made the instruction applicable to “any person or company” to whom the law could apply. The instruction as given to the jury read as follows:
There was an ordinance in force in the city of Albuquerque, at the time of the occurrence in question, which provided as follows:
For the purpose of prescribing minimum standards regulating conditions hazardous to life and property from fire and explosion within the city, the following code is adopted:
The N.F.P.A. Fire Codes and Supplements
Additionally there were two New Mexico statutes in force adopting the N.F.P.ACode and supplements. These provisions of the N.F.P.ACode state:
6-6.2.2 Vehicles parked indoors shall comply with the following:
(a) Cargo vehicles parked in any public garage or building shall have LP-Gas liquid removed from the cargo container, piping, pump, meter, hoses, and related equipment, and the pressure in the delivery hoses, and related equipment shall be reduced to approximately atmospheric, and all valves shall be closed before the vehicle is moved indoors. Delivery hose or valve shall be plugged or capped before the vehicle is moved indoors.
(b) Vehicles used to carry portable containers shall not be moved into any public garage or building for parking until all portable containers have been removed from the vehicle.
(e) Vehicles carrying or containing LP-Gas shall be permitted to be parked in buildings complying with Chapter 7 and located on premises owned or under the control of the operator of such vehicles, provided:
1. The public is excluded from such buildings.
2. There is adequate floor level ventilation in all parts of the building where such vehicles are parked.
3. Leaks in the vehicle LP-Gas systems are repaired before the vehicle is moved indoors.
4. Primary shutoff valves on cargo tanks and other LP-Gas containers on the vehicle (except propulsion engine fuel containers) are closed and delivery hose outlets plugged or capped to contain system pressure before the vehicle is moved indoors. Primary shutoff valves on LP-Gas propulsion engine fuel containers shall be closed while the vehicle is parked.
5. No LP-Gas container is located near a source of heat or within the direct path of hot air being blown from blower-type heater.
6. LP-Gas containers are gauged or weighed to determine that they are not filled beyond the maximum filling limit according to Section 4-4.
6-6.2.3 Vehicles shall be permitted to be serviced or repaired indoors as follows:
(a) when it is necessary to move a vehicle into any building located on premises owned or operated by the operator of such vehicle for service on engine or chassis, the provisions of 6-6.2.2(a) or (c) shall apply.
(b) When it is necessary to move a vehicle carrying or containing LP-Gas into any public garage or repair facility for service on the engine or chassis, the provisions of 6-6.2.2(a) or (b) shall apply, unless the driver or a qualified representative of an LP-Gas operator is in attendance at all times while the vehicle is indoors. In this case, the following provisions shall apply under the supervision of such qualified persons:
1. Leaks in the vehicle LP-Gas system shall be repaired before the vehicle is moved indoors.
2. Primary shutoff valves on cargo tanks, portable containers, and other LP-Gas containers installed on the vehicle (except propulsion engine fuel containers) shall be closed. LP-Gas liquid shall be removed form [sic] the piping, pump, meter, delivery hose, and related equipment and the pressure therein reduced to approximately atmospheric before the vehicle is moved inside. Delivery hose or valve outlets shall be plugged or capped before the vehicle is moved indoors.
3. No container shall be located near a source of heat or within the direct path of hot air blown from a blower or from a blower-type heater.
4. LP-Gas containers shall be gauged or weighed to determine that they are not filled beyond themaximum filling capacity according to Section 4.4.
(c) If repair work or servicing is to be performed on a cargo tank system, all LP-gas shall be removed from the cargo tank and piping, and the system shall be thoroughly purged before the vehicle is moved indoors.
If you find from the evidence that any person or company violated this ordinance, then you are instructed that such conduct constituted negligence as a matter of law.
{38} Plaintiffs’ position is that the NFPA standard does not apply to them as a matter of law, so that allowing the jury to consider Plaintiffs’ alleged violation of it was improper and prejudicial. According to Plaintiffs, the jury was misled and confused by the testimony about their alleged violation of the standard. Plaintiffs’ argument in support of their position is twofold. First, Plaintiffs were not required to be licensed under NFPA 58. Since they were not tested on the handling, transfer, and storage of propane, they were less knowledgeable about the safe handling of propane than AAA Gas which was required to be licensed. Second, Plaintiffs argue that the standard applies to persons and companies in the propane industry who regularly handle, transfer, and store propane, not incidental users of propane in the performance of job requirements. Plaintiffs point to the scope and application sections of each of the eleven chapters of NFPA 58, as well as Section 1-5, entitled “Qualification of Personnel,” and a portion of the commentary contained in the handbook and attached to Plaintiffs’ brief-in-chief as an appendix. Defendants correctly note that except for §§ 6-6.2.2 and 6-6.2.3, the NFPA material provided by Plaintiffs were not part of the record. However, we do not rely on those materials in reaching our decision.
{39} AAA Gas counters that the Albuquerque Fire Code incorporated NFPA 58, making the regulation applicable to Plaintiffs. Moreover, it argues, NFPA 58 applies to Plaintiffs on its face: Section 6-6.2.2(a) prohibits “[c]argo vehicles [from being] parked in any public garage or building [without first removing propane] from the cargo container, piping, pump, meter, hoses, and related equipment .... ” And Section 6-6.2.3 specifically addresses repair and servicing of the cargo tank system indoors, prohibiting such activity unless the tank has been emptied and purged of propane. Plaintiffs violated these rules when they parked the truck in the garage and began to service the truck without first assuring all of the propane was removed. Both Defendants argue that the jury had sufficient evidence to find NFPA 58 applied to Plaintiffs.
Preservation
{40} We briefly address preservation. Plaintiffs claim they have preserved this matter by their tender of two instructions and their general pre-trial objections to the opinion testimony of witnesses regarding the applicability of NFPA 58 to Plaintiffs or their employer. Subject to certain exceptions, Rule 12-216(A) NMRA 2003 requires that the record reflect that a ruling by the trial court was fairly invoked. “The principal purpose of the rule ... is to alert the mind of the trial judge to the claimed error and to accord the trial court an opportunity to correct the matter.” Madrid v. Roybal,
{41} From all appearances, the trial court did not refuse Plaintiffs’ tendered instruction. Rather the trial court modified Plaintiffs’ and Defendants’ instructions by adding Section 6-6.2.2 and changing “if you find ... defendant violated this ordinance .to
{42} On the other hand, we note that neither Defendant has raised this issue. Moreover, the trial court indicated that the “tendered instructions [that were not given were] specifically rejected in spite of [Plaintiffs’] arguments to the contrary that sufficient evidence or the state of the law warranted] the giving of said instructions.” In light of these circumstances, and Plaintiffs’ general pre-trial objections, we believe the trial court was alerted to Plaintiffs’ position. We wish to point out, however, that the question of whether Plaintiffs preserved this matter is a close call. We believe it was barely adequate. We caution parties in the future to clearly specify their objections to a given instruction on the record to preserve the matter for appellate review.
Applicability of NFPA 58
{43} Our Supreme Court has adopted the following test to determine whether a negligence per se instruction is appropriate:
(1) [T]here must be a statute which prescribes certain actions or defines a standard of conduct, either explicitly or implicitly, (2) the defendant [or plaintiff] must violate the statute, 2 (3) the plaintiff must be in the class of persons sought to be protected by the statute, and (4) the harm or injury to the plaintiff must generally be of the type the legislature through the statute sought to prevent.
Archibeque v. Homrich,
{44} The LPG & CNG Act regulates the repair of vehicles used to deliver propane gas in compliance with NFPA standards. Id. §§ 70-5-3 and -4. A preliminary review of the NFPA 58 materials provided by Plaintiffs suggests the standard is applicable to the propane industry such as AAA Gas, rather than incidental handlers such as Plaintiffs. Plaintiffs also cite Trinity Universal Ins. Co. v. Streza,
{45} Plaintiffs argue that, like the defendant in Trinity, they are “incidental users” of propane and are not within the scope of our LPG & CNG Act. However, unlike Trinity, this Court has already held
{46} We are not persuaded Plaintiffs can escape the Albuquerque Fire Code, which served as the basis for the court’s instruction on negligence per se. At the time of the explosion, the City of Albuquerque had a fire code in effect which adopted NFPA 58. Section 14-2-l(A)(3) (1994). 3 Specifically, Section 14-2-1 reads as follows:
(A) For the purpose of prescribing minimum standards regulating conditions hazardous to life and property from fire and explosion within the city, the following code is adopted.
(B) The following documents, as amended in § 14-2-2, are adopted as the Fire Code of the city, and from the date on which this article takes effect, shall be controlling within the boundaries of the city:
(3) The N.F.P.A Fire Codes and Supplements, as published by the National Fire Protection Association as a reference, except N.F.P.A. 101 will be adopted as it applies to existing buildings built prior to January 5, 1989. (’74 Code, § 7-27-1A) (Ord.22-1993).
(emphasis added). We are not aware of any cases that determine whether the Albuquerque Fire Code applies to Plaintiffs as Defendants contend. We, therefore, construe the ordinance as a matter of first impression. The same guides for construction used in interpreting statutes apply to construing an ordinance. Acosta,
{48} Rules and regulations adopted by city ordinance have the force of law. City of Albuquerque v. Ryon,
{49} There is no dispute that the city adopted NFPA 58 in its Albuquerque Fire Code and there is no challenge to the validity of that ordinance. The ordinance applied to Plaintiffs and their employer Cañada. It imposed standards and a legal duty to comply with the standards on Plaintiffs. The fact that Plaintiffs were not licensed and pleaded ignorance of the rules and regulations does not excuse noncompliance with the standard. This is so, especially in light of the fact that the record shows Cañada was certified by the LP Gas Bureau to work on propane trucks, held itself out as proficient in this line of work, and its mechanics were experienced in the repair of propane trucks.
{50} In light of the foregoing, we hold the jury instruction on Plaintiffs’ negligence per se was proper as a matter of law. It follows that the admission of evidence of Plaintiffs’ violation was relevant and, if otherwise proper, not error. See Jammillo,
III. OSHA Statement
{51} Following the explosion at Canada on July 29, 1997, Velasquez was admitted to the University of New Mexico Burn Center in Albuquerque. Five hours prior to his discharge on July 31, an OSHA investigator conducted an interview of Velasquez. The interview began at 11:00 a.m., and a one and one-half page statement was prepared by the investigator which Velasquez subsequently signed. A second interview resumed at noon the same day and, at its conclusion, Velasquez signed a two and one-half page statement prepared by the investigator. According to Plaintiffs, the pertinent and damaging statements attributed to Velasquez were as follows:
(1) he and Joe Salazar were helping diagnos[e] the truck through procedures ... on the back of the truck & there was no flow coming out; (2) Joseph had the bypass hose hooked up off the back into the tank to see if it would pump...; and (3) when we got the truck from AAA, they said they had just put some fuel in there, but I didn’t know how much. (Internal quotation marks omitted.)
{52} Plaintiffs challenge the admission of these statements on three grounds: (1) the statement is prohibited by NMSA 1978, § 41-1-1 (1971); (2) the statement was not properly authenticated; and (3) as a result of medication and post traumatic shock, Velasquez was incompetent to give the statement at the time it was taken, making the statement unreliable.
Admissibility Under Section 41-1-1 (Release Act)
{53} The Release Act governs settlements, releases, and statements of injured patients. The Act excludes from evidence any statement for “use in negotiating a settlement or obtaining a release” taken by a “person whose interest is or may become adverse” to an injured patient during the patient’s first fifteen days of confinement in a hospital, if it is disavowed fifteen days after discharge or not acknowledged before a notary. Section 41-1-1 (A)(3). The provisions of the Act do not apply if the injured party prepares a written, notarized acknowledgment
{54} Although the statement was taken by OSHA, a government agency and a non-party to the suit, Plaintiffs argue OSHA was a potentially “adverse party” within the meaning of the statute, because the OSHA report blamed Cañada employees for the explosion. The trial court, however, found that OSHA was not an adverse party and that the statute was not applicable.
{55} We agree under the facts of this case that the statute is not applicable. On its face, the Release Act pertains only to adverse or potentially adverse parties and prevents those parties from obtaining statements from injured patients for the purpose of settlement or release. “[T]he statute was enacted to prevent injustice to [the insured by an insurer] while he is hospitalized or under the care of a doctor.” Mitschelen v. State Farm Mut. Auto. Ins. Co.,
{56} Unlike an insurance investigator who may be profit motivated, an OSHA compliance officer conducting a routine interview in the normal course of business is not an adverse party within the meaning of the statute. The stated purpose of OSHA is “to assure every employee safe and healthful working conditions’ at least in part by ‘the effective enforcement of the health and safety regulations.’ ” NMSA 1978, § 50-9-2(B) (1993). Specifically, the Act requires every employer to furnish a workplace free from hazards that cause or are likely to cause death or serious physical harm to its employees. NMSA 1978, § 50-9-5(A) (1975). To accomplish this goal, OSHA officers are authorized to question employees. NMSA 1978, § 50-9-10(A)(2) (1993). Moreover, the OSHA officer in this case was not interested in seeking a settlement or negotiating a release from the employee, even if the statement subsequently resulted in the issuance of a citation to the employer. Therefore, the subject matter of the statute, preventing adverse parties from securing the release or settlement of claims, was not an issue when the OSHA officer conducted the interviews.
Authentication
{57} Plaintiffs next contend that the statements were never authenticated and the failure of Defendants to call the OSHA investigator to authenticate the statements deprived them of their right to cross examine the interviewer regarding their accuracy. Although Plaintiffs stipulated to the authenticity of the OSHA file that contained the statements as part of OSHA’s investigative report, they raise several points of concern regarding the statements. First and foremost, there was confusion as to the investigator’s identity. AAA Gas filed two affidavits from two different investigators, both swearing that they took the statement and attesting to Velasquez’s competence; however, it appears that all parties agree that only one investigator interviewed Velasquez. Second, Velasquez and the investigator were the only persons present during the interview, which was not recorded. Velasquez did not write the statement and, by the time of trial, Velasquez’s memory of the interviews was vague. As a result, Plaintiffs argue, there is no foundation for the statement unless the investigators testified about who actually took the statement and affirmed that it was an accurate representation of what was said. Defendants counter that the failure to object to the OSHA file resulted in a waiver of any objection to the authenticity of the statements contained in the file. State v. Gallegos,
{58} The record clearly shows Plaintiffs made several objections to the authenticity of the statements, as well as a motion to strike at the conclusion of trial. On appeal, Plaintiffs cite only the general proposition that the proponent of documents, including public records, has the burden to authenticate those records. State v. Ramirez,
{59} Plaintiffs’ fundamental problem is that the contents of the statements cannot be verified, not that the statements themselves were not authenticated. Their objections on appeal go to the reliability and trustworthiness of these statements. The record reflects, however, that the trial court overruled all of Plaintiffs’ objections by finding that the entire OSHA report was admissible as a public report under Rule 11-803(H) NMRA 2003. The trial court did not abuse its discretion in finding the report sufficiently trustworthy for the jury to consider. See Cent. Sec. & Alarm Co. v. Mehler, 1996—NMCA-060, ¶ 31,
Competency
{60} Plaintiffs’ final challenge is that the statements should have been excluded because Velasquez’s heavily medicated state at the hospital rendered him incompetent at the time he gave the statement. Preliminary questions of fact concerning the competency of a witness are determined by the court. See Rule 11-104(A); Huff v. White Motor Corp.,
{61} Plaintiffs’ reply brief misstates the applicable standard as a question of law. However, the case cited, Dick v. City of Portales,
{62} Under Rule 11-601, a witness is presumed competent to testify. See Hueglin,
{63} The trial court held a preliminary hearing to determine whether Velasquez was competent when he gave the statements. At the conclusion of the evidence, the trial court ruled that Velasquez’s degree of competency at the time of his statement went to weight rather than admissibility. The trial court was “unmoved by the arguments in favor of denying the admissibility.” While the trial court did not express its reasons for the ruling, which would have assisted our review of its exercise of discretion, we find that the court’s ruling was supported by substantial evidence and, as such, not against the logic and effect of the facts and circumstances before the court. Thus, we find no abuse of discretion.
{64} The treating physician, Dr. Demarest, testified from the nurse’s notes that the day after the accident and the day before the interview, Velasquez was “awake, social and friendly” at the hospital. Velasquez was taking Percocet and large doses of morphine for his pain throughout the course of his hospitalization; he took two tablets of Percocet at 1:00 a.m., ten hours before the interview, and sixteen milligrams of morphine at 5:30 a.m., five and one-half hours before the interview. The interview was conducted in two parts between 11:00 a.m. and 1:00 p.m. Just after the interview Velasquez was sitting up in his bed and eating lunch with no complaints of pain, although he conversed with the nurse who noted he was upset about the OSHA statements. Prior to his discharge, an occupational therapist noted Velasquez was “oriented times three,” meaning he knew who he was, where he was, and what time it was. The therapist also noted Velasquez was a “good historian.” Dr. Demarest opined that the therapist would have noted if Velasquez appeared confused at that time. Three hours after the interview, Velasquez was discharged. At that time, he was “verbalizing and understanding.”
{65} While Dr. Demarest testified that the combined effect of the medications could “potentially have a significant effect in terms of judgment, insight and ability to decide....
{66} Plaintiffs argue that their witnesses — Velasquez, his wife and his sister— testified about his mental state closer in time to the event, and their testimony paints a different picture of Velasquez’s mental state. However, as the fact finder on this preliminary question, the trial court was not required to accept any of their testimony to the exclusion of other evidence.
{67} Although we do not ignore the strong pain medication Velasquez was taking during the course of his hospitalization or that he was recovering from a traumatic accident, the question before us is whether it was an abuse of discretion for the trial court to conclude that Velasquez met the “minimum standards” of competency. Based on the foregoing evidence, we find it was reasonable for the trial court to conclude Velasquez had the capacity to observe, recollect, and communicate. Plaintiffs never suggested Velasquez did not appreciate the duty to speak the truth. Any confusion Velasquez might have expressed in his recount of the events to the investigator, as well as his medicated state were issues of fact that went to credibility and not admissibility and were properly before the jury.
IV. Motion to Amend Complaint — Unfair Practices Act
{68} Plaintiffs’ fourth issue on appeal is that the trial court erred in denying their motions to amend the complaint. On May 15, 2000, three months after filing the complaint in the first Bernalillo County District Court action, and almost three years after the filing of decedent Salazar’s action in Valencia County District Court, Plaintiffs filed a motion to amend their complaint to add a new cause of action that alleged LPGE had violated the UPA. Plaintiffs filed a supplemental motion to amend on May 22, 2000. After hearing arguments on June 6,2000, the court denied Plaintiffs’ motions on the basis of unfair prejudice. The court explained that Plaintiffs should have anticipated the theory earlier on, the facts were not new, and an amendment would delay the trial two years due to the prospect of additional discovery and joining third parties which LPGE would need to defend against the claim. Plaintiffs renewed their motion at the end of trial pursuant to Rule 1-015(B) NMRA 2003 to amend the complaint to conform to the evidence presented at trial by adding the UPA claim, as well as a new intentional misrepresentation claim. This motion also was denied. Meanwhile, Plaintiffs filed a second complaint against LPGE, which alleged both UPA and misrepresentation claims. Apodaca v. LP Gas Equip., Inc., No. CV-2000-6621 (Bernalillo County District Court June 28, 2000).
{69} Plaintiffs protest that the court abused its discretion under Rule 1-015(A) and (B) by denying the amendments. Defendant LPGE counters that the denial was proper because the amendments were: (1) untimely and (2) legally insufficient because the UPA does not provide a remedy for personal injuries. See Viernow v. Euripides Dev. Corp.,
Rules 1-015(A) and (B)
{70} Under Rule 1-015(A), once an answer has been filed, the decision to allow an amended complaint rests solely within the sound discretion of the trial court. Schmitz v. Smentowski,
{71} The court ruled, without elaboration, that an amendment would prejudice the parties because it would cause an estimated two year delay in the resolution of the case. Considering the facts and circumstances before the court, we conclude that the decision was not unreasonable.
{72} The explosion occurred in July 1997, over three years before the scheduled trial date. While Plaintiffs officially intervened eighteen months after the Valencia County complaint was filed, the court was presented with evidence at the hearing that Plaintiffs’ counsel were actually involved in representing their clients less than two weeks after the explosion. After Plaintiffs intervened, the Valencia trial was continued at least three times. During argument on the Rule 1-015(A) motion, Plaintiffs’ counsel admitted to the court that the facts underlying the motion to amend were always there — Plaintiffs were just “bundling them in a different theory.” The three year delay in getting the case to trial combined with the arguments suggesting LPGE would need a continuance to assess its position, develop facts and a defense, and determine what claims could be asserted by way of a third-party complaint against Fisher Controls, as well as the prospective burden of additional costs and expenses to the parties, were proper reasons to deny the motion to amend. Accordingly, we hold that the court did not abuse its discretion in denying Plaintiffs leave to amend under Rule 1-015(A).
{73} We also find that the court did not abuse its discretion under Rule 1-015(B). Rule 1-015(B) allows “[a]mendments to conform the pleadings to the evidence ... when the issues are tried by the express or implied consent of the parties.” Schmitz,
{74} LPGE argues, and the trial court agreed, that LPGE never consented to try the UPA claims. To the contrary, LPGE strenuously objected to trying this claim. The failure to object to the admission of the evidence which would support that claim cannot now be used to show consent since the evidence was relevant to other pleaded issues. Although LPGE clearly did not consent to try the theory, it never argued how it would be prejudiced if the amendment was allowed at that time. Plaintiffs had a duty to raise this issue to alert the trial court, as well as LPGE, of any error in denying the motion, to wit: a granting of the motion would not prejudice LPGE. Three Rivers Land Co. v. Maddoux,
{75} The court’s acknowledgment that the issue had been thoroughly briefed and
Res Judicata and Collateral Estoppel
{76} Plaintiffs appeal from the dismissal of their second complaint on res judicata and collateral estoppel grounds because they were denied a full and fair opportunity to litigate the issues in the first action when the trial court denied their motions to amend their claims against LPGE. A decision to grant summary judgment on preclusion principles is reviewed under a de novo standard. Wolford, v. Lasater,
{77} Four elements must be present for res judicata to apply: “(1) the same parties or parties in privity; (2) the identity of capacity or character of persons for or against whom the claim is made; (3) the same subject matter; and (4) the same cause of action in both suits.” Anaya,
{78} New Mexico has adopted the “transactional analysis” under the Restatement (Second) of Judgments Sections 24 and 25 (1982) (hereinafter Restatement) to determine what constitutes a cause of action for res judicata purposes. Anaya,
{79} The thrust of both actions against LPGE is that it misrepresented the valve as new when in fact it supplied Cañada with the wrong model valve, that was used and substantially altered, creating a defective condition that ultimately injured Plaintiffs. The facts Plaintiffs would have relied on in the second lawsuit to prove misrepresentation and the UPA violation were the same as the facts relied on in the first lawsuit to prove negligence and products liability. In the first action, the jury was instructed that to find LPGE negligent, Plaintiffs had the burden to prove LPGE did not supply a newly manufactured Fisher Controls valve to Canada or LPGE did not inspect the valve to verify it was new. To hold LPGE liable
{80} Having found that the requisite elements of res judicata are satisfied, we must now determine whether res judicata bars Plaintiffs’ second complaint. Both below and on appeal, Plaintiffs’ primary argument is that they were denied a full and fair opportunity to litigate the UPA and misrepresentation claims because the trial court denied their motions to amend in the first action. See Restatement § 24 cmt. a (explaining that transactional analysis of a claim “is justified only when the parties have ample procedural means for fully developing the entire transaction in the one action going to the merits to which the plaintiff is ordinarily confined”). As a result, Plaintiffs were unfairly forced to split then.- cause of action and file the second complaint to avoid the statute of limitations.
{81} This Court has held that full and fair opportunity to litigate is essential to the application of res judicata. See Moffat v. Branch,
{82} However, we have also held that res judicata applies not only where a claim was actually litigated in the first action but also where it could have been litigated. Bank of Santa Fe v. Marcy Plaza Assocs.,
{83} In this case the trial court denied Plaintiffs’ amendment because it came too late, and we found no abuse of discretion in the trial court’s ruling. Plaintiffs now attempt to avoid the trial court’s ruling, which we found proper, by asking this Court to find error in the dismissal of the second complaint because they did not have a full and fair opportunity to litigate the claims in the first action. In essence, Plaintiffs argue they should be allowed to split their claims because the trial court forced that decision on them by denying the amendment. We disagree. The only applicable exception we find to the rule precluding claim splitting is where the court expressly reserves a plaintiffs right to maintain a second action. Restatement § 26(l)(b). We have previously held that “the trial court’s refusal to grant leave to amend the complaint is not a reservation by the court.” Three Rivers Land
{84} Plaintiffs invoke a plea for fairness and ask us to make an exception to preclusion principles because of the inflexible approach of the trial court in refusing to allow the amendment. However, mere assertion of error does not compel an exception to the rule precluding claim splitting. See Restatement (Second) of Judgments § 28 cmt. j (1982). There must be clear and convincing need of an extraordinary and compelling reason to overcome policies favoring preclusion of a second action. Id. § 28(5) & cmt. g. Such instances are the rare exception and typically involve cases where one of the parties conceals material information, labors under some physical or mental disability that impedes effective litigation, or where the different amounts in controversy between the two actions would render preclusion unfair. Id. cmt. j. None of these instances is present here and Plaintiffs have not made a sufficient showing of another extraordinary reason to make an exception to preclusion principles.
{85} We hold that where an appellate court finds the trial court did not abuse its discretion in denying an amendment under Rule 1-015(A) and/or (B) in the first action because the motions were untimely, a plaintiff may not avoid the preclusive effect of the trial court’s ruling, absent an express reservation of the plaintiffs right to maintain a second action or another recognized exception. See Restatement § 26. Having determined that res judicata applies, we do not consider collateral estoppel. Jeanes v. Henderson,
V. Peremptory Challenges
{86} The trial court initially ruled Defendants were each entitled to five peremptory challenges because of their diverse interests but Plaintiffs were only entitled to a total of five even though they sought separate relief. Ultimately, the court allowed five peremptory challenges per family, five to the Apodacas and five to the Velasquezes. Plaintiffs argue that each Plaintiff, Gilbert Apodaca, Barbara Apodaca, Jeffrey Velasquez, and Larissa Velasquez, was entitled to five challenges, for a total of twenty. Plaintiff relies on Rule 1-038(E) NMRA 2003, which states:
In cases tried before a jury of twelve, each party may challenge five jurors peremptorily. When there are two or more parties defendant, or parties plaintiff, they will exercise their peremptory challenges jointly .... However, if the relief sought by or against the parties on the same side of a civil case differs, or if their interests are diverse, or if cross-claims are to be tried, the court shall allow each such party on that side of the suit ... five peremptory challenges if the ease is to be tried before a jury of twelve.
(Emphasis added.) The Rule sets out three exceptions to the general rule that multiple parties, who are on the same side of the litigation, must exercise peremptory challenges jointly. In particular, Plaintiffs point to the first exception: “if the relief ... differs ... the court shall allow each party ... five peremptory challenges.” Id. In their view, Plaintiff-wives could have filed their own complaints for loss of consortium, apart from their husbands’ claims for negligence
{87} The only question we consider is whether the wives seek “different relief’ from the husbands within the meaning of Rule 1-038(E). Plaintiffs have not cited any case that defines “different relief’ under the Rule and this Court has found none. A determination of what is meant by “different relief’ in the context of Rule 1-038(E) is a question of law which we review de novo. In Re Daniel H.,
{88} The rules pertaining to statutory construction apply when a court interprets procedural rules of the Supreme Court. In re Dominick Q.,
{89} “Different relief’ is not defined in the Rule. Plaintiffs interpret the language to encompass different claims for relief, i.e. different causes of action that seek different money damages. We are not persuaded that this is what the drafters intended.
{90} The purpose of peremptory challenges is to “aid each party’s interest in a fair and impartial jury.” 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 2483 (Supp.2002). Under Rule 1-038(E), “opposing parties” are each given five peremptory challenges. The exceptions to that Rule demonstrate a concern by the drafters that multiple parties on the “same side” may actually be opposing each other. See Romero v. Felter,
{91} Plaintiffs misapprehend the Rule by equating “different claims” with “different relief.” Different relief is not always synonymous with different causes of action. Different actions may seek the same form of relief (money damages) or different forms of relief, such as mandamus, money damages, prospective injunction and declaratory judgment. See Khalsa v. Levinson,
{92} We conclude that “different relief’ within the meaning of Rule 1-038(E) refers to situations where the relief requested by one party conflicts with the relief sought by another party. This is consistent with the underlying tenor of the Rule which recognizes parties on the same side may be in conflict with each other. Here, where each Plaintiff sought money damages, the relief sought does not differ. We note Plaintiffs made no argument that they were pursuing
{93} We next decide whether it was reasonable for the court to deny Plaintiff-wives an additional ten peremptory challenges under the facts before the court. The standard of review applicable to the allocation of peremptory challenges among multiple parties is an abuse of discretion standard. See Gallegos ex rel. Gallegos v. Southwest Cmty. Health Servs.,
{94} Applying these factors to the facts before the trial court, we find that the court’s decision to deny additional peremptory challenges to Plaintiff-wives was not an abuse of discretion. Plaintiffs employed the same counsel who filed one complaint on their behalf. This indicates that counsel perceived no conflicts in representing all four Plaintiffs. Plaintiff-husbands sought money damages for personal injury, lost wages, pain and suffering, etc. Plaintiff-wives sought money damages for loss of consortium and attendant care services for their husbands. They shared a common interest in holding Defendants hable for their damages. We perceive no reason why Plaintiff-wives would have selected different jurors. Nor do we perceive any conflict in the relief sought. Rather, there is a unity of interest in holding Defendants hable. We find no abuse of discretion in denying extra peremptory challenges to Plaintiff-wives.
AAA Gas’s Cross-Appeal
{95} AAA Gas raises three issues on cross-appeal: (1) the jury should not have been instructed that AAA Gas could be held strictly liable for a non-delegable duty, (2) the jury should not have been instructed on punitive damages, and (3) AAA Gas should have been awarded its costs pursuant to Rules 1-054 and 1-068 NMRA 2003. Because the judgment of the trial court in favor of Defendants remains undisturbed, we do not reach the issues of whether the jury instructions were proper. See Moody v. Stribling,
{96} Following the entry of judgment, Defendant AAA Gas filed a cost bill in the amount of $43,492.92 as a prevailing party under Rule 1-054(D) and for post-offer costs under Rule 1-068. Following arguments, the trial court denied the cost bill and ordered that the parties bear their respective costs. AAA Gas contends that the court erred as a matter of law under Rule 1-068, which it argues required the trial court to award them post-offer costs. Moreover, Defendant asserts the court abused its discretion by refusing to award it costs as the prevailing party under Rule 1-054(D). We address each Rule separately.
Rule 1-068
{97} Rule 1-068 provides in relevant part:
At any time more than ten (10) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued.... An offer not accepted shall be deemed withdrawn... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
(Emphasis added.) AAA Gas made three offers of judgment. The first two were proffered while the case was pending in Valencia County on July 22, 1999, and January 19, 2000. The third offer was extended on March 30, 2000, after the Valencia County case was dismissed and Plaintiffs refiled them claims in Bernalillo County. AAA Gas requested an award of post-offer costs totaling $32,825.11. Although AAA Gas argued to the trial court that an award of costs under Rule 1-068 was mandatory, the court referred only to its discretionary authority to deny costs under Rule 1 — 054(D) and did not address the effect of the mandatory language of Rule 1-068 on its decision.
{98} AAA Gas argues that the award of costs is mandatory whenever the Rule 1-068 offer exceeds the judgment, whether the judgment is for or against Plaintiffs. Plaintiffs respond that the Rule should be harmonized with Rule 1-054 which grants the trial court discretion to award costs to a prevailing party. We agree with Plaintiffs, but that is not where our inquiry begins.
{99} The threshold question is whether Rule 1-068 applies where judgment is entered in favor of the defendant-offeror. Delta Air Lines, Inc. v. August,
{100} “In construing Rule 1-068, which is identical to its federal counterpart, this Court may look to federal law for guidance.” Pope v. The Gap, Inc.,
{101} The Court’s reasoning is consistent with our decisions that make Rule 1-068 mandatory where a judgment for a plaintiff is less than the offer. See, e.g., Dunleavy,
Rule 1-054(D)
{102} Plaintiffs’ opposition to the award of these costs under Rule 1-054(D) was premised on their inability to pay. In AAA Gas’s view, however, the court’s ruling was impermissibly based on the financial disparity of the parties alone. AAA Gas also argues it was an abuse of discretion not to require Plaintiffs to disclose information relating to their indigence, specifically their workers’ compensation benefits and Fisher Controls settlements. It does not appear from the record, however, that AAA Gas ever requested the court to have Plaintiffs disclose their workers’ compensation settlement to substantiate a claim of financial hardship and we do not consider that contention. See State v. Silver,
{103} As to the remaining charges, this Court reviews the trial court’s assessment of costs in a civil action under an abuse of discretion standard. Key,
{104} After hearing arguments from the parties, the trial court ruled:
I agree with you, Mr. Morgan, that on the basis of the facts known to this Court and on the basis of the Court’s reading of Gallegos v. Southwest Community Health Systems and Key v. Chrysler, ... it is my view that an award of costs against the unsuccessful plaintiffs in this matter, given the disparity of financial resources and for the other reasons advanced by plaintiffs’ counsel, that the award of costs is denied.
{106} Both at the hearing on Defendants’ cost bills and in Plaintiffs’ objections to Defendants costs bill and supporting memorandum, Plaintiffs’ argument focused on their financial inability to pay a cost award. Counsel represented that Plaintiffs owed $28,000 in legal fees which they were unable to pay and he did not expect to collect. Counsel also presented evidence that Mr. Apodaca had just returned to work, some three years after the accident. He worked on a part-time basis as a school bus driver for $8.30 per hour and earned a small salary of approximately $800 per month as a pastor. Mrs. Apodaca did not work outside the home. Together, their annual gross income was roughly $15,600, a monthly income of $1,450. Moreover, Mr. Apodaca expected to have hand surgery which would entail an eighteen to twenty-four month recovery period during which he would be unable to work as a bus driver. The Velasquezes were somewhat better off. Although they earned a combined annual gross income of $56,400, they supported two young children, and Mr. Velasquez was attempting to replace approximately $200,000 worth of tools lost in the explosion that were his livelihood. Counsel also presented an affidavit from Plaintiffs itemizing their expenses and assets. After bills, the Apodacas had about $100 “extra” money per month and the Velasquezes had about $200 per month.
{107} As for the income generated from the settlement with Fisher Controls, we find the trial court had ample knowledge of that agreement and its contents even though Plaintiffs were never required to disclose it to AAA Gas for purposes of assessing costs. The record shows that the trial court inspected the sealed agreement in camera after an earlier evidentiary hearing. At that time, the court indicated it had reviewed the amount of the award. Having had access to this information, we conclude that the court was not required to disclose the confidential agreement to the opposing parties. We find that Plaintiffs did disclose the settlement to the trial court and that the court could take that information into consideration in its assessment of the cost award.
{108} In light of the evidence above, we conclude that the trial court’s decision to deny Defendant’s costs was reasonable and not an abuse of discretion. Consistent with our case law, the court did not limit its consideration to the parties’ disparity in wealth. Instead, the court properly considered the evidence relevant to the parties’ ability to pay. The Apodacas clearly were not in a position to pay Defendant’s costs. Although the Velasquezes had more resources than the Apodacas, there were other factors the trial court could have taken into consideration given the evidence presented.
CONCLUSION
{109} For the reasons stated above, we affirm the judgment below. Defendant AAA Gas’s cross-appeal is denied.
{110} IT IS SO ORDERED.
Notes
. AAA Gas also requests sanctions under Rule 12-312(D) NMRA 2003 arguing that Plaintiffs' counsel referred to deposition statements that were not admitted as substantive evidence at trial. We deny the request.
. While most negligence per se claims are against defendants, plaintiffs can be found comparatively at fault on an instruction of negligence per se. See, e.g., Olguin v. Thygesen,
. Only portions of Section 14-2-1 (A)(3) of the Albuquerque City Fire Code were pled below. The Code in its entirety was not made part of the record. While a line of cases prohibits this Court from taking judicial notice of an ordinance that is not part of the record, see Coe v. City of Albuquerque,