Torres v. El Paso Electric Co.

1999-NMSC-029 J.

Francisco TORRES and Sonia A.

Torres, wife, his Plaintiffs-

Appellants, COMPANY,

EL PASO ELECTRIC

Defendant-Appellee. 24,300.

No.

Supreme Court of New Mexico.

June negli- of EPEC on the

judgment favor gence claim. respect to the directed verdicts With the district favor of we reverse puni-

court’s directed verdict on the claim damages actions tive due cumulative employees giving rise to a reasonable management in the inference recklessness inherently dangerous activity. Finally, of an claim of we affirm the directed verdict because, spoliation although we evidence prior spoliation may hold that tortious occur Jr., Paso, TX, Gilstrap, El Pickett & T.O. filing complaint, a we conclude that to the Pickett, Associates, Lawrence M. Las a failed malicious in- Torres to demonstrate Cruces, appellants. for a disrupt tent to his lawsuit. We remand for and negligence trial on the claim on new Sandenaw, T.A. Leonard J. Law Office of punitive damages. Jr., Piazza, Sandenaw, A. Las Thomas Werkenthin, P.C., Cruces, Small, Craig & Knebel, Austin, Kainz, Jeffrey E. T.

Aldean I. Facts TX, appellees. 31, 1992, July Francisco Torres’s On {4} Mexico, Inc., employer, Aldershot of New OPINION process over replacing was in the a roof SERNA, Justice. Cruces, greenhouse Mexico. in Las New in the the new Torres assisted installation of Plaintiffs-Appellants Francisco Tor- {1} job standing roof one of his duties. While personal injury res and Sonia Torres filed gutter edge greenhouse the on against Defendant-Appellee El Paso action long rod being roof and handed a metal from (EPEC) Cojnpany the district Electric Torres contact- employee, another Aldershot from a appeal court. The Torreses directed conductor, high voltage which was above ed a on a claim of verdict favor EPEC him, and with the metal rod. His behind evidence, spoliation from di- intentional power contact with the line caused Torres to in fаvor of on claim rected verdict EPEC ground greenhouse. fall to the outside jury damages, from a verdict punitive and injuries, including Torres suffered serious se- judgment and in favor of EPEC on claims of amputated electrical burns and an left vere negligence and loss consortium. trial, stipulated foot. At EPEC and Torres Upon of the matter to certification {2} expenses as the amount of Torres’s medical Appeals, this from the Court Court $196,808.42. indepen- hold that affirmative defense negligent- alleged that intervening apply cause to the Torres EPEC dent does addition, ly high voltage maintained a plaintiff. installed and negligent actions that, greenhouse power pole adjacent to the jury instruc- we conclude because negligence proximately caused independent intervening tion cause cre- on power jury contact with the conductor. possibility ates confusion and is Torres’s Torres jury pole instruc- EPEC installed significantly duplicative of cause, pole was bent and that proximate longer alleged it is tion on installation, leaned the involving at the time of appropriate instruction for cases eon-, greenhouse pole toward the to offset multiple negligence. acts also installation, After independent weight inter- of the conductor. elude that the doctrine of present pole shifted several feet towards inapplicable to the vening result, pole greenhouse, cross-arm of As we hold that matter. greenhouse. down toward the Addi- affirmative defense consti- tilted instruction cracks, error, tionally, running had pole several and we vacate the tuted reversible horizontally vertically, ap- deprive both EPEC did not intend to result, peared alleged be twistеd. Torres of evidence. As the trial court granted individuals warned several EPEC about the EPEC’s motion for a ver- directed pole proximity respect condition of puni- the line’s dict with to Torres’s claim for greenhouse damages took no but EPEC tive and his claim of intentional problem. action to alleviate the spoliation of evidence. alleged Torres also that EPEC’s in- Following presentation of evi-

vestigation claim, suspect. of the accident was negligence Ac- dence on Torres’s the trial Torres, cording to representative, EPEC court instructed the on the affirmative counsel, after conferring had the independent intervening defense of causes. removed, sections, that, cut into and discarded. EPEC claimed if had negligent, been preserve Torres, had policy Aldershot, EPEC negligence evidence Al- and, contractors, Electric, cases of serious electrical contact dershot’s L.E. Inc. and fact, (Beukel), saved and super- labeled transformers that Beukel Greenhouse Services pole. provid- had been on the and, therefore, While seded EPEC’s ed measurements of the distance between constituted causes the conductor and ground liability. both the and the which relieved EPEC of pole, alleged Torres that special finding EPEC’s removal of returned a verdict that EPEC prevented an accurate measurement had been that negli- but EPEC’s of the gence distance from the proximately conductor to the not had caused Torres’s greenhouse, injuries. a measurement that EPEC did provide. Although a former EPEC em- appeal On to the Court of Appeals, {9}

ployee testified that repre- he saw an EPEC argued Torres that the trial erred in court sentative take a pow- measurement from the weighing granting the evidence EPEC’s er building prior conductor to the to the motion for directed verdict on the claim for removal, pole’s records did re- punitive damages and the claim intentional flect employ- that measurement and EPEC addition, spoliation of In evidence. Torres ees denied that such a measurement had argued that the trial court erred instruct- Additionally, been taken. even an ing on the affirmative defense of employee EPEC measured the distance be- independent intervening Finally, causes. greenhouse pri- tween conductor and the argued Torres that the trial in- court’s or to the accident due to the warnings structions, particularly instruction number received, had EPEC EPEC unable to concerning defenses, imper- four affirmative produce that Finally, measurement at trial. missibly commented on the evidence. The alleged Torres employee that EPEC Appeals, recognizing potential Court of changed employee’s another measurements independent conflict between the defense of point of the of electrical contact on the metal intervening adoption cause and New Mexico’s holding, rod that had been which had comparative negligence, certified the issue making appear result the conductor viability continuing indepen- “of the of the green- be more distant from Torres and the [jury] intervening dent instructions house at the time of the accident. and, viable, if circumstances which case-in-chief, At the close they given,” of Torres’s should be as matter of sub- EPEC moved for public importance. a directed verdict. stantial See NMSA 1-050(A) 34-5-14(C)(2) (1972) § Rule NMRA 1999. The trial court (stating this Court’s determined “any appellate jurisdiction that EPEC did not have over certified matters anybody” intention to accepted harm and did not act Appeals). from the Court of sufficiently in a willful wanton manner to certification and now address each of Tor- punitive damages. form the basis for claims. Addi- res’s See Collins ex rel. Collins v. Tabet, tionally, the trial court determined that Tor- n. (1991) knowledge (construing

res failed show that EPEC had 53 n. 10 Section 34-5- 14(C) juris- vesting appellate lawsuit the time that it discarded the in this Court power pole. The trial court also determined diction over “the entire case in which the intervening independent An upon taken” certification from the

appeal interrupts the natu cause is “a cause which Appeals). Court events, their sequence of tons aside ral cause, prevents probable natural and re Intervening Independent II. Cause omission, original sults of the act court, argued In trial result, produces a different that could not Torres, his the actions reasonably Thompson foreseen.” have been Aldershot, con- employer, and Aldershot’s 411-12, Anderman, inju- proximately caused Torres’s tractors (1955); (defining accord UJI 13-306 Specifically, EPEC claimed Tor- ries. independent intervening cause as a cause of the wire aware of the location res was “interrupts and turns aside course of danger that he failed potential produces that which was not fore events ordinary replacing care in to exercise earlier act or omis seeable as result EPEC also claimed greenhouse roof. al, sion”); PageW. Keeton et Prosser see placed Torres negligently Aldershot § at 301 and Keeton on the Law Torts adequate dangerous position train- without (5th 1984) (“An intervening ed. cause is оne regulations ing and that Aldershot violated operation produc which comes into active Safety Occupational and Health Ad- of the ing the result after (1) by: failing inform Torres ministration defendant.”). appeal, Torres contends On (2) lines; power fail- the location of the 13- giving erred trial court UJI lines; (3) ing stay him to out of the tell Torres, Aldershot, acts of 306 because the failing consequences tell him of con- Beukel, satisfy fail to and L.E. Electric lines; (4) ap- failing to erect tact with definition of an warning signs; failing to take propriate contention, reviewing this cause. steps prevent falling from off the Torres possible Appeals of noted a inconsis Court (6) roof; failing and to have lines de- tency independent between the doctrine of energized. Clapp, engineer- Allen intervening and New Mexico’s scheme cause expert, ing that the accident would testified apportioning negligence of fault actions had com- not have occurred if Aldershot questioned the doctrine of inde and whether regulations. Finally, plied with OSHA “unduly empha pendent intervening cause Beukel, glass expert EPEC claimed that portion of the case.” one size^ hired Aldershot to assist installer Rizzo, 682, 683, In v. 96 N.M. Scott {13} Electric, roofing and L.E. Alder- project, (1981), Court, adopt- P.2d 1235 this contractor, proximately electrical shot’s Appeals, of ing opinion the Court injuries by advising not Al- caused Torres’s rule bar- eliminated harsh common-law precautions to take such as de-en- dershot recovery ring by plaintiffs for their contribu- ergizing the lines. comparative tory negligence and substituted contentions, place. Specifically, negligence its Based on these negli- adopted pure comparative form requеsted give trial court the uni- of that the fault, indepen- gence jury apportions in which the jury dealing with form instruction fault, causes, regardless degrees of of between the intervening UJI 13-306 dent 689-90, plaintiff objected and the defendant. Id. at Although 1999. NMRA instruction, corollary contending P.2d at 1241-42. As natural there was any adoption comparative negligence in support independent “no evidence to Rizzo, case,” Appeals subsequently intervening the trial the Court cause in joint liability, and under instruc- abolished several court included UJI 13-306 defendants, which, multiple among each de- jury.1 tions to the establishing directing argument and reject in- an affirmative defense Torres's condition, act, omission, improperly commented on the evi- or structions that "each claimed nothing etc., There was in the instructions party dence. specific referenced to the non- conclusion, constituting argument, unneces- party, supported by evi- which is substantial sary See UJI 13-302D NMRA 1999 information. listed). dence” be (discussing proof burden of the defendant’s fendant, fault, regardless independent proportion The doctrine of intervening originate percent did re had been hable for one hundred rather, contributory sponse negligence; plaintiffs damages. Bartlett v. New Mexico the doctrine traditional reflects notions of Inc., 152, 158-59, Welding Supply, 98 N.M. proximate causation and the need to limit (Ct.App.1982); see P.2d 585-86 potentially liability arising limitless from NMSA1978, (1987) (adopting § 41-3A-1 sev- generally mere cause in fact. See Keeton et liability excep- eral with limited number of al., (“In supra, § at 302 the effort to hold tions). so, doing Appeals Court liability the defendant’s within some reason apportion concluded that a able bounds, compelled, able the courts have been fаult among multiple neg- both and causation necessity out any of sheer and in default of resulting ligent single acts or in a omissions better, thing upon scope to fall back Bartlett, injury. original foreseeable risk which the defendant (“We unwilling say are ... al- created.”). Independent has may fault be apportioned, causation question policy, foreseeability, cause is a one, cannot. If can do can do the 301-02; and id. remoteness. See Fowler other.”). Additionally, compara- the rise al., Harper 20.5, § V. et The Law Torts negligence tive the demise contributo- (2d ed.1986). Importantly, the doc ry negligence has had an effect on associated trine is thus limited to the acts Miller, Dunleavy doctrines. See multiple tortfeasors or the 353, 359, (holding plaintiff may but also include intentional emergency “the instruction on sudden tortious or parties criminal acts of third unnecessary potentially confusing and well as of nature. with forces As the sudden overemphasize portion serves to one doctrine, emergency then, the doctrine of noting ease” abolition of unavoidable intervening cause is not “as accident, chance, last open clear clearly incompatible comparative negli Scott, danger). generally obvious 96 gence” as the defenses of last clear chance (“Under N.M. at 634 P.2d at 1239 com- open danger. and obvious Dunleavy, parative negligence, designed rules to amelio- 116 N.M. at P.2d at 1217. rate contributory negli- the harshness of the Nonetheless, extent, to a certain needed.”). gence longer rule are no Prior to shaped indepen- courts have the doctrine of however, case, this we have not the resolved intervening response dent cause in сomparative negligence effect of on the doc- contributory negligence harshness of and the independent intervening trine of cause. See potential joint unfairness of and several lia- Inc., Sys., v. Govich North Am. 112 N.M. bility.2 In regard, this doctrine “[t]he of 226, 232-33, 94, (dis- (1991) 814 P.2d 100-01 intervening strong cause is not so it seems as cussing independent gen- intervening cause to have been at one time.” v. O’Brien B.L.C. erally focusing compara- but on the of effects Co., (Mo.1989) (en Ins. 768 S.W.2d 68 negligence tive on the common law rescue banc). contributory respect negli- With doctrine); Carnegie Library Richardson v. gence, courts have sometimes labeled a de- Restaurant, Inc., 688, 701, 107 N.M. 763 P.2d negligent independent fendant’s act inter- (1988) (mentioning Scott in the vening plaintiffs negligence cause when a context a independent of discussion on inter- complete recovery, would have been a bar to cause, act, vening namely, a criminal but not even both acts could be characterized issue). resolving the proximate injury. Terry as the causes of See scope (discussing 2. Due to the broad of the doctrine of suicide while in the custodial care of cause, independent intervening expressly defendant); lim- Sategna, v. Bouldin 71 N.M. analysis relationship comparative it our of its (1963) ("We do not negligence negligent to those or omissions acts perceive theft of a car as a natural event to be by party plaintiff a third are in causes person negligent leaving foreseen a who is in plaintiffs analysis injury; fact of the our does not key ignition.”); his car in the unattended with extend to intentional tortious or criminal acts or 699-701, Richardson, see also Harrell, City forces of nature. See v. Belen 711, of Bouldin). (discussing P.2d at 1164-66 601, 603-04, 713-14 time, in combina- Note, acting at the same which Christlieb, Why Superseding Cause it, injury. Abandoned, tion with causes 72 Tex. Analysis Be Should (1993). Courts also (brackets L.Rev. 165-66 origi- in NMRA 1999 UJI 13-305 independent inter on the doctrine relied nal). that the defen- If the determines of com vening defendant cause relieve plaintiffs ‍​‌‌​​‌‌‌‌​​‌​​‌​‌‌‌‌​​‌‌​​​‌​​‌​​​‌​​‌‌‌​​‌‌‌​​‌‍act caused the proximately dant’s a third plete liability in which situations injuries negligence with the combination party’s grossly disproportionate another, negligence including plaintiff, it must then though, causing plaintiffs injury, even tort- apportion fault between concurrent (dis- may negligence charac again, both acts of be See UJI 13-2218 NMRA feasors. negligence by plain- plaintiffs cussing comparative proximate as a cause of the terized Balko, tiff); (discussing F.Supp. UJI 13-2219 NMRA injury. Holden v. “plaintiffs injury (S.D.Ind.1996) jury finding that the (discussing the re neg- proximately caused combination lationship intervening cause doctrine person”). ligence of more than one com “all-or-nothing” approach joint liability); rule of and several mon-law independent intervening Christlieb, (classifying supra, at 165 su instruction, 13-306, and the brack cause UJI general types, perseding causes under three language referring to an eted UJI 13-305 “that, “absorbing defining an cause” one change independent intervening do not cause another, judged reason or for one Rather, proximate cause. meaning proximate than the other much more fault clarify meaning of they are intended to cause,” stating type of su proximate in cases in which there is cause perseding logical under cause “has use from which reasonable minds could evidence [negligence] systems”); see also comparative deciding differ whether an unforeseeable Co., Hercules, Shipping Inc. Stevens has the chain of causation. A cause broken (11th Cir.1985) (stating finding independent intervening F.2d cause intervening “operated against plaintiff cause represents finding the doctrine of or, words, proximate finding collision cases to ameliorate the maritime cause other not, so-called ‘divided dam harsh effects act or did that the defendant’s omission rule, damages sequence, pro under divid ages’ which were natural and continuous evenly negligent parties”). Independent intervening injury. ed between duce expansive application cause, comparative negligence, that such an believe in contrast to complete doctrine defense. constitutes acts is inconsistent jury’s Given consideration system pure comparative Mexico’s New cause, plaintiff proximate on which the fault. jury’s proof, and the bears burden comparison of the defendant’s actions, plain negligence plain comparative negligence with the prove to the that a defen tiffs must that, tiff, in which a we conclude cases duty proximately breach of caused dant’s plaintiffs negligence alleges that a defendant injuries. UJI 13-302B NMRA their injury, or UJI proximately caused his her independent the Regardless of issue 1999. independent in and the reference to cause, intervening give trial courts the must tervening unduly em cause UJI 13-305 following jury proximate instruction on phasize attempt a to shift fault to defendant’s cause: plaintiff. Highway ex See State rel. State Atchison, Topeka & Fe injury Comm’n v. Santa proximate A cause of an is that 68, 587, 590, Ry., continuous 76 N.M. which in natural and se- (“Instructions which repetitious which are or independent inter- quence [unbroken portions the unduly emphasize certain case vening injury, produces cause] given.”). not We believe thаt this injury not have should be without which the would unacceptable cause, emphasis risk only creates It undue occurred. need inadvertently apply the will nor nearest cause. It is suffi- nor last contributory negligence common law rule of it with some other cause cient if occurs result, involving plaintiffs abolished in Scott. As a we conclude Unlike cases however, comparative negligence, that the shall not be instructed on inde- appli- pendent intervening plaintiffs independent cause for a cation intervening cause to alleged comparative negligence. Klopp intervening negligence v. parties of third Cf. 153, 157, necessarily Corp., always 824 does Wackenhut conflict with sev- (1992) (“If liability. Hercules, Inc., accept we were eral But see (“Under duty foreseeably that no is owed to invitees F.2d ‘proportional fault’ injured only contributory system, justification through negligence, applying exists for ameliorating intervening we would vitiate the negligence effect doctrines of fault.”). chance.”). comparative “[Liability concepts many last clear There are eases negligence based on or related to negligence of either which the unforeseeable defendant, both, plaintiff, or subject party reasonably are third can be said to break Scott, comparative negligence rule.” the chain of causation such that defen- proximate 634 P.2d at dant’s act or 1239. therefore is not a omission See, hold that plaintiffs injury. e.g., New Mexico the doctrine of cause of the Stra- independent intervening ley ap- Kimberly, cause does not 687 N.E.2d 366 n. ply plaintiffs negligence. to a (Ind.Ct.App.1997) (“Although agree Brooks v. with Cf. Logan, 127 holding Tyner Idaho 80-81 the to the extent that when (1995) (requiring act person “an a third two resulting actors contribute to a other injury, they force order establish an interven- responsible should both be held that, we, ing, superseding nevertheless, stating cause” and find certain situa- acts, tions, plaintiffs’ bar, question “we believe the original is such as the case at appropriately comparative more negli- negligent may one actor be so from removed gence”); we, der Heide resulting injury society, Von v. Commonwealth as a cannot Dep’t Transp., Pa. responsible. result, 718 A.2d hold him aAs we do not (1998) (stating that an holding Tyner applicable instruction on find the superseding plaintiffs neg- case.”), denied, cause on based instant 706 N.E.2d transfer (1998). ligence Thus, palpable would be “a error of law” some of principles concept “properly underlying because the is more con- independent the doctrine of inter- determining degree sidered in vening important ... cause remain in our [of] cur- comparative princi- system. fault under rent tort ples”). virtually agreement unanimous liability only must be limited cover Similarly, jury’s duty under those which lie causes within apportion UJI 13-305 and UJI 13-2219 to risk, scope foreseeable fault and causation between tort- concurrent at least some connection reasonable with Thus, plaintiff. feasors other than the with it, upon recognition is based of the fact respect independent to cases in which inter- may causes which vening used shift fault based change intervene to the situation created solely disproportionate among fault tort- infinite, by the defendant are and that aas feasors, we conclude that would UJI 13-306 practical simply responsibility matter can- unduly emphasize the conduct of one tortfea- lengths. not be carried to such potentially sor over another and would con- al., § supra, Keeton et jury’s duty apportion flict fault. least, then, Nevertheless, very prior At the it clear that the our is cases independent intervening doctrine of cause indicate a trend in New Mexico toward sim carefully applied plifying complex should be to avoid conflict task of decid liability. ing Dunleavy, with New use of of See Mexico’s several issues causation. 116 (“How 359, Tyner, L.K.I. v. Holdings, See Inc. 658 N.M. at 862 P.2d at 1218 can we (“The 111, juror (Ind.Ct.App.1995) expect average N.E.2d 119 to understand and adoption comparative negligence, correctly apply of its this with instruction when it is fault, apportionment confusing of protec- judiciary renders the even to the of this 717, unnecessary.”). state?”); of Delgado, tion a remote actor v. N.M. Alexander 84 738 (1973) (“Rules it Having that was 778, determined

719-20, 507 P.2d 13-306, give the trial court to UJI negligence of error for concerning elements [the requires address whether the error we must sufficiently complicated proximate are cause] (re Rule 1-061 NMRA 1999 reversal. See engrafting them the unneces- upon without rights quiring prejudice to substantial of concept unavoidability.”). The issue sary error); party in order to constitute reversible intervening a com- independent cause adds 120, 124, Seidenberg, v. 82 N.M. Jewell analysis jury’s plex layer of determina- cf. (1970)(“[T]he 296, appellant has 477 P.2d 300 See, e.g., v. proximate tion cause. House showing prejudiced he the burden of that is Kellerman, 380, (Ky.1975) 382 519 S.W.2d instruction.”). general by an As erroneous a matter of law and remov- (making issue however, matter, we need not address wheth ing jury’s consideration because it from the pending cases is er use UJI 13-306 abstract nature of complexity of “the require sufficiently prejudicial to reversal intеrvening superced- for various criteria independent intervening doctrine of when the causation”). Therefore, ing with consistent applicable. In the cause would otherwise be discussing the effect of com- prior our cases case, independent present doctrine parative negligence traditional negligence on intervening applicable, cause is not otherwise principles, instruction on we believe therefore, the instructions on doc sufficiently intervening is independent cause to trine reversible error due “the constitute proximate repetitive of the instruction on interjection of false into the trial. issue” apportioning task of fault cause Homrich, 527, Archibeque N.M. v. 88 any and misdirec- potential for confusion (1975). 820, 543 P.2d 824 Dunleavy, outweighs its tion usefulness. Cf. (“It not 862 P.2d 1218 is N.M. First, we believe that doc necessary charge to judge independent intervening trine cause does requires time law to con- second that the apply not to Torres’s due our surrounding ac- sider the circumstances uniformly the doctrine determination determining the ac- conduct in whether tor’s apply negligence. a plaintiffs does not duty her tor breached his or another Second, of inde we believe that the doctrine P.2d person.”); Delgado, N.M. at intervening inapplicable pendent cause (“Since ordinary on instructions respect alleged negligence sufficiently proximate negligence and cause in this Aldershot its contractors case. plaintiff independent intervening must his bur- show sustain on instruction proof given presents issues in order to if den of on these cause is to be “the evidence recover, independent regard on acci- to an inter the instruction unavoidable an issue with (directions Buckley vening v. purpose.”); useful cause.” UJI 13-306 dent serves no Cochran, (Car- use); Bell, (Wyo.1985) Enriquez 1998- see ¶ NMCA-157, J., dine, dissenting) (advocating the abolition (“[A] party entitled to an instruction cause and stat- the defense theory his if there is evidence case ing plain- on a that absolute defenses based denied, it.”), support cert. 126 N.M. negligence “merely to confuse and serve tiffs (1998). case, In this extremely ought simple, make what to be alleged that EPEC’s acts increased difficult, “The de- incomprehensible”). even from contact with its the risk of electrocution defense [the] fendant is not entitled and that his electrocution was conductors causing proximately injury] over- [of result. review of the record reveals that Our Delgado, emphasized.” any EPEC failed to introduce evidence the instruction on P.2d at 780. We believe prevented proba the natural and cause proximate adequately will ensure thereby pro negligence, own ble result Therefore, trial courts proper verdict. ducing Thompson, 59 a different result. See 13-306, give or include should UJI 411-12, 285 P.2d at 514. N.M. at intervening cause reference to foreseeable, 13-305, is in involving multiple [A]ny harm which itself cases UJI in- as which the actor has created or negligence. of acts 739 risk, always recognizable leged, negligence resulting creased the is of others “proximate,” brought it susceptible matter how is Torres’s electrical contact is not about, except where there is such inten- complete to the of independent defense inter intervention, tionally al., tortious or criminal vening supra, § See et cause. Keeton (“One scope is not within the of the risk at 303 who leaves uninsulated electric by negligent created the original conduct. may people wires where come in contact with may antiсipate they them will do so as (Second) § of 442B Restatement Torts com- acts.”); result of own their Osborne (1965); b Thompson, ment accord at N.M. cf. 1983) Russell, (Alaska P.2d 412, 285 P.2d 515. (“The risk an intervening force would duty had a EPEC exercise exposed deadly cause the wires to become reasonable care the installation and main very which [defendant’s] risk rendered power pole tenance of and conductors failure negligence.”). alleged to insulate As this case take reasonable measures to by negligence of Aldershot and potential danger. reduce their In the first “closely reasonably its contractors was instance, part duty, degree “some consequences associated with the immediate negligence part persons on the of all act, defendant’s and form a normal Klopp, foreseeable....” 113 N.M. at aftermath; part of [it its and to that extent 297; ., P.2d at supra, accord Keeton et al foreign not scope was] of the risk (“The § by at 304 risk created the defen original negligence.” created Keeton may dant include the intervention of the al., Thus, § supra, et 307.4 the doc others.”). Thus, negligence foreseeable independent intervening trine of cause does wires, regard Torres’s contact with EPEC’s apply not to the facts of this case. party’s negligence less whether another occurrence, to its presents contributed was within the paradigmatic This case scope duty. al., of EPEC’s comparative See Keeton et negligence instance of § supra, (“Obviously, why juries at 303 the defen serves to illustrate al- should be liability by questions dant cannot be from relieved lowed to on resolve involved risk, fact that the impor a substantial and the basis proxi- instructions оn part risk, tant of the apportionment to which the mate defendant cause and fault. We subjected plaintiff has has indeed come conclude that the trial in- court erred in pass. intervening structing are independent Foreseeable forces on interven- scope risk, original within the of the ing interjected cause and that this instruction negligence.”). hence the defendant’s a false issue into the trial. Based GCM, generally Kentucky jury’s special Inc. v. finding negligent Cent. verdict EPEC Life Co., 1997-NMSC-052, ¶ 23, per Ins. negligent proximate N.M. se but (“[T]he scope duty injury, P.2d tort cause of Torres’s conclude that law.”). Here, is a matter prejudiced absent intention trial error court’s Torres’s sub- rights, al tortious or criminal conduct or extraordi stantial and we must therefore re- nary negligence,3 none which al- mand for a new trial. EPEC 159-60, that, Klopp, alleged 4. also note even Cf. (discussing whether a business visitor’s time ac- an "enormous difference" between its negligence extraordinary "was so as to ob- Torres, Aldershot, tions and the actions of Beuk- any duty part occupier viated on the el, Electric, alleged and L.E. that EPEC precautions against open take and obvious ongoing failed to exercise reasonable care (Second) danger”); Restatement of Torts duty power inspect pole. and maintain the 447(c) (stating § act is independent We believe that the doctrine in- intervening intervening cause if "the act is tervening apply cause would also not in this case consequence normal situation created because these individuals were concurrent tort- actor’s conduct and the manner which it is commentary UJI feasors. See 13-306 committee extraordinarily negligent”); done is not Exxon (“Ordinarily, negligence the сoncurrent of anoth- Inc., (9th Cir.1995) Sofec, v.Co. 54 F.3d person er is not an (stating "superseding may act to cut cause.”). liability off admiralty for antecedent acts of superseding cases where cause is extraordinary negligence”). the result of 740 300, 211, (1994), specifically we in of EPEC 880 P.2d 308

111.Directed Verdicts Favor in a reach the issue the context of declined to a A directed verdict is {26} Clay, in N.M. at 270 n. negligence action 118 generally drastic measure that is disfavored 2, present at 15 n. 2. Our 881 P.2d may it inasmuch as interfere gross negligence as instructions omit conduct litigant’s right a to a function and intrude on punitive damages. 13- warranting See UJI by jury. v. Farm Mut. trial Melnick State (effective NMRA 1999 for cases filed on 729, Co., 726, P.2d Auto. Ins. 106 N.M. 1998). 1, July The instruction or after (1988). 1105, result, “[a] As a directed claim, his in effect at time filed only appropriate there are no verdict is when however, grossly negligent conduct as listed presented jury.” true of fact to be a issues damages. punitive UJI 13-1827 a basis for Bank, Garrett, v. N.M. N.A. Sunwest 1, (prior July NMRA 1998 amend- (1992). 112, 912, 115, A trial 823 P.2d ment). concept Because we believe that a for grant court should not motion directed adequately of recklessness resolves issue unless it clear that “the facts verdict is appeal, trial the issue of whether the court strongly overwhelming- inferences are so directing in erred a verdict on the claim for party judge ly moving in that the favor damages, un- punitive we conclude that is people could not ar- believes that reasonable necessary gross negli- to resolve issue of Melnick, contrary rive at a result.” punitive in gence damages as a basis for 729, reviewing In N.M. at 749 P.2d 1108. negligence again claims once decline to verdict, “must propriety of a directed it. reach evidence, properly consider all insоfar as in con Recklessness uncontroverted, and all admitted evidence is punitive “the damages text of refers to inten therefrom reasonable inferences deducible doing of an act with tional utter indifference resisting light party a to the most favorable consequences.” UJI 13-1827 NMRA 728, the motion.” Id. at at 1107. degree danger The of the risk of 1999. ease, from In this we consider all evidence activity question is involved in the a rele case-in-chief, including evidence ad- Torres’s determining particular whether vant factor by EPEC on cross-examination of Tor- duced level conduct rises of recklessness. witnesses, in a res’s and view this evidence increases, danger the risk of conduct [A]s light to Torres. most favorable duty to a breach of is more amounts likely culpable a to demonstrate mental Damages A. Punitive the con state. circumstances define a ba In order demonstrate duct; a cavalier attitude toward lawful punitive damages adequate that is sis management dangerous product may verdict, a motion for a directed survive wrongdoer’s raise of conduct to level plaintiff intro action must recklessness, whereas cavalier attitude culpable mental suggesting duce evidence “a management lawful non- toward the willful, “ris[ing] state” and conduct wan may dangerous product negli mere ton, malicious, reckless, or fraud oppressive, gence. Inc., Clay Ferrellgas, ulent v. level.” Clay, 118 N.M. 881 P.2d at (1994). Tor willfully allege that EPEC work inher “[W]hether res does not Instead, injuries. ently dangerous question his of law....” caused second his Dist., alleged v. 113 N.M. 395- complaint, Torres as a basis Saiz Belen Sch. amended (1992). 102, 110-11 ease, punitive grossly this damages that EPEC conductor, power negligently if negligent and reckless. EPEC claims installed maintained, Court, presented a gross negli serious risk of Clay, excluded injury dangerousness. damages. to its inherent gence punitive as a basis for due (“It disagree. 827 P.2d at 113 would seem While it is true that this Court Id. electricity has rejected puni beyond dispute that certain gross negligence as a basis for dangers. gives It inherent damages tive contract action Paiz well-known Co., warning presence, and if amperage Farm Fire & Cas. State

Til 270, discovery 15. sufficiently high Clay, its can 118 N.M. at 881 P.2d at Final- voltage are by consequences.”); ly, determining adequacy in of evidence be attended fatal cf. 133, Surgidev Corp., by concerning Gonzales 120 N.M. introduced Torres EPEC’s (1995) state, 576, 147, (concluding culpable P.2d mental we bear in mind that implant, purposes due experimental punitive damages an intraocular lens serve the limited 269, in “potentially consequences ‍​‌‌​​‌‌‌‌​​‌​​‌​‌‌‌‌​​‌‌​​​‌​​‌​​​‌​​‌‌‌​​‌‌‌​​‌‍“punish[ing] wrongdoer,” disastrous id. at failure,” 14, product in deterring event an future tortious constituted P.2d and conduct, Paiz, 210, herently dangerous product for which see 118 N.M. at range might improper “broader conduct” at 307. culpable pur mental demonstrate state for case, In this Torres introduced evi- poses awarding punitive damages). “It is in was several dence

reasonably necessary to reduce the hazard respects designing installing pow- and high-voltage supply associated with a line Williams, Jerry pole er whom the placing they bare electrical conductors where qualified expert court an trial as structural inaccessible, by insulating remain or them engineer, testified behalf of Torres Saiz, adequately, or both.” 113 N.M. design pole and installation of the did not design, P.2d 113. Because the instal “good, accepted engineering prac- conform lation, power pole and maintenance of the First, ways. in a pole tice” number of presented pecu and conductors this case accepted and to meet stan- was bent failed special or danger liar risk absence Second, sweep, straightness. dards precautions, reasonable we conclude that this pole, straight, even if it been was over- had inherently dangerous case involves an activit by supporting loaded three un- transformers Co., y.5 Schultz v. Consumers Power Cf. der conditions which should have indicated to (1993) 443 Mich. 506 N.W.2d EPEC, under own EPEC’s distribution stan- (“[I]t electricity possesses is well settled that (DSO) according good overhead and dards inherently dangerous properties requiring engineering practice, the use of trans- expertise dealing phenomena.”); with its pole. respect formers on the With to the Utility Dynamics Corp., Cantu v. 70 Ill. DSO’s, employee company’s a current EPEC App.3d 26 Ill.Dec. 387 N.E.2d important comply testified that it is (“The distribution of electrical en poles. power the DSO’s the installation of ergy dangerous enterprise inherently is an Mr. Williams concluded that the combination power companies installing and those pole overloading predis- bent high required such lines are to exercise a posed pole “to lean even further” and degree of care to their are see wires pole go caused the into struc- buckle insulated.”), properly placed and cited with Further, placed in tural failure. was Saiz, approval in N.M. at steep guy wet sand and with two wires that at 112. the installation of “were considered Third, proper- pole.” the wires were not determine, then, We must ly tensioned at the time of installation. Mr. whether introduced evidence Williams also testified that EPEC has no that, light conduct in a when viewed еngineers structural on staff. Torres, give could rise to most favorable LeCoq, an inference a reasonable that EPEC Andrew whom the trial 'qualified expert had a toward the lawful court in the field of cavalier attitude dangerous factors, management activity. testified that EPEC used human also corporate entity “very dangerous design” assessing culpability due to close- EPEC, building to the the bent such as we look “cumulative ness the wire to the employees. pole, resulting of its as well as effect of the effects” actions ardous, abnormally activity liability dangerous, 5. The to strict is mis- dissent’s reference placed. liability liability imposed of strict "even all discussion which will be Saiz clearly duty precautions against nondelegable limited to the con- reasonable been taken Saiz, creates”). activity By apply- at 112 text. See the risk of harm the Saiz, incorporate (distinguishing inherently dangerous ing concepts of activities in we do not strict nondelegable duty liability into this context from ultrahaz- case. rigorous particu- inspection for more subtly, deceptively closer” need “coming lines Tester, witnesses, Lynn electri- Finally, two greenhouse. problems. James lar Electric, employee of engineer cal and former L.E. Eichelberger, the owner of not meet design Evans, that EPEC’s did testified employee of L.E. Electric Robert good engineering practice due of standards and a former lineman for testified pole building the the to the closeness of they each twice notified EPEC about that large de- of transformers and the number worsening the condition the continued of of addition, pole. he signed go on the In large had cracks pole, the which vertical and not meet that the installation did tеstified cracks, proximity the horizontal and hairline in good engineering practice standards prior the greenhouse the wire to the too pole, placed that a bent EPEC used Eichelberger Mr. and Mr. Evans accident. it, the weight much on and leaned it toward respond that failed to both testified EPEC Further, greenhouse. he on cross- testified complaints. Although first these wit- their de- previously that EPEC examination had sent a nesses also testified that EPEC crew II, signed poles, with similar-sized Class inspect pole the the second com- out to after weight that the earlier similar amount and the plaints, Mr. Evans testified that EPEC good failed to designs also meet standards crew, charge Margarita employee in the practice. Finally, engineer- engineering the Lucero, pole concluded the and that wires designed ing pole who the at issue technician within based on were clearance standards know testified that he did not this case “some, real accurate measurements” that installation crew would choose the took Lucero and that EPEC used and, known, if have pole bent he had it would employees action even further design. He that affected his also testified employees told that were Aldershot were the type not check the of soil at EPEC did required the roof to work on sometimes design. site he made his before greenhouse. the In addition to Torres’s evidence granting In the motion for directed in- problems design with and numerous the damages, punitive on the claim verdict pole, introduced stallation of the Torres also stated, judge trial EPEC evidence that was think, yes, blush I El Paso first Elec- [A]t safety pole. of the An EPEC maintenance may ignored may warnings, tric have policy of specialist testified that has a EPEC thing speak, this but re- blown off so away keeping high power from conductors mind, my viewing the evidence in own I buildings safety.” people’s and “for roofs They don’t believe that’s the case either. Nonetheless, that several witnesses testified warnings they did I had the and what in 1981 had shifted over pole installed is, thing the natural to do send some- think greenhouse, re- four towards the which feet if body inspect out there it and see we wire that contacted be- sulted Torres just problem somebody genuine have a ing directly over the roof of almost whining, maybe. person was sent A out addition, testi- greenhouse. In Mr. Williams person, qualified apparently, from pole, fied bend in the as well as that the evidence, made the determination that shifting, sag, and Mr. caused wire to maybe ugly serving it was was but wire height that the of the Tester testified purpose, person perhaps approximately feet over the roof was seven I think then made a mistake. In that ease provided minimum lower than the clearance brought probably out it is will be —it relevant code. Mr. Tester also under the negligence portion the case. utility is re- testified that a such as EPEC disagree court do not with the trial discovering any sponsible under the code for introduced that, much of evidence system, problems in its he testified reasonably in favor interpreted could be program, although patrol EPEC had a showing company that the was not EPEC as patrol to have failure a formal regard safety of others. inspection reckless program with written documenta- example, Mr. Mr. management from For Evans and Eichelber- prevented tion EPEC Lucero, Margarita identifying ger indicate the testified trends would employee inspected pole, Although who portrays EPEC the dissent oth- erwise, emphasize holding lineman excellent and is meticulous about we our addition, case one in quality. apply In narrow which we EPEC established on that, existing precedent New Mexico. While it cross-examination of Mr. if Tester Mr. Gonzales, Clay, is true that wrong interpretation Tester his facts distinguishable present Saiz are code, from then the conductor would not have been matter, necessarily as all differ cases some- requirement height below the minimum over facts, legal analysis what in their each greenhouse roof. also established clearly point. Clay, on those cases is on company cross-examination that the had a heavily relied Horton v. Light, Union patrol inspection program at the time of Co., Heat & Power S.W.2d 388-90 accident, though the program, not a formal (Ky.1985) explain to our to decision view the good job” “quite and that EPEC does a of corporate employees cumulatively acts of for correcting problems. Finally, EPEC estab- purposes punitive damages. Clay, of had, lished working that Mr. Tester while for 270-71, N.M. at 881 P.2d at 15-16. Similar approved design once a of a similar- explanation Clay concerning to our in the pole equivalent weight, sized thereby with Horton, dissent in we believe that the dissent tending position to discredit Mr. Tester’s in this case misses the our focus of conclu- that weight designed pole the for the at issue liability punitive sions. for damages “Here in comply this case failed to with standards single, not based on a isolated unauthorized good engineering practice. Finally, sever- unexpected by and act an em- witnesses, al including Eiehelberger Mr. and Horton, ployee.” 390, quoted 690 S.W.2d at safety specialist, an EPEC testified that Clay, in 881 P.2d at 16. good job a EPEC does in the Las Cruces Resolving all reasonable inferences in favor community safety top and that a priority Torres, as we must do reviewing when a company. for the This evidence tends to verdict, directed employees EPEC in this support position EPEC’s it was not engaged case in a course during of conduct safety reckless about the of others with re- safety require- which a of national number spect potential to contact with its electrical policies ments and internal were not fol- equipment. . addition, lowed. In EPEC did not have ade- Nevertheless, at the directed ver- quate patrol policies and maintenance and stage, dict view light individuals, we the evidence employ proper did not the struc- most favorable to leave Torres and to the engineers, tural to designs ensure that its of resolving conflicting the task good infer- engineering practice. would conform to Further, arising ences from that appears evidence. See Mel- EPEC did not have nick, (“[I]f policy obtaining samples for soil for use in reasonable minds can the design differ on conclusion requirement that an installation to be reached under the evidence or the crew pole communicate its choice of a bent permissible designing inferences to be drawn the there- technician to determine wheth- from, question is one the er design and it alterations to the be would neces- verdict.”). sary. is error to direct a While Finally, permits the trial the evidence a reason- ruling solely disregarded court’s focused EPEC’s re- able inference EPEC sponse complaints pole, warnings about the least pole evi- two about the and re- by gives sponded dence cursory repeated introduced Torres risе to a manner possible negligent warnings by light inference EPEC the same In individuals. design pole, inferences, its its installation permissible these reasonable pole, its continued maintenance we are unable to conclude that the facts are pole. cumulatively, strongly overwhelmingly Viewed we so conclude favor of that a justify removing puni- reasonable could find that the issue regard EPEC’s damages jury. series actions with to this tive from the Cerretti v. Cf. power Ass’n, pole, design from the Coop. time of to the Flint Hills Elec. 251 Kan. Rural accident, (1992) (holding time of the indicated recklessness regard safety power company’s negligent of others. failure to main- supported requires P.2d at This case us to more adequately power lines tain scope closely tort examine of this finding misconduct clear jury’s of wanton certain we set out meaning of elements purposes up- convincing evidence award). Coleman. damages holding punitive Our words, further; in other

holding goes no alleged Torres that EPEC to punitive that Torres is entitled do not hold intent of power with the discarded only that can damages, which is a matter in potential disrupting his lawsuit. and, contrary jury, decided that EPEC was notified troduced evidence holding leap logic, our does not dissent’s shortly contact with the wire about Torres’s potential liabilities of com- “expandí all ] employees after the accident that EPEC doing in New panies business Mexico.” of the and took went the scene accident engaged in the business of distrib- EPEC is point of contact on measurements from voltage electricity, uting high which is an power pole, building, line to addition, activity. inherently dangerous pub- It is the claims de ground. “ two- ‘corporate partment approximately to deter policy lic State undertook day investigation beginning week face of serious risks of indifference’ A claims from reasonably representative accident. danger that should be foreseen.” pole that she that the Thus, EPEC testified noticed P.2d at Clay, 118 N.M. 16. appeared that the to leaning was and wire go to allowing punitive damages to the going top building. Approxi of the over the policy of in this case furthers the deterrence accident, mately after month the one damage underlying punitive awards en- supervisor pole cut the EPEC construction corporations suring greater exercise that because, pieces space the opinion, into his employees their to control over relation pole building too nar between the inherently management dangerous of an the safely maneuver truck row to his line to Therefore, activity. reverse the we district cutting intact. down pole remove the After directed verdict on Torres’s claim for court’s pole, supervisor re the the construction damages.6 punitive pieces yard moved to on Com the Road, press he that he did not testified Spoliation B. Intentional of Evidence happened pieces know after that. what previously recog- This Court has {37} Swartz, manager operations for Richard of spoliation nized the tort intentional of evi- division, that EPEC’s New Mexico testified Potash, Inc., Eddy dence. Coleman v. spoke department he to the claims and to (1995). 645, 649, In deciding pole. to cut down the counsel before Coleman, following we established the ele- pole pieces He also testified that spoliation the tort intentional ments for probably scrap pole taken to rack were evidence:. given charity or sold. He either (2) (1) lawsuit; potential the existence of further that he of a testified was not aware knowledge potential of the the defendant’s pieces he believed need save because (3) destruction, mutilation, lawsuit; department necessary that claims had all evidence; significant potential alteration of Williams, pictures. Mr. measurements (4) part intent on of the defendant to engineering expert, testi structural Torres’s lawsuit; disrupt or a causal defeat pole fied could have been used to relationship spoliation act of between the pole, stress within the determine the lawsuit; inability prove the and the height pole ground, above the (6) damages. pole, amount bend in the and the exact However, we that the Id. noted Coleman location of the conductor. Mr. Williams also jurisdictions of this tort in other that EPEC’s measurement treatment testified height ground yielded agreement ... on its the conductor off the was' had not “much expert opinion. Id. 'at “critical” his and limitations.” contours any judgment error in di- verdict and verdict rendered harmless 6. Our reversal punitive recting verdict on the claim of dam- of EPEC claim make it in favor ages. unnecessary argument reach EPEC’s Trenton, court, stating “[g]en- City son v. 180 F.R.D. trial (D.N.J.1998) (“This erally, spoliation results of evidence after a court is not convinced filed,” complaint Supreme has been found that there Jersey that the New Court would knowledge was not “evidence adopt spoliation of intentional evidence as an because, going there’s a lawsuit” al- action____”). to be affirmative cause of But see “probably surmised EPEC there Rentr-A-Car, Holmes v. Amerex 710 A.2d might be, enough ... [not] mere surmise is (D.C.1998) (аdopting separate knowing to rise to the level of there is a negligent spo cause of action for reckless addition, litigation.” In the trial court stat- evidence); liation of but Foster v. Law cf. ed, down, cut I “Once the don’t think F.Supp. rence Hosp., Mem’l it can put ever be back so that it would be a (D.Kan.1992) (concluding Supreme that the piece credible disagree of evidence.” We recognize Court of Kansas would the tort of with both of rationales of these the trial spoliation despite under some circumstances However, agree court. because with the rejection Koplin court’s of the claim in trial court that there was insufficient evi- Inc., Perforators, Rosel Well Kan. disrupt dence of an intent to or defeat Tor- (1987)). 734 P.2d 1177 lawsuit, res’s we affirm the directed verdict Courts have articulated a number in favor of on the claim of intentional separate rejecting reasons for cause of spoliation of evidence. First, action spoliation of evidence. Coleman, California, we followed expressed courts have concern about “the Alaska, recognizing Ohio the tort of property rights unwarranted intrusion on the spoliation intentional of evidence. 120 N.M. person lawfully disposes who of his [or noted, however, 905 P.2d at 188. We property.” Koplin, her] own 734 P.2d at majority jurisdictions rejected that a had Second, courts have relied on the ade separate cause for spoli of action intentional quacy of alternative remedies. See Cedars- chosen, instead, ation of evidence had to Ctr., 248, Cal.Rptr.2d Sinai Med. 74 954 P.2d rely remedies, exclusively on traditional such (discussing, among things, 517-18 other discovery as sanctions for violations or an evidentiary applicable spolia to inference spoliation gives instruction to the sanctions); potential discovery tion and Tre permissible rise to a inference that the evi vino, (similar). Third, 969 S.W.2d 952-53 dence would have been unfavorable to the courts have the harm characterized or dam Coleman, spoliator. 649, 120 N.M. at 905 ages in speculative. such cases as See Ce Coleman, P.2d at 189. decision in Since our Ctr., 248, Cal.Rptr.2d dars-Sinai Med. 74 states, high including courts of other (harm); Koplin, 954 P.2d at 518-19 734 P.2d California, separate in which the state a Trevino, (damages); at 1183 969 S.W.2d at spoliation gene cause of action for found its Fourth, (damages). 952-53 have courts sis, Court, see Superior Smith v. 151 Cal. analogy litigation-related drawn an other 491, 829, (1984), App.3d Cal.Rptr. 198 833 wrongs, perjury, such as for which there is joined majority jurisdictions have now See, of action. e.g., relying solely on traditional remedies rath Ctr., 248, Cal.Rptr.2d 74 Cedars-Sinai Med. separate er recognizing than a tort. See Finally, 954 P.2d at courts 515-16. Court, Superior v. Cedars-Sinai Med. Ctr. potential complications, procedural relied on 1, 248, Cal.Rptr.2d 18 Cal.4th 74 954 P.2d confusion, duplicative litigation, such as 511, (1998); Reed, 514-21 Co. v. Monsanto arbitrarily or results. Id. 74 inconsistent 811, (Ky.1997); 950 S.W.2d 815 Trevino v. 248, Cal.Rptr .2d P.2d at 519-20. 950, (Tex.1998); Ortega, 969 S.W.2d 951-53 We concluded Coleman that Temple Community Hosp. Supe see also v. considerations, important, while Court, 464, these are Cal.Rptr.2d rior 20 Cal.4th (1999) outweighed by strong public policy in 852, 223, (extending unjustifiable, disfavoring New inten- Mexico holding of Medical Cedars-Sinai Center by wrongs tional that cause harm to others. spoliation nonparty); committed Lucas Ctr., Ltd., 649, (relying 120 N.M. at P.2d at 189 Skating v. Christiana 722 A.2d 1247, prima recognition this facie tort in (Del.Super.Ct.1998); 1248-51 Lari- Court’s cf. re- Smentowski, 386, disagree. We do not in Coleman. We 109 N.M. 393- v. Schmitz (1990)). However, filing complaint or even ex- quire the 733-36 complaint be filed press notice that a is to reject- many relied on of these reasons liability spoli- trigger for intentional order to ing separate cause of action by our lan- of evidence. As indicated Coleman, ation 120 N.M. spoliation of evidence. Coleman, inquiry is guage in the relevant “adequate (stating that 905 P.2d at 190 part of a knowledge on the of the defendant remedies exist” under “traditional in the future. ‍​‌‌​​‌‌‌‌​​‌​​‌​‌‌‌‌​​‌‌​​​‌​​‌​​​‌​​‌‌‌​​‌‌‌​​‌‍Cole- probability of lawsuit relying general ex- principles” and on “the (estab- man, 905 P.2d at 189 hand in pectation that an owner has a free knowledge of a lawsuit lishing as an element disposes of his the manner in which-he or she lawsuit”); v. “potential see also Smith State, Meyn v. property”); or her see also Co., Howard Johnson Ohio St.3d (Iowa 1999) (declining to 594 N.W.2d (1993) (requiring “knowl- N.E.2d negligent spolia- adopt a cause of action for ” litigation probable edge ... exists evidence). do not retreat from tion of added)). Contrary sugges- (emphasis and Schmitz our commitment Coleman jurisdictions that alternative tion other redress harm deter malicious acts and to spolia- punish intentional remedies suffice Nevertheless, resulting we now therefrom. tion, separate primary goal adopting our principles, against rely on the above balanced spoliation was cause of action for intentional purpose preventing tort in inten- of the courts in not to vindicate the interests harms, interpretation of guide our tional fraud, an preventing litigation-related evil spolia- the elements of the tort of intentional agree adequately addressed that we tion of evidence. Surgidev other remedies. Gonzales Cf. case, the trial court relied on 151, 154-55, Corp., 120 N.M. knowledge potential of a law- the element (stating that award “[a]n granting EPEC’s motion for directed suit [discovery] party’s on a sanctions is based evi- presented verdict. Torres circumstantial court,” pur- towards the that the misconduct potential claim. knowledge dence judicial vindicate pose of sanctions is both to -was notified of Torres’s contact with discovery authority by achieving and deter- conductor, employees went to and EPEC compensate ring future misconduct shortly the accident after the scene of resulting discovery party expenses from employees took measure- occurred. EPEC’s abuse, that a court has inherent authori- and scene, including at the the distance ments judgment ty to vacate a based on extrinsic pole, the the conductor and the between court). Instead, fraud on the we collateral and, allegedly, building, and ground, litigants’ adopted protect in order to the tort department, which has as one EPEC’s claims litigants’ prospective right of potential investigation potential purposes the of its recovery in civil actions from malicious inter- investigated acci- against claims Coleman, 120 N.M. at ference. See department was aware dent. The claims Thus, that, we conclude P.2d at 189. injuries as a that Torres had suffered serious interest, adequately protect such an the tort Finally, the wire. result of his contact with tar- spoliation of intentional of evidence must employees of EPEC’s commented one occurring get wrongful 'activity prior to the power pole leaning badly and needed filing complaint. Based on condition removed, representative and a claims to be wire, of the EPEC’s pole, of the the location location pole the lеan in the and the noticed and effects of awareness of the circumstances greenhouse, wire over the roof of the of the accident, investigation and EPEC’s Torres’s been a viola- the latter of which would have incident, we conclude that the evi- into the policies. internal tion of EPEC’s by Torres was sufficient for dence introduced jury to infer that EPEC knew Although determining from a reasonable litiga- likelihood that may have surmised there was reasonable this evidence that EPEC lawsuit, result from Torres’s contact the trial court tion would that there would be stage At the directed verdict was insufficient its conductor. concluded that mere surmise required. knowledge proceedings, articulated more is meet the element of Additionally, spoliation, spoliation the trial court conclud- lieve that at least that is ed that Torres failed to trial, introduce evidence of prior discovered should be tried in relationship a causal between EPEC’s dis- conjunction underlying with the claim rather carding pole any inability of the prove separate than in a bifurcated or trial. “A negligence. Specifically, the trial single trier of fact would be in the best that, having court concluded been cut down position fairly to resolve all the claims pieces, pole could not be used to consistently. plaintiff underly If a loses the produce accurate measurements. Based on suit, ing only the trier of fact who heard the record, disagree. Two EPEC em- why.” case would know the real reason ployees that, testified if the had been Boyd Co., v. Travelers Ins. 166 Ill.2d pieces, pieces saved in up could be lined 209 Ill.Dec. N.E.2d and measured. It appear does not from the (declining recognize separate cause of any record that witness contradicted this tes- negligent spoliation action for of evidence addition, timony. expert two of Torres’s allowing proceed but such claim to as an height witnesses testified that of the Smith, negligence); action in accord wire, provided which would have a measure- (stating N.E.2d at 1038 that a claim of inten point ment from the of contact to the build- spoliation “may tional brought of evidence ing ground, and to the was critical to a action”); primary at the same time as the determination propriety of EPEC’s Ctr., Cal.Rptr.2d Cedars-Sinai Med. actions. Mr. Tester testified that EPEC (stating separate 954 P.2d at 520 actions provide failed to measurements from the “duplication would result in a of effort [that] point of building contact to the even parties would be burdensome both to the good it would engineering practice have been judicial system” and would create a to have made such a measurement investi- higher proceedings). risk of inconsistent At gating type Finally, of accident. ap- stage directed verdict of a concurrent pears that EPEC’s determination of the proceeding spoliation for intentional point of contact on the rod conflicted with claim, underlying plaintiff only pres need Tester’s, Mr. and EPEC’s measurement ent jury, evidence from which a reasonable making would have had the effect of the wire upon finding in favor of the defendant on the appear away building. to be further from the claim, underlying could conclude that the in Thus, building the distance between the spoliation tentional of evidence caused the consequence disputed wire was a fact of plaintiffs satisfy failure to the burden of parties, and Torres established that proof in underlying claim. Torres satis the distance could have been if determined fied this burden. preserved Melnick, pole. EPEC had (“To 106 N.M. at 749 P.2d at 1108 Therefore, we conclude that Torres jury, remove a case from the it should be adequately proved five of the Coleman ele- clear that nonmoving party present- has purposes surviving ments for a motion for ed party no true issues of fact which that has potential directed verdict: the of a existence right to have decided his [or her] lawsuit; knowledge potential peers.”). lawsuit; potential the destruction of evi- dence; relationship a causal between the act We note that at the di {46} spoliation inability prove and the rected verdict it will be difficult for stage lawsuit; However, damages. affirm we plaintiffs pursuing spoliation an action for si the directed in verdict favor of EPEC be- multaneously underlying with their claim to cause we conclude that Torres failed to dem- establish the elements of causation and dam discarding pole, onstrate that ages. jury verdict, plaintiff Without a will disrupt had an intent to or defeat the lawsuit. know, prove, or be able to at the directed satisfy Torres thus failed to the fourth ele- stage verdict whether he or she has success ment articulated Coleman. fully prove been able to the elements of the underlying despite claim the absence of the alleged destroyed,

evidence to have been al It clear from is our reli tered, Nevertheless, prima or mutilated. we be- ance on facie tort in that the Coleman 748 Inc., Tools, Milchem, 94 N.M. Inc. v. disrupt or defeat Rental of an intent to element 241, 449, 454, (Ct.App.1980), act 246 not to a mere intentional 612 P.2d

lawsuit refers particular rights implicat- сulpability that is “[t]he a level of on the fact that but to based in a malicious ly egregious prospective.” actions: are not by prima civil ed facie tort 649, Coleman, at Schmitz, 397, 120 N.M. tent to harm. See at 737. N.M. at 785 P.2d 109 spolia (adopting at 189 intentional 905 P.2d Additionally, rejected requirement of we ” “ with” tort concurrence “[i]n tion of evidence malevolence’ because ‘disinterested “ affording ‘relief New Mexico’s tradition of (Second) of Torts adopted Restatement maliciously intentionally com wrongs balancing alternative motives approach of ” Schmitz, 396, N.M. at (quoting 109 mitted’ injure in deter- intent to order to with the 736))); Lexington Ins. at see also could be whether a defendant’s actions mine ¶¶ Rummel, 1997-NMSC-043, 10, 14, v.Co. Schmitz, justifiable. characterized as (“The 774, 945 P.2d 992 terms 123 N.M. 395, P.2d at 735. N.M. at injure have been used malice and intent tort, prima facie Unlike synonymously jurisprudence our within spoliation intentional of evidence “[ijntent the tort of tort,” injure prima facie remedy “probable expectancy” seeks to act intent to commit the which distinct from action,” the tort Cornicelli, prospective of “a civil injury.”); Drawl v. results cf. “analogized ... to the tort of inten has been App.3d 706 N.E.2d 124 Ohio (“To claim, prospective with business tional interference spoliation her establish Coleman, advantage.” 120 N.M. required to demonstrate that appellant was analysis in altered, (describing the 905 P.2d at 188 willfully destroyed, or con appellee Court, evidence.”). Cal.Rptr. at Superior in turn is the Smith v. “Malice cealed 836-37). specifically Although we eschewed doing wrongful act-without intentional disrupt just any balancing means that the form of of the intent to cause or excuse. This only act intended to do the with other motives Coleman defendant not lawsuit wrongful, spoliаtion highly but that im which is ascertained to be intentional “is because it.” Kitc wrong justified,” it was when he did proper he knew and cannot be N.M. Co., 1998-NMSC-051, hell v. Public Serv. we believe that the tort (internal ¶ 17, P.2d 344 126 N.M. spoliation of evidence must of intentional omitted); quotation and citations ac carefully marks interference framed to avoid undue Drawl, (defining Coleman, will 706 N.E.2d at 852 cord property rights. Cf. spoliation purposes (“[I]t intentional ful for P.2d at 190 would be unrea “ intentionally voluntarily and an act ‘done impose duty on an owner to sonable to something specific intent to do and with the property the use of preserve personal his ...; say, with bad the law forbids that is potential in a lawsuit another individual Dictionary purpose’” (quoting Black’s Law circumstances.”); special the absence of (6th ed.1990)). Additionally, “[pjlaintiffs Drawl, (stating inten N.E.2d at 852 heavy intent to bear a burden to establish require a willful act spoliation tional must Co., injure.” Lexington Ins. 1997-NMSC- merely if of action re “because the cause ¶ . 043, 12, 123 P.2d 992 showing that the defendant inten quired a evidence, process up tionally altered not clear from our discus- What is documentary normal dating evidence Coleman, however, par- whether a sion pending halted course of business would be disrupt defeat an- ty’s malicious intent to case”). result, As a based the outcome of be the sole motivation other’s lawsuit must the torts of inten on the differences between destruction, alteration, or mutilation for the prima facie spoliation tional of evidence Schmitz, rejected In the evidence. we tort, between the former and the similarities that there be a “sole motivation of contention with the tort of intentional interference prima facie ‍​‌‌​​‌‌‌‌​​‌​​‌​‌‌‌‌​​‌‌​​​‌​​‌​​​‌​​‌‌‌​​‌‌‌​​‌‍tort. 109 N.M. harm” for relations, we believе so, prospective business doing In we distin- P.2d at 737. recognized in seeks to that the tort Coleman Appeals’ opinion dealing guished the Court of intent to remedy taken with the sole with acts tort of intentional interference with the maliciously disrupt a lawsuit. in M & M defeat or prospective contractual relations light facts case with Even most view the of this viewed favor- Torres, principles these in mind. The intro- evidence able to we believe that this evidence by relating to EPEC’s duced state of is insufficient to demonstrate a malicious in- removing disposing power mind in the part tent on the of EPEC to or defeat dis- (1) pole following: Lynn included the Eichel- rupt lawsuit at the Torres’s time that EPEC berger a line truck could Drawl, testified that have disposed pole. the 706 N.E.2d Cf. building pole fit between the and the in order (stating the 852-53 that tort of intentional (2) intact; pole to the remove EPEC had a spoliation of “necessarily requires evidence policy preserve to resulting evidence eases more mere or than failure to con- and, fact, injury serious saved the trans- practice” form affirming to standards of (3) pole; formers on the an EPEC claims summary judgment in favor of a defendant representative provide explanation could no spoliation); based the on absence willful ' pieces pole; the failure to save the ¶¶ Kitchell, 1998-NMSC-051, 16-18, (4) provide EPEC failed to measurements of (affirming summary the point distance from the conductor the judgment on claim prima facie tort due to building, though contact the even an injure); the of an absence actual intent employee EPEC remembered such mea- Rummel, 1997-NMSC-043, ¶16, 123 N.M. taken; being surement an EPEC 774, (similar). 945 P.2d 992 We conclude employee changed the measurement of the properly granted that the trial court EPEC’s point of contact on the rod that Torres was motion directed on claim verdict holding time of accident. Howev- spoliation intentional of evidence. er, testimony EPEC elicited on cross-exami- Where the actions put nation of several witnesses that Torres’s spoliator fail to rise to the level of malicious allegations in respect context. With to the meet conduct or otherwise the elements of pole, Eichelberger’s (cid:127)removal of the Mr. testi- evidence, spoliation the tort of intentional mony possible pole that was to remove the appropriate remedy we believe more would testimony intact did not contradict permissible evidentiary be a Boone, adverse infer employee, EPEC’s Michael that he by underlying ence claim. safely could do risking not so or without evidentiary This damage addition, inference could be accom nearby buildings. plished through Mr. instruction to the Boone testified that his decision to cut that pole pieces only permissible down it is infer that evidence was based intentionally concealed, mutilated, safety destroyed, concerns and that he did not consider Further, possibility party of a lawsuit. al- altered without reasonable policy preserve explanation EPEC had a been evi- would have unfavorable to dence, Swartz, courts, manager oper- party. Mr. that in determining Trial ations, conferring instruction, give testified that after with the whether to con should intentional, department spoliation claims and with counsel he deter- sider whether pole pieces unnecessary spoliator mined that were whether the knew of the reasonable depart- possibility involving spoliated because he believed that the claims of a lawsuit necessary object, ment party requesting had taken all measurements the in whether the photographs diligence before the had been struction “acted with with re due evidence,” representative spect spoliated An removed. EPEC claims and whether typically testified not that EPEC does save evidence would have been relevant to a relevant, thought evidence if it is not material issue the case. See Beers v. typically pole Bayliner and EPEC sells or Corp., donates Marine Conn. (1996). pieces longer Finally, necessary are usable. A.2d It is not although changed spoliator EPEC measurements on act malice bad rod, Beers, appear (“By it does at- faith. A.2d at [the EPEC tempted original measurement, requirement spoliation], to conceal intentional do employee and an must been testified mean there change opinion party perpetrate from difference of intent to a fraud ... resulted but, rather, employees. between EPEC that been the evidence had dis- 750 opposing party. merely pend prejudice on

posed intentionally and not de- (“The (footnote omitted)); 290, § supra, at 217 inadvertently.” Wigmore, stroyed See County, Md.App. Montgomery 64 (supposing v. the failure of evidence Miller inference 761, (1985) 202, (“Unexplained 494 A.2d 768 course that explained away) not to is of be of evidence a intentional destruction specific unproduced evidence the tenor of that litigant gives case, rise to an inference or contrary party’s to the would be would have unfavorable to his evidence been words, support it. In other least would not cause, not but it wоuld in itself [or her] indefinitely not the inference does affect proof to substantive fact essen- amount cause, whole as it does when merits of the cause.”); opponent’s her] tial his State [or involved, conduct is but affects fraudulent Transp. v. in the ex rel. Comm’r Council only, ques- specifically, evidence 199, Dev., A.2d Resource 60 N.J. 287 Div. (citation omitted)); also Schneider tion.” see 713, (stating permissible that a 715 Inc., Guilliams, v. G. 976 S.W.2d 526 applies inference if there is con- “[a] adverse (discussing the lack of a (Mo.Ct.App.1998) a dispute scious awareness the existence party opposing prejudice need for another and a conscious awareness that ... stating inference does “[t]he adverse destroy an or access to act done will evidence case”). prove opposing party’s not Final- evidence”). ly, we that such an instruction is believe sep- appropriate recognition We believe that a instruction of our because appropriate spoliation nature would some be arate cause of action intentional strictly meeting the sup- cases not elements of intended to of evidence Coleman was spoliation of evidence be existing tort of intentional plement, supplant, rather than reme- that, presume Providence, it is reasonable to even cause dies. v. Sisters Sweet Cf. (Alaska though parties 1995) do not have an affirmative (concluding 492-93 duty preserve bene evidence another’s duty shifting burden the issues circumstances, Coleman, special fit absent a claim of medical due breach on 190, parties P.2d at will pro- to a to maintain medical records failure intentionally discarding avoid ev nonetheless plaintiff “adequatе remedy” for a vided an that would been favorable to idence have given evidence from which rea- “insufficient (“[0]ne Miller, A.2d at 768 them. See spoli- could person [the sonable conclude ordinarily destroy would evidence favor destroyed nursing ... records ator] lost herself].”); v. [or able to himself Garrett disrupt prospective ... with the intent to (Mo. Ass’n, R. Terminal 259 S.W.2d action”). civil 1953) (“It is well settled that destruction spoliation of evidence [T]he destruction satisfactory evidence without a written doctrine is itself flexible versatile. gives an unfa explanation rise to inference recognized it as an Various courts spoliator.”); vorable to the Williams v. Gold action, independent cause a defense to (“It en, (La.Ct.App.1997) 699 So.2d pre- recovery, evidentiary inference or litigant is fails to well settled when sumption, discovery as a sanction. It produce available evidence and reasonable both rule of regarded a substantive made, presumption explanation is there is procedure. law a rule of evidence or and as unfavorable.”), evidence that such would depends application Its on the attendant (1998). denied, gen writ So.2d 708 circumstances. erally Henry Wigmore, John Evidence Klupt Krongard, Md.App. §§ Law Trials Common (1999). A.2d (James rev.1979) (discussing H. Chadbourn history long for and adverse the basis IV. Conclusion inference, applications). general as well as its New Mexico’s scheme of addition, Under spoliation inference much fault, pure comparative we believe in scope limited than the tort of inten more doctrine of spoliation provide tional that it is does not plaintiffs negligence. damages, apply does judgment award of necessitate indepen- Additionally, thе instruction on opposing party, or even de- favor cause, intervening being repetitive Page dent of be called willful or wanton.” Kee- W. al., ton proximate of et Prosser & Keeton on the Law poten- considerations cause and (5th (footnotes ed.1984) § Torts at 9-10 tially confusing light of New Mexico’s use omitted) [hereinafter Prosser Keeton]. & liability, longer of several no shall be used no egregious Because evidence of such be- involving multiple negligence. cases acts of case, subject exists in I havior this would not case, In independent this the doctrine of punitive damages. EPEC inapplicable cause is because presented principal EPEC no other cause that could cases cited the ma- {59} Gonzales, Saiz, jority, Ferrellgas, reasonably breaking be seen and are all as the chain clearly distinguishable. Ferrellgas, In Therefore, this causation. we conclude the upheld punitive damages court award 13-306, giving trial court erred in UJI only negligently the where defendant judgment reverse verdict and propane system installed a conversion favor of EPEC. We reverse trial also car, trunk of a but also allowed the customer court’s in favor directed verdict of EPEC on up pick knowing vehicle “the risk of punitive damages Torres’s claim because of releasing harm a vehicle in that unsafe reasonable minds could differ as to whether condition,” where, furthermore, the de- including cumulative actions of fendant “had done over conversions with- installation, design, maintenance of 6,” filing out ever a safety Form checklist power pole, indicated recklessness with re- required by inspector’s the state office. 118 gard management inherently to the of an N.M. at 17. We concluded dangerous activity. Finally, we affirm the [Ferrellgas’s employ- that “the trial court’s directed verdict on the claim regular safety regula- ees] violation spoliation intentional of evidence because by Ferrellgas corporate tions amount[ed] to Torres failed to introduce evidence from indifference and reckless conduct.” Id. juror which a reasonable could conclude that Here, point similarly Torres can to no outra- maliciously injure intended to Torres. geous part conduct on EPEC. negli- We remand for a new on trial Torres’s Gonzales, In the defendant’s failure {60} gence claim. patients to warn of the well-documented eye implantation procedure risks IT was IS SO ORDERED. {56} aggravated fact that the defendant underreport knew its doctors “tended MAES, JJ., BACA concur. complications follow-up number of on the in,” reports that it did send FRANCHINI, J., concurring part, aggravated by 899 P.2d at further dissenting part. appointed the fact that the defendant as its medical monitor creator of the flawed III(B) I II concur Part and Part device, implant “even he received opinion regarding inter- royalties paid for each sold lens and was vening spoliation causation and intentional promote actively hospitals the lens to across evidence, respectively. Here, the nation.” Id. after a full-blown trial, 111(A) brought similarly aggra- Torres has I do not concur in Part view, my vating light. In opinion punitive circumstances regarding damages. Puni- “ Ferrellgas support neither nor Gonzales damages require positive tive ‘a element of ” majority’s today punitive decision Paiz, wrongdoing.’ conscious damages question go jury in must (quoting 880 P.2d at T. Charles new trial on remand. McCormick, Handbook Law Dam- (1935)). ages § at 280 “There must support majority Nor does Saiz aggravation outrage, circumstances of or Saiz, opinion. danger nearly ‘malice,’ spite such or as a fraudulent or posed as obvious as the one ease. defendant, part evil motive on the power of an line in full Instead overhead disregard view, here, such a deadly peril conscious and deliberate a hidden and may plas- of others that the interests conduct existed: “The failure install a smooth justify punitive ligence, not sufficient required the state electri- is bushing, tie under damages. code, cable insulated buried cal where conduit, ... caused entered the metal Here, utility inspection of where Jerry short and the electrocution electrical comprehensive than pole was much more The P.2d at 107. N.M. at Saiz.” 113 CECC’s, court’s directed verdict the district liability a strict court determined that Saiz should stand. in “the appropriate absence standard was alleged reading By into EPEC’s reasonably necessary in precaution made reckless- possibility and omissions the acts peculiar risks inherent” the face of the willful, wanton, and malicious and a ness high foot- running at a school electrical cable intent, majority opens door for stadium, ex- public “where the could be ball utility punitive dam- jury to with assess closely together and pected crowded to be is, most, ages merely negligent at for what physical contact with where extensive Prosser conduct. In the words Professors running up light electrical conduit however, Keeton, support award of 399-400, certainty.” P.2d at Id. at was not punitive damages, “mere is Here, to a 114-15. not be held EPEC should though enough, is so extreme even ” view, standard, my send- liability but strict ‘gross.’ degree to be charaсterized as damages punitive ing this case to for § 2 10. I afraid Prosser & Keeton at am equivalent subjecting EPEC the risk that, by unique deeply trou- ignoring liability. strict bling in which the Ferrell- factual scenarios jurisdictions other Decisions from to- gas court a “cavalier attitude discerned proper 272’, case also illustrate that this is not safety regulations,” 118 ward[ ] N.M. damages. punitive for consideration of P.2d court la- the Gonzales Smith, 79 Elec. Co. v. “betrayal Potomac Power of the medical communi- mented 768, 772-73, 778, Md.App. 558 A.2d ty,” 120 (1989), only knew that the defendant majority unjustifiably expands potential utility pole wooden on a was dan- crossbar companies doing liabilities of all business failed to gerously riddled with knots but also I New Mexico. would affirm the district and, replace one arm when the it when broke verdict on the Torres’s claim court’s directed broke, not re- other arm the defendant did holding punitive damages. majority for The repeated spond for more than a month to otherwise, respectfully I dissent. down, calls that a live wire even was C.J., MINZNER, concurs. knew area one of the defendant was frequent chil- pedestrian traffic adults and Here evidence demonstrates

dren. Torres’s positive

no such elements of conscious wrongdoing part. on EPEC’s 1999-NMCA-107 like Elec. This case more Carroll 987 P.2d 409 Carlton, Coop. Corp. v. 319 Ark. Mexico, New Plaintiff- STATE (1995), wherein the court S.W.2d Appellant, defendant, affirmed a directed verdict stating prove tending There was evidence STEINZIG, Alan Defendant- Robert Nor acted actual malice. CECC Appellee. was indiffer- there evidence conscious ‍​‌‌​​‌‌‌‌​​‌​​‌​‌‌‌‌​​‌‌​​​‌​​‌​​​‌​​‌‌‌​​‌‌‌​​‌‍19,210. No. consequences ence of its actions. Appeals Court of of New Mexico. justified negli- finding gence the inci- in direct connection with June general lack of perhaps dent in the Denied, 25,817, No. Certiorari any rigorous inspection program more July 28,1999. casually viewing

than the lines as CECC That, however, past. does workers drove punitive satisfy dam- the criteria negligence, neg-

ages. gross or even Mere

Case Details

Case Name: Torres v. El Paso Electric Co.

Court Name: New Mexico Supreme Court

Date Published: Jun 30, 1999

Citation: 987 P.2d 386

Docket Number: 24,300

Court Abbreviation: N.M.