*1 3X3 Diego R. Ada MARCHESE and Peter
Marchese, Representa as Co-Personal Anthony
tives of the Estate of Luciano Deceased,
Marchese, Plaintiffs-Appel
lants, INC., COMMUNICATIONS,
WARNER Corporation,
Malibu Grand Prix a sub
sidiary Communications, of Warner
Defendants-Appellees.
No. 5806.
Court Appeals New Mexico.
June 1983. Sept.
Certiorari Denied
OPINION HENDLEY, Judge.
Plaintiff sued recover child, death of their Luciano. The amount of plaintiff’s determined total $4,334.76, fault damage was with attributed Luciano; a non-party 47.5% to 47.5% to (Cousin Márchese); Joanne and to Mali- 5% bu Grand Prix. Defendant Bowman’s mo- tion for a directed verdict had been granted at the end of case. Plaintiff appeals judgment from from denying judgment order the motion for not- withstanding the or for new trial.
FACTS killed in acci- Luciano was His dent at Malibu Grand Prix racetrack. driving death while he was occurred wrong track. He was way Malibu’s volved in a head-on collision defendant Steve Bowman.
Decedent, moth- age had asked his track, permission er’s on the but drive she refused. Luciano filled out two age his stating release forms was parental He consent signed portion Márchese, twenty- Joanne form. his cousin, year signed parental consent old the other led an portion of form. She also Malibu, over the employee telephone, she believe that was Luciano’s mother her that he had consent to on the drive track. presented Luciano also his motor scooter license which showed he was four- years age. teen accident, was regard With there spun off track testimony Luciano dirt; onto the he pushed was back onto attendant; track by an Luciano started wrong the attendant took the steer- way; ing right Luciano in wheel started time, Bowman, During who direction. had driving was a car behind Luciano and Ortiz, Berry, Patricia Charles Michael G. out, when stopped spun been Luciano P.A., Vigil, Berry, & E. Marchiondo Albu- proceed. Bowman did not start allowed querque, for plaintiffs-appellants. thereafter, immediately. Shortly Bowman Konrad, Miller, Miller, traveling wrong Ranne B. Alan saw di- Luciano Brandt, P.A., Stratvert, appeared him Luci- Torgerson & Albu- rection toward out ano’s of control. Luciano querque, defendants-appellees. car his up killed when Bowman’s car went over 4.The Defendants failed warn car. Plaintiffs’ minor son of the risk injury involved in the use of the race track [sic] six In- Plaintiff’s first issues deal with race car. (theory case) struction No. 2 was given by the trial court. It states: Plaintiffs also claim that a proximate *3 son,
Plaintiffs claim that their minor injuries cause of the to their minor son Márchese, Lucian injuries sustained [sic] was Defendants’ of warranty breach in and was killed while a using Yirage For- the that race car and racetrack supplied mula a Racecar on Malibu Grand Prix the by Defendants to Plaintiffs’ minor racetrack. was impliedly son warranted to be fit and Plaintiffs claim that or more the one proper purpose and safe for the for which following acts or omissions constitutes intended, it was when in fact said vehicle by failure the defendants to use the ordi- and said racetrack were unsafe for the nary care required supplier of a aof purpose for which were intended. product and that failure was a proxi- Plaintiffs have proving the burden of mate cause of the death Plaintiffs’ one of their claims of failure to minor son. care, ordinary use or products liability, or 1. The Defendants entrusted their warranty, breach of was a proximate car race to Plaintiffs’ minor son when injuries by cause of the their suffered knew or should have known that he son. minor did not have operate sufficient skill to deny Defendants Plaintiffs’ claims and safely. raise the negli- defenses of contributory The 2. Defendants car rented a race gence, of risk and misuse of to Plaintiffs’ parental minor son without product. the as required by consent law. Defendants have the burden of proving The 3. Defendants failed maintain the following essential elements of their their vehicles the in track such defenses. manner as to avoid the accident which occurred to Plaintiffs’ son. minor Upon negli- the defense of contributory Plaintiffs claim also Defend- (a) gence, prove Defendants must Communications, ants, Warner that Lucian Márchese was eontribu- [sic] Corporation Prix subject Grand torily negligent; (b) that Lucian [sic] products for an unreasonable risk contributory negligence Marchese’s [sic] resulting of injury from a condition of injuries was a cause product or a manner in which it was Lucian by sustained Márchese. The [sic] used, and that this risk was a proximate Defendants contend that Lucian [sic] injuries cause of the sustained Plain- contributorily negli- Márchese was [sic] minor tiffs’ son. Whereas claim in gent one more the following failure to use ordinary upon care is based ways: acts suppliers, or omissions prod- 1. Lucian Márchese made false [sic] ucts liability upon following is based em- representations Malibu Grand Prix product: claimed defects in the on Malibu ployees order drive The supplied 1. race car to Plaintiffs’ Prix Grand track. son minor was in a defective condition. 2. Lucian his car Márchese drove [sic] track did not adequate have wrong direction the track. warning to prevent devices drivers from 3. Lucian Márchese failed to [sic] traveling in wrong direction. maintain control of his vehicle. 3. The track and/or the race car did 4. Lucian keep Márchese failed to adequate warning have devices [sic] driving control race cars on track look-out while [sic] case emergency. vehicle. contention, if
Any
proved,
estab-
Point II.
contributory negligence
lishes the
of Lu-
contends that Instruction No.
cian
Márchese.
[sic]
is wrong
contributory
in that it stated that
Defendants also contend that Lucian
negligence was a defense to products liabili-
Márchese assumed the risk of his
[sic]
Rizzo,
ty claims. Plaintiff relies on
v.
Scott
because he drove the Malibu Grand
injury
(1981),
for this
P.2d
Prix car on the track when he knew or
However,
Rizzo,
proposition.
su-
Scott
he
should have known that
was intention-
pra, did not state that.
It states:
unreasonably
himself
ally
exposing
respect
With
we
suggestion that
danger.
a known
should also consider the effect of the
further contend that
Defendants
comparative negligence
upon
doctrine
manner in which Lucian
[sic]
claims,
we need not decide
operated the Malibu ear constitutes a
point
at
this time. We do make
*4
the product
misuse of
as elsewhere
observations, however, relying upon
some
in these instructions.
defined
capability
judge
trial
to resolve
proving
Defendants have the burden of
such issues when
with a spe-
confronted
the affirmative defenses.
requiring adaptation
cial factual situation
If
find that Plaintiffs have sus-
you
(1)
comparative negligence:
of
rule of
have
damages
proven
tained
one
Plaintiff’s
“conventional”
contributory
negligence,
or more of the claimed acts of
inapplica-
has been held to be
negligence
products liability
warranty
or breach of
ble as an affirmative defense in strict
proximate
was the
cause thereof and De-
v.
liability
Jasper
Skyhook Corp.,
cases.
prove any
fendants have failed to
of their
98,
(Ct.App.1976),
89 N.M.
Question No. 1: Did Luciano Márchese act negligently, misuse the car or track or assume Point III. the risk of the accident? . here that is no argues Plaintiff there Yes X . No and, assumption evidence the risk Question your No. 2: If answer to Question further, Instruction No. 23 is incorrect an No. “yes,” 1 is was proximate that a conduct and, also, law unduly statement of the em- cause of the accident? the phasized conduct Luciano. Yes X No_ product When a user of a discovers the Question No. 3: Márchese, Was Joanne the by risk harm the caused condition cousin, negligent? the product or manner in which it is Yes X No_ used, when he understands dan- Question your No. 4: If answer to Question but, ger nevertheless, intentionally and “yes,” No. 3 is proximate that conduct a exposes it, to unreasonably himself cause of the accident? user said to have the risk. is assumed No_ Yes X duty son had a to Plaintiffs’ minor use Question No. 5: Was negli- Malibu Grand Prix ordinary safety. care for his own Ordi- gent or supply did it product? a defective nary care is that care exercised Yes X No_ reasonably prudent person and varies Question No. 6: your If to answer being nature of what is done. “yes,” No. 5 is was that conduct a As that be danger reasonably cause of the accident? increases, the amount of foreseen care Yes X No_ required also increases. Question No. 7: If answer to Question is This instruction NMSA UJI Civ. “yes,” No. 6 is is Warner Communications liable (Cum.Supp.1982), 14.27 without intro- for the conduct of Malibu Grand Prix? to the second ductory phrase paragraph, Yes X No_ approved which is included instruc- Question No. Taking 8: the combined conduct tion. Even if we considered the instruction that 100%, caused the accident as percent- what be an statement of law incorrect age is attributable to: unduly emphasized that Luciano’s con- 47,5 a. Luciano Márchese % duct, we could not hold that the instruction b. Joanne 47.5 % c. Malibu Grand Michelbach, wrong. Collins Prix % (1979). we Accordingly, Paving Bank, H & Co. Const. v. Citizens part plaintiff’s point. do not this consider supra. VI. Point bearing
The evidence on Luciano’s present conduct was sufficient to the issue that is argues Plaintiff there a lack of of the risk. That is evidence portion evidence to support of Instruction set forth It heading. under FACTS pertaining No. 2 to contributory negligence. question properly jury. that, argues Plaintiff unless Luciano knew direction, that he was traveling wrong Plaintiff also contends the instruc- he tion, not be given, contributorially negligent incorrect because could second basis. paragraph above-quoted struction was limited to the negligence stating Luciano had to know claim. Directions Use Civ. See to UJI driving he was direction wrong that, 14.27. The under com- our negligence, order show contributory parative system, the limitation law, plaintiff cites no or anything case else apply. does not holding See our matter, support legal for that con Point II. agree clusion. We with defendants Point IV. theory the proper legal is that he knew or argues Plaintiff there is no evidence known, reasonably prudent should have defense misuse of that he was 14-year-old, going wrong product. The trial court instructed: “The 16.1, direction. See NMSA UJI Civ. supplier has the duty to consider foreseea 16.2, (Repl.Pamp.1980), 16.3 and Committee injury. ble risks of duty This is limited to Comments thereto. product a purpose use of the in a reasonably manner which could fore Point VII. (Emphasis added.) seen.’’ that it was error allow (misrepresentations Under the facts apportionment fault to Joanne admittance;
gain
driving the wrong way
Márchese, that
it was error to admit evi-
when
showing
the berms were marked
it
signed
parental
dence
she
consent
it
one-way track),
was a
was
proper
Luciano,
and that
form
it was error to
the issue to
submit
as to whether
form
admit
consent
into evidence.
reasonably
the accident was
foreseeable.
Paving
& H Const. &
See C
Co. v. Citizens
subpoint A that
Plaintiff’s
is
Joanne
Bank,
93 N.M.
Since the
under
health;
The age, earning
B.
capacity,
Bartlett, supra,
fault,
apportion
habits and probable
evidence
duration of life of
decedent;
bearing on Joanne Marchese’s fault was
relevant. Subpoint C is also frivolous.
The monetary
person-
C.
value of the
al
of the
family;
services
decedent to the
D,
Subpoint
regarding Joanne Marchese’s
being
conversation
is
hearsay,
also frivo-
or
aggravating
D. The
cir-
mitigating
lous. No reason or citation
given
is
cumstances
the conduct
attending
which
contention. The trial
results in death.
court expressly
relied upon NMSA
weight
given
be
to the evidence
804(b)(6)
Evid.R.
803(24),
dowe
not
such
upon
you
issues
to determine.
disagree.
It
your responsibility
to award such
Point VIII.
damages may
just
be fair and
to both
contends that
No. 9 of
sides
all
circumstances of this
Verdict form is erroneous and
case.
that the verdict was inadequate as a matter
fixing damages,
deductions
be
must
of law.
earnings
from
or
gross
made
ca-
earning
Question No.
any,
taxes,
9 states:
pacity,
“What is the total
if
for income
social
taxes,
security
amount
other taxes
damages
personal
sustained
by plaintiffs
living expenses
result
decedent.
accident?” Plaintiff con-
tends
jury obviously did not consider
Damages for future loss of money
“[t]he
will
sum,
economic value
lump
Lucian
be
in a
paid
and a reasonable
[sic]
Marchese’s life in determining their ver-
discount should be made for the future
dict,”
earning
question
jurors’
power
lump
and the
such
sum.
directed the
away
attention
from the economic value of
may
You
not consider:
the child’s life. The verdict was for the
1. The loss of
society
decedent’s
exact amount of the funeral bill.
family;
2. The
or
grief
family;
sorrow of
plaintiff
When
submitted its own
or
form
court,
of special verdict to the trial
The property
or wealth of the sur-
acknowledged it was an erroneous state
vivors
the defendant.
ment of the law.
to adopt plain
Failure
Your
be
verdict must
based on evi-
tiff’s
of special
form
not
verdict could
dence,
upon speculation,
guess
con-
the foundation
upon
predicate
er
jecture.
must not
permit
You
Further,
ror.
point
did not
out the
amount of
to be influenced
*7
vice, if
of
any,
the trial court’s
ver
special
prejudice.
or
sympathy
dict.
Vandenhoven,
See Williams v.
82
argues
Plaintiff
here that
fact that
“[t]he
352,
N.M.
482
55 (1971).
P.2d
jury
found
only
amount
As to the
adequacy
jury verdict,
of the funeral bills
the jury
indicates that
the trial court adopted plaintiff’s requested
In-
given
did not heed the instructions
in
27,
Instruction No.
which stated:
Further,
struction No. 27.
so
amount is
If you find for the plaintiff on the issue
passion, preju-
insufficient
indicates
liability,
you must decide the amount
dice, bias or
sympathy
part
of damages which
compensate
would
for:
jury.”
1. The
expenses
reasonable
of funeral
Plaintiff
that as a
of law
matter
burial;
the verdict was insufficient. Plaintiff basi
monetary
worth of the life of
cases,
Baca,
cally relies on three
Baca v.
81
decedent had it continued[.]
(Ct.App.1970);
N.M.
recovered of the with Points IX and solely We deal here estate.” life of decedent to the decedent’s X, the remainder of defendants’ deny II, added.) supra, (Emphasis Stang IX A a list of the laundry motion. Point adopted explanation. Supreme Court trial court evidentiary rulings by the the Marcheses as challenged by “which Baca, this Court stat- Similarly, supra, of discretion.” Point IX B is anoth- abuses ed: rulings by the trial court which er list pecuniary injury, In the absence prejudicial claims show the court’s damages, such com- jury may still award plaintiff. attitude toward Point IX C exemplary, shall pensatory and effect of A and B “is states the combined just, having regard fair and deem prejudice cumulative to the Marcheses.” circumstances mitigating aggravating error which is proposition The cumulative act, wrongful neglect attending claimed is not reversible error. (Em- default which results in the death. added.) phasis Because of the failure cases the evidence and inferences that flow there from in the correct sition that land Roosevelt personal injury measuring lowed for the exercise of the award. * * * v. cited ‡ one There is no fixed standard by plaintiff for the jury light the award wrongful death statute sfc the value fixing the amount amount of most favorable to cases, Cty. sfc Rural stand to decide. wide latitude is [*] proper. life, and, damages Elec., judgment [*] of such an Viewing *8 and the Strick propo as in sft is al- a granted. same except that it deals with instructions. set forth all the the verdict and because instances consideration any of IX. A have to search the entire record. pellate The motion Point X is Affirmed. problem proceeding, the New Mexico cases on the costs. further reason is complained The defendants are awarded basically of this to strike Points IX and as evidence most favorable to we will not review Point in point of within the same Point would IX—we would fail to cite failure to cite as Point the context have the point. Any X is IX, ap- 335, 657 P.2d IT SO ORDERED. 1184 IS (Ct.App.1982).
321
”
WOOD, J., concurs.
liability claim.’
The trial court refused
that tendered instruction.
BIVINS, J.,
in
part;
concurs in
dissents
part.
14.1(1)
NMSA
UJI Civ.
(Repl.Pamp.
1980) provides
part:
in
BIVINS,
Judge (concurring
part; dis-
you
If
find that
has
senting
part).
is
proved
required
any
what
him on
I concur with the majority except as to
one of his claims
that none of de-
[and
II.
Point
fendant’s defenses to that claim
been
has
correctly
After
the issue un-
identifying
you
proved], then
will determine plain-
II,
der Point
de-
majority proceeds
to
tiff’s
and
a
damages
return
verdict for
cide
to
liability
that defenses
strict
claims
added).
that amount.
(Emphasis
recovery,
should no
bar
but
longer
instead
Contrary to that subparagraph Instruc-
proportionately
recovery
should
reduce
inas
tion No.
states:
I
comparative negligence cases. While
you
with
If
find that
agree
approach,
that
I do not believe
Plaintiffs have sus-
we can reach the issue
tained
and
proven
here. Plaintiff’s
have
one
argument
simple
straight-forward:
is
and
or more of
negligence,
the claimed acts of
“The instruction
informs the
liability or
products
warranty
breach of
[No. 2]
contributory
that conventional
the proximate
cause thereof
De-
products
defense to
liability.” While con-
fendants have failed to
their
prove any of
tributory negligence, now applied compara-
defenses,
affirmative
your
then
verdict
was a
tively,
plaintiff’s
defense to
should be for Plaintiffs.
of negligence,
claims
clearly
was not
you
If
find that Plaintiffs
not
have
proper defense to the claim based on strict
claims,
proved any
of their
then
liability.
v.
Jasper
Skyhook Corporation, 89
verdict
be for Defendants.
N.M.
(Ct.App.1976).
I
If,
hand,
on
other
that
you
find
Rizzo,
read
Scott
proved
Plaintiffs have
one
more
(1981),
limiting
negli-
as
the defense of
required
their
claims and Defendants
gence with
respect
liability
strict
cases
also
more of their
proved
have
‘negligence’
“the
concept of
voluntarily
defenses,
will
you
affirmative
unreasonably proceeding to encounter a
you
Verdict form submitted to
danger.”
Id.
known
at
Plaintiff made a
only
negli-
negligence is a defense
might
tendered
instruction which
have
claim;
gence
of the risk and
problem.
cured
It stated:
“You
only
contributory
product
defense
are defenses
instructed
misuse
*9
not
apply
‘products
does
the strict
claim.
liability
re-
The last
of the instruction
paragraph
struction would also have to find for on the warranty
claim of breach of but reduce comparative negli-
based conventional
gence.
The Directions For Use UJI 14.1 state 3.2; given it is to be lieu of UJI following
nevertheless the from UJI 3.2 is 14.1:
equally applicable to UJI important single
This is the most
struction in the lawsuit and the court and
counsel should give particular attention
to its finalization.
[*] [*] sfc . :Js ‡ $ post
Since this instruction remaining
which all of the instructions tied, extreme care and caution must any departure
be exercised when is made it.
from
While not relevant to issue presented, interstitially be noted
instruction No. the strict claim alleged regard
includes defects with products liability applies
race track. Strict chattels; form realty. action these claims is in
negligence.
Because of the defect in instruction No.
I would reverse and for new trial. remand