{1} Defendant Roswell Hospital Corporation (the Hospital) appeals from a jury verdict in favor of Plaintiffs Kim and Bonnie Talbott. Plaintiffs are co-personal representatives of the estate of Damon Talbott (Decedent) in a wrongful death action. After the first jury trial in this case resulted in a verdict for Plaintiffs, this Court reversed and
FACTUAL BACKGROUND
{2} In the summer of 2000, MedFlight Air Ambulance (MedFlight) approached Medical Air Transport, Inc. (MAT) with a proposal to form a joint business operation that would provide air ambulance services in southeastern New Mexico. Shortly thereafter, Med-Flight and MAT succeeded in agreeing to terms to form the operation. For the purpose of deciding this case, we refer to the MedFlight/MAT operation as “the Business” and note that MedFlight withdrew from the operation in May 2001, leaving MAT to ultimately run the operation on its own.
{3} The Business contacted the Hospital in late 2000 and proposed a deal to establish its base of operations on the Hospital’s helipad. The Business’s proposal was potentially beneficial to the Hospital because (1) although the Hospital had a helipad, it did not regularly base a helicopter at its facility to transport patients and (2) having a helicopter based on its premises would enable the Hospital to provide enhanced services to its patients, allow the Hospital to provide care to a greater number of patients, and create additional revenue for the Hospital.
{4} Following the Business’s proposal, negotiations with the Hospital began. The Hospital’s chief executive officer, Ronald Schaffer, gave the Hospital’s chief operating officer, Brian Bickel, the task of handling the negotiations. During the course of the negotiations, Bickel contacted the chief executive officer of a hospital in Arizona, which had used the Business’s air ambulance services, to inquire about the Business’s track record. Bickel did not make any further specific inquiries into the Business’s safety history; rather, he relied on the Business’s Federal Aviation Administration (FAA) and state licensure as sufficient to establish that the Business was a competent air ambulance operator. Ultimately, the Hospital and the Business reached an agreement under which the Business was permitted to establish its base of operations on the Hospital’s helipad. The Hospital also agreed to give the Business the “first call” opportunity to respond to the need to transport patients by helicopter from the Hospital’s helipad. Accordingly, the agreement went into effect in December 2000.
{5} On October 19, 2001, Decedent, who was a police officer employed by the New Mexico State Police, was participating in a training program offered by the Business to train local law enforcement officers regarding how to establish a landing zone and direct a helicopter to land at accident scenes and other remote locations. At the end of the training session, Decedent and two other law enforcement officers boarded the helicopter owned by the Business and piloted by Shawn Kling, an employee of the Business, for an orientation flight. The helicopter crashed during the flight, killing Decedent. As we stated in our first appellate opinion concerning this case, “there were two possible direct causes of the accident: (1) overly aggressive maneuvering of the helicopter or (2) failure of the hydraulic system.” Talbott,
PROCEDURAL BACKGROUND
{6} After the helicopter crash, Plaintiffs filed suit in district court. In their second amended complaint, Plaintiffs included a claim, invoking Section 411, that the Hospital was negligent because it “failed to exercise reasonable care to employ a competent and careful contractor” to provide air ambulance services and “failed to properly investigate or
{7} On its first appeal to this Court, the Hospital did not question the viability of Section 411 as a basis for recovery; rather, it challenged the application of Section 411 to the specific circumstances of the case. Talbott,
{8} At the second trial, the existence of a contractual relationship between the Hospital and the Business was framed for the jury’s determination. Once again, the jury returned a verdict for Plaintiffs based on the Hospital’s liability pursuant to Section 411. The Hospital now appeals a second time.
RESTATEMENT (SECOND) OF TORTS SECTION 411
{9} In this appeal, the Hospital contends that because New Mexico has not expressly adopted Section 411, the district court erred in allowing Plaintiffs to try the case on such a theory. Specifically, the Hospital argues that Plaintiffs should not have been permitted to proceed on their Section 411 claim because New Mexico law does not require an employer to exercise reasonable care in selecting and retaining an independent contractor to conduct potentially dangerous activities. We apply a de novo review to this question of law. See Chavez v. Desert Eagle Distrib. Co. of N.M.,
{10} Typically, the employer of an independent contractor is not liable for physical harm caused to a third person by a negligent act or omission of the independent contractor. Valdez v. Yates Petroleum Corp.,
An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons.
Restatement, supra, § 411, at 376. Section 411 defines a “competent and careful contractor” as one “who possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others” and one “who also possesses the personal characteristics which are equally necessary.” Id. § 411 emt. a, at 377.
{11} A number of jurisdictions across the country have expressly adopted Section 411 as a valid cause of action. See, e.g., W. Stock Ctr., Inc. v. Sevit, Inc.,
{12} Although New Mexico is not among the jurisdictions that have expressly adopted Section 411, several New Mexico cases have discussed it in passing. Valdez,
{13} In reaching our conclusion, we note that our adoption of Section 411 does not represent any substantial departure from our tort jurisprudence. Apart from going as far as assuming, without deciding, that a Section 411 claim is viable, Valdez,
{14} Finally, as a result of our adoption of Section 411, we must address the Hospital’s argument that because the Business was licensed and certified by the FAA, the Hospital should have been allowed to presume that the Business was appropriately competent to provide air ambulance services. The plain language of Section 411 indicates that the amount of care that must be exercised in selecting an independent contractor varies depending on the dangerousness of the work to be performed. Restatement, supra, § 411 emt. c, at 379. Specifically,
if the work is such as will be highly dangerous unless properly done and is of a sort which requires peculiar competence and skill for its successful accomplishment, one who employs a contractor to do such work may well be required to go to considerable pains to investigate the reputation of the contractor and, if the work is peculiarly dangerous unless carefully done, to go further and ascertain the contractor’s actual competence.
Id. Thus, we do not interpret Section 411 to necessarily allow for an employer to avoid liability by blindly relying on an independent contractor’s licensure to establish its competence. On the contrary, the question regarding the lengths to which the Hospital was required to go to investigate the Business’s reputation, based on the skill required to provide air ambulance services and the dangerousness of such work, was a factual one that was correctly left to the jury’s discretion.
APPLICABILITY OF SECTION 411
{15} Because we decide that it was permissible for Plaintiffs to bring a claim for the Hospital’s negligent selection of the Business pursuant to Section 411, our focus shifts to the Hospital’s arguments regarding whether Plaintiffs were entitled to a jury verdict on their Section 411 claim. We consider each of the Hospital’s arguments in turn.
{16} First, the Hospital argues that the district court erred in implicitly concluding that Decedent was a foreseeable plaintiff. The crux of the Hospital’s argument is that because Decedent was not a foreseeable plaintiff, the Hospital did not owe him a duty. See Chavez,
{17} In this case, the Business was allowed to use the Hospital’s helipad as its base of operations for its air ambulance enterprise. Under Section 411, the potential harm that the Hospital was required to consider before partnering with the Business was an accident, presumably a helicopter crash, that might be caused by the incompetence or carelessness of the Business. Nevertheless, the Hospital partnered with the allegedly incompetent and careless Business, and Decedent died in a helicopter crash as a result of the Business’s negligence while participating in a law enforcement training exercise that sought to teach officers how to assist in facilitating the transportation of injured patients to medical facilities, such as the Hospital’s property. See Talbott,
{18} Second, with respect to another issue framed as a duty question, the Hospital asserts that the district court erred, as a matter of law, in allowing the jury to decide the question of whether the Hospital made the proper inquiries into the capability of the Business to provide careful and competent air ambulance services. As noted above, however, it is the jury’s province to determine the extent of the background investigation required in a case based on Section 411. The jury was instructed pursuant to Section 411 and accordingly resolved the factual disputes regarding the Hospital’s investigation of the Business’s competence in Plaintiffs’ favor. We will not disturb that decision on appeal. See Gonzales v. Gen. Motors Corp.,
{19} As a corollary to its second argument, the Hospital contends that any duty that could possibly exist in this case is preempted by federal law. In support of its position, the Hospital references three federal statutory provisions and one part of the Code of Federal Regulations regarding the minimum safety regulations promulgated by the FAA, see 49 U.S.C. §§ 41101, 44701, 44703, 44705 (2000); 14 C.F.R. §§ 135.1 to .507 (2007), and relies primarily on Abdullah v. American Airlines, Inc.,
{20} Third, the Hospital contends that the district court erred in denying its motion for judgment as a matter of law because Plaintiffs failed to introduce evidence that adequately supported proximate cause. In the first appeal in this case, we clearly stated that if the jury took a “broad view” of the evidence presented in the first trial, it “could have found that the qualities of [the Business] that the Hospital negligently failed to discover, disregard for pilot qualifications and safety, [proximately] caused the crash.” Talbott,
{21} Fourth, the Hospital contends that the district court erred when it failed to determine, as a matter of law, that the Hospital did not enter into a contract to employ the Business. We have expressly stated that when “the existence of a contract is at issue and the evidence is conflicting or permits more than one inference, it is for the finder of fact to determine whether the contract did in fact exist.” Eckhardt,
{22} Fifth, the Hospital argues that the district court should have granted its motion for judgment as a matter of law because Plaintiffs failed to introduce evidence that an appropriate background check would have revealed the Business’s incompetence. However, the Hospital expressly concedes that
{23} We conclude that none of the Hospital’s arguments regarding the applicability of Section 411 to this case requires a reversal of the verdict of the second trial jury. We therefore turn to the Hospital’s final two arguments raised in this appeal.
JURY INSTRUCTIONS
{24} Having decided that it was permissible for Plaintiffs to bring a Section 411 claim and that the claim was properly left for the jury to decide, we now address the Hospital’s argument challenging various aspects of the jury instructions given at the second trial. The Hospital contends that the jury instructions concerning the elements of Plaintiffs’ Section 411 claim were confusing and failed to describe all of the elements necessary to result in a verdict for Plaintiffs. Specifically, the Hospital argues that the jury should have been instructed that (1) Plaintiffs had the burden of proving that the Business was acting as the Hospital’s independent contractor (i.e., within the “scope of work” for the Hospital) at the time of Decedent’s death; (2) if there was no “presumption of competence,” Plaintiffs were required to prove that “the circumstances of this ease triggered a greater duty of inquiry before such a duty could be imposed”; (3) Plaintiffs had the burden of proving a direct causal connection between the Business’s incompetence and the crash that killed Decedent; and (4) one party could not be the independent contractor of another unless there was “a contract between them by which the one actually employed] the other.”
{25} This Court reviews jury instructions de novo in order “to determine whether they correctly state the law and are supported by the evidence introduced at trial.” Benavidez v. City of Gallup,
{26} It appears that the district court chose not to specifically incorporate the Hospital’s requested instructions regarding (1) whether Decedent was killed “during the course and scope of’ the Business’s employment with the Hospital; (2) Plaintiffs’ burden of proving that the Hospital had actual knowledge of Business’s incompetence; and (3) Plaintiffs’ burden of proving a “direct causal connection” between the Business’s “alleged incompetence at the time of ‘hiring’ and the negligence which, many months later, caused the accident.” We note, however, that the district court’s instructions regarding Plaintiffs’ Section 411 claim were specifically patterned after the language in the Restatement and that none of the essential elements of a Section 411 claim was omitted. As a result, because the jury was presented with a fair representation of the law concerning a Section 411 claim, which we have expressly adopted in this opinion, the district court did not err in omitting the instructions that the Hospital requested.
{27} Similarly, the Hospital argues that the instructions given to the jury were misleading regarding the necessary relationship required to prove that the Business was an independent contractor of the Hospital. However, our review of the record indicates that each of the elements required to form a contract was included in the jury instructions
MOTION FOR A NEW TRIAL
{28} Finally, the Hospital contends that the district court erred when it denied its motion for a new trial. The Hospital argues that a new trial should have been granted as a result of the alleged inadequacy of the jury instructions and the alleged misconduct of Plaintiffs’ counsel throughout the second trial. Because we have concluded that the jury instructions in this case were adequate, we only address the Hospital’s concerns regarding the alleged misconduct of Plaintiffs’ trial counsel.
{29} The rule in New Mexico has long been that “we will not disturb a trial court’s exercise of discretion in denying or granting a motion for a new trial unless there is a manifest abuse of discretion.” State v. Garcia,
{30} In support of its argument, the Hospital contends that Plaintiffs’ counsel inappropriately commented on an objection by the Hospital’s counsel, and the district court’s subsequent ruling misstated the law in front of the jury, made inappropriate statements in closing argument that called into question the integrity of the Hospital’s counsel and injected statements of personal belief, and quoted the Bible in closing argument. Although we do not necessarily condone the specific instances of the behavior of Plaintiffs’ counsel cited by thé Hospital, we see no compelling reason to second-guess the district court’s decision to deny its motion for a new trial. The district court was given the opportunity to consider the extensive argument included in the Hospital’s motion and ultimately decided that a new trial was not warranted. See State v. Smith,
CONCLUSION
{31} With this opinion, we expressly adopt Section 411 of the Restatement (Second) of Torts as the law of New Mexico. We further conclude that the evidence presented at the second trial in this case was sufficient to establish the elements of Plaintiffs’ claim under Section 411, the jury was adequately instructed on the law, and the district court did not err in denying the Hospital’s motion for a new trial. We therefore affirm.
{32} IT IS SO ORDERED.