1998 -NMCA- 157, Enriquez v. Cochran

• Decision Date: 30 July 1998
• Docket Number: 17,912,Nos. 17,832,s. 17,832
• Parties: , 1998 -NMCA- 157 Ernest Ray ENRIQUEZ and Brenda Enriquez, individually and as parents of Mark Lee Enriquez, a minor and Crystal Renee Enriquez, a minor child, Plaintiffs-Appellees/Cross-Appellants, v. Larry P. COCHRAN, individually and as a volunteer of the Boy Scouts of America and Boy Scouts of America, Inc., Defendants-Appellants/Cross-Appellees.
• Court: Court of Appeals of New Mexico

Page 1136

967 P.2d 1136

126 N.M. 196, 1998 -NMCA- 157

Ernest Ray ENRIQUEZ and Brenda Enriquez, individually and as

parents of Mark Lee Enriquez, a minor and Crystal

Renee Enriquez, a minor child, Plaintiffs-Appellees/Cross-Appellants,

v.

Larry P. COCHRAN, individually and as a volunteer of the Boy

Scouts of America and Boy Scouts of America, Inc.,

Defendants-Appellants/Cross-Appellees.

Nos. 17,832, 17,912.

Court of Appeals of New Mexico.

July 30, 1998.

Certiorari Denied, No. 25, 365,

Oct. 13, 1998.

Randi McGinn, McGinn & Associates, P.A., Albuquerque, Wesley Reid Bobbitt, Albuquerque, for Plaintiffs-Appellees/Cross-Appellants.

John A. Klecan, Butt, Thornton & Baehr, P.C., Albuquerque, Stevan Douglas Looney, Crider, Calvert & Bingham, P.C., Albuquerque, for Defendant-Appellant/Cross-Appellee Boy Scouts of America, Inc.

Cas F. Tabor, Denise Madrid, McCormick, Caraway, Tabor & Madrid, Carlsbad, for Defendant/Cross-Appellee Larry P. Cochran.

OPINION

BUSTAMANTE, J.

¶1 In 1992 Ernest Ray Enriquez (Plaintiff) was severely injured when the top twenty feet, or so, of a tree he was helping to cut down broke off and fell on him. He brought suit against Larry P. Cochran (Cochran) one of the persons helping with the tree felling, and against the Boy Scouts of America, Inc. (BSA). The jury assigned seventy-five percent of the fault for Plaintiff's injuries to BSA and divided the remaining twenty-five percent of fault between Plaintiff (ten percent) and his employer, the Conquistador Council of Boy Scouts of America (fifteen percent).

¶2 BSA appeals, asserting that the trial court erred when it: (1) struck certain of BSA's affirmative defenses as a discovery sanction; (2) granted Plaintiff's motion to amend his complaint to conform to the evidence; (3) failed to hold as a matter of law that BSA was Plaintiff's statutory employer and thus immune from tort liability under the exclusive remedy provisions of the New Mexico Workers' Compensation Act (WCA) NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 1993); (4) refused certain of BSA's requested jury instructions while giving certain of Plaintiff's requested jury instructions; and (5) admitted evidence regarding use of hard hats and a tree felling death which occurred after Plaintiff's injury.

¶3 Plaintiff cross appeals asserting the trial court erred in: (1) failing to impose joint and several liability on BSA because felling large trees is an inherently dangerous activity and BSA retained sufficient control over local activities, including scout camp maintenance, that joint and several liability is appropriate as a matter of public policy; (2) directing a verdict against Plaintiff on his punitive damages claim against BSA; (3) refusing Plaintiff's proposed form of special verdict; and (4) failing to require BSA to post a supersedeas bond pending appeal. In addition, Plaintiff appeals from the verdict against Cochran based on assertedly improper references to Cochran's financial status during the closing arguments.

¶4 We affirm as to all issues raised by BSA in its appeal. On Plaintiff's cross-appeal we reverse as to the joint and several liability issue and affirm on the remainder. We reverse Plaintiff's appeal with regard to Cochran.

FACTS AND PROCEEDINGS

¶5 Because of the complexity of the factual and procedural history of certain issues, this section of the opinion will identify the parties in the case and other actors involved in the occurrence, as well as provide a description of the occurrence itself. Background appropriate to explain our decision with regard to particular issues will accompany specific discussions.

I. The Parties

¶6 At the time of his injury, Plaintiff was a professional scouter employed by the Conquistador Council (Council) as a district executive. It is undisputed that he was acting within the course and scope of his employment when he was injured. Thus, Plaintiff's injury was covered by the WCA, and Plaintiff received worker's compensation benefits, including medical care and disability payments. Under the exclusive remedy provisions of the WCA, the Council was immune from suit in tort, and thus is not a named party. However, the Council was included on the special verdict form as an entity potentially bearing some responsibility for Plaintiff's injuries, thus allowing the jury to assign a percentage of comparative fault to it.

¶7 The Council is a New Mexico non-profit entity incorporated under articles of incorporation specified by BSA. Under BSA's standard articles of incorporation, the Council shall:

1. have "perpetual existence but shall take such action as may be necessary to dissolve in the event of the revocation or termination of its charter" from BSA. In the event of dissolution or liquidation of the Council, all of its property and assets shall be distributed to another local council as specified by BSA or to BSA for use in furtherance of scouting;

2. promote "[s]couting" within the territory covered by its charter from BSA "in accordance with the Congressional Charter, Bylaws and Rules and Regulations" of BSA, using the methods in common use by BSA;

3. maintain the principles and policies of BSA "as set forth in detail in the Bylaws and the Rules and Regulations of the Boy Scouts of America in official handbooks...."; and

4. not amend the articles of incorporation without approval of "an authorized official at the national office" of the BSA.

¶8 The Council operates as a corporation under bylaws prescribed by BSA. The bylaws provide organizational directives for management of the Council and generally reinforce the notion that the "responsibilities of the corporation shall be controlled and directed by the Boy Scouts of America through its Bylaws and Rules and Regulations." The Council holds its property, real and personal, in its own name, subject to the ultimate limitation of forfeiture or transfer in the event of termination of the Council's charter from BSA. Under the BSA prescribed bylaws, the Council's fund raising activities and expenditures are subject to the Rules and Regulations of BSA.

¶9 According to its Charter and bylaws, BSA is a non-profit corporation chartered by the United States Congress in 1916 charged with the purpose of promoting " 'through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods which are now in common use by Boy Scouts.' "

¶10 BSA bylaws describe a four-tier organizational structure with a national council, regional organizations which are geographic administrative subdivisions of the national council, local councils (such as the Conquistador Council), and individual troops of scouts. The regional organizations are charged with responsibility for the "proper alignment of councils, for assuring sufficient qualified volunteer and professional leadership in each council, and for an effective program for financing each council."

¶11 BSA's bylaws provide: "In order to accomplish its purposes and to carry out its programs, the Corporation [BSA] will charter local councils each with jurisdiction over a prescribed geographical area." Local council charters are issued for a period not exceeding one year, and may be renewed annually upon application showing a satisfactory effort to meet the responsibilities of a local council. BSA's bylaws reserve in BSA the right to "revoke or decline to renew such charters for failure to comply with the Bylaws, Rules and Regulations, or policies of the Corporation." BSA's bylaws further provide that the "powers and responsibilities of local councils shall be controlled by these [BSA] Bylaws and by the Rules and Regulations."

II. The Injury

¶12 There is no significant dispute between the parties concerning the course of events leading to Plaintiff's injury. The Council owned Camp Wehinahpay--located in southeastern New Mexico--and operated it as a resident summer camp for boy scouts. On the weekend of May 16, 1992, Plaintiff and other volunteers, including Defendant Cochran, were asked to cut down a number of dead trees on Camp Wehinahpay as part of pre-season preparation for summer activities. Two or three of the trees to be felled were approximately sixty feet tall. The tree which eventually injured Plaintiff was an aspen located on a hillside near a power line. The top branches of the dead aspen were intertwined with a nearby live tree. In an attempt to avoid having the tree fall toward, and hit the power line, the volunteers set up a winch and pulley arrangement using Cochran's winch truck. The winch cable was tied to the dead aspen some fifteen to twenty feet above the ground, strung through a pulley attached to another tree opposite the power line, then run down the hill and hooked to Cochran's winch truck located at the bottom of the hill. The truck was located approximately two hundred feet from the dead aspen.

¶13 While the men at the tree worked to cut it with chain saws, Cochran stayed at his truck using the winch in an attempt to guide the tree's fall away from the power line. Because of the distance between the tree and the winch truck, Cochran could not see or hear the chain saw operator as he cut the tree. As the tree was being cut, tension was placed on the cable, pulling it in the desired direction of fall. As the tree fell, the top twenty or so feet broke off backwards, toppling into the "safety zone" behind the tree where Plaintiff and other volunteers were standing. The broken piece fell on Plaintiff, causing serious and permanent brain damage and other physical injuries.

¶14 None of the volunteers were given any training or provided with any safety equipment before being asked to cut these trees. Some of the workers, including Plaintiff, had never even used a chain saw before the day of the accident.

¶15 Dick Davis, who was employed by the...