1997 -NMCA- 68, Sanchez v. San Juan Concrete Co.

Citation1997 NMCA 68,123 N.M. 537,943 P.2d 571
Decision Date07 July 1997
Docket NumberNo. 17152,17152
Parties, 1997 -NMCA- 68 Fred SANCHEZ, Plaintiff-Appellant, v. SAN JUAN CONCRETE CO., Defendant-Appellee.
CourtCourt of Appeals of New Mexico
OPINION

HARTZ, Chief Judge.

¶1 Plaintiff worked for San Juan Concrete (San Juan) as a truck driver. He was severely injured while driving a San Juan truck under the influence of alcohol. After being denied workers' compensation benefits, he sued San Juan for improperly entrusting him with the truck. The district court granted San Juan summary judgment, apparently on the ground that San Juan owed no duty to protect Plaintiff from injury caused by his own voluntary intoxication. Plaintiff appeals. We reverse and remand for further proceedings in district court. We hold that (1) San Juan would be subject to liability if it was grossly negligent and reckless in entrusting the vehicle to Plaintiff and (2) there is a genuine issue of fact regarding whether San Juan engaged in such egregious misconduct. Also, we reject San Juan's argument that the Worker's Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (Repl.Pamp.1991), immunizes it from liability, because the argument relied upon on appeal was not made in district court.

I. BACKGROUND

¶2 For the ten years prior to the accident, Plaintiff worked for San Juan as a cement truck driver. After reporting to work he would be dispatched to one or more construction sites, load his truck with wet concrete, deliver it to the job sites, and return to San Juan's yard in Farmington to await the next dispatch until his shift ended. On October 5, 1991, a Saturday, a San Juan dispatcher called him at home to tell him to report to work. He arrived sometime between 7 and 8 a.m. He made one delivery, returned to the yard, and then was dispatched at about 10:15 a.m. to take a second load to Leon Anaya in Aztec. Upon completion of the delivery Plaintiff went to his father's house rather than returning to the yard. He had no work-related reason to visit his father. Plaintiff suffered his injuries in a one-vehicle accident shortly before 4 p.m. while driving in the direction of San Juan's yard, about four miles from his father's. He was highly intoxicated at the time.

¶3 Plaintiff filed a workers' compensation claim against San Juan and its insurer. The workers' compensation judge (WCJ) denied the claim. The compensation order filed on June 11, 1993 set forth three grounds for the denial: (1) the accident "did not arise out of employment with [San Juan]"; (2) the accident "was not in the course of employment with [San Juan]"; and (3) the accident "was the direct and proximate result of voluntary alcohol intoxication on the part of [Plaintiff]."

¶4 On October 4, 1994 Plaintiff filed his complaint against San Juan in district court. The complaint contends that Plaintiff "was hung over, intoxicated, and without sleep" when he reported to work on October 5, that he requested that he not be required to work, and that his request was refused by the dispatcher. Plaintiff also claimed that San Juan adopted but negligently carried out and failed to enforce a company substance abuse policy by not intervening in Plaintiff's alcohol abuse and not properly training and supervising company managers to deal with alcohol abuse. On May 25, 1995 San Juan moved for summary judgment, contending that the complaint was barred by the Workers' Compensation Act, that the complaint did not state a cause of action for negligent entrustment, and that Plaintiff's accident was not proximately caused by his alleged intoxication at the time he was entrusted with the truck. After reviewing the submissions of the parties, the district court issued a letter opinion on December 11, 1995, stating that San Juan "had no duty, under these facts, to the negligent [Plaintiff] for [Plaintiff's] accidental injuries caused by his own voluntary intoxication." The order granting summary judgment filed on December 27 recites only that there was no genuine issue of material fact and that San Juan was therefore entitled to judgment.

¶5 On appeal San Juan does not rely on the proximate-cause argument raised in district court. The issues on appeal are whether the claim is barred by the Workers' Compensation Act and whether the evidence would sustain a claim that San Juan breached a duty to Plaintiff by entrusting the truck to him. For the following reasons we must reverse the order granting summary judgment and remand for further proceedings in the district court.

II. EXCLUSIVITY OF WORKERS' COMPENSATION ACT

¶6 San Juan relies on the exclusive-remedy provisions of the Workers' Compensation Act. The pertinent language of Section 52-1-6(E) (effective Jan. 1, 1992), states:

The Workers' Compensation Act provides exclusive remedies. No cause of action outside the Workers' Compensation Act shall be brought by an employee ... against the employer ... for any matter relating to the occurrence of ... any injury ... covered by the Workers' Compensation Act.

Likewise, Section 52-1-9 states that the Act is the exclusive remedy for injuries "caused by accident arising out of and in the course of [the worker's] employment."

¶7 San Juan contends that Plaintiff's tort claim is barred because his injury was covered by the Workers' Compensation Act. It relies on the following language from Section 52-1-19:

"[I]njury by accident arising out of and in the course of employment" ... shall not include injuries to any worker occurring while on his way to assume the duties of his employment ..., the proximate cause of which is not the employer's negligence.

San Juan asserts that the facts are undisputed that Plaintiff was on his way to return to work at San Juan's yard at the time of the accident and therefore workers' compensation is Plaintiff's exclusive remedy for any negligence by San Juan. See Galles Chevrolet Co. v. Chaney, 92 N.M. 618, 593 P.2d 59 (1979); Mountain States Tel. & Tel. Co. v. Montoya, 91 N.M. 788, 581 P.2d 1283 (1978).

¶8 San Juan, however, did not present this argument to the district court. Although San Juan contended that Plaintiff's tort claim was barred by the exclusivity provisions of the Workers' Compensation Act, it in no way relied on Galles, Mountain States, or Section 52-1-19 for the proposition that a worker cannot recover in a tort claim against the employer for an injury negligently caused by the employer while the worker was on the way to assume the duties of employment. It argued solely that but for Plaintiff's intoxication, his injury would be considered to have arisen out of and in the course of his employment.

¶9 Recognizing that we might decide that the argument based on Section 52-1-19 was not preserved below, San Juan contends that preservation was not necessary. It relies on a recent statement by this Court that we "will affirm a trial court's decision reaching a correct result, even though the reason offered to support the result is wrong." Moore v. Sun Publ'g Corp., 118 N.M. 375, 379, 881 P.2d 735, 739 (Ct.App.1994). We acknowledge this power of an appellate court, but it is a power to be used cautiously. As we have explained:

Although we may affirm a district court ruling on a ground not relied upon by the district court, we will not do so if reliance on the new ground would be unfair to the appellant. In particular, it would be unfair to an appellant to affirm on a fact-dependent ground not raised below.

State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct.App.1994) (citations omitted).

¶10 We are reluctant to presume that all the facts relating to Plaintiff's accident have already been fully explored. Had San Juan raised this issue below, Plaintiff may have been able to point to additional evidence indicating that he was not on his way to work at the time of the accident. Also, Plaintiff may have been able to respond with evidence of an affirmative defense, such as estoppel. 1 To be sure, our refusal to affirm on this ground may result in unnecessary delay and effort if Plaintiff is unable to present any additional evidence on remand. Nevertheless, any complaint San Juan may have about such inefficiency could have been avoided if it had presented its legal argument in a timely fashion.

III. NEGLIGENT ENTRUSTMENT

¶11 New Mexico law recognizes that one who negligently entrusts a motor vehicle to an incompetent driver may be liable for injury to a third person caused by the driver's incompetence. See, e.g., DeMatteo v. Simon, 112 N.M. 112, 114, 812 P.2d 361, 363 (Ct.App.1991). But no reported New Mexico case has addressed the liability of the entrustor to the entrustee.

¶12 The specific question presented by this appeal is whether one can be liable for entrusting a vehicle to an intoxicated person who suffers injury as a result of driving while intoxicated. In other words, does the entrustor owe any duty to the intoxicated entrustee and if so, what is the scope of the duty? This question is one of law predicated on policy. See Gourdi v. Berkelo, 122 N.M. 675, 677, 930 P.2d 812, 814 (1996) (duty of landlord to tenant's employee is question of law to be resolved by reference to policy). That policy, however, is not set by the personal predilections of individual judges. See Melvin Aron Eisenberg, The Nature of the Common Law 21-27 (1988). It is based on community moral norms and policy views, tempered and enriched by experience, and subject to the requirements of maintaining a reliable, predictable, and consistent body of law, see id. at 14-49.

¶13 The principal source for guidance in these matters is legal precedent. See Gourdi, 122 N.M. at 677, 930 P.2d at 814. San Juan relies on Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (Ct.App.1986). In that decision we held that "a tavernkeeper who...

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