Richardson Ex Rel. Estate of Richardson v. Carnegie Library Restaurant, Inc.

See case details

Gayle D. RICHARDSON, as Personal Representative of the Estate of Wade Fitzsimmons Richardson, Deceased, Petitioner, v. CARNEGIE LIBRARY RESTAURANT, INC. d/b/a The Country Connection, and Bennett-Cathey, Inc., Respondents.

No. 17432.

Supreme Court of New Mexico.

Oct. 18, 1988.

Rehearings Denied Nov. 21, 1988.

763 P.2d 1153

already out of the bag, as far as the jury‘s knowledge of El Paso‘s conduct is concerned, it was not prejudicial to El Paso‘s case for the trial court to order production of the additional documents.

PART FOUR: CONCLUSION AND SUMMARY OF OUR HOLDING ON APPEAL

To summarize, we affirm the trial court‘s judgment on the verdict, and order El Paso to comply strictly, in detail and in good faith, with the trial court‘s permanent injunction.

IT IS SO ORDERED.

SCARBOROUGH, C.J., and STOWERS, J., concur.

Shamas & Perrin, K. Douglas Perrin, Paul Snead, Roswell, for petitioner.

Sanders, Bruin, Coll & Worley, Michael T. Worley, Roswell, for respondents.

William H. Carpenter, Albuquerque, for amicus curiae New Mexico Trial Lawyers Ass‘n.

Miller, Stratvert, Torgerson & Schlenker, Alice Tomlinson Lorenz, Albuquerque, for amicus curiae Defense Lawyers Ass‘n.

Patrick A. Casey, D. Diego Zamora, Santa Fe, for amici curiae Mothers Against Drunk Driving, Students Against Drunk Driving.

OPINION

WALTERS, Justice.

Wade Fitzsimmons Richardson was killed when a two-ton dumptruck driven by Billibob Lewis collided with the car that Richardson was operating. Lewis had become intoxicated at a bar owned by Carnegie Library, Inc.; he subsequently stole the dumptruck from the lot behind Bennett-Cathey, Inc.; and he negligently drove and crashed the truck into Richardson‘s vehicle.

The decedent‘s personal representative, Gayle D. Richardson, brought a wrongful death action against Carnegie and Bennett-Cathey. Her complaint alleged that while Lewis was intoxicated, Carnegie served alcohol to him in violation of the Dramshop Act, NMSA 1978, Section 41-11-1 (Repl. Pamp.1986); that Bennett-Cathey negligently left the keys in the ignition of the unattended dumptruck; and that the negligent acts of both defendants proximately caused Richardson‘s death. The district court granted summary judgment in favor of Bennett-Cathey, entered a default judgment against Carnegie (for failure to answer), and found that Richardson suffered damages for which he would be entitled to recover $250,000 from Carnegie. The court awarded only $50,000, however, finding itself limited by the maximum recovery allowable under the Dramshop Act.

Richardson apрealed the district court‘s ruling to the court of appeals, claiming error in the grant of summary judgment to Bennett-Cathey, and attacking the cap on liability under the dramshop act as unconstitutional. Richardson enumerated several “special circumstances” that would justify the imposition of liability against Bennett-Cathey: Bennett-Cathey knew that the brakes on its truck were inoperative; the lot from which Lewis stole the truck was not fenced and was easily accessible; the area where the truck was parked was frequented by transients; the truck required special skills for safe operation; and the truck was large and bulky and more capable of causing serious injuries than an automobile. She asserted that the theft of the unattended vehicle, with keys left in the ignition, was not an independent, intervening, or superseding act that would exempt Bennett-Cathey from liability. The docketing statement also presented the issue that the damage limitation on dramshop liability violated the United States and New Mexico Constitutions. In her memorandum opposing summary affirmance, Richardson argued that the statute denied equal protection because the damage cap allowed victims of a tavernkeeper‘s negligence to be undercompensated although victims of other tortfeasors were entitled to obtain full recovery; and further, that the damage cap violated her right to a trial by jury as guaranteed by Article II, Section 12 of the New Mexico Constitution because the cap usurped the fundamental function of a jury to determine damages.

The court of appeals, by memorandum opinion, upheld the trial court on all issues. In its first calendar notice, the court proposed affirmance of the summary judgment on grounds that the theft was not foreseeable, but instead was an intervening, superseding, criminal act by a third person. Acknowledging that several jurisdictions look to special circumstances to determine foreseeability of the harm to be caused by the negligence of an owner leaving the keys in an unattended vehicle, and the liability which attends that foreseeability, the appellate court noted that it could not overrule our opinion in

Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963), by which it felt itself bound. See

Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (lower courts should not overrule precedents set by superior court).

Regarding the equal protection issue, the calendar notice considered that the damage cap concerned no fundamental rights and implicated no suspect classes. The court employed, therefore, the rational basis standard of review and looked to the purposes of the challenged statute. It then reasoned that the legislature had “created a cause of action” subsequent to this court‘s “creation” of a common-law cause of action for tavernkeeper negligence, and that its purpose was to limit dramshop liability in exchange for creating that new cause of action. Impressed that the damage cap applied equally to all persons seeking to recover under the dramshop act, the court‘s notice proposed affirmance on a determination that the statute did not unconstitutionally violate the equal protection clause.

In its second calendar notice, the court of appeals addressed the jury trial issue, and reiterated its conclusion that the legislature had transformed a common-law cause of action into a statutory one. It then concluded that Richardson had a right to a trial by jury on the question of liability, but that he had no right to have a jury determine the amount of his damages because the statutory action limited the amount of liability. The court of appeals, therefore, summarily dismissed Richardson‘s appeal and affirmed the trial court by memorandum opinion.

We granted Richardson‘s petition for writ of certiorari and gave leave to file amicus curiae briefs to the New Mexico Trial Lawyers Association (NMTLA), the Defеnse Lawyers Association (DLA), Mothers Against Drunk Drivers (MADD), and Students Against Drunk Drivers (SADD). The only issue addressed by all of the amici briefs in support of the petitioner‘s application for review is the constitutionality of the dramshop act.

MADD and SADD point out that New Mexico has one of the most severe drunk-driving problems in the United States and that every conceivable approach to resolve the drunk-driving menace is needed. They agree that dramshop liability is an effective measure in curbing drunken driving, but that the salutary impact of the dramshop act is diffused by the damage cap. Urging that the limit on recovery is inconsistent with the purpose for imposing liability, they emphasize that reinforcing dramshop liability and invalidating the damage cap would best serve the public interest.

NMTLA challenges the damage cap as unconstitutional violations of the due process and equal protection clauses, the right to trial by jury, and the doctrine of separation of powers. Regarding the separation of powers argument, NMTLA contends that the legislatively mandated damage cap prevents judges from exercising their historic procedural power to exercise discretion in reviewing the excessiveness of a jury‘s award upon a motion for a new trial under SCRA 1986, 1-059; and that it compels judges to order a remittitur, another discretionary act historically inherent in a trial judge‘s powers. Because procedural rules are within the sole domain of the supreme court, and because the statutory limitation on liability impinges upon the provisions of Rule 59, NMTLA insists with some logic that the damage cap constitutes a legislative usurpation of judicial power and thus violates the doctrine of separation of powers.

NMTLA proposes, too, that the damage cap violates the right to trial by jury, arguing that the legislature did not transform dramshop liability from an action at common law to a statutory cause of action but, rather, only narrowed and modified thе judicially-created common-law liability that was established in

Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982). Thus, because a plaintiff has a fundamental right to have a jury determine liability and damages in a common-law action, NMTLA argues that the damage cap unconstitutionally infringes on a party‘s right to trial by jury.

Amicus NMTLA contends that the damage cap also infringes the due process and equal protection clauses of the New Mexico Constitution because the rights to a jury trial and of access to the courts, being fundamental constitutional rights, are rendered meaningless if full and adequate recoveries are not available to all plaintiffs. NMTLA has traced these rights from their historic geneses in Spanish and Mexican laws, the Siete Partidas, the Fuero Juzgo, and the Kearney Code, and it concludes that all formed an integral part of the civil law in the days before statehood and were incorporated into the New Mexico Constitution. Accordingly, NMTLA argues that the damage cap is subject to strict scrutiny under which it surely must be invalidated, but that even under the minimal rational basis analysis, no justification exists to uphold a limitation on the award of damages.

DLA, from an opposing position, argues that Richardson has no standing to raise the jury trial issue because she never requested a jury trial. On the issue of recoverable damages, it takes the stance that the legislature changed dramshop liability to a statutory action from one at common law and, thus, because it created the liability, it can limit the amount of recovery. We are urged to disregard the separation of pow-ers, due process, and right of access to the courts issues because they were not briefed or argued at trial and, therefore, are not properly before us for consideration. But DLA does respond to some of the amici arguments, urging that the separation of powers doctrine is inapplicable here because the judiciary promulgates procedural rules out of convenience and efficiency only; and thе right of access to the courts merely refers to the availability of the judicial machinery to resolve disputes and is not a right guaranteed explicitly in the New Mexico Constitution.

Regarding the equal protection issue, DLA asserts that we are not here dealing with fundamental rights or suspect classes. Any rights found in the Kearney Code or any other civil law predating statehood, it says, were not adopted by or incorporated into the New Mexico Constitution. Moreover, characterizing the dramshop act as social and economic legislation reviewable by the rational basis test, it denies that any right to full compensation can be implied from the guarantee of certain inalienable rights in Article II, Section 4 of our constitution. DLA views the damage cap as rationally related to the dual legislative goals of compensating victims injured as the result of the negligent service or sale of alcohol but not overburdening tavernkeepers, conjecturing that recovery under the dramshop act probably will not be the only source of recovery available to such a plaintiff.

Responding to whether Richardson properly preserved certain constitutional issues for appeal, NMTLA points to Richardson‘s broad claim that the damage cap was unconstitutional, which opened the door for amici to explain in more detailed and specific analyses under the right to jury trial, due process, and equal protection clauses of the New Mexico Constitution, exactly why the statute is invalid. But DLA is correct in asserting that two of the issues, separation of powers and due process, cannot be raised for the first time on appeal. See

Romero v. Sanchez, 86 N.M. 55, 56, 519 P.2d 291, 292 (1974) (court will not consider claim offered for first time on appeal);

State ex rel. Brown v. Hatley, 80 N.M. 24, 25, 450 P.2d 624, 625 (1969) (same). It is not enough for a party to make a broad, general assertion that a statute is unconstitutional and then leave it to amici to develop and refine her arguments. The complainant must specify in what manner his оr her constitutional rights are affected adversely.

State v. Hines, 78 N.M. 471, 474, 432 P.2d 827, 830 (1967). Richardson did not request resolution, in either the trial court or the court of appeals, of the separation of powers and due process claims raised by NMTLA, and we will not consider new issues presented for the first time on appeal through amicus briefs.

St. Vincent Hosp. v. Salazar, 95 N.M. 147, 149, 619 P.2d 823, 825 (1980).

DLA is likewise correct in observing that Richardson did not request a jury trial. Failure to demand a jury trial in a timely manner constitutes a waiver of a trial by jury. SCRA 1986, 1-038(D). Even though this issue was addressed by the court of appeals in its notices of proposed affirmance, we will not consider in this review the jury trial issue. We do not consider, therefore, whether the limit on dramshop liability violates Richardson‘s right to a jury‘s determination of damages in a common-law cause of action.

NMTLA, however, correctly analyzes right of access to the courts as an implicit fundamental right entitled to the equal protection guarantees of the Constitution. Richardson claimed an equal protection violation in the court below; consequently, whether a right of access to the courts is violated by the damage cap is a relevant question in determining whether a fundamental right is contravened. That, in turn, is likewise relevant in determining which standard of review to apply in analyzing the equal protection right guaranteed by Article II, Section 18 of the New Mexico Constitution.

Recently we discussed, in

Meyer v. Jones, 106 N.M. 708, 749 P.2d 93 (1988), that in equal protection attacks upon statutes, at least three tests for reviewing such challenges have been recognized and applied. Traditionally, the United States Supreme Court long had employed a two-ti-ered analysis: minimum scrutiny, or the rational basis test, when reviewing social and economic legislation,

McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and strict scrutiny when analyzing legislation that infringed fundamental constitutional rights or made distinctions directed toward suspect classes.¹ The tests for reviewing equal protection challenges generally are the same under New Mexico and federal law.²

We have observed that a statute infringing fundamental rights or involving suspect classes must support a compelling state interest to escape judicial invalidation.

State v. Edgington, 99 N.M. 715, 718, 663 P.2d 374, 377 (Ct.App.), cert. denied,

99 N.M. 644, 662 P.2d 645, cert. denied,

464 U.S. 940, 104 S.Ct. 354, 78 L.Ed.2d 318 (1983). We have also said that legislative acts are presumptively valid and normally are subjected to the rational basis test; it is well-settled that they will not be declared invalid unless the court is clearly satisfied that the legislature went outside the constitution in enacting them.

Espanola Hous. Auth. v. Atencio, 90 N.M. 787, 788, 568 P.2d 1233, 1234 (1977);

Board of Trustees v. Montano, 82 N.M. 340, 343, 481 P.2d 702, 705 (1971). The burden of proof is on the plaintiff to demonstrate that the challenged legislation is clearly arbitrary and unreasonable, not just that it is possibly so.

Sanchez v. M.M. Sundt Constr. Co., 103 N.M. 294, 296, 706 P.2d 158, 160 (Ct.App.1985);

Gallegos v. Homestake Mining Co., 97 N.M. 717, 722, 643 P.2d 281, 286 (Ct.App.1982). The fact that a statute appears unreasonable to the courts is not decisive; that is not enough to invalidate an act.

Hutcheson v. Atherton, 44 N.M. 144, 149, 99 P.2d 462, 465 (1940). Only when a statutory classification is so devoid of rational support or serves no valid governmental interest, so that it amounts to mere caprice, will it be struck down under the rational basis test.

Montano, 82 N.M. at 343, 481 P.2d at 705;

Hutcheson, 44 N.M. at 149, 99 P.2d at 465;

Edgington, 99 N.M. at 719, 663 P.2d at 378. When employing the minimal scrutiny test, the courts neither will inquire into the wisdom, policy, or justness of legislation, nor will they substitute their views for that of the legislature, but rather will uphold the statute if any state of facts reasonably can be conceived that will sustain the challenged classification.

Garcia v. Albuquerque Pub. Schools Bd. of Educ., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct.App.1980), cert. quashed,

95 N.M. 426, 622 P.2d 1046 (1981). The rational basis test, therefore, employs no independent review or analysis of the factual basis of the state‘s goal, or of the means designated by the statute to attain that goal. Nowak, Realigning the Standards of Review Under the Equal Protection Guarantee—Prohibited, Neutral, and Permissive Classifications, 62 Geo.L.J. 1071, 1094 (1974).

An intermediate equal protection standard of review, somewhere between the rational basis and strict scrutiny standards, arose more recently out of the Supreme Court‘s dissatisfaction with the traditional, two-tiered analysis. See

Craig v. Boren, 429 U.S. 190, 210 n. *, 97 S.Ct. 451, 463 n. *, 50 L.Ed.2d 397 (1976) (Powell, J., concurring); Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 17–19 (1972). Accordingly, the third test has been aimed at legislative classifications infringing important but not fundamental rights, and involving sensitive but not suspect classes. L. Tribe, American Constitutional Law § 16-33, at 1610, 1613 (2d ed. 1988). The Court first enunciated the intermediate (or “hеightened scrutiny“) test in

F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920), when it declared that a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. See

Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) (employing Royster‘s intermediate scrutiny test to invalidate statute based on gender classification); see also

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441, 105 S.Ct. 3249, 3255, 87 L.Ed.2d 313 (1985) (under heightened standard of review, classification fails unless it is substantially related to sufficiently important or legitimate governmental interest). The Court has applied the intermediate analysis principally to statutes that classify according to gender and illegitimacy. See

City of Cleburne, 473 U.S. at 440–41, 105 S.Ct. at 3254–55.

Although we have referred to the Supreme Court‘s use of the third, intermediate standard of review, see

McGeehan v. Bunch, 88 N.M. 308, 310, 540 P.2d 238, 240 (1975), on occasion we have muddied the constitutional waters in New Mexico by interchangeably using the rational basis and intermediate tests as if they were identical. For example, in

McGeehan, the court considered the validity of an automobile guest statute, construed the act as social and economic legislation, and cited the applicable standard of review as the intermediate test that was enunciated in

Reed. See

McGeehan, 88 N.M. at 310, 540 P.2d at 240. The court described the facets of the rational basis test, declared the legislative classification unreasonable and arbitrary,

id. at 311, 540 P.2d at 241, but said also that the statute had no “fair and substantial relation” to its goal.

Id. at 313–14, 540 P.2d at 244. In the end, the court invalidated the guest statute as violative of the equal protection clause, but it is not clear on which standard of review it relied to do so; and if the court employed both the rational basis and intermediate tests to strike the statute, the opinion is not clear why the court used both instead of either.

The imprecision was perpetuated in

Pruey v. Department of Alcoholic Beverage Control, 104 N.M. 10, 715 P.2d 458 (1986). In considering an equal protection challenge to regulations prohibiting the sale of alcohol on Sundays, the court quoted the rational basis test as outlined in

McGowan, and then cited the intermediate test and

Reed and

McGeehan in support.

Id. at 12, 715 P.2d at 460. The court seemed to consider the two tests as different manifestations of the same principle; but the court uрheld the statute as having a rational basis.

Id. at 13, 715 P.2d at 461.

The confusion probably is a result of a misinterpretation of the longstanding precedent that legislative classifications must be based upon substantial distinctions. See

State v. Atchison, T. & S.F. Ry., 20 N.M. 562, 570, 151 P. 305, 307 (1915). That rule is found in

Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965), an opinion often cited for its explication of the rational basis standard of review, wherein it was said that the equal protection clause “does not prohibit classification for legislative purposes, provided that there is a rational and natural basis therefor, that it is based on a substantial difference between those to whom it does and those to whom it does not apply * * *”

Id. at 778, 399 P.2d at 107. In

Gruschus, the challenged statute was found reasonable and not arbitrary, affording substantially equal treatment to all persons similarly situated.

Id. at 779, 399 P.2d at 108. The test might better be stated as one assuring that classifications are based on real differences bearing a rational and proper relationship to the classification. See

Community Pub. Serv. Co. v. New Mexico Pub. Serv. Comm‘n, 76 N.M. 314, 317–18, 414 P.2d 675, 677, cert denied,

385 U.S. 933, 87 S.Ct. 292, 17 L.Ed. 2d 213 (1966);

Burch v. Foy, 62 N.M. 219, 224, 308 P.2d 199, 202 (1957). The

Espanola Housing court said that the question is whether the reasons advanced for validity of a statute were “real and pertinent differences or merely artificial differences * * * not relevant to the classification involved.”

90 N.M. at 789, 568 P.2d at 1235.

Thus, the rational basis test, which requires classifications to be based on substantial or real distinctions and be rationally related to the legislative goal, is different from the intermediate test, which requires a classification to be more than just rationally related to the statutory purpose; it requires also that the classification be substantially related to an important state interest. Additionally, a key difference in the tests is that under rational basis the party objecting to the legislative classification has the burden of demonstrating that the classification bears no rational relationship to a conceivable legislative purpose whereas under heightened scrutiny the party maintaining the validity of the classification must prove that the classification is substantially related to an importаnt governmental interest. See

Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).

Our research discloses that only the Supreme Court of Minnesota has considered the constitutionality of a limitation on damages for dramshop liability. Employing the rational basis test,

McGuire v. C & L Restaurant, Inc., 346 N.W.2d 605 (Minn. 1984), invalidated the liability limitations as violative of the state equal protection clause.

Id. at 613. In similar challenges to medical malpractice damage caps, however, several jurisdictions have considered the equal protection argument. We have found those cases most instructive in that for all practical purposes ‍​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌‌‌​‌‍the constitutional analysis of medical malpractice limited liability legislation is identical to an equal protection analysis of limited dramshop liability. Thus, we discuss some of those decisions.

Some courts have construed the damage caps as social and economic legislation and have upheld them after reviewing the legislation under the rational basis test.³

separate intermediate courts in Texas have invalidated legislation that limited liability for medical malpractice actions, purportedly using the rational basis standard of review.⁴ The Supreme Court of Texas, also applying the minimum standard in a yet-unreleased opinion, recently affirmed the invalidity of the statutory liability limitation in

Lucas v. United States, 757 S.W.2d 687 (1988), holding the cap to be “unreasonable and arbitrary” when balanced against the purpose and basis of the legislation.

Id. at 690. In

Lucas, the Texas Supreme Court had no difficulty in determining under the rational basis standard that an unreasonable and arbitrary cap on medical malpractice damages was an unconstitutional denial of a “remedy by due course of law.”

757 S.W.2d at 690.

Three other jurisdictions have invalidated damage limitation provisions as violative of a plaintiff‘s explicit, state constitutional right to full recovery in a tort action, employing a strict scrutiny analysis to do so. See

Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984);

Smith v. Department of Ins., 507 So.2d 1080, 1088 (Fla. 1987);

Pfost v. State, 713 P.2d 495, 503 (Mont.1985). Several other courts have held that the right to recover damages for personаl injuries is not a fundamental right and that the class of victims denied full recovery is not a suspect class; but those courts have declared further that the rights infringed by medical malpractice legislation are sufficiently important and substantive, and the class of persons affected sufficiently sensitive, to justify invoking an intermediate standard of review to invalidate the statutes.⁵

In determining which standard of review to apply in the equal protection analysis of the damage cap in the present case, we note first that no suspect class is involved. A suspect class has been defined as a discrete group “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973); see

Lyng v. Castillo, 477 U.S. 635, 635, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527 (1986);

Plyler v. Doe, 457 U.S. 202, 216 n. 14, 102 S.Ct. 2382, 2394 n. 14, 72 L.Ed.2d 786 (1982). Only statutory classifications based on race, national origin, or alienage so far have been treated as suspect. Wilkinson, The Supreme Court, The Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Va.L.Rev. 945, 951 (1975). The class of tort victims denied full recovery for dramshop liability does not rise to the level of “suspectness” under existing precedent and, therefore, does not trigger strict scrutiny.

Secondly, we address the question of whether the damage cap infringes upon any fundamental constitutional rights. A fundamental right is that which the Constitution explicitly or implicitly guarantees.

Rodriguez, 411 U.S. at 33–34, 93 S.Ct. at 1296–1297. The petitioner and amicus NMTLA argue that the damage cap violates her right of access to the courts and her right to full recovery in tort. Neither of these “rights” is guaranteed explicitly in our constitution. We have declared, however, that the right of access to the courts is one aspect of the right to petition for redress of grievances, and we have acknowledged that right as one guaranteed by the first amendment to the federal constitution and also protеcted by both the United States and New Mexico Constitutions by the prohibitions against “depriving a person of life, liberty or property without due process of law.”

Jiron v. Mahlab, 99 N.M. 425, 426, 659 P.2d 311, 312 (1983). We once again recognized a “plaintiff‘s constitutional right to petition for redress” in

Otero v. Zouhar, 102 N.M. 482, 486, 697 P.2d 482, 486 (1985).

With regard to whether the right to full recovery reaches fundamental status, the argument is that Article II, Section 4 of the New Mexico Constitution guarantees a fundamental right to be compensated fully and adequately for injuries that result from negligent behavior. That provision reads: “All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, * * * and of seeking and obtaining safety and happiness.” N.M. Const. art II, § 4. Some commentators assert that this is “textual evidence of an intent on the part of the constitutional ratifiers to afford substantive protection against the power of the state to impair economic interests.” Developments in The Law—The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1480 (1982). But because we do not think it necessary, we decline at this time to interpret this provision as implicitly guaranteeing a fundamental right to full recovery in tort actions, so as to trigger a strict scrutiny analysis.

Acknowledging, also, our recognition of a constitutional right of access to our courts, we do not apply strict scrutiny to the issue of full recovery, principally because we conclude that the damage cap is constitutionally invalid under the lesser, intermediate scrutiny test. It is thus unnecessary to impose the highest level of review.

We are aware that in the history of the interpretation of the federal equal protection clause, the rational basis test generally has been minimal scrutiny in theory and has amounted to virtual judicial abdication in fact, whereas maximum scrutiny has been strict in theory and almost always fatal in fact. Gunther, 86 Harv.L.Rev. at 8. Strict scrutiny has operated as an anti-majoritarian safeguard. Tribe, § 16-31, at 1588; Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional “Quid Pro Quo” Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143, 152 (1981). Accordingly, the application of the strict scrutiny test has resulted in the virtual immunization of certain liberties from legislative affliction. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One‘s * * * fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943).

By contrast, the rational basis test affords minimal scrutiny because of the concept that “it is constitutionally appropriate to ‘fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than than to transfer such a contest to the judicial arena,’ since all the ‘effective means of inducing political changes are left free.‘”

Id.; see

Cleburne, 473 U.S. at 441–42, 105 S.Ct. at 3255–56 (because of doctrine of separation of powers, courts should be reluctant to closely scrutinize economic and social legislation, but rather should employ rational basis test). The primary theoretical basis for deferring to the legislature when applying the rational basis test, then, is that political entities can respond best to the electorate and can experiment with and allocate the state‘s often limited resources in a manner that best reflects the concerns of their constituencies over social and economic issues. See Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex.L.Rev. 759, 761 (1977); Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 366 (1949). In our own jurisprudence, we also have observed that courts should be hesitant to overturn a statute other than on fundamental rights grounds because the separation of powers doctrine mandates deference to a legislative determination of reasonableness.

Edgington, 99 N.M. at 718, 663 P.2d at 377.

In advancing the intermediate test as a third level of review, the Supreme Court has “recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties” and in those “limited circumstances” the Court seeks “assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a substantial interest of the State.”

Plyler, 457 U.S. 202, 217–18, 102 S.Ct. 2382, 2395. And although even the Supreme Court has presented the heightened scrutiny test in a myriad of fashions, it has been characterized, in whatever form, at least by a “sharper focus” on legislative classifications “poised between the largely toothless invocation of minimum rationality and the nearly fatal invocation of strict scrutiny.” Tribe, § 16-32, at 1601; see

Cleburne, 473 U.S. at 451, 105 S.Ct. at 3260 (Stevens, J., concurring) (standards of review for equal protection challenges reflect “a continuum of judgmental responses to differing classifications which have been explained in opinions by terms ranging from ‘strict scrutiny’ at one extreme to ‘rational basis’ at the other“).

Some critics have said that when courts elect to apply the intermediate test, they abandon judicial objectivity and make subjective judgments that lack constitutional support, thereby succumbing to the temptation to usurp the legislature‘s function by making highly political decisions about certain social and economic issues. See, e.g., Redish, 55 Tex.L.Rev. at 782; Note, Fein v. Permanente Medical Group: Future Trends in Damage Limitation Adjudication, 80 Nw.U.L.Rev. 1643, 1663–64 & 1673 (1986). But judicial scrutiny always requires judgments about legislative decisions, and that is particularly so when heightened scrutiny is called for. See

Cleburne, 473 U.S. at 443, 105 S.Ct. at 3256;

Coburn, 627 F.Supp. at 991. See generally Haines, General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges, 17 Ill.L.Rev. 96, 112–14 (1922). We do not consider that the intermediate constitutional review process necessarily constitutes “abandonment” of any judicial responsibilities but, instead, hones the indispensable requirement of detаched analytical examination of competing interests between legislative power and constitutional restraints.

To support our application of the intermediate test we are impressed with Professor Tribe‘s observation that the heightened, intermediate standard of review is a judicial response to an awareness that the all-or-nothing choice between minimum rationality and strict scrutiny ill-suits the broad range of situations arising under the equal protection clause, many of which are best dealt with neither through the virtual rubber-stamp of truly minimal review nor through the virtual death-blow of truly strict scrutiny, but through methods more sensitive to risks of injustice than the former and yet less blind to the needs of governmental flexibility than the latter. [Emphasis added.] Tribe, § 16-32, at 1609–10; see

Cleburne, 473 U.S. at 460, 105 S.Ct. at 3265 (Marshall, J., dissenting) (“level of scrutiny employed in an equal protection case should vary with ‘the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn‘“). We agree that implementing the intermediate test in appropriate circumstances narrows the wide gap between strict and minimal scrutiny, “not by abandoning the strict but by raising the level of the minimal from virtual abdication to genuine judicial inquiry.” Gunther, 86 Harv.L.Rev. at 24.

It is clear from the foregoing discussion that the limitation of a full tort recovery at issue here under Section 41-11-1(I) implicates a substantial and important individual interest. For substantial and important individual interests, we invoke an intermediate standard of review because we think it best strikes the balance between the legislature‘s constitutional prerogative to deliberate over and counterbalance the variety of interests involved in social and economic issues, and the judiciary‘s constitutional responsibility to strictly scrutinize legislation that either infringes upon fundamental rights or impacts upon suspect classes. Viewing this constitutional balance within the separation of powеrs context, which is the gist of opposition to it, we are satisfied that we neither trample arbitrarily upon the legislature‘s preferred position of direct, political accountability to the electorate, nor do we forsake our duty to protect individuals from the deleterious effects of controversial social and economic legislation that, in this case at least, could result in economic devastation of innocent victims simply by the fortuitous happenstance of the tortfeasor‘s status. We see no usurpation of power in a heightened scrutiny of legislation in those limited circumstances when the class implicated is so sensitive to injustice and the rights affected are so substantial and important that they warrant special judicial attention.

Section 41-11-1 tacitly makes three separate classifications: a class of victims suffering from injuries resulting from the negligence of a tavernkeeper as distinguished from victims of another tortfeasor‘s negligent conduct; a class of victims suffering from the negligence of tavernkeepers whose injuries amount to less than $50,000 lumped together with those victims whose injuries resulting from the same cause are in excess of that damage limitation; and a class of tortfeasors accorded the benefit of the $50,000 cap as distinguished from all other tortfeasors, most of whom are liable for the full amount of damages they cause. We believe that these classifications effect a substantial injustice in this case. The classifications infringe an individual‘s important interest to be compensated fully for his injuries, especially when, as is alleged in the instant case, they are a result of no fault of his own. This interest, in our view, certainly is amply important and substantial to justify the invocation of at least the heightened, intermediate test instead of the minimum rationality test. We are per-suaded also that the class of tort victims affected by the damage cap is “sensitive” enough to the injusticе wrought to warrant applying the heightened test. Consequently, we take the intermediate approach and analyze the constitutional challenge in this case under heightened scrutiny.

We commence our examination by repeating that the court of appeals erred in its equal protection analysis of the damage limitation. A legislative classification not only must affect equally all persons within the class to which the legislation applies but, to begin with, the legislature must have a legitimate purpose for creating the class, and a constitutionally permissible reason for treating persons within that class differently from those without. See

McLaughlin v. Florida, 379 U.S. 184, 190, 85 S.Ct. 283, 287, 13 L.Ed.2d 222 (1964). In light of those considerations, the court of appeals erred in concluding that the damage cap did not violate the equal protection clause because it applied equally to all persons affected by the dramshop act. “Judicial inquiry under the Equal Protection Clause * * * does not end with a showing of equal application among the members of the class defined by the legislation.”

Id. at 191, 85 S.Ct. at 288. No argument has been presented to us to persuade us that the classifications created by the legislation are constitutionally legitimate and, under the

McLaughlin dictate, we have been unable to discern or discover any by our own reasoning processes.

Plaintiff has presented a prima facie showing of an arbitrary and unreasonable denial of equal protection and of a restriction on a plaintiff‘s right of access to the courts. On the other hand, respondent completely failed to carry its burden of demonstrating that any substantial interest of the state is furthered by the legislation. In the absence of any contrary showing by respondent, we cannot think of legitimate public good or supportive policy reasons that are promoted by the special protection of tavernkeepers in the dispensation of intoxicating liquor. We are distinctly unable to rationalize a legitimate or substantial reason for limiting the liability of a tavernkeeper who has a duty not to place drunks behind the wheel of a vehicle on the highway when, by contrast, a rancher or farmer is fully liable for negligently allowing his livestock to meander dumbly into the path of oncoming vehicles. See NMSA 1978, §§ 30-8-13 (Repl. Pamp.1984) & 66-7-363 (Repl.Pamp.1987).

Even though we agree that the legislature most often is better suited to make such policy determinations, a heightened scrutiny of legislation that infringes substantial and important individual interests, such as we have here, compels us to the conviction that the liability cap works a manifest injustice on innocent tort victims and lacks any of the redeeming features entitling it to constitutional validity. Absolutely nothing was shown sufficient to overcome plaintiff‘s arguments, or to demonstrate that the damage limitation in Section 41-11-1(I) has a substantial relationship to a legitimate or important governmental purpose and we have been unable to fathom one. The cap on damages mandated by Section 41-11-1(I) simply does not withstand heightened scrutiny, and we hold it to be constitutionally invalid as violative of the equal protection clause.

Turning to the other issue, we acknowledge that, as in

Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963), a substantial number of courts has not held owners liable for leaving the keys in their unattended vehicles and for the injuries to third persons as a result of the thefts and subsequent negligent operation of those vehicles. Those courts have concluded either that an owner owes no duty to the general public to guard against the risk of a thief‘s negligent operation of a vehicle in which the owner left his keys; that the theft and subsequent negligence of the thief could not reasonably be foreseen by the owner as a natural or probable consequence of leaving the keys in the ignition of the car; or have concluded that even if the owner was negligent, his actions were not the proximate cause of the injuries because the thief‘s actions constituted an independent, intervening cause.⁶

An emerging grouр of jurisdictions, on the other hand, has rejected the contention that an intervening criminal act automatically breaks the chain of causation as a matter of law, concluding instead that a reasonable person could foresee a theft of an automobile left unattended with the keys in the ignition and reasonably could foresee the increased risk to the public should the theft occur.⁷ In addition, a few courts, including some of those that earlier denied liability, have indicated a willingness to impose liability upon the owner under “special circumstances.”⁸ Courts looking at special circumstances seek to determine whether an owner‘s conduct enhanced the probability that his car would be stolen and thus increased the hazard to third persons. Considering special circumstances, then, is just another way of examining the degree of foreseeability of injury and whether the owner is subject to a duty to exercise reasonable care.

Vadala v. Henkels & McCoy, Inc., 397 A.2d 1381 (Del.Super. 1979), listed some of the circumstances aiding the court in its resolution of a similar case:

(a) the vehicle in question is of a type which may attract potential intermeddlers who are unlikely to have the necessary knowledge and skill to operate it safely;

(b) that vehicle is capable of inflicting more serious injury and damage than an ordinary vehicle when not properly controlled;

(c) no security measures were taken after it became evident that the lock which secures the gate to the truck yard had been partially cut and an intoxicated individual was loitering nearby. * * *

Id. at 1383.⁹

NMSA 1978, Section 66-7-353, which prohibits leaving a motor vehicle to stand unattended without “first stopping the engine, locking the ignition, [and] removing the key,” was enacted for the purpose of promoting public welfare and safety.

Bouldin, 77 N.M. at 332, 378 P.2d at 372. Prevention of the kinds of unfortunate circumstances that occurred in this case from failure to comply with the statute would be conducive to promoting public safety. When “а person by his own negligence produces a dangerous condition of things, which does not become active for mischief until another person has operated upon it by the commission of another negligent act, which might not unreasonably be foreseen to occur, the original act of negligence is then regarded as [a] proximate cause of the injury which finally results.”

Thompson v. Anderman, 59 N.M. 400, 412, 285 P.2d 507, 515 (1955).

Some of the members of this Court believe that our adoption of comparative negligence as the rule of law in this jurisdiction,

Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), commits us to the principles there expressed that if a jury finds more than one party to have been negligent, a verdict “requiring wrongdoers to share the losses caused, at the ratio of their respective wrongdoing, * * * fairly distributes the burden of fault” and “holds all parties fully responsible for their own respective acts to the degree that those acts have caused harm.”

Id. at 689–90, 634 P.2d at 1241–42. See, e.g.,

St. Sauver v. New Mexico Peterbilt, Inc., 101 N.M. 84, 87, 678 P.2d 712, 715 (1984);

Ramirez v. Armstrong, 100 N.M. 538, 542–43, 673 P.2d 822, 827–28 (1983);

Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 158–59, 646 P.2d 579, 585–86 (Ct. App.), cert. denied,

98 N.M. 336, 648 P.2d 794 (1982). There is a divergence in the opinions of members of this Court, however, whether questions of fact are presented in any inquiry into whether an owner reasonably could foresee that his vehicle might be stolen if he left it unattended, unlocked, and with the keys in its ignition, and whether he reasonably could anticipate that the thief might drive negligently and injure someone, see

Ney v. Yellow Cab Co., 2 Ill.2d 74, 83, 117 N.E.2d 74, 80 (1954), or whether

Bouldin was correct in holding, as a matter of law, that such ensuing theft and subsequent negligence resulting in injury were not natural, foreseeable events attendant upon leaving one‘s keys in the vehicle.

Consequently, a majority of the Court being unable to reach agreement on the

Bouldin issue at this time, we do not disturb the summary judgment entered by the trial court in favor of Bennett-Cathey.

We remand the case to the district court for entry of judgment in the amount of $250,000 against defendant Carnegie. IT IS SO ORDERED.

SOSA, Senior Justice, concurs.

RANSOM, J., specially concurring.

STOWERS, J., dissenting.

SCARBOROUGH, C.J., not participating.

RANSOM, Justice (specially concurring).

Access to the courts is the implicit and universal constitutional right of persons seeking a remedy for harm caused by others. Access is conditioned only upon existence of some breach of duty that gives rise to a cause of action recognized at law. I agree that full tort recovery under this right is a substantial and important individual interest.

In 1966,

Hall1 held there was no recognition of a tavernkeeper‘s liability at common law. In 1977,

Marchiondo2 noted it would not be improper for the court to address the issue in the absence of legislative action. In 1982, changing what it characterized as an outmoded and unjust rule of law, the

Lopez3 court followed those states which, by reason of their legislature‘s failure to act, have imposed tavernkeeper‘s liability under common-law negligence principles. In doing so,

Lopez recognized statutory or regulatory duties of a tavernkeeper to refrain from serving an obviously intoxicated person. In 1986, the legislature capped the tavernkeeper‘s liability at $50,000.

I agree that the substantial individual interest in full tort recovery requires a substantial state interest before the former may be altered for any class of persons. I concur in this Court‘s adoption of the intermediate scrutiny test for review of this equal protection issue.

I further agree that, on its face, there is discernable from the legislation no substantial or important governmental interest in selecting for limited tort recovery the more seriously injured victims ‍​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌‌‌​‌‍of persons wrongfully served alcoholic beverages; nor any such interest in selecting for special protection those tavernkeepers who sell alcoholic beverages to persons known to be intoxicated.

This case does not demonstrate, however, that a substantial state interest might not have been shown if the defendant had pressed forward responsibly with the burden enunciated by this Court today. See

Jones v. State Bd. of Medicine, 97 Idaho 859, 871–74, 555 P.2d 399, 411–14 (1976) (remanding for full development of record as to any real crisis for the Idaho health care industry to which a cap on medical malpractice recoveries may bear a fair and substantial relationship), cert. denied,

431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). Here, there is no record. The party with the burden of showing a substantial state interest in limited tort recovery against tavernkeepers stood mute, in default.

While I would be dissatisfied with anecdotal evidence and speculative argument about the impact of full tort recovery in New Mexico, I can fathom the production of evidence from which might be found a real crisis to those affected industries in whose welfare this state has an important governmental interest. Consequently, I would apply the holding of this case to the defaulting defendant alone, and I would reserve for future decision, on a fully developed record, whether unconstitutionality of limited tort recovery has universal application against tavernkeepers.

STOWERS, Justice (dissenting).

I respectfully disagree with the majority‘s holding on the “damage cap” issue and its reasoning on the liability of defendant, Bennett-Cathey, Inc. I believe the rational basis test is the appropriate standard of review of the “damage cap” mandated by NMSA 1978, Section 41-11-1(I) (Repl. Pamp.1986), the statute is rationally related to a legitimate state purpose and does not violate the Equal Protection Clause of the United States and New Mexico Constitutions. A careful examination of the statute, as set forth below, reveals that there is no constitutional violation. Although I agree with the majority that summary judgment was properly granted in favor of Bennett-Cathey, I cannot agree with the reasoning espoused in that opinion. Any negligence by Bennett-Cathey, in leaving the keys in the ignition, was not the proximate cause of the decedent‘s injuries. The theft of the truck by Lewis was a sufficient intervening or superseding cause to sever the chain of causation as it pertains to Bennett-Cathey.

In New Mexico the early common law did not permit an action against a liquor vendor for injuries resulting from the vendor‘s illegal sale of intoxicating liquor.

Lopez v. Maez, 98 N.M. 625, 628, 651 P.2d 1269, 1272 (1982). Reasons generally given for this rule were that the proximate cause of the injury was not the furnishing of the liquor, but the drinking of it; and if the sale or service of liquor was found to have causеd the patron‘s intoxication, then the later injury to a third person was thought to be an unforeseeable result of the furnishment of the liquor.

Id. The common law rule, a judicially created doctrine, was changed in a number of jurisdictions subjecting the tavernkeeper to liability where the injury to a third party resulted from the tavernkeeper‘s sale of intoxicating liquor to an inebriated customer.

Id. at 629–30, 651 P.2d at 1273–74. New Mexico made this change in

Lopez when we held therein that a person may be subject to liability if he or she breaches his or her duty by violating a statute or regulation which prohibits the selling or serving of alcoholic liquor to an intoxicated person, and the breach is the proximate cause of injuries to a third party.

Id. at 630, 651 P.2d at 1274.

As a result of the decisional law, the legislature enacted in 1983, the dramshop act entitled: “Relating to Alcoholic Beverages; Limiting Civil Liability in Sales of Alcoholic Beverages or Serving of Alcoholic Beverages to Guests.” 1983 N.M.Laws, ch. 328, § 1. “The title and entire tenor of the statute represents a legislative intent to narrow the scope of tavernkeeper and social host liability,” and the statute was an obvious response to

Lopez.

Trujillo v. Trujillo, 104 N.M. 379, 383, 721 P.2d 1310, 1314 (Ct.App.), cert. denied,

104 N.M. 289, 720 P.2d 708 (1986). From then on all tort actions against tavernkeepers for the sale or service of alcoholic beverages were governed by the dramshop act.

The “damage cap” provision, at issue here, was first inserted in the dramshop act in 1986. 1986 N.M.Laws, ch. 100, § 1. It provides as follows:

Liability arising under this section shall not exceed fifty thousand dollars ($50,000) for bodily injury to or death of one person in each transaction or occurrence or, subject to that limitation for one person, one hundred thousand dollars ($100,000) for bodily injury to or death of two or more persons in each transaction or occurrence, and twenty thousand dollars ($20,000) for property damage in each transaction or occurrence.

§ 41-11-1(I). The statute, as the majority opinion correctly points out, bears a presumption in favor of constitutionality. The onus is on the party challenging the statute to prove beyond a reasonable doubt that the statute violates a provision of the constitution. We must always proceed with extreme caution before declaring any statute unconstitutional.

Board of Trustees of Las Vegas v. Montano, 82 N.M. 340, 343, 481 P.2d 702, 705 (1971).

I am of the opinion that the “damage cap” on recovery from a tavernkeeper is a valid legislative enactment in the public interest and it applies equally to all persons seeking recovery under the dramshop act. The appropriate standard of review for an Equal Protection Clause challenge is the rational basis test and not the intermediate test applied in the majority opinion, since we are neither dealing with a suspect class nor a fundamental right, but instead, reviewing social and economic legislation. See

Meyer v. Jones, 106 N.M. 708, 749 P.2d 93 (1988). The intermediate test is not used except to analyze statutes that classify according to gender or illegitimacy as the majority notes; it is generally inapplicable when reviewing economic or social legislation.

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440–41, 105 S.Ct. 3249, 3254–55, 87 L.Ed.2d 313 (1984); see also

Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) and

Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). What is required by the Equal Protection Clause is that similarly situated persons be treated alike. Therefore, I am not persuaded that the intermediate test should be adopted in New Mexico in analyzing economic or social statutes.

In applying the rational basis test to the “damage cap” provision, the statute must be upheld if it serves a legitimate state goal. See

McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because classifications made by its laws are imperfect“, and, “[i]f the classification has some ‘reasonable basis‘, it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety’ or because in practice the results are not always uniform.

Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). The “[legislature‘s] judgment is entitled to great weight when the matter comes before the courts for dеtermination” and “[p]alpable error in its conclusion must appear before the courts will reject [the] same.”

Hutcheson v. Atherton, 44 N.M. 144, 153, 99 P.2d 462, 468 (1940). A legitimate legislative objective is being furthered by the “damage cap” provision. It compensates victims injured as a result of the negligent sale or service of alcohol without overburdening tavernkeepers. The enactment was, and appears to be to me, in the public interest.

As to the second issue, I agree only with the result reached by the majority, but not with its reasoning. Summary judgment was properly granted in favor of defendant-truck owner, Bennett-Cathey. The theft of the truck was a sufficient superseding cause, as a matter of law, to absolve the owner from responsibility for decedent‘s injuries. The weight of authority, which the majority opinion has chosen not to follow, supports the view that an accident caused by an intermeddler, who was enabled to misappropriate a vehicle by the owner‘s having left the vehicle unattended and the key in the ignition, will not create liability for the owner. See Annotation, Liability of Motorist who Left Key in Ignition for Damage or Injury Caused by Stranger Operating the Vehicle, 45 A.L.R. 3d 787 (1972); Restatement (Second) of Torts § 302B comment d, illustration 2 (1965). I believe that the law followed by a majority of the jurisdictions is correct.

Bennett-Cathey left the keys in the ignition of the unattended truck in violation of NMSA 1978, Section 66-7-353 (Repl.Pamp. 1987). In New Mexico violation of that statute is negligence per se.

Bouldin v. Sategna, 71 N.M. 329, 332, 378 P.2d 370, 372 (1963). But a violation of the statute alone does not constitute actionable negligence. Once it has been determined that a defendant was negligent and a third party suffered injuries, it must be determined whether those injuries were caused by the defendant‘s wrongful conduct. A defendant may be held responsible for injurious consequences of his negligent act or omission which occur naturally and directly, without reference to whether defendant anticipated, or reasonably might have foreseen such consequences. The genеral rule—that an intervening, independent, and efficient cause severs whatever connection there may be between a third party‘s injuries and a defendant‘s negligence is controlling if the intervening act was not reasonably foreseeable. See Annotation, 45 A.L.R.3d 787 (1972).

To hold Bennett-Cathey liable would require it to have anticipated not one but two probable consequences as a result of having left the keys in the truck. While the theft may have been anticipatable or foreseeable, the subsequent negligent use of the vehicle to injure a third party was not. Leaving the keys in the ignition of an unattended vehicle merely furnished the condition by which the injuries to decedent were made possible. A subsequent independent act, the negligent driving of the stolen truck by Lewis, caused the injuries. Thus, the acts by Lewis, after the vehicle had been stolen, were a sufficient intervening or superseding cause to break the chain of causation with respect to Bennett-Cathey.

For these reasons, I dissent.

David D. Johnson, Albuquerque, for defendants-appellants.

Lynch & Printz, Will Jeffrey, Albuquerque, for plaintiffs-appellees.

OPINION

SCARBOROUGH, Chief Justice.

Defendants-appellants, Robert J. and Florence M. Mesch (Mesches), executed a promissory note in favor of plaintiffs-appellees, John E. and Jean M. Edwards (Edwards), as payees on March 14, 1986. The promissory note for the amount of $6,000.00 with interest at the rate of 10% per annum on the balance was for money the Edwards had loaned to the Mesches. The Mesches subsequently defaulted on the note after making a single payment, and the Edwards brought suit to collect all unpaid principal and accrued interest. After a trial on the merits on November 11, 1987, the district court entered judgment for the Edwards in the sum of $6,751.10, with interest on the principal balance accruing at the rate of 10% per annum, and awarded attorney‘s fees and costs to the Edwards. We affirm.

On appeal the Mesches argue that the Edwards have no enforceable rights in the note and were not the real party in interest at the time of the trial. During the trial the Edwards did not deny assigning their interests in the note to the Tres Santos Corp., a closely held corporation, 100% of whose shares are owned by plaintiff-appellee, John E. Edwards. The Mesches argued at trial, and again on appeal, that since the Edwards assigned their interests in the note to the Tres Santos Corp., it became the real party in interest, and thus an indispensable party to the lawsuit. This argument finds no support in legal authority.

The promissory note which the Mesches executed to the Edwards is a negotiable instrument, and as such is governed by the Uniform Commercial Code (UCC). See NMSA 1978, § 55-3-104. According to the UCC, a “holder” of a negotiable instrument is “a person who is in possession of * * * an instrument * * * drawn, issued or indorsed to him or to his order or to bearer or in blank.” NMSA 1978, § 55-1-201(20) (Orig.Pamp. & Cum. Supp.1988). Before a person can become a “holder“, “[t]wo conditions must be satisfied * * * (1) the obligation evidenced by the instrument must run to him and (2) he must have possession of the instrument.” 4 W. Hawkland & L. Lawrence, Uniform Commercial Code Series § 3-301:05 (1982). A negotiable instrument payee (the Edwards) is always a holder if the payee has the instrument in his possession because the payee is the person to whom the instrument was issued. “It is inherent in the character of negotiable paper that any person in possession of an instrument which by its terms runs to him is a holder, and that anyone may deal with him as a holder.” NMSA 1978, § 55-3-207 Official Comment 2. See Dugan, A New Approach to “Holder” Conundrums Under Article 3 of the Uniform Commercial Code—A Reply to Professor White, 13 B.C.Indus. & Com.L.Rev. 1, 9 n. 34 (1971).

The rights of a holder of a promissory note were discussed by this court as early as

Leitensdorfer v. Webb, 1 N.M. 34, 51 (1853), aff‘d,

61 U.S. (20 How.) 176, 15 L.Ed. 891 (1857). The Edwards in their argument on appeal rely on two later decisions,

Tompkins v. Rains, 26 N.M. 631, 195 P. 800 (1921) and

Spears v. Sutherland, 37 N.M. 356, 23 P.2d 622 (1933), wherein this court discussed the rights of payees when seeking payment on a note. In

Tompkins we held that when a payee had possession of a note at trial, even if the note bore the indorsement of payee to a third party, “[t]he general rule is that in such instances the payee in the note is presumed to be the owner thereof and may maintain the suit.”

Tompkins, 26 N.M. at 633, 195 P. at 800–01. Given the definition of “holder” in the UCC discussed above, it is evident the rulе in

Tompkins was not disturbed by the passage of the UCC. In

Spears the facts were similar to the instant case. Spears had brought suit to recover on two promissory notes on which he was payee and admitted at trial that the notes probably belonged to a “Spears & Co.” which was almost entirely owned by Spears. Upon motion by Sutherland the district court dismissed the case on the grounds that Spears was not the real party in interest. Spears appealed, and we reversed, holding that “[t]he appellant was the payee and in possession of the notes, and could and did sue in his own name as the real party in interest * * *. The appellee was completely protected if judgment [were] entered against him and could not again be exposed to a second action.”

Spears, 37 N.M. at 357, 23 P.2d at 622 (citations omitted).

The Edwards were payees and holders of the note and could enforce payment of the note after they had assigned it to the Tres Santos Corp. “The holder of an instrument whether or not he is the owner may * * * enforce payment in his own name.” NMSA 1978, § 55-3-301 (emphasis added). See

Brock v. Adams, 79 N.M. 17, 21, 439 P.2d 234, 238 (1968). The Mesches’ argument on appeal that the district court ruling exposes them to double liability is without merit. “The liability of any party is discharged to the extent of his payment or satisfaction to the holder even though it is made with knowledge of a claim of another person to the instrument * * *.” NMSA 1978, § 55-3-603(1). Several exceptions to the discharge of liability by payment to a holder are set forth in Section 55-3-603, including bad faith and theft, but none of the exceptions apply in the instant case.

Rule 1-017 of Civil Procedure for the District Courts requires that “[e]very action shall be prosecuted in the name of the real party in interest * * *. The capacity of an individual * * * to sue or be sued shall be determined by the law of this state.” SCRA 1986, 1-017(A) & (B). This court has held that the test for determining who is the real party in interest is “whether one is the owner of the right being enforced and is in a position to discharge the defendant from the liability being asserted in the suit.”

L.R. Property Management, Inc. v. Grebe, 96 N.M. 22, 23, 627 P.2d 864, 865 (1981) (quoting

Jesko v. Stauffer Chemical Co., 89 N.M. 786, 790, 558 P.2d 55, 59 (Ct.App.1976)). The Edwards in the instant case were the holders and payees on the promissory note and properly asserted their rights as plaintiffs at trial under NMSA 1978, Sections 55-3-104, 55-1-201(20), and 55-3-301. Furthermore, the Edwards were in a position at trial to discharge the Mesches from all liabilities to any third party from the promissory note. NMSA 1978, § 55-3-603(1). Therefore, the arguments that the Tres Santos Corp. was the real party in interest and an indispensable party at trial are without merit.

A review of the record below reveals the district judge expended commendable effort to explain the governing principles of law and his rulings in the instant case to the Mesches. We uphold the decision of the district court, and further hold that since the promissory note provides for costs and attorney‘s fees to payees for collection and enforcement of the note, the Edwards are entitled to recover reasonable attorney‘s fees on appeal. See SCRA 1986, 12-403. The judgment rendered by the district court is affirmed, and the cause is remanded to the district court solely to determine reasonable attorney‘s fees for the Edwards on appeal and to amend the judgment accordingly.

IT IS SO ORDERED.

SOSA, Senior Justice, and STOWERS, J., concur.

OPINION

MINZNER, Judge.

Defendant Larry Smith (Smith), personal representative of the estate of Hadroudj Bishop (wife), originally appealed a jury award of $93,000 for wrongful death in favor of plaintiff Jere Corlett (Corlett), personal representative of the estate of Harry S. Bishop (husband). See

Corlett v. Smith, 106 N.M. 207, 740 P.2d 1191 (Ct.App.1987). The complaint for wrongful death alleged that wife negligently operated her motor vehicle in the garage of the residence and that carbon monoxide traveled into the bedroom where husband was sleeping, causing his death.

BACKGROUND.

Prior to trial, Smith moved to dismiss the complaint, alleging the claim had not been properly presented within the time limits established by NMSA 1978, Section 45-3-803. At the hearing on that motion, no record was made. The trial court denied the motion.

In our prior opinion, we concluded that Corlett bore the burden of establishing the timely presentation of his claim. Because there was no record, it was not established whеther the claim ultimately depended upon the existence of liability insurance, including either a household policy or automobile insurance policy insuring against the negligence of wife. The trial court‘s order denying Smith‘s motion to dismiss did not disclose the basis for the decision. After oral argument, this court issued a formal opinion remanding the case for a determination of whether “specific insurance protection exists so as to bring the wrongful death claim of husband‘s estate within the statutory exception contained in [NMSA 1978,] Section 45-3-803(C)(2).” See

Corlett v. Smith, 106 N.M. at 211, 740 P.2d at 1195.

Although we ordered the trial court to enter an amended judgment, a more appropriate procedure would have been to remand only for additional findings of fact. See

Russell v. University of N.M. Hosp./BCMC, 106 N.M. 190, 740 P.2d 1174 (Ct.App.1987). In substance, there is only one appeal.

On remand, the trial court filed amended findings and conclusions and entered an amended judgment in favor of Corlett. Specifically, the trial court found:

* * *

4. On the date of death and for all material time prior, for the purpose of this action, there were two existing policies of insurance * * * that contained provisions for the protection of [wife] against claims for bodily injury under the liability portions of each policy. Both policies of insurance were in effect at the time of death of [husband].

5. Each * * * had limits of liability for damages up to $300,000.00.

The court concluded that “[s]pecific insurance protection exist[ed] so as to bring the wrongful death claim of [husband] within the statutory exception contained in Section 45-3-803(C)(2).”

By order of this court, Smith filed a second notice of appeal from the amended judgment. We consolidate both appeals, and we affirm.

ISSUES.

In the original appeal, Smith raised six issues. Smith argued that:

I. The trial court lacked subject matter jurisdiction because Corlett failed to comply with Section 45-3-803, which requires timely filing of all claims made against an estate;

II. Corlett was required by NMSA 1978, Section 37-2-1 to prove husband predeceased wife, and did not do so;

III. Corlett failed to present substantial evidence of the cause of husband‘s death; and

IV. Corlett failed to present substantial evidence that wife was negligent.

Smith also contended the trial court erred in:

V. Permitting testimony аnd argument to the jury on loss of household services; and

VI. Refusing to allow Smith to present evidence of property the statutory beneficiaries would receive under husband‘s will.

In his appeal on remand, Smith raises several issues that are related to the argument that the trial court lacked subject matter jurisdiction. We discuss those issues first and under that heading.

DISCUSSION.

I. DID THE TRIAL COURT ERR IN REFUSING TO DISMISS THE CASE FOR LACK OF SUBJECT MATTER JURISDICTION BECAUSE CORLETT FAILED TO COMPLY WITH NMSA 1978, SECTION 45-3-803, WHICH REQUIRES TIMELY FILING OF ALL ‍​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌‌‌​‌‍CLAIMS MADE AGAINST THE ESTATE?

The filing provisions in Section 45-3-803(A) and (B) apply only to claims against the estate; claims that will be paid by insurance are not considered to be claims against the estate.

Sommermeyer v. Price, 198 Colo. 548, 603 P.2d 135 (1979) (En Banc). “[T]he [insurance] proceeds are not available to the general creditors or beneficiaries of the estate. Moreover, the claims of the plaintiffs to be satisfied by the insurance proceeds do not affect the interests of the beneficiaries under the estate and thus present no obstacle to an orderly and exact administration of the estate.”

Id., 198 Colo. at 552, 603 P.2d at 138.

A failure to file within the statutory period bars only the right to enforce any liability of the estate beyond the limits of the insurance policy. The action itself is not barred.

Kent Ins. Co. v. Estate of Atwood, 481 So.2d 1294 (Fla.App.1986). Although a liability insurance contract is an asset of the estate, it creates a contractual right which vests only when the liability claim against the insured ripens into judgment.

Tank v. Peterson, 214 Neb. 34, 332 N.W.2d 669 (1983). Thus, Corlett was free to pursue his claim against the estate if he sought a judgment that he ultimately might collect from the insurance company. Cf.

Torrez v. State Farm Mut. Auto. Ins. Co., 705 F.2d 1192 (10th Cir.1982) (cause of action for wrongful failure to settle claim within policy limits did not accrue until wrongful death judgment against tortfeasor‘s estate was final).

Smith argues that the trial court was ordered on remand to determine the actual insurance coverage possessed by wife. He contends that the suit must therefore be dismissed, because the insurance company was an indispensable party to a determination of coverage but was not joined. See SCRA 1986, 1-019(B). Smith also contends that Corlett did not present enough proof to make a prima facie showing of insurance coverage at the hearing on remand; that the district court erred in construing the contracts of insurance; and that the district court invaded the province of this court by some of its findings.

In this case, both policies contained a provision that no suit would lie against the company unless the amount of the insured‘s obligation to pay had been finally determined by judgment against the insured after actual trial or by written agreement. Under these circumstances, we cannot conclude that the insurance company claims an interest in the subject of the action. Cf. R. 1-019(A)(2).

Section 45-3-803(C)(2) waives the timely filing requirement of subsections 803(A) and (B) for “any proceeding to establish liability of the decedent * * * for which he is protected by liability insurance.” (Emphasis added.) The statute does not mention any determination of the nature or extent of any future liability of the insurance company. If the existence of protection for the purposes of Section 45-3-803(C) does not require a definitive statement of (1) whether the insurance company will eventually have to pay a claim, (2) the nature of the coverage, or (3) the extent of the actual coverage, then complete relief may be granted without the presence of the insurance company. Cf. R. 1-019(A)(1). Coverage may, however, be determined at this point, if the insurance company is a party. See

In re Estate of Daigle, 634 P.2d 71 (Colo.1981) (En Banc).

We hold that, for the purposes of the Probate Code, “protection” should be considered the potential right to payment of a claim against the insurance company. A determination of whether potential coverage exists can be made in the absence of the insurance company. This interpretation will not impede the efficient and orderly administration of the estate of the insured because, on these facts, it is clear that the claim has been made in order to establish liability rather than to collect against the estate.

The policies themselves were entered into evidence; they show limits of $300,000 and contain provisions thаt arguably cover wife‘s liability. This supports a finding of potential coverage, which supports the trial court‘s conclusion that the insurance exception applied. We do not address defendant‘s argument that plaintiff failed to make a prima facie showing of coverage, because only a showing of protection was necessary. See Uniform Probate Code § 3-803(c), 8 U.L.A. 355 (1983) comment (“Tort claims normally will involve casualty insurance of the decedent * * * and so will fall within [this] exception.“).

Smith also objects to certain of the trial court‘s findings as exceeding the scope of the mandate to the extent these findings determine coverage. We note that in reviewing all issues of indispensable parties raised for the first time on appeal, an appellate court may properly require suitable modification as a condition of affirmance. Cf.

Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805 F.2d 96 (3d Cir.1986) (an appellate court must consider the fact that a judgment binding on the parties has already been reached after extensive litigation). This furthers the interests of the courts and the public in complete, consistent, and efficient settlement of controversies.

Even if a finding of fact or conclusion is erroneous, if it is unnecessary to the court‘s decision, the mistake is not a basis for reversal.

Newcum v. Lawson, 101 N.M. 448, 684 P.2d 534 (Ct.App.1984). Only findings by the trial court of ultimate fact are binding on review.

Porter v. Mesilla Valley Cotton Prod. Co., 42 N.M. 217, 76 P.2d 937 (1937). Those portions of the trial court‘s findings objected to by defendant are not essential to, and do not contradict, the conclusion that specific insurance protection existed. We affirm the trial court‘s decision that Corlett was entitled to rely on Section 45-3-803(C)(2) on the basis that he proved the potential existence of coverage. The issue of coverage has not been decided.

II. DID THE TRIAL COURT ERR IN REFUSING TO DISMISS THE CASE BECAUSE CORLETT WAS REQUIRED BY NMSA 1978, SECTION 37-2-1 TO PROVE HUSBAND PREDECEASED WIFE, BUT DID NOT DO SO?

Defendant contends that, although Section 37-2-1 provides both that causes of action for wrongful death and those for personal injuries survive the death of the tortfeasor, that statute requires proof that the injured party died before the tortfeasor. He interprets

Cash v. Addington, 46 N.M. 451, 131 P.2d 265 (1942), as holding that a cause of action survives if it accrues before the death of the wrongdoer, and he notes that NMSA 1978, Section 41-2-2 (Repl.1986) provides that the cause of action for wrongful death accrues as of the date of death. This argument is not persuasive.

Neither the case nor the statutes require additional proof of the order of death. See

Maloney v. Victor, 175 Misc. 528, 25 N.Y.S.2d 257 (1940); contra

Martinelli v. Burke, 298 Mass. 390, 10 N.E.2d 113 (1937). We decline to add that requirement. See generally 1 S. Speiser, Recovery for Wrongful Death § 8:16 (2d ed. 1975) (a number of modern decisions, under statutes which are far from explicit, hold that the cause of action for wrongful death survives despite the fact that tortfeasor predeceases victim).

In

Cash v. Addington, the supreme court did hold that a cause of action for personal injury survives if it does accrue, however short the time, before the death of the wrongdoer. It did not, however, hold that a cause of action for wrongful death can only accrue where the victim dies before the wrongdoer. At the time

Cash v. Addington was decided, a cause of action for personal injury or wrongful death accrued at the time of the injury. The supreme court observed that the actionable act or neglect must have been accomplished by the tortfeasor while the tortfeasor was still alive.

The trial court in

Cash v. Addington had determined that the tortfeasor died “instantaneously” in the car crash which injured the plaintiff. The supreme court was “of the opinion that the statute does not recognize a distinction where a wrongdoer lives a reasonable length of time and one where death resulting from an injury is commonly spoken of as having been instantaneous.”

46 N.M. at 453, 131 P.2d at 266. The rationale underlying its opinion was:

“Under [a] statute providing that no cause of action for injury to person or property shall be lost because of [the] death of [the] person liable for the injury, the estate of a decedent may be charged with liability even though the cause of action should not have arisen until after the death of decedent provided the damage was due to decеdent‘s otherwise actionable act or neglect.”

Id. (emphasis added) (quoting

Maloney v. Victor, 175 Misc. at 528, 25 N.Y.S.2d at 257, Headnote No. 3). In quoting

Maloney v. Victor, the supreme court in effect equated Section 37-2-1 with a statute providing that no cause of action shall be lost because of the death of the wrongdoer. Under such a statute, the order of death is irrelevant.

We conclude that under Section 37-2-1, the order of death is not an element of plaintiff‘s case. If husband‘s death was occasioned by wife‘s otherwise actionable act or neglect, it occurred while she was still living. That is sufficient. See

Cash v. Addington.

III. DID THE TRIAL COURT ERR IN REFUSING TO DISMISS THE CASE BECAUSE CORLETT FAILED TO PRESENT SUBSTANTIAL EVIDENCE OF THE CAUSE OF HUSBAND‘S DEATH?

Smith contends that the certificate of death for husband was not admissible to prove the cause of his death, and that the medical expert who testified could not base his opinion on that certificate, because the statement that the cause of death was carbon monoxide poisoning was the opinion of another, non-testifying expert. Smith argues that the non-testifying expert‘s statement of cause of death is incompetent because he cannot be questioned as to the basis of that statement or how he arrived at it.

Because the statement in the death certificate that the cause of death was carbon monoxide poisoning is offered to prove the truth of the matter asserted, it is hearsay. SCRA 1986, 11-803(I) allows an exception to the required exclusion of hearsay for “[r]ecords or data compilations, in any form, of * * * deaths * * * if the report thereof was made to a public office pursuant to requirements of law.” We believe that exception is applicable here.

Most jurisdictions hold that death certificates are admissible as evidence of cause of death. Courts will not, however, readily admit death certificates as evidence of the manner of death, e.g., “suicide” or “accidental,” deeming that conclusion not a fact, but an opinion. See

Pollard v. Metropolitan Life Ins. Co., 598 F.2d 1284 (3d Cir.1979);

Bowman v. Redding & Co., 449 F.2d 956 (D.C.Cir.1971);

Hestad v. Pennsylvania Life Ins. Co., 295 Minn. 306, 204 N.W.2d 433 (1973); see generally Annot., Official Death Certificate as Evidence of Cause of Death in Civil or Criminal Action, 21 A.L.R.3d 418 (1968).

The plaintiff in

Greek v. Bassett, 112 Mich.App. 556, 316 N.W.2d 489 (1982), also argued, in part, that the statement in a death certificate of cause оf death is not a fact but an inadmissible opinion. That court held the certificate admissible to show the cause of death under Federal Rule 803(9), which is identical to SCRA 1986, 11-803(I).

If we were to require that a statement in a death certificate be a “fact” in the sense of an absolute objective reality, virtually nothing in a death certificate would be admissible. For instance, the identity of the deceased, although usually not in dispute, is sometimes not easily ascertainable. In any case, the death certificate‘s statement of “identity” is merely the examiner‘s opinion of identity. The same would be true for the stated time of death.

Id., 112 Mich.App. at 562, 316 N.W.2d at 492.

Smith argues that the statement of cause of death must be viewed as an opinion because the death certificate contains the paragraph: “On the basis of examination and/or investigation, in my opinion death occurred at the time, date and place and due to the cause(s) stated.” We do not agree that this changes the essential nature of the statement of cause of death.

We hold that the statement of the cause of death is a factual finding, similar in nature to the factual findings of the identity of the deceased, the time and the date of death, and thus it is admissible under the vital statistics exception to the hearsay rule. Thus, we do not agree with Smith‘s argument that Dr. Parkes’ testimony must be excluded because he relied on the opinion of a non-testifying witness contained in that certificate. Because both the death certificate and Dr. Parkes’ testimony were properly admitted, there was substantial evidence of causation.

IV. DID THE TRIAL COURT ERR IN REFUSING TO DISMISS THE CASE BECAUSE CORLETT FAILED TO PRESENT SUBSTANTIAL EVIDENCE THAT WIFE WAS NEGLIGENT?

Smith contends that the fact the door between the garage and the kitchen was found open by the first person at the scene does not establish wife‘s negligence. Defendant cites SCRA 1986, UJI Civ. 13-1616, to the effect that the mere happening of the accident is not negligence. Defendant argues that Corlett was required to show that (1) wife either opened the doоr or left open an already open door, and (2) she knew or should have known of the dangerous propensities of carbon monoxide in that setting.

Corlett was not required to establish that there was no other cause for the open door. Rather, he was required to demonstrate that under these circumstances, wife had a duty to ensure the door was closed and it is more likely than not that wife either opened the door or failed to close it, thus breaching that duty. SCRA 1986, UJI Civ. 13-304, 13-1601, & 13-1604.

The question of what comprised wife‘s duty is not properly reviewed for substantial evidence. Whether a duty exists is not a fact question for the jury, but rather a question of law for the court to determine.

Baca v. Britt, 73 N.M. 1, 385 P.2d 61 (1963). The facts support an inference that wife was in fact aware of the dangerous propensities of automobile exhaust. A reasonable person would have prevented movement of the exhaust by closing the open door. Cf.

Otero v. Burgess, 84 N.M. 575, 505 P.2d 1251 (Ct.App.1973) (person in charge of dangerous instrumentalities must use degree of care commensurate with that instrumentality).

Although there is no proof that wife opened or left open the door, there is evidence the door was open on November 25, 1981, five days after the Bishops were last seen alive. From that proof, one could infer the truth of the fact sought to be proved, i.e., that wife opened the door or left it open.

Ulibarri Landscaping Material, Inc. v. Colony Materials, Inc., 97 N.M. 266, 639 P.2d 75 (Ct.App.1981) (inferences may be drawn from circumstantial evidence); see also SCRA 1986, UJI Civ. 13-308.

V. DID THE TRIAL COURT ERR IN PERMITTING TESTIMONY AND ARGUMENT TO THE JURY ON LOSS OF HOUSEHOLD SERVICES?

Corlett‘s expert gave his opinion as to the present value of household services provided by husband. Decedent‘s son laid the foundation for this testimony when he testified that his father “did about 30 hours a week” of work around the house.

Smith contends that it was reversible error to allow the jury to consider the value of husband‘s household services because all members of the household to whom he rendered those services are now dead. We disagree.

The proрer measure of damages in a wrongful death action under NMSA 1978, Sections 41-2-1, -3 (Repl.1986) is the value of the life had it continued. SCRA 1986, UJI Civ. 13-1830. Damages are recoverable for wrongful death if damages could have been recovered had there been no death.

Stang v. Hertz Corp., 81 N.M. 69, 463 P.2d 45 (Ct.App.1969) (Stang I). Damages are recoverable whether or not there are statutory beneficiaries, Stang I;

Stang v. Hertz Corp., 81 N.M. 348, 467 P.2d 14 (1970) (Stang II), and whether or not there are pecuniary injuries to those beneficiaries.

Id.

The jury here was properly instructed that the basis for any damage award should be “[t]he monetary worth of the life of the deceased” as modified by any aggravating or mitigating circumstances attending the act from which the original liability arose. See UJI Civ. 13-1830. The jury was further properly instructed to consider both earning capacity and habits, among other things, in determining the monetary worth of the life of the deceased. Finally, it was told that in considering earning capacity or loss of earnings, deductions must be made for “personal living expenses of the deceased.”

When husband performed household services, other income-producing activity could not be undertaken. Further, specific costs would be incurred if someone else were retained to perform them. We believe the value of those services is an evidentiary item admissible in this case in establishing the present worth of husband‘s life. Cf.

Lujan v. Gonzales, 84 N.M. 229, 501 P.2d 673 (Ct.App.1972) (the factfinder may consider evidence of household services to the statutory beneficiaries in awarding damages for the pecuniary value of a life).

VI. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW SMITH TO PRESENT EVIDENCE OF PROPERTY THE BENEFICIARIES IN THE WRONGFUL DEATH ACTION WOULD BE RECEIVING UNDER HUSBAND‘S WILL?

Smith contends that evidence of the amounts received by the beneficiaries under the will should have been admitted, because pecuniary gain should be a component of pecuniary loss to statutory beneficiaries considered by the jury when it determines damages in a wrongful death suit. This argument is premised on the view that husband‘s death produced an economic benefit. There are several answers to this argument.

First, since the proper measure of damages is the value of continued life, evidence of benefits received because life ended is irrelevant. Had husband lived, the beneficiaries would have received the benefits of his continued life, as well as retained their entitlement to any benefits provided under his will.

Second, although the loss to beneficiaries of expected benefits that have a monetary value may be considered when determining damages, damages may be awarded even where monetary loss to the surviving beneficiaries cannot be shown. UJI Civ. 13-1830. Stang I; Stang II. Demonstrating pecuniary injury, whether or not it includes gain, is not a prerequisite to recovery for wrongful death. Stang II. In this case, the jury was not instructed concerning monetary loss to the statutory beneficiaries.

Finally, considering the property or wealth of the beneficiaries or of the defendant is specifically proscribed. UJI Civ. 13-1830. It is not a legitimate factor for the jury‘s consideration.

Id. Benefits received under a will surely add to the property or wealth of a beneficiary. Evidence of such benefits is not admissible.

CONCLUSION.

The trial court did not err in denying Smith‘s motion to dismiss. While Corlett‘s right to enforce any liability of the estate beyond the policy limits is barred, the cause of action is not. Further, there was sufficient evidence to support submission of the issues of causation and negligence to the jury. Finally, Smith has not established any error in the trial court‘s evidentiary rulings. We affirm the judgment in favor of Corlett. Smith shall bear the costs of his appeal.

IT IS SO ORDERED.

BIVINS and APODACA, JJ., concur.

764 P.2d 499

Donna SALSWEDEL, Plaintiff-Appellant,
v.
ENERPHARM, LTD., a New Mexico Partnership, Defendant-Appellee.

No. 9813.

Court of Appeals of New Mexico.

Oct. 11, 1988.

William S. Ferguson, Ferguson & Lind, P.C., Albuquerque, for plaintiff-appellant.

Don E. Lepley, Butt, Thornton and Baehr, P.C., Albuquerque, for defendant-appellee.

William H. Carpenter, Carpenter & Goldberg, P.A., Albuquerque, for amicus curiae N.M. Trial Lawyers Ass‘n.

OPINION

MINZNER, Judge.

Plaintiff appeals from the trial court‘s decision granting defendant‘s motion for summary judgment and dismissing her negligence action with prejudice. At the time of her accident, plaintiff was an employee of Nuclear Pharmacy, one of three corporations which formed defendant partnership Enerpharm. Plaintiff сontends that her action is not barred by NMSA 1978, Section 52-1-6(D) (Repl.Pamp.1987), because Enerpharm is a “person other than [her] employer” within the meaning of the Workers’ Compensation Act. We invited the participation of amicus curiae and scheduled oral argument. We now reverse.

BACKGROUND.

Enerpharm was organized for the purpose of acquiring, improving, and maintaining real property located in Bernalillo County. ‍​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌‌‌​‌‍Nuclear Pharmacy manufactures pharmaceutical supplies. It leased a building and an adjacent parking lot from Enerpharm.

In the course and scope of her employment, plaintiff parked her car in the parking lot. On December 30, 1982, she slipped and fell on layers of ice covered by newly-fallen snow and sustained a severe head injury.

Plaintiff‘s complaint alleged that Enerpharm negligently maintained the sprinkler system, creating thick layers of ice on the pavement. Snow then covered the ice. Plaintiff sought judgment against the partnership; she did not join the partners.

In its answer, defendant raised the affirmative defense that plaintiff‘s exclusive remedy was under the New Mexico Workers’ Compensation Act (Act). See § 52-1-6(D). The trial court apparently granted summary judgment because it considered the employer and the partnership in which it participated essentially the same defendant, making plaintiff‘s only possible cause of action a claim for workers’ compensation benefits. Plaintiff claimed workers’ compensation benefits and collected those benefits from Nuclear Pharmacy during November and December of 1984 and January of 1985. The trial court conditioned its order dismissing plaintiff‘s negligence action on the filing of a claim for workers’ compensation benefits and the admission by Nuclear Pharmacy and its workers’ compensation carrier that plaintiff was injured in the scope and course of her employment. At oral argument before this court, counsel for defendant advised the panel that plaintiff‘s entitlement to workers’ compensation benefits had been settled as а result of a suit filed against Nuclear Pharmacy pursuant to the trial court‘s condition.

On appeal, plaintiff asserts that the trial court erred in granting summary judgment on the issue of Enerpharm‘s liability because material issues of fact remain. She argues, first, that Nuclear Pharmacy may not be immune from suit under Section 52-1-6(D), because Nuclear Pharmacy was acting in a “dual capacity” or has a “dual persona.” Second, plaintiff argues that even if Nuclear Pharmacy is immune from suit, Nuclear Pharmacy‘s immunity cannot be extended to Enerpharm or to the partners in Enerpharm other than Nuclear Pharmacy.

For the reasons that follow, we conclude that, under some circumstances, a partnership in Enerpharm‘s position is subject to suit. We conclude that summary judgment in favor of Enerpharm was inappropriate and remand for factual determinations on several issues.

DISCUSSION.

Under Section 52-1-6(D), both an employer and an employee covered under the Workers’ Compensation Act (Act) are deemed to have surrendered any right to seek “any other method, form or amount of compensation or determination thereof” outside the provisions of the Act. However, the same subsection explicitly states: “Nothing in the ... Act, however, shall affect or be construed to affect, in any way, the existence of or the mode of trial of any claim or cause of action which the workman has against any person other than his employer....” Clearly, the Act intends to preserve an injured worker‘s right to pursue an action against a third party.

The dispositive appellate issue is whether a partnership in which the employer participates can ever be considered a third party for purposes of Section 52-1-6(D). We hold that the possibility exists and remand for further proceedings to determine whether this is such an instance.

Our initial inquiry is whether Enerpharm can be considered plaintiff‘s employer within the meaning of Section 52-1-6(D). The trial court apparently determined that, as a matter of law, Enerpharm had to be considered the same entity as plaintiff‘s employer, Nuclear Pharmacy, because of the relatiоnship between Enerpharm and Nuclear Pharmacy. We disagree.

The Uniform Partnership Act, adopted in New Mexico and appearing at NMSA 1978, Sections 54-1-1 to -43 (Repl.Pamp.1988), recognizes that a partnership is a legal entity distinct from its member partners for some purposes. See

Loucks v. Albuquerque Nat‘l Bank, 76 N.M. 735, 418 P.2d 191 (1966). For example, a partnership is a distinct legal entity to the extent that it may sue or be sued in the partnership name.

Id. The situation presented here turns on whether a partnership is a legal entity distinct from one of its individual members.

However, we believe resolution of the question of whether Enerpharm can be considered plaintiff‘s employer for purposes of Section 52-1-6(D) depends not so much upon the relationship between Enerpharm and Nuclear Pharmacy, but rather upon the relationship between Enerpharm and plaintiff. The crucial determination is whether an employment relationship existed between Enerpharm and plaintiff. See

Swiezynski v. Civiello, 126 N.H. 142, 489 A.2d 634 (1985);

Lindner v. Kew Realty Co., 113 A.D.2d 36, 494 N.Y.S.2d 870 (1985). The factors to be considered in this determination are whether Enerpharm had a right to control plaintiff‘s performance and whether there was a corresponding right in plaintiff to seek remuneration from Enerpharm.

We therefore vacate the decision of the trial court and remand for a factual determination as to whether Enerpharm can be considered plaintiff‘s employer. If an employment relationship is found, then Section 52-1-6(D) clearly presents a bar to this suit.

Our inquiry does not end here, because, while Enerpharm can be sued as an entity,

Loucks v. Albuquerque Nat‘l Bank, it can be held liable only for the commission of a tort by a member partner or other agent.

Gatley v. Deters, 128 Misc.2d 209, 489 N.Y.S.2d 684 (1985). According to New Mexico‘s Uniform Partnership Act, Section 54-1-13, the partnership is liable for the wrongful conduct of a partner “to the same extent” (emphasis added) as the offending partner. Thus, if plaintiff‘s claim is based solely or partially upon negligence attributable to her employer, Nuclear Pharmacy, the trial court must decide whether Enerpharm can claim derivative immunity with respect to that portion of liability pursuant to Section 54-1-13.

In deciding whether Enerpharm can claim derivative immunity from Nuclear Pharmacy, the first issue is whеther Nuclear Pharmacy is immune from suit under Section 52-1-6(D). This issue must be decided, because Enerpharm cannot derive immunity from Nuclear Pharmacy if Nuclear Pharmacy does not have immunity.

Plaintiff asserts that Nuclear Pharmacy may not be immune from suit because either the “dual capacity” doctrine or the “dual persona” doctrine applies.

The “dual capacity” doctrine imposes liability outside the workers’ compensation statutes where the facts show that employer‘s conduct contributed to the inju-ry sustained and is conduct of a nature not associated with the employer‘s functions as an employer. 2A A. Larson, The Law of Workmen‘s Compensation § 72.81(a) (1988). Larson has criticized the “dual capacity” doctrine as loose and over-extended. Id. It has also been criticized in case law and rejected in favor of the “dual persona” doctrine. See

Henning v. General Motors Assembly Div., 143 Wis.2d 1, 419 N.W.2d 551 (1988). It is held with virtual unanimity that when the dual roles are those of employer and owner/occupier of land, they are not sufficiently distinct to allow imposition of liability. See generally Larson, supra, § 72.82; see, e.g.,

Royster v. Montanez, 134 Cal.App.3d 362, 184 Cal.Rptr. 560 (1982).

In

Royster v. Montanez, the California Court of Appeals specifically disapproved of application of the “dual capacity” doctrine in cases where an employer was also a landowner and the basis for liability was one connected with the maintenance and repair of property. As the

Royster court noted:

[A] substantial proportion of work-related injuries are caused, or plausibly can be alleged to be caused, by a dangerous condition of the place of employment. If the dual capacity doctrine were to be construed so broadly as to create premises liability in every such instance, little would be left to which exclusivity of remedy [provision of the workers’ compensation statute] could attach.... [T]he balance of reciprocal concessions which is the foundation of the workers’ compensatiоn system would be seriously disturbed.

134 Cal.App.3d at 373, 184 Cal.Rptr. at 566. We agree, and, therefore, will not apply the “dual capacity” doctrine in cases such as this. See also

Sharp v. Gallagher, 95 Ill.2d 322, 69 Ill.Dec. 351, 447 N.E.2d 786 (1983).

Under the “dual persona” doctrine, an employer may become a third person, vulnerable to a tort suit by an employee, if, and only if, he possesses a second persona completely independent from and unrelated to his status as employer. Larson, supra, § 72.81;

Henning v. General Motors Assembly Div.

We believe an employer becomes vulnerable to a tort action by an employee and loses the immunity of Section 52-1-6(D) if the employer possesses a second persona sufficiently independent from and unrelated to the status of employer. Therefore, we will apply the “dual persona” doctrine to cases such as this. Larson, supra, § 72.81;

Henning v. General Motors Assembly Div. The employer‘s immunity from the additional, unpredictable tort liability of a third party should extend as far as, but only as far as, the employer has a reasonable expectation of immunity.

Never allowing the employer to be sued as a third party would give rise to the same type of situation we noted in

Hernandez v. Home Educ. Livelihood Program, Inc., 98 N.M. 125, 645 P.2d 1381 (Ct.App.1982). There, summary judgment was reversed because the trial court erroneously equated the fact of employment with the exclusivity provisions of the Workers’ Compensation Act. This court rejected an argument that would have required us:

[T]o abolish any tort claim for an employee‘s injury, even if it resulted from an automobile accident in which the employer, while returning from church, runs into the employee who is on his way to a baseball game ... is a result never contemplated nor considered by the work[er]‘s compensation enactment.

98 N.M. at 128, 645 P.2d at 1384.

Whether Nuclear Pharmacy has a “dual persona,” which is not immune from suit, is a question of fact which must be resolved by the trial court on remand. If Nuclear Pharmacy is found to be immune, then the issue of whether the immunity extends to shield Enerpharm from suit will arise.

A partnership is liable fоr tortious acts committed in the ordinary course of partnership business by a member partner or other agent. See § 54-1-13. While a partnership can be sued as an entity, it can only be held liable for the commission of a tort by a member partner or other agent.

Gatley v. Deters. Although in this case the claim is described as based on an alleged tortious act of the partnership, plaintiff is actually asserting negligence on the part of an agent of the partnership, which may be imputed to the other partners.

However, immunity from liability is strictly construed, and is not to be extended from the individual partner to the partnership.

Mathews v. Wosek, 44 Mich.App. 706, 205 N.W.2d 813 (1973);

Eule v. Eule Motor Sales, 34 N.J. 537, 170 A.2d 241 (1961); cf. Restatement (Second) of Agency § 217(b) (1958) (a principal is not entitled to rely on the immunity granted its agent). Although the law permits the attribution of one partner‘s fault to another, it does not necessarily follow that the partnership and other partners must be given immunity from suit when the partner whose negligence gives rise to suit is immune from suit. A distinction can be made between fault or culpability and liability for damages.

We believe the question of whether the partnership and the other partners should also be deemed immune as a matter of law is a policy question. See

Mathews v. Wosek. We answer the question in favor of the worker.

Id.;

Eule v. Eule Motor Sales.

Good reason exists for preserving the right of an injured worker to sue a third person to the maximum extent that such actions are consistent with workers’ compensation laws. The fixed dollar ceiling on benefits under the workers’ compensation laws are the result of a trade-off of certain liability of the employer for reduced awards for the employee. Injured workers are entitled not only to recovery against employers under workers’ compensation laws, but also against third parties under tort law.

Lyon v. Barrett, 89 N.J. 294, 305, 445 A.2d 1153, 1158 (1982). In

Lyon v. Barrett, an employee was allowed to recover against the individual who owned the building and rented part of it to his own professional corporation, which was plaintiff‘s employer. Plaintiff had recovered workers’ compensation benefits from the professional corporation.

When an employer enters into a separate, distinct investment, such as a partnership to acquire and manage real property, we see no reason why a reasonable expectation of immunity extends to the actions of that separate endeavor. The “dual persona” doctrine allows a third party suit against an employer when the facts demonstrate the employer‘s status as a “separate legal entity.” The central requirement is that there be a separate and distinct legal persona rather than merely a second theory of liability in the same person. See Larson, supra, § 72.61(c).

Notwithstanding the foregoing, we note that, under some circumstances, the partnership and partners must be considered one entity.

Cipriano v. FYM Assocs., 117 A.D.2d 770, 499 N.Y.S.2d 101 (1986). For example, where the partnership is the alter ego of the employer partner, it would be appropriate to view both the partnership and the employer partner as immune.

In

Cipriano v. FYM Assocs., a New York appellate court found that the partnership and the partners were acting solely in furtherance of partnership business because the partnership agreement specified that its purpose was to purchase and develop the very premises at issue, one of the partners was retained to construct those improvements, that partner kept the partnership record and was reimbursed by the partnership, and there were only two partners: the building company itself and an officer of the building company who supervised the work. In such a fact pattern, there is no dual persona. There may be other fact patterns as well, in which for purposes of Section 52-1-6(D), a partnership and its partners must be considered one entity. See

Sharp v. Gallagher. This we need not decide.

On the record before us, there are several issues of fact that make summary judgment inappropriate. The first issue is whether Enerpharm is plаintiff‘s employer. If an employment relationship exists between plaintiff and Enerpharm, Enerpharm is clearly immune from suit under Section 52-1-6(D). Another issue is whether Nuclear Pharmacy has a dual persona as part-ner that is independent from and unrelated to its status of employer to the extent that Nuclear Pharmacy would not be immune from suit in its partnership capacity. This determination is necessary, because, if Nuclear Pharmacy is not immune from suit, Enerpharm cannot derive any immunity from Nuclear Pharmacy. Finally, assuming that Nuclear Pharmacy is immune from suit as partner, the remaining issue is whether Enerpharm and Nuclear Pharmacy are sufficiently separate and distinct entities, so that Nuclear Pharmacy‘s immunity from suit cannot be extended to Enerpharm.

We do not decide, because the issue is not before us, whether Nuclear Pharmacy will be liable for any portion of a judgment rendered against the partnership, in the event that partnership assets prove insufficient.

CONCLUSION.

For these reasons, we conclude that a suit against Enerpharm is not necessarily barred by Section 52-1-6(D). Genuine issues of material fact exist regarding Enerpharm‘s relationship with plaintiff and with Nuclear Pharmacy. These issues must be decided before a determination can be made concerning Enerpharm‘s immunity from suit.

The order granting summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. Plaintiff shall recover her appellate costs.

IT IS SO ORDERED.

BIVINS and APODACA, JJ., concur.

Notes

1

See

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); see also

Torres v. Village of Capitan, 92 N.M. 64, 69, 582 P.2d 1277, 1282 (1978);

Vandolsen v. Constructors, Inc., 101 N.M. 109, 112, 678 P.2d 1184, 1187 (Ct.App.), cert. denied,

101 N.M. 77, 678 P.2d 705 (1984).

Hall v. Budagher, 76 N.M. 591, 417 P.2d 71 (1966).

2

Sanchez v. M.M. Sundt Constr. Co., 103 N.M. 294, 297, 706 P.2d 158, 161 (Ct.App.1985);

Garcia v. Albuquerque Pub. Schools Bd. of Educ., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct.App.1980), cert. quashed,

95 N.M. 426, 622 P.2d 1046 (1981).

Marchiondo v. Roper, 90 N.M. 367, 563 P.2d 1160 (1977).

3

See, e.g.,

Lucas v. United States, 807 F.2d 414, 422 (5th Cir.1986);

Hoffman v. United States, 767 F.2d 1431, 1436–37 (9th Cir.1985);

Boyd v. Bulala, 647 F.Supp. 781, 787 (W.D.Va.1986) (but holding that damage cap violates seventh amendment jury trial provision);

Fein v. Permanente Medical Group., 38 Cal.3d 137, 162, 695 P.2d 665, 681, 211 Cal.Rptr. 368, 386 (1985), appeal dismissed,

474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 215 (1985);

Bernier v. Burris, 113 Ill.2d 219, 228–29, 100 Ill.Dec. 585, 590, 497 N.E.2d 763, 768 (1986);

Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 397, 404 N.E.2d 585, 601 (1980);

Prendergast v. Nelson, 199 Neb. 97, 113–14, 256 N.W.2d 657, 669 (1977).

Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982).

4

See

Detar Hosp., Inc. v. Estrada, 694 S.W.2d 359 (Tex.Civ.App.1985);

Malone & Hyde, Inc. v. Hobrecht, 685 S.W.2d 739 (Tex.Civ.App.1985);

Baptist Hosp. of Southeast Tex., Inc. v. Baber, 672 S.W.2d 296, 298 (Tex.Civ.App.1984), cert. denied,

714 S.W.2d 310 (Tex.1986).

5

See, e.g.,

Coburn v. Agustin, 627 F.Supp. 983, 995 (D.Kan.1985);

Jones v. State Bd. of Medicine, 97 Idaho 859, 871, 555 P.2d 399, 411 (1976), cert. denied,

431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977);

Farley v. Engelken, 241 Kan. 663, 672, 740 P.2d 1058, 1064 (1987);

Sibley v. Board of Supervisors of La. State Univ., 477 So.2d 1094, 1107 (La.1985);

Carson v. Maurer, 120 N.H. 925, 932, 424 P.2d 825, 830 (1980);

Arneson v. Olson, 270 N.W.2d 125, 135 (N.D. 1978).

6

See

Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1340 (Ala.1976);

Bennett v. Artic Insulation, Inc., 253 F.2d 652, 654 (9th Cir.1958);

Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23, 26–27 (1954);

Lambotte v. Payton, 147 Colo. 207, 209, 363 P.2d 167, 168 (1961);

Gamble v. Kinch, 102 Idaho 335, 337, 629 P.2d 1168, 1170 (1981);

Dillner v. Maudlin, 161 Ind.App. 204, 205, 314 N.E.2d 794 (1974);

Roadway Express, Inc. v. Piekenbrock, 306 N.W.2d 784, 786 (Iowa 1981);

Roach v. Liberty Mut. Ins. Co., 279 So.2d 775, 777 (La.Ct.App.), cert. denied,

281 So.2d 756 (La.1973);

Berluchaux v. Employers Mut. of Wausau, 194 So.2d 463, 465 (La.Ct.App.), cert. denied,

250 La. 533, 197 So.2d 79 (1967);

Galbraith v. Levin, 323 Mass. 255, 259, 81 N.E.2d 560, 563–64 (1948);

Permenter v. Milner Chevrolet Co., 229 Miss. 385, 404, 91 So.2d 243, 252 (1956);

Dix v. Motor Mkt., Inc., 540 S.W.2d 927, 932–33 (Mo.Ct.App.1976);

Flannery v. Sample Hart Motor Co., 194 Neb. 244, 248, 231 N.W.2d 339, 342 (1975);

Pendrey v. Barnes, 18 Ohio St.3d 27, 29, 479 N.E.2d 283 (1985);

Felty v. City of Lawton, 578 P.2d 757, 760 (Okla.1977);

Liney v. Chestnut Motors, Inc., 421 Pa. 26, 28, 218 A.2d 336, 338 (1966);

Keefe v. McArdle, 109 R.I. 90, 92, 280 A.2d 328, 329 (1971);

Stone v. Bethea, 251 S.C. 157, 164, 161 S.E.2d 171, 174–75 (1968);

Parker v. Charlie Kittle Pontiac Co., 495 S.W.2d 810, 812 (Tenn.1973);

Pratt v. Thomas, 80 Wash.2d 117, 119, 491 P.2d 1285, 1286 (1971);

Meihost v. Meihost, 29 Wis.2d 537, 546, 139 N.W.2d 116, 121 (1966).

7

See

Gaither v. Myers, 404 F.2d 216, 221 (D.C. Cir.1968);

Ross v. Hartman, 139 F.2d 14, 16 (D.C.Cir.1943), cert. denied,

321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080 (1944);

Vadala v. Henkels & McCoy, Inc., 397 A.2d 1381, 1383–84 (Del.Super.1979);

Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 56 (Fla.1977);

Kacena v. George W. Bowers Co., 63 Ill.App.2d 27, 39, 211 N.E.2d 563, 569 (1965);

Davis v. Thornton, 384 Mich. 138, 146, 180 N.W.2d 11, 15 (1970);

Zinck v. Whelan, 120 N.J.Super 432, 445, 294 A.2d 727, 733–34 (1972);

Itami v. Burch, 59 Or.App. 400, 402, 650 P.2d 1092, 1093 (1982).

8

See

Palma v. United States Indus. Fasteners, Inc., 36 Cal.3d 171, 185, 681 P.2d 893, 902, 203 Cal.Rptr. 626, 634 (1984);

Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986);

Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 635 (Minn.1978);

Dix v. Motor Mkt., Inc., 540 S.W.2d 927, 932 (Mo.Ct.App.1976);

Felty v. City of Lawton, 578 P.2d 757, 761 (Okla.1977).

9

See

Hosking v. Robles, 98 Cal.App.3d 98, 102–03, 159 Cal.Rptr. 369, 372 (1979) (surveying what constitutes “special circumstances” in California);

Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986) (leaving keys in unattended car‘s ignition in high crime area near several bars constitutes special circumstances);

State Farm Mut. Auto. Ins. Co. ‍​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​‌​‌‌‌‌​‌‌‌‌‌‌​‌‍v. Grain Belt Breweries, Inc., 309 Minn. 376, 381, 245 N.W.2d 186, 189 (1976) (same);

Lavo v. Medlin, 705 S.W.2d 562, 564 (Mo.Ct.App.1986) (implying that special circumstances include parking unusually dangerous vehicle in high crime area with keys in ignition);

Zinck v. Whelan, 120 N.J.Super. 432, 450, 294 A.2d 727, 736 (1972) (special circumstances are position and location of parked vehicle, access thereto, its operational condition, proximity to surveillance, and length of time elapsing from theft to accident).

Case Details

Case Name: Richardson Ex Rel. Estate of Richardson v. Carnegie Library Restaurant, Inc.

Court Name: New Mexico Supreme Court

Date Published: Oct 18, 1988

Citation: 763 P.2d 1153

Docket Number: 17432

Court Abbreviation: N.M.