Armstrong v. Industrial Elec. and Equipment Service

• Decision Date: 22 December 1981
• Docket Number: No. 5196,5196
• Parties: Keith ARMSTRONG, individually and d/b/a Armstrong Enterprises, Plaintiff-Appellant, v. INDUSTRIAL ELECTRIC AND EQUIPMENT SERVICE, a corporation, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 81

639 P.2d 81

97 N.M. 272

Keith ARMSTRONG, individually and d/b/a Armstrong

Enterprises, Plaintiff-Appellant, v. INDUSTRIAL ELECTRIC AND EQUIPMENT SERVICE, a corporation,

Defendant-Appellee.

No. 5196.

Court of Appeals of New Mexico.

Dec. 22, 1981.

William J. Darling, Eaves & Darling, P. A., Albuquerque, for plaintiff-appellant

Charles A. Pharris, Rebecca A. Houston, Keleher & McLeod, Albuquerque, for defendant-appellee.

OPINION

DONNELLY, Judge.

Plaintiff, Keith Armstrong, d/b/a Armstrong Enterprises, filed suit against Industrial Electrical and Equipment Service, a corporation, seeking damages for injuries sustained by him while performing electrical work at Papa Felipe's Restaurant in Coronado Center, Albuquerque, New Mexico. Plaintiff alleged that he sustained severe shocks and burns as a proximate result of negligent and improper installation of electrical wiring by defendant. Defendant raised as an affirmative defense the contributory negligence of plaintiff, and the trial court submitted to the jury the issue of comparative negligence of the parties. From a judgment incorporating a jury verdict and finding in a special interrogatory that plaintiff was 100% negligent, the plaintiff appeals. We affirm.

The sole issue raised by plaintiff on appeal is whether the trial court committed reversible error in a case tried as a comparative negligence action, in refusing to give plaintiff's requested jury instruction, incorporating the bracketed portion of N.M.U.J.I.Civ. 3.8, N.M.S.A.1978 (Repl.1980), (former N.M.U.J.I.Civ. 12.10, N.M.S.A.1978), defining proximate cause. The trial court did instruct the jury as to the definition of proximate cause, utilizing N.M.U.J.I.Civ. 3.8 (Repl.1980), but declined to include certain optional language. The jury instruction as requested by plaintiff read as follows.

The proximate cause of an injury is that which in a natural and continuous sequence produces the injury, and without which the injury would not have occurred. (It need not be the only cause, nor the last nor nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury.)

Plaintiff contends that his version of the jury instruction on proximate cause is essential in a comparative negligence action where the negligence of more than one person may be a contributing factor in causation of plaintiff's injury. Plaintiff further asserts that the language omitted from the jury instruction given by the trial court was necessary to clearly apprise the jury that they could find more than one proximate cause of plaintiff's injury under the evidence before them, and that in cases involving issues of comparative negligence, by virtue of the very nature of such cases, it is possible to have more than one proximate cause contributing to the alleged injury. The special use notes prepared by the drafters of N.M.U.J.I. 3.8 (Repl.1980), do not discuss proximate cause in terms of comparative negligence actions.

The court instructed the jury in accordance with N.M.U.J.I.Civ. 3.1, N.M.S.A.1978. The instruction given provided in applicable part:

The Plaintiff has the burden of proving that he sustained damage and that one or more of the claimed acts of negligence was the proximate cause thereof.

The defendant says that the Plaintiff was contributorily negligent because:

(a) The Plaintiff was contributorily negligent in that he was not properly licensed according to the laws of the State of New Mexico to perform the work he was doing;

(b) Plaintiff did not use ordinary care to determine whether there was live circuits in the area in which he was working;

(c) Plaintiff carelessly and improperly cut into the conduit carrying the electric wiring by which he was injured;

(d) Plaintiff failed to utilize available plans or drawings to determine whether there were additional live circuits in the area in which he was working;

The Defendant has the burden of proving that Plaintiff was contributorily negligent. Negligence of the Plaintiff is not contributorily negligence unless it is a proximate cause of the Plaintiff's damages. (Emphasis supplied).

Also given was N.M.U.J.I.Civ. 13.1, N.M.S.A.1978, which read:

When I use the expression 'contributory negligence,' I mean negligence on the part of the Plaintiff that proximately contributed to cause the alleged damages of which Plaintiff complains.

The court additionally instructed the jury utilizing a non-uniform jury instruction, requested by the plaintiff to explain the jury's function in assessing comparative negligence between the parties. This instruction read:

If you find that Plaintiff's injury was proximately caused by a combination of negligence of the Defendant and contributory negligence of the Plaintiff, you will determine the amount of damages to be awarded by you, as follows:

First: You will determine the total amount of damages to which the Plaintiff would be entitled under the Court's instructions if Plaintiff had not been contributorily negligent.

Second: You will determine what proportion or percentage that is attributable to the Plaintiff to the total combined negligence of the Plaintiff and of the Defendant whose negligence proximately contributed to the injury.

Third: You will then reduce the total amount of Plaintiff's damages by the proportion or percentage of negligence attributable to the Plaintiff. Fourth: The resulting amount, after making such reduction, will be the amount of your verdict. (Emphasis added).

In addition to the above instructions, the court submitted special interrogatories to the jury that directed them to determine by way of a special finding whether plaintiff's damages were proximately caused by the negligence of either plaintiff or defendant alone, or the combined negligence of both parties. In answering the interrogatories, the jury found that only the plaintiff's negligence constituted the proximate cause of his injuries. The fourth question submitted to the jury in the special interrogatories was answered as follows:

Question No. 4: Assuming that 100% represents the combined negligence of the Plaintiff and of the Defendant whose negligence contributed as a proximate cause to Plaintiff's injury, what proportion, if any, of such combined negligence is attributable to the Plaintiff on the other hand and to the Defendant on the other hand?

Answer: To Plaintiff 100%

Answer: To Defendant 0%

Special interrogatories perform an important function in comparative negligence actions, since it is vital for the court to inquire by way of special findings whether the negligence of either party or both was the proximate cause of plaintiff's claimed damages. Special verdicts or jury interrogatories are required in comparative negligence cases by N.M. Supreme Court Order No. 8000, Misc. (March 30, 1981).

The several instructions given by the trial court on proximate cause, together with the directives in the special interrogatories submitted to the jury, when read together, adequately apprised the jury as to the definition of proximate cause. Considered as a whole, the instructions indicated that the jury had to determine the claims of negligence and contributory negligence and ascertain whether the negligence of more than one of the parties were contributing factors of causation of plaintiff's injuries. The function of jury instructions is to make the issues that the jury is to determine plain and clear. Embrey v. Galentin, 76 N.M. 719, 418 P.2d 62 (1966).

The trial court gave N.M.U.J.I.Civ. 20.2, (Repl.1980), which instructed the jury to consider the instructions as a whole, not picking out one instruction or parts thereof and disregarding others. See Garcia v. Barber's Supermarket, 81 N.M. 92, 463 P.2d 516 (Ct.App.1969). The standard for the reviewing court in determining the sufficiency of instructions is whether all of the instructions, when read and considered together, fairly present the issues and the law applicable thereto. Webb v. Webb, 87 N.M. 353, 533 P.2d 586 (1975); Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967). In the absence of proof to the contrary, jurors will be presumed to have considered instructions as a whole. Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967); Cope v. Davison, 30 Cal.2d 193, 180 P.2d 873, 171 A.L.R. 667 (1947). Appellant still has the burden of showing that he is prejudiced by an instruction claimed to be erroneous. Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296 (1970).

This Court has already held in a contributory negligence case that failure to include the bracketed portion of the uniform proximate cause instruction at issue here was harmless error in light of the other instructions given and read as a whole. Tafoya v. Whitson, 83 N.M. 23, 487 P.2d 1093 (Ct.App.), cert. denied, 83 N.M. 22, 487 P.2d 1092 (1971).

As observed in Terrel v. Duke City Lumber Co., 86 N.M. 405, 542 P.2d 1021 (Ct.App.1974), modified, 88 N.M. 299, 540 P.2d 229 (1975):

The general term 'proximate cause' encompasses both causation in fact and proximate causation as a limitation placed on the tort-feasor's responsibility. Prosser on Torts, § 41 (4th Ed. 1971). The latter type of causation occurs when the consequences ' "... were or should have been contemplated or might have been foreseen." ...' Valdez v. Gonzales, 50 N.M. 281, 176 P.2d 173 (1946). Authorities are not in complete accord as to whether the adoption of comparative negligence significantly affects the concept of proximate cause. See V. Schwartz, Comparative Negligence § 4.2, 4.3 (1974). Proximate cause is, however, a key element in comparative negligence cases.

In H. Woods, Comparative Fault § 5.1 at 94 (1978), the author notes:

Theoretically, adoption of comparative negligence should have no effect on the rules of proximate causation obtaining in the particular jurisdiction. As a practical matter, there is some effect. Where fault can be...