*1 ents hereby VIII and IX is reversed. against
causes Respondents VIII and IX
are dismissed and all records thereof are destroyed.
ordered
It is so ordered.
HENDLEY, J., concurs.
HERNANDEZ, J., dis- dissents. For
senting opinion see
Dwaine
VOLKSWAGENWERK AKTIENGESEL ISCHAFT, Defendant-Appellee.
No. 1651. Appeals
Court of New Mexico.
Aug. 6, 1975.
Rehearing Aug. 22, Denied 1975. Sept. 23,
Certiorari Denied 1975.
son, passenger was seated who on the side vehicle, passen- had fallen from the ger (2) seat onto the floor the car. attending Plaintiff his son did was light change (3) not see traffic color. reason, apply this he did not brakes For his light, causing in time to for him to stop Chavez, Foley, Al- Lorenzo A. H. James oncoming collide in the in- with vehicle buquerque, plaintiff-appellant. for words, tersection. In other Roach, Klecan, A., A. Klecan & P. proximate John contention was that the cause of Albuquerque, defendant-appellee. inattentive collision was driving.
OPINION
The trial court instructed the
that:
plaintiff
that he sustained
“The
claims
HENDLEY, Judge.
proximate cause
damages and that the
dеfendant,
manufac-
Plaintiff sued
the follow-
thereof was
or more of
one
automobile,
plaintiffs
turer of
ing acts:
sustained in an
accident.
automobile
“ * * *
driving across
he was
[A]s
through
red
Plaintiff’s automobile went
necessary
made it
I—40 traffic conditions
light and collided with an automobile
apply
be
for him to
the brakes as would
had entered
in accordance
the intersection
expected
existing condi-
under the then
signals
with the traffic
from direction
so,
began
seat
tions and as he did
perpendicular to
direction of
causing plaintiff
lose control
move
Plaintiff claimed
the collision
travel.
car,
another
his car and collide with
occurred
as-
because of defect
the seat
* *
automobile,
sembly
his
which caused
him to lose control of his car. Plaintiff
tersection and
low,
slipped, causing the seat to shoot forward.
ing
alleged
(2) When he did
stopping
facts:
he
and introduced
applied
(1)
for the
saw
As he
his brakes in
this,
anticipated
proof
light change
the seat mechanism
approached
preparation
red
the in-
follow-
light.
yel-
ligent in that:
following affirmative defense:
lookout
[*]
it “1. Plaintiff
“
“The
* * *
[*]
* * *.
[*]
[T]he
failed to
was
contributorily neg-
keep
asserts the
proper
yield
That the
failed to
“2.
(3) The forward movement of the seat
* *
right way
*.
caused his
pedal,
foot to slide
the brake
off
light
which resulted in his running the red
stop
plaintiff failеd to
That the
“3.
and colliding with
other
vehicle.
signals
the traffic
in obedience to
ultimately
rested his claim on the
* *
of strict
of the manufactur-
keep
plaintiff failed to
That the
“4.
er of
a defective
as set forth
* * *.
his car under
control
2d,
(1965),
Torts
at
402(A)
proved
has
you find that
“If
347-48.
him and
required
claims
those
presented
Defendant
two
theories of
has not
affirmative defense
(cid:127)defendant’s
jury.
case to the
auto
It denied that the
your
should be
proved, then
verdict
been
assembly
seat
and alterna-
defective
plaintiff.
for the
defective,
tively claimed that even
if was
hand,
you find
“If on the other
defect was not the
cause
required to be
the claims
alleged
one of
сollision. Defendant
and intro-
proved
been
proof
proved by plaintiff
As
following
duced
facts:
intersection,
defendant’s affirmative
approached the
or that
“ * * *
proved,
your
[Tjhe liability
verdict
with
then
has been
deals
neg-
is not based
for the defendant.”
[Trial
should
seller,
ligence of the
is strict liabili-
Court’s Instruction
but
1]
* *
ty
Contributory negligence
*.
addition,
gave ten other
the trial court
plaintiff is
a defense when such
attempted to
challenged instructions which
merely
consists
in a failure to
*3
concepts
negligence, con-
elucidate the
product,
discover the
defect
or to
use ordi-
tributory negligence,
duty
the
to
guard against the possibility of its exis-
proper
duty
keeр a
nary
and the
to
care
the
hand
tence. On
other
the form of
own car.
control over one’s
lookout and
contributory negligence which consists in
to
in these instructions was one
Included
voluntarily
unreasonably
and
proceeding
in accordance
stop
the failure to
the effect
to encounter a
danger,
known
and com-
contributory negli-
signals was
with traffic
monly passes
assump-
under the name of
to
another
gence
a matter of law and
as
risk,
tion of
is a defense under this Sec-
negligence
contributory
the
that
effect
in
liability.
tion as
other cases of strict
plain-
part of the
negligence
meant
on the
If the user or consumer discovers the
cause
proximately
to
tiff
contributed
that
is
defect and
danger,
aware of the
and
damages.
proceeds unreasonably
nevertheless
to
for the de-
jury returned
verdict
The
make
injured
use of the
and is
appeals contending that
fendant.
it,
is
recovery.”
he barred from
instructing
jury
in
the
coui;t
the
erred
trial
plaintiff
argues
thus
that the
al-
contributory negligence because ordi-
on
lowable
defense in
402(A)
a §
part
plaintiff
nary
the
of the
negligence on
cause of action is that form of contributo-
402(A)
permissible
is not a
defense to
§
ry negligence
contained in
in
Incorporated
action.
liability cause of
2d,
intentional,
supra,
466(a)
Torts
§
—an
the
that
allеgation
this
is an
contention
exposure
unreasonable
a known danger.
to
jury to
instructions bound the
court’s
Plaintiff tendered
an
to the trial court
in-
regard to
find for the defendant without
in
(n),
struction
accordance with Comment
was
Causation
what
the accident.
caused
supra.
in
closely
issues
contested
one
the most
recognized
theory
New Mexico
it is
responds that
Defendant
lawsuit.
of a manufacturer’s
under
§
its
on
jury
have the
instructed
entitled to
Corporation,
402(A)
Stang
since
Hertz
case,
disputed
and
theory of the
(1972).
How-
instructions
ever,
the issue of
defenses to a §
necessary
apprise
to
were thus
402(A)
impression
is
first
case
one of
with
theory.
agree
While we
defendant’s
Oman alluded to
confu-
here. Justice
in-
was entitled
defendant
sion
the area of available defenses to §
theory,
agree
its
also
with
structions on
we
402(A)
Corpo-
cases in
Nissen
Garrett v.
under
instructions
ration,
(1972)
84 N.M.
court’s
defendant’s denial of cau-
say that use of such
gence.
error.
That is not to
sation as an affirmative defense was
re
error,
we
question
would
words
Referring
back to the
It is
date.
serve
decision at a later
1, supra, the last
court’s instruction No.
that,
simply
the issue is causation
when
paragraph
jury
told the
to find for
thereof
prod
plaintiff’s
or the
that either
conduct
the defendant if either
had not
injuries, questions
uct defect caused
proved
proved
if
had
case or
negligence are irrelevant.
negligently.
drove
and remandеd.
Reversed
would
instruction
have been
correct
It is so ordered.
of the case had been
true affirmative
In such a
defense.
HERNANDEZ, J., concurs.
plaintiff’s
right
re
establishment of
covery
long
de
would be irrelevant so
SUTIN, J., specially concurs.
proved
fendant
its affirmative defense.
Consequently, an instruction couched in the
SUTIN, Judge (specially concurring).
disjunctive would be a
one. How
correct
I
concur
the result.
ever,
incorrectly
instructed
defendant,
Plaintiff
manufac-
sued
negligent driving was con
automobile,
turer of
tributory negligence, an
de
by plaintiff
sustained
in an
col-
automobile
fense, and, therefore,
finding
that a
appeals
party.
lision with a third
Plaintiff
required
negligently
drovе
a ver
judgment
from a
for defendant.
regardless
dict for the defendant
its
findings
as to
in
cause. Under
on Strict
Position
the Parties
A.
1, supra,
way
struction No.
there is
no
Liability
Tort
know whether the verdict for defendant
oc-
that the collision
claimed
finding
plaintiff’s neg
was based on a
seat as-
of a defect in the
curred because
ligent driving
proximately
had
caused the
automobile,
sembly
*6
that,
finding
collision
a
regardless
or
of
of the car.
caused him to lose control
collision, plaintiff
the cause of the
had
as-
this
but it also
defendant denied
claim
negligently
driven
and was
therefore
conven-
serted an
affirmative
recovery.
barred from
defendant’s
Since
opera-
сontributory negligence in the
tional
only
prevailed
if
should
par-
position of the
tion
car.
plaintiff’s negligent
driving had caused
applicable
and the law
ties on the facts
accident and the court’s instruction allowed
to
in
instructions
thereto is
forth
set
prevail
it
regardless
to
of the cause of
jury,
infra.
accident, plaintiff is entitled to a new trial.
jury
to the
Plaintiff submitted
claim
Upon retrial, defendant is of course enti
liability
products
as
theory
on a
tled
theory
to instructions on its
of the
2d 402A
in
Torts
set forth
Burnworth,
615,
case. Hill
514
v.
85 N.M.
(1965) at 347-48.
P.2d 1312 (Ct.App.1973); Rogers v.
convention-
issue is whether
The critical
Thomas,
723,
(Ct.
81 N.M.
361
1359,
16,
vehicle;
21,
day
P.2d
that on the
Corporation, 84
498
17th
Febru-
N.M.
ary, 1969,
driving
(1972):
Volkswagen
northerly
direction
present
con-
case
need not
Mateo,
on San
N.E. and as he was driv-
as to whether
the confusion
tribute to
ing across 1-40 traffic conditions made
the defenses of
necessary
apply
for him to
the brakes
risk
available to
are
expected
as would be
under the then ex-
tort
liabili-
under
“strict
so,
*
isting
*
conditions
and as he did
ty^'
seat
to
began
causing plaintiff
move
years
Mexico
since New
It
three
lose control
his car and collide with
lia
a manufacturer’s
adopted
theory
in inju-
another
car which resulted
Hertz
bility
Stang
402A.
v.
under Section
* *
(Emphasis added)
ries
*.
Corporation,
730,
^2) [P]laintiff intersection court refused. way at the yield right by Torres. Mustang driven Mr. to the By objections, plaintiff alerted the * * * to failed ^3) [P]laintiff trial court to the еrror involved. signals traffic stop in obedience to the objections instruction stated on the above intersection. operating at the which were included: ** * failed [P]laintiff * ** in a Negligence is not an issue he as keep proper control his car under liability case, only time strict and the he when approached intersection in a be considered can opera- signals in there were traffic knew it involves case when added) (Emphasis tion. part assumption risk or on the [sic] contributory negligence. added) This affirmative defense should be has been been or The instruction concludes proved by plaintiff has not been any ing for the those claims (3) Conclusiоn of If on the other If The defendant has the burden of the affirmative one of the claims you proved, plaintiff. defendant’s affirmative find proved, then required the defendant. your defense. instruction hand, you find that then verdict should as required to is conventional him and your follows: has (Emphasis has not verdict proved proved prov- be U.J.I. made, P.2d 55 any (i), liams tion 402-A of Restatement of Torts. tion sisting the term is struction bility plaintiff. * * * fect of the sumption [******] error N.M.S.A.1953 recognize that “For not; Vandenhoven, accord Plaintiff has correctly ordinarily assuming That and in instruction product. risk in a * * * charge, objection with Comment (Repl. particular, purpose of this stating the law of the risk of the de- used. ” In other secondary given, whether requested an in- Vol. preservation of N.M. 21-1-1(51) (1) products an instruc- words, 4). Wil- “N” risk con- 352, 482 sense must be Sec- rule lia- as- was Compton, ago This Instruction long B. The Error was stated State 227, 236, Preserved Review (1953): did Defendant contends * * * object portion instruction re- in- to that the court [WJhere subject, there- al- lating erroneously to the affirmative defense on structed , is that contribu- been fore “the law of case instruction has though a correct it tory proper defense.” leaves point, is a tendered however, properly object to did, mind judge’s the trial whether doubtful de- applicable to the thereby nine other instructions actually alerted contributory negli- requestеd fense of conventional to be corrected sought objected preserved includ- instruction, instructions gence. The the error is *8 lookout”, “proper in addition, specific vice unless, ed two instructions on the control”, “proper and out to given pointed included is one which instruction the on traffic proper objection a traffic statute there- the violation of the trial court objections af- the signals. These covered to.
firmative defense.
in Lucero
followed
language was
(1960);
10,
Torres,
P.2d
in-
67 N.M.
proper
tendered
The
also
Co., 66 N.M.
Gas
in the Beal
contributory negligence
v. Southern Union
struction on
Second,
majority
explicitly
opinion
the
Hender-
State v.
deciding
son,
(Ct.App.
refrains from
of defendant’s
P.2d 116
one
81 N.M.
theories of the
to
That
1970).
wit:
negli-
by driving
misused the automobile
judge’s
the trial
have
doubt that
no
is a
gently
negligent driving
this
in-
in the
to the defect
mind was alerted
contributory negligence which bars
of
form
plaintiff wanted to cor-
the
struction which
plaintiffs recovery.
proper in-
of a
By
rect.
submission
the
trial
plaintiff alerted the
struction the
validity
The
the italicized
of
Montano, 83
the defect. State v.
court to
presents
question
the determinative
on
185 (Ct.App.1972).
494 P.2d
appeal.
objections to instructions
The continuous
majori-
The erroneous
contributory
defense, conventional
on the
is
at trial
ty
that the evidence introduced’
рlaintiff also alerted
negligence of the
rele-
negligent driving
as to
is
the court.
mind of
proximate cause
vant
to a denial of
injustice
A
manifest
The
occurred.
vehicle,
not to
by defendant’s defective
but
solely
for defendant
on
could
found
contributory
the affirmative
of
defense
keep
to
ground that
failed
plain-
negligence.
evidence of
Defendant’s
lookout,
regardless of the defect
introduced, not
driving
tiff’s negligent
was
The defect in the automo-
automobile.
causation,
evi-
only as
but that
a denial of
bile
controlling
was the
issue
the-
dence was relevant also
defendant’s
prevent
injustice,
case.
To
manifest
we
ory
contributory
negligence
of
form
may
take note of the error
instruc-
product.
misuse
Moore, Inc.,
Sayles
tion.
v. Lilak &
driving
negligent
Plaintiff’s
does
con-
Mich.App. 721,
Defendant herein is in Section ligence tributory negligence an but stated affirmative Thus, 402A, n, page Comment at 356: rather as a denial causation. question appeal is our whether Since the Negligence. Contributory n. styling of defendant’s denial court’s deals this section liability with which affirmative defense as an causation not based [Emphasis was error. added] ap- liability, rule seller, is strict but (See Section plaintiff’s neg- plied cases First, defendant asserted defense; Contributory negligence 524) applies. ligence as an affirmative such not a defense when proving “defendant has burden in fаilure merely defense”; “de- consists affirmative product, or to the defect in the has been discover fendant’s exis- its possibility of guard against the proved, your then verdict should tence, the other hand On defendant.” form *9 364 Annot., Liability:
contributory
(1972);
which consists
Products
Strict
Tort,
proceeding
Liability
(1967).
and
voluntarily
unreasonably
Devaney
N.J.Super.
interest,
public
E.
we set forth
Compa
(A.D.1973);
A.2d 208
the guidelines
special
on defenses
Henderson,
ny
(Tex.
365
Indus.,
Pruitt,
negligence
form
Contributory
(5th
Inc. v.
2d
(Ct.App.1970).
sibility of
its existence.
Jurisdictions
authority through
great weight
throughout
country
have removed
product
misuse
country
out the
holds
from
the manufacturer’s
arsenal
by
liability*
special
that was unforeseeable
pleads
when the
402A,
theory. Restatement,
defendant-manufacturer
constitutes
Torts 2d §
contributory
n,
356;
402A
at
Messick
General
v.
mis
v.
Corporation, supra;
Foreseeable
Motors
action.
Williams
contributory
supra;
use
Ford
v.
Devaney
Motor
given
Sarno,
supra;
Whether
misuse is
Company
foreseeable
question
Henderson,
unforeseeable
supra;
Propeller
is a
of fact for
Hartzell
Annot.,
Corpo
Alexander,
each
Company
supra;
General Motors
case.
Walden,
Annot.,
ration v.
Liability, supra;
Contributory negligence in the form risk,
commonly known
and in the form of misuse of the which was the cause of injuries, only types are the of defenses products ac- available
tion that is founded on 402A.
Boyce Plaintiff-Appellant, EDENS, D. AND NEW MEXICO HEALTH SOCIAL DEPARTMENT, Department SERVICES Bonem, Clovis, David W. Scott Ma- H. Mexico, Employer, of New the State bry Boyd, Jr., and David Albuquerque, F. Casualty States Com Mountain Mutual plaintiff-appellant. Insurer, pany, corporation, Defendants- Appellees. Parker, Modrall, Judy Fry, A. A. James 1776. No. Roehl, Sperling, Sisk, Albuquer- Harris & que, defendants-appellees. Appeals Court of of New Mexico. May 28, 1975. OPINION
Certiorari Granted June 1975. HENDLEY, Judge. surviving spouse of dece-
dent who died from sustained in a motor vehicle accident. The court held was not entitled to benefits Compensation under the Workmen’s Act (§§ 59-10-37, through 59-10-1 N.M.S.A. 9, 1974, Repl. pt. (2d 1)) because Vol. performing decedent was not duties of employment her at the time of the acci- appeals. dent. Plaintiff We affirm. employed by Decedent was in Al- HSSD employees buquerque. She and other were required day to attend a two conference in they Santa Fe. To reduce costs were re- pools quested to form car and to return to Albuquerque meetings. after the Four em- decedent, ployees, mutually including agreed parking to meet at a lot in Albu- They proceeded querque. then to the con- ference Santa Fe a car driven decedent.
At the first conclusion session they parking Santa Fe returned to the lot