Pittard Ex Rel. Pittard v. Four Seasons Motor Inn, Inc.
688 P.2d 333
N.M. Ct. App.
1984
Check Treatment

*1 Second, findings recom- the order of may and restitution mis- whether Board’s persons adopted. lead the who have a be cause of ac- mendations should relying into tion our order instead of Ortega HEREBY IT IS ORDERED bringing against Ortega a lawsuit and that practice law. from the be disbarred misplaced. reliance would be ORDERED that: IT IS FURTHER Finally, questions I have serious as to Governing Rules 1. Under NMSA whether the authority Court has to order (Repl.Pamp.1983), the Discipline, R. 18 restitution without notice or an opportunity request an grants the Board’s Court to be heard on that issue. attorney appointed inventory Orte- be any neces- ga’s open files and take actions clients

sary protect the interests of the new counsel. Costs they

until can obtain inventory any costs incurred

of this Ortega’s client as the result of disbar- against Ortega upon ment will be assessed Court; appropriate showing to this Q. PITTARD, Lee as Father and Next proceedings 2. The record of these Pittard, Cody Friend of and Kim Pit possession all exhibits now in the Court’s tard, Individually, Plaintiffs-Appel will be made available to District Attor- lants, ney County Bernalillo for a determina- charges tion of whether criminal should be brought against Ortega; and INN, INC., The FOUR SEASONS MOTOR Inc., Properties, and D.B. Investment application As a re- 3. condition interest, its successor Defendants- instatement, Ortega provide proof of shall Appellees. satisfaction that she has made restitution following persons to the the amount of No. 7323. $30,000 $2,000 Ann Esquivel, to Robert Appeals Court of of New Mexico. $2,433.02 (Rowen- Esquivel, and to Romona horst) Waldrup. April 1984. $5,058.85 in the

Costs amount of are 5,1984. Quashed Sept. Certiorari hereby against Ortega assessed and must paid Disciplinary Board no later

than October published

This order is to be in both the Reports Mexico and the Bar of

New State Mexico

New News and Views.

IT IS SO ORDERED.

RIORDAN, (specially concurring.) J.

RIORDAN, (specially Justice concur-

ring.) holding

I concur in the in this Court’s

disciplinary join I action. do not disagree I

opinion because with the order

of restitution.

First, Ortega I do not believe that should practice again law or be

ever be allowed to

encouraged reapply for admission. *3 registered guests

who were of the hotel. open public hotel for busi- fact, purposes day. ness on that In conducting promotional hotel was several designed customers, activities to attract guests, January and invitees on includ- ing special Super promotion. Bowl working Perales was at the hotel on Jan- uary 15 as assisting prepa- a steward banquets. ration of He admitted to reported intoxicated when he consumption to further of alcohol while on duty. banquet Perales left the area while *4 duty boy on and encountered the near the swimming pool hotel’s area. He enticed bathroom, boy into a hotel locked the them, door behind and sexually assaulted boy. apprehended Perales was later the hotel's kitchen area and admitted the sexual assault. sought by pretrial

Plaintiffs discovery to require produce the hotel personnel to file it maintained on Perales. The hotel file, produce failed to contending that it had been lost. sought recovery against Plaintiffs Albuquerque, plain- Lang, J. for Edmund hotel under (1) several causes of action: s-appellants.

tiff (2) respondeat superior; duty breach of to safety guests invitees; care for the P.A., Baker, and Beall, Larry D. C. Richard (3) provide failure to Reichert, adequate security; (4) Joseph Albuquerque, for William (5) negligent hiring; negligent retention; endants-appellees. def (6) inadequate supervision. and Following plaintiffs’ presentation of their case to the OPINION jury, granted the trial court directed ver- MINZNER, Judge. negligent hiring dicts on the and retention motion, prior On the court’s own claims but denied directed verdicts as to opinion of this court is withdrawn and the the others. discovery Plaintiffs moved for following opinion therefor. substituted against sanctions the hotel for its loss of Q. Lee and Kim Pittard Plaintiffs personnel Perales’ file. The trial court de- brought damages this action to recover suf- plaintiffs’ request nied for a directed ver- (“Pe- Leroy fered when David Perales dict on the hiring and retention rales”) their Pe- sexually assaulted son. claims as a sanction but refused to allow on-duty employee of the hotel rales was testimony regarding foreseeability on mat- Inn, Inc., Four Motor at the time Seasons relating ters jury to the lost file. The Proper- of the incident. D.B. Investment returned a verdict for the hotel on those ties, Inc. is a in interest to the successor issues submitted to it. Plaintiffs raise Four Seasons. appeal: three issues on (1) erroneously

Mrs. Pittard and her son were on the the trial court instructed premises January hotel’s on on the business hotel’s to care for invitees; guests parents, safety guests 1978 as of Mrs. Pittard’s and (2) failing accepted di- the trial court erred the hotel’s contention that plaintiffs negli- verdict personnel rect a file had been lost and found hiring gent and retention claims as a culpable part no conduct on the of the per- sanction for the hotel’s loss of the hotel. file; sonnel and argue Plaintiffs on these facts that the (3) directing the trial court erred in trial court erred when it failed to direct a negligent hiring verdict on the and reten- judgment against verdict or enter default tion claim. retention, negligent hiring, the hotel on the respect We affirm the trial supervision court with disagree. claims. We (1) issues We reverse the trial sup The facts of this case do not (3) respect court with to issue and remand port a conclusion that the trial court the case for a new trial on that issue. respect abused its discretion with to dis covery sanctions. Severe sanctions such as Discovery Sanction Lost Person- denying party right hearing to a nel File. imposed only merits should be' where 37(B)(2) NMSA Civ.P.Rule there is a willful or bad faith failure to (Repl.Pamp.1980) authorizes the trial court comply discovery with a order. United impose against party sanctions for the Corp. Nuclear v. General Atomic Co. obey provide per failure to an order to point Plaintiffs have failed to viola discovery. mit When evidence willfully discovery Moreover, tion of a order here. lost, destroyed or may, the trial court in its there is sufficient evidence in the record to discretion, direct against guilty a verdict *5 support finding the trial court’s that loss of party. Corp. United Nuclear v. General culpable the file was not but inadvertent. Co., 155, 96 N.M. Atomic long The file was lost before motion to (1980), dismissed, 901, appeal 451 U.S. 101 produce was served on the hotel. We will 1966, S.Ct. 68 L.Ed.2d 289 Choice not disturb the trial ruling. court’s imposed of sanctions under this rule lies within the sound discretion of the trial Jury Instruction on Hotel’s Stan- Only court. a clear abuse of discretion will dard Care. of warrant reversal of the choice of sanctions. object given Plaintiffs to Instruction 10

Id. by the general trial court on the hotel’s The record reveals that the hotel’s insur- duty of care. That instruction read: adjuster prepared report ance a on the inci- proprietor The of a hotel an is not dent, file, using personnel Perales’ some safety guests insurer of the of its after report' ten months the incident. The against persons. the acts of third Addi- plaintiffs’ given was to counsel on the first tionally, obligation proprietor the of the day of trial. Plaintiffs learned in June of a hotel does not include an insurance personnel 1981 that Perales’ file had been guest’s person against of the the wilful requested production lost. Plaintiffs of the or employees acts of its not 1982, in November file one month before acting in scope employment. the of their They day the trial. renewed motion the proprietor duty of a hotel is under a before trial and filed a motion limine to only to exercise reasonable care for the arguing restrain the hotel from the fore- safety guests. of the hotel’s seeability of Perales’ actions. No written discovery regard order was filed with to correctly Instructions must state personnel the file. All law and be based on the evidence. and, if plaintiffs together instructions must be read

At trial renewed their com- appli plaint they fairly present the issues and the regarding alleged the file and “will- law, reviewing A requested they ful misconduct.” Plaintiffs that cable are sufficient. preclude the trial court the hotel from rais- the instructions as must consider 34, State, ing foreseeability. the defense of The trial N.M. whole. v. 98 Blackburn 728 (Ct.App.1982). party (Second) 644 P.2d A com- (1965), 548 ment Torts Section 344 of

plaining faulty states: of instructions must show which prejudice before reversal is warranted. possessor A of land who open holds it Seidenberg, 82 N.M. 477 Jewell v. P.2d public entry pur- for his business 296 poses subject liability is to members of public they upon while are land argue prej- that the Plaintiffs instruction for such a purpose, physical harm ways. udiced them in several Their claim accidental, by caused negligent, or prejudice of primarily theory concerns a of intentionally per- harmful acts of third liability recognized has been New animals, by or sons failure of respect Mexico but which we have with possessor to exercise reasonable care to It little case law. differs from claim of (a) discover such acts are respondeat superior. done, or are likely done be or plaintiff injured by employ A (b) give warning adequate to enable may theory ee’s sue assault under a of harm, the visitors to avoid or other- respondeat v. superior. Dessauer Memo protect against towise them it. Hospital, rial General 96 N.M. 628 persons” acting “Third include servants (Ct.App.1981). P.2d 337 In order to recov scope employment. outside the of their Re- theory, er under a respondeat superior § (Second) statement 344 comment b. plaintiff the em must demonstrate that Plaintiffs first contend that the ployee acting scope was within the of his was instruction erroneous because there employment. Gonzales Southwest Se no was set of under which facts Inc., curity and Protection Agency, could have found Perales to be a third (Ct.App.1983). P.2d person meaning within the language Plaintiffs were unsuccessful on their re quoted They argue from Coca. that be spondeat superior claim. cause Perales and on the recognizes innkeep- Our case law that an premises at the time the assault he could may upon er for an be liable assault person. argument a third This guest an employee invitee under a clearly spe erroneous. The Restatement theory: second cifically employees acting defines outside *6 Naturally, innkeeper an is not and cannot scope employment the of their as “third patron be an of a guest insurer or persons.” fact employee The mere that an against personal injuries by inflicted an- duty is on does mean every not that action person premises, other other than scope takes is within employment. he the of agents. Nevertheless, his servants or Plaintiffs next contend that the ho proprietor place the of a of business who tel liable strictly should for the assault. public entry holds it the for out to for his claim They that the “other than ser his purposes, subject liability business is agents” language vants in Coca means guests upon are premises who an innkeeper patron that an insurer of a is by injured who are the harmful acts of injuries by a for inflicted servant. We if, persons by third the exercise of rea- disagree. Coca cites Section 348 of the care, proprietor sonable could have support proposi as for Restatement such discovered that acts were That replaced tion. section has been done, done or to be about and could have 344, by edition holds second Section which protected injury by control- against care,” possessors of land to a “reasonable ling patron. the conduct of the other liability, not strict standard. Had the su 186, Arceo, 189, 71 Coca v. N.M. 376 P.2d preme impose court intended Coca to 970, (1962). 973 liability for the ser strict standard acts of 2 scope cites employment, Coca Restatement Torts of it vants outside the of (1934) authority explicitly. Section 348 as for rule. done The fact could have so provision convincing That is now that embodied in Restate- it did not is evidence that

729 negligence proper is the standard to be mind of the trial court to the claimed error. 1978, 51(1) applied. NMSA Civ.P.R. (Cum.Supp. 1983); Mullen, 11, Poorbaugh v. 99 N.M. Slutsky, Tobin v. 506 F.2d Even 1097 denied, (Ct.App.), 653 P.2d 511 cert. 99 (2nd Cir.1974), upon plaintiffs rely, which 47, (1982). N.M. Plaintiffs impose liability upon does not strict inn specific objection never raised this to the keepers. Innkeepers held are to “reason Rather, they argued trial court. that Pe quality able care commensurate with the of party, rales could not have third been a the accomodations offered” standard. To- recovery contention inconsistent with under recognizes also how bin matter “[n]o proprietor theory, argued business standard, however, strict is hotel liability * * that strict correct stan not insurer 506 an *.” F.2d at 1103. instruction, dard. Plaintiffs offered an There are cases which seem to refused, 1978, which was based on NMSA innkeepers higher hold to a standard for (Repl.Pamp.1980), UJI Civ. 13.10 which is acting employees assaults outside the adopted (Second) from Restatement of of scope theory implied under a of 342, (1965). Torts Sections 343 Plaintiffs legal of a obligation breach or contractual never an tendered instruction which cor innkeeper guests of an to treat with due rectly tracks Section 344. safety consideration for their and comfort. court The trial is affirmed on the

See v. Essex Hotel Boston Crawford instruction issue. (D.Mass.1956); Corp., F.Supp. 143 172 Barker, Clancy 71 Neb. 98 N.W. 440 the Negligent Directed Verdict on (1904), 91,103 reh’g, 71 adhered to on Neb. Hiring and Retention Claims. (1905). N.W. 446 decline to We follow Negligent hiring and is retention a sec- cases to that they these the extent do im theory plaintiff may ond which a assert to pose higher These standard. decisions against employer recover an an employ- an analogy draw which we do not find scope employ- ee’s assault outside the of persuasive between common carriers and Smith, ment. La Lone v. Wash.2d 39 innkeepers. Moreover, New Mexico does § (1951); 234 P.2d 34 A.L.R.2d 372 9 recognize degrees negligence but granted trial court hotel’s applies “ordinary all cases care under motion a directed verdict these the circumstances” standard. NMSA claims, citing Woods, F & T Co. v. (Repl.Pamp.1980) 6.5 UJI Civ. and Commit 697, argue P.2d 745 Plaintiffs tee Comment thereto. distinguishable facts, on its Woods finally Plaintiffs contend that the trial and that there was sufficient evidence of “completely negated” jury’s abili- foreseeability to claim submit the impose ty liability if Perales were found jury. agree. We scope acted employ- to have outside the A directed verdict should be *7 agree We ment. that the instruction does granted only when minds reasonable can clearly point the not out that hotel could to not differ as the result to be reached. the of scope liable if Perales acted outside Co., 90 Owen v. Burn Construction N.M. jury if employment and the found that the (1977). reviewing 91 563 P.2d In the duty to exercise hotel violated its reason- grant appellate of a directed verdict the provide the safety able care to of busi- in light court view the evidence the must might ness visitors. The instruction have non-moving party. most to the favorable provision the much tracked Restatement Bank, Albuquerque 76 Loucks v. National closely. more (1966). N.M. 418 P.2d 191 Woods, to right plaintiff raped by Plaintiffs waived their In the was complaint particular regard employee. employee with raise this defendant’s The had party objecting plaintiff A a television set in to the instruction. to delivered a to the guide of the defendant’s business. jury specifically instruction must the the course . (1935); Hospital, v plaintiffs resi- 489 Pisel returned to employee The Stamford 314, 430 A.2d 1 duty, 180 Conn. off broke days later while dence five residence, rape. the and committed into the a matter of law The court held as Woods in had been introduced the that no evidence hiring negligent a sued on Plaintiff justify submission of the case which would court noted that a theory. The retention employee’s criminal jury. to the The claim record was di- portion of the substantial foreseeable, given the not conduct was inquiry or lack employer’s rected at the case, from the defendant’s facts of past and to the employee’s the thereof into retaining employee. of the The hiring or knowledge of the em- employer’s actual premises the rape occurred off business employ- criminal record. The ployee’s past employee off-duty. was More- while the defendant’s ex-convict. The ee was an over, indications of violent specific no rape prior visited to manager had been part employee were behavior on the by a detective who was investi- question in brought employer’s attention. rapes in the area. The gating previous past a criminal record and Knowledge of person” told that a “colored manager was not make police questioning unfocused did although particular em- suspected, was employee’s conduct foreseeable. by the detective singled out ployee was perpetrator The was one of suspect. as a distinguishable. is Plaintiffs’ This case manager was employees. two black sexually by defendant’s son was assaulted purse belong- a aware of the fact that also Perales, premis- employee, on business rape victim had been ing previous duty. Perales es while Perales was on area. in defendant’s trash found having drinking problem dur- admitted to period employment with defend- ing the recognized negli- court The Woods ant, being violent when he drank. and of cause of action. gent hiring and retention Perales also admitted to drunk while however, stated, “It is not The court day question. in plaintiff prove that defendant enough that retaining hiring or Sand- negligent was evidence from which a There was addition, prove that plaintiff must ers. In might that defendant was aware or find hiring retention of Sanders aware that Perales had a should have been rape.” proximate cause of problem propensity for vio- drinking and a 699-700, at 747-48. The at 594 P.2d N.M. on hotel lence. Two incidents had occurred proximate expressly equated the property shortly before the assault which imposed with a foresee- requirement cause Perales was ter- gave rise to this lawsuit. ability requirement. job from his as dishwasher minated gave rise drinking prior to the incident that is that which Proximate cause that termina- Shortly after this lawsuit. sequence un natural and continuous tion, place of Perales went to defendant’s pro by any independent new causes broken inquire about reinstatement. business injury which the and without duces drunk, the kitchen’s interfered with He was Lopez v. injury not have occurred. would when he was operation, and became violent Maez, premises. He was forci- asked to leave the Foreseeability imposed preclude security per- by defendant’s bly subdued liability defendant’s con finding of where of criminal he left under threat sonnel and chain of the part of the causal duct was prosecution. injury resulting injury could not but reasonably Further, foreseen the de rehired Perales have been defendant later *8 as a stew- position Foresee Perales’ fendant. F & T Co. v. Woods. as a steward. preparation particular help him to in the ability require required does not ard with anticipated, He had some contact consequence banquets. should have been in this connec- and other invitees general some harm or con customers but rather that closely supervised He was not v. New tion. sequence be foreseeable. Gilbert he 216, beverages, which Co., access to alcoholic 44 P.2d had Mexico Const. Also, regularity employer. while on rape, consumed with some the week before the duty. employees were aware of Pe- purse belonging previous Other rape victim regard. rales’ behavior in this was found in the trash area of the business employer Despite and the knew this. this plaintiffs in We hold that have Supreme evidence the Court directed a ver- troduced sufficient evidence to entitle them defendant, that, in holding dict favor of jury. employee’s to reach the Notice of an facts, foreseeability these was not a tendency alcoholism and toward violent be issue. may by havior make sexual assault employee employer. foreseeable to the In this case we have evidence that the jury, judge, The rather than the should employee employer was drunk and the foreseeability determine on these facts. that, knew it. We have evidence after be- Co., Ortega v. Texas-NewMexico Railway ing- previously, employee terminated (1962); 70 N.M. 370 P.2d 201 Hersh v. back, beg job came to the hotel to for his Builders, Inc., Mich. Kentfield violent, forcibly ejected became and was 189 N.W.2d 286 my opinion, In from the hotel. these facts

This cause is compelling remanded to the trial court are less than those in Woods. negligent drunkeness, for a new trial on the hiring prior and Knowledge of of drunke- retention claim. affirm We the trial court day question, in and that the ness respect with appeal. to the other issues on employee pre- became violent after he was terminated, viously goes only to whether IT IS SO ORDERED. hiring in the hotel was or retain- ing employee; it does establish DONNELLY, C.J., concurs. foreseeability. Woods. While I do not NEAL, Judge (concurring part necessarily agree with Woods we are dissenting part): Delgado, to follow it. bound Alexander I disposition concur in the of the dis- 84 N.M. Because covery and instruction I issues. do not agree majority’s attempt I with the cannot agree negligent hiring that the and reten- Woods, distinguish join I do not tion claim gone jury. should have I disposition negligent hiring and re- supports believe F T& Co. v. Woods claim. tention directed verdict. In employer Woods the knew of the em-

ployee’s past criminal record. Less than a plaintiff

week raped, before the was

employer police was visited detective person”

who informed him that a “colored suspected rapes. employ- in some employed by.

ee was one of two blacks