Atler v. Murphy Enterprises, Inc.

• Decision Date: 18 November 2004
• Docket Number: No. 23,620.,23,620.
• Citation: 104 P.3d 1092,136 N.M. 701
• Parties: Dora M. ATLER, individually, and as the natural mother, guardian, and next friend of Vanessa Atler, a minor, Plaintiff-Appellee, v. MURPHY ENTERPRISES, INC., a Nebraska corporation, and Spectacular Attractions, Inc., an Oklahoma corporation, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

104 P.3d 1092

136 N.M. 701

Dora M. ATLER, individually, and as the natural mother, guardian, and next friend of Vanessa Atler, a minor, Plaintiff-Appellee, v. MURPHY ENTERPRISES, INC., a Nebraska corporation, and Spectacular Attractions, Inc., an Oklahoma corporation, Defendants-Appellants.

No. 23,620.

Court of Appeals of New Mexico.

November 18, 2004.

Certiorari Granted January 10, 2005.

Bill Chappell, Jr., Michael Hoeferkamp, Chappell Law Firm, P.A., Albuquerque, NM, Steven L. Tucker, Tucker Law Firm, P.C., Santa Fe, NM, for Appellees.

Thomas C. Bird, Anastasia S. Stevens, Gary J. Van Luchene, Benjamin F. Feuchter, Keleher & McLeod, P.A., Daniel J. O'Brien, Richard J. Valle, O'Brien & Houliston, Albuquerque, NM, for Appellants.

Certiorari Granted, No. 28,982, January 10, 2005.

OPINION

WECHSLER, Chief Judge.

{1} Defendants, Murphy Enterprises, Inc. (Murphy), and Spectacular Attractions, Inc. (Spectacular), the sole shareholder of Murphy, appeal from a jury verdict awarding compensatory and punitive damages to Plaintiff. Defendants acknowledged their own negligence, but argued at trial that others were comparatively negligent. They also argued that punitive damages were not justified. Following a verdict finding Defendants 66% liable for Plaintiff's actual damages and awarding punitive damages, Defendants attack the punitive damage award, jury instructions, and evidentiary and legal rulings. Because we are not persuaded that any error in this case justifies reversing the jury verdict, we affirm.

Background

{2} On September 26, 1998, Vanessa Atler was injured on the Cliff Hanger ride at the New Mexico State Fair when the car in which she was riding flew off and crashed to the ground because of a missing bolt. The Cliff Hanger was owned by Butler Amusements, Inc. (Butler), but Butler had leased the ride to Defendants to use during the 1998 State Fair and agreed to provide "qualified experienced personnel required to operate and maintain the ride." Joel Roy, who had been working for Butler since July 1998, traveled to New Mexico to operate the Cliff Hanger at the State Fair in September 1998. Roy was accompanied by Julie Worley, and there was evidence at trial that Defendants told Roy the location and hours for the ride, that Roy and Worley were paid by Defendants, and that Roy was in charge of other employees of Defendants who worked on the ride, although Defendants denied that Roy was their employee. In their contract with the State Fair, Defendants agreed to keep the rides in safe operating condition, to hire personnel to operate and maintain the equipment, and to provide a sufficient number of personnel to do so. In addition, the contract required Defendants to comply with the Carnival Ride Insurance Act, NMSA 1978, §§ 57-25-1 to 57-25-6 (1993, as amended through 1996). Section 57-25-3(E) specifically requires that the "owner or operator of the ride shall inspect the ride each day the ride is operated."

{3} In her second amended complaint, Plaintiff named as defendants the State of New Mexico; the New Mexico State Fair; the New Mexico State Fair Commission; Murphy; Dartron Industries, Inc. (Dartron) (the manufacturer of the ride); Butler; Don Becker, Inc. (a safety inspector); Donald W. Becker; Safety Counselling, Inc. (SCI) (a safety inspector); W. Brock Carter (president of SCI); and Spectacular. Plaintiff settled with Butler, Dartron, SCI, Carter, Don Becker, Inc., and Donald Becker. Plaintiff also dismissed her claims against the State of New Mexico and the State Fair. Thus, only Murphy and Spectacular remained as defendants at trial. Defendants admitted they had acted negligently but denied that their negligence was the proximate cause of Vanessa Atler's injuries and denied that their conduct was reckless or wanton.

{4} The jury awarded $371,330.11 in compensatory damages to Vanessa Atler and $28,160 for Dora Atler. The jury found Defendants to be liable to 66% of Plaintiff's compensatory damages. The jury then awarded punitive damages in the amount of $998,725. The court denied various post-trial motions, and Defendants appealed, raising five issues in their brief in chief: whether the trial court erred (1) in improperly instructing the jury on the standard for punitive damages; (2) in not rejecting, as a matter of law, claims for punitive damages based on the conduct of Roy or managerial employees of Murphy; (3) in failing to offset the damage award by the amount of Plaintiff's settlement with the other defendants who settled before trial; (4) by refusing to include SCI on the special verdict form allocating fault among all defendants; and (5) by instructing the jury not to consider remedial measures in determining Dartron's negligence.

The Jury Instruction on Punitive Damages

{5} Defendants argue that the trial court erred in instructing the jury on the standard for punitive damages because Instruction 9, based on UJI 13-302B NMRA, was inconsistent with Instruction 31, based on UJI 13-1827 NMRA. Both instructions described two bases for awarding punitive damages. Instruction 9, the instruction that provided the jury with an overview of the case, informed the jury that this case was a civil action in which Plaintiff sought damages for injuries that she claimed were the result of Defendants' negligent or reckless/wanton conduct. Instruction 9 informed the jury that it could find Defendants had acted recklessly or wantonly if Plaintiff established either (1) that Roy had acted recklessly or wantonly and "Roy was left or placed in a managerial or supervisory capacity as an employee of Murphy Enterprises at the 1998 New Mexico State Fair," or (2) that Defendants "demonstrated corporate indifference or a cavalier attitude in the face of serious risks of danger, considering the cumulative conduct of its officers and employees individually or as a whole, (including Joel Roy if you find he was an employee of Murphy)." Similarly, Instruction 31, the standard punitive damages instruction, provided that punitive damages could be awarded against Defendants if (1) the jury found Defendants' own conduct was reckless or wanton, or (2) the jury found Roy had acted recklessly "in the scope of his employment by Murphy Enterprises, Inc. and Spectacular Attractions, Inc. and had sufficient discretionary or policy-making authority to speak and act for them with regard to the conduct at issue, independently of higher authority."

{6} As Defendants state, "[w]e review jury instructions de novo `to determine whether they correctly state the law and are supported by the evidence introduced at trial.'" Chamberland v. Roswell Osteopathic Clinic, Inc., 2001-NMCA-045, ¶ 11, 130 N.M. 532, 27 P.3d 1019 (quoting Gonzales v. N.M. Dep't of Health, 2000-NMSC-029, ¶ 28, 129 N.M. 586, 11 P.3d 550). However, Plaintiff argues that the issue of whether the two instructions were inconsistent was not properly preserved below. Our review of the transcript confirms that at the conference settling the jury instructions, the issue of inconsistency was not clearly before the trial court. "To preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court." Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App.1987).

{7} The two instructions were discussed separately. Instruction 31, the punitive damages instruction, was addressed first, and Defendants objected to the section of the instruction that explained that Defendants could be liable for punitive damages based on Roy's conduct. Specifically, Defendants objected that Plaintiff's requested instruction assumed Roy was an employee of Murphy. The court then adopted Defendants' version of the instruction, which required the jury to find that Roy was acting in the scope of his duties and had sufficient policy-making authority to speak or act for Defendants. The court also deleted the words "malicious" and "willful" from the instruction at Plaintiff's request.

{8} The court proceeded to discuss Instruction 9, the instruction that gave the jury an overview of the case. Defendants first argued that Plaintiff's requested instruction had too much detail and repeated the specific punitive damages instruction set out in Instruction 31. Next, Defendants argued that in order to find them liable for punitive damages based on Roy's conduct, Plaintiff's instruction needed to state that the jury had to find Roy was an employee of Murphy, and the discussion focused on how to clarify the instruction. Defendants agreed to modify the instruction to state that Plaintiff had to prove that Roy was an employee with managerial capacity in order to find Defendants liable for his conduct.

{9} The parties then discussed the standard for punitive damages based on Defendants' own corporate misconduct, which did not necessarily include the reckless or wanton conduct of Roy. The parties and the court discussed the different definitions for reckless and wanton conduct, and Defendants appear to have objected to the contents of the third paragraph of Plaintiff's requested instruction. The Court removed the part of those paragraphs stating that Murphy willfully failed to comply with its safety obligations. The precise nature of Defendants' objection is not clear from the record, but it does not appear to have focused on inconsistency between Instruction 9 and Instruction 31. Indeed, although defense counsel stated that he objected to "that," without further clarification, he then stated, "But other than that, it seems to be consistent with the first one" anyway.

{10} In their reply brief, Defendants respond to Plaintiff's lack of preservation arguments, arguing generally that Defendants indicated a conflict between the two instructions. As we have noted, although there was some discussion about the standard for punitive damages, and there was some discussion about which elements Plaintiff had...