Begay v. Livingston

• Decision Date: 12 November 1981
• Docket Number: No. 5028,5028
• Citation: 658 P.2d 434,99 N.M. 359,1981 NMCA 132
• Parties: Davis Peter BEGAY, Plaintiff-Appellant, v. Nellie LIVINGSTON, Defendant-Appellee, and William Livingston and Janice Livingston, dba, the Livingston Hotel, Defendants-Appellees Third Party Plaintiffs and Cross Appellants, and Montgomery Ward & Company, Inc., Defendant-Third Party Defendant and Cross Appellee.
• Court: Court of Appeals of New Mexico

Page 434

658 P.2d 434

99 N.M. 359

Davis Peter BEGAY, Plaintiff-Appellant, v. Nellie LIVINGSTON, Defendant-Appellee and William Livingston and Janice Livingston, dba, the Livingston Hotel, Defendants-Appellees Third Party Plaintiffs and Cross Appellants and Montgomery Ward & Company, Inc., Defendant-Third Party Defendant and Cross Appellee.

No. 5028.

Court of Appeals of New Mexico.

Nov. 12, 1981.

[99 N.M. 361] Daniel Shapiro, Ortega & Snead, P.A., Steven Michael, Albuquerque, for plaintiff-appellant.

J.M. Scarborough, Espanola, for defendant-appellee, Nellie Livingston.

J. Duke Thornton, James H. Johansen, Shaffer, Butt, Thornton & Baehr, P.C., Albuquerque, for defendants-appellees third party plaintiffs and cross-appellants William Livingston and Janice Livingston.

Bruce D. Black, William G. Wardle, Campbell, Byrd & Black, P.A., Santa Fe, for defendant-third party defendant and cross-appellee Montgomery Ward & Co., Inc.

OPINION

SUTIN, Judge.

On March 28, 1977, Peter Begay, decedent, checked into Room 7 of the Livingston Hotel, Espanola, New Mexico. The following morning, he was found dead as a result of lethal levels of carbon monoxide in the blood caused by carbon monoxide gas that escaped from the gas space heater located in the room.

On January 23, 1980, plaintiff, as personal representative of decedent's estate, filed a second amended complaint. Joined as defendants were (1) William and Janice Livingston (The Livingstons), owners and operators of the hotel since October 10, 1972; (2) Nellie Livingston (Nellie), prior owner, who had the gas heater installed in the early 1960's; (3) Montgomery Ward and Company, Inc., the manufacturer and seller of the gas heater; and (4) Gas Company of New Mexico, supplier of the gas.

The second amended complaint consisted of seven counts.

Count I is directed against The Livingstons based upon broad grounds of negligence with reference to the heater, its appurtenances and position in the room. Count I is not at issue in this appeal.

Count II is directed against The Livingstons under the doctrine of res ipsa loquitur. The Livingstons were granted summary judgment from which plaintiff appeals.

Count III is directed against Nellie based upon general grounds of negligence. Nellie was granted summary judgment from which plaintiff appeals.

Count IV is directed against The Livingstons and Nellie under the doctrine of strict liability. Summary judgment was granted these defendants from which plaintiff appeals.

Count V is directed against Montgomery Ward under the doctrine of strict liability. Summary judgment was granted from which plaintiff appeals.

Count VI is directed against Montgomery Ward on the basis of negligence. Montgomery Ward was granted summary judgment from which plaintiff appeals.

Count VII is directed against the Gas Company for negligence. Count VII is not an issue in this appeal.

Plaintiff appeals from summary judgments granted defendants in Counts II, III, IV, V and VI.

The Livingstons filed a cross-claim against Montgomery Ward for indemnity or contribution. Montgomery Ward was granted summary judgment from which The Livingstons appeal.

The plaintiff's and The Livingstons' appeal represent the only judgments from which an appeal has been taken. The order entered on December 12, 1980, included other judgments entered from which no appeal has been taken. Those judgments remain final and effective regardless of the disposition made in this appeal.

On January 5, 1981, plaintiff appealed from summary judgments granted The Livingstons, Nellie and Montgomery Ward.

On January 13, 1981, The Livingstons appealed from the order that dismissed their cross-claim with prejudice.

We affirm as to Counts II, III and IV (Nellie) and reverse as to Count IV (The Livingstons), Counts V and VI and the Third Party Complaint of The Livingstons.

INTRODUCTION

Unfortunately, parties in an appeal that involve summary judgments do not follow the rules established in Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). The rules and violations thereof have been repeated many times. Harmon v. Atlantic Richfield Co., 95 N.M. 501, 623 P.2d 1015 (Ct.App.1981). Before a party is entitled to summary judgment in the trial court, the movant must establish a prima facie case that no genuine issue of material fact exists, or that the party is entitled to summary judgment as a matter of law. If the movant fails, summary judgment should be denied. If the movant succeeds, the burden then shifts to the opponent to come forward with evidence to create a genuine issue of material fact.

In an appeal, in each count stated in which summary judgment is granted, an appellant's Brief-in-Chief must show that defendant failed to make a prima facie case, or, if it did, that appellant met the burden of showing that a genuine issue of material fact existed. If the parties do not follow this procedure in an appeal, the burden shifts to this Court to solve the many problems raised.

It is unnecessary to set forth the rules governing summary judgments. They have been stated innumerable times without any appreciable effect in district courts. Any reasonable doubt as to the existence of a genuine issue of fact will be resolved against the movant.

Before we can reach the merits of this appeal, a jurisdictional question was raised by Montgomery Ward.

Montgomery Ward mistakenly claims The Livingstons' notice of appeal was not timely filed. Summary judgment was entered December 12, 1980, Plaintiff filed a timely notice of appeal on January 5, 1981. The Livingstons' notice was filed January 13, 1981.

Rule 3(a) of the Rules of Appellate Procedure for Civil Cases provides that an appeal may be taken within thirty days after any final judgment or interlocutory order. Where multiple parties are involved, this rule applies to the first party taking an appeal. If subsequent parties decide to appeal, they are governed by Rule 4(c) which pertains to "Service of notice of appeal." It reads in part:

If such service [of plaintiff's notice of appeal] be made later than fifteen days before expiration of the time within which the appeal may be taken, any party so served may himself take an appeal within fifteen days after such service. [Emphasis added.]

Plaintiff's Notice of Appeal was deposited in the mail January 5, 1981, postage prepaid, addressed to all lawyers of record. The expiration date of plaintiff's appeal was January 12, 1981. Plaintiff's service of notice of appeal, allowing three days for mailing, Rule 6(e) of the Rules of Civil Procedure, was effected January 8, 1981, 4 days before the expiration date. Fifteen days before the expiration date was December 28, 1980. Therefore, service by plaintiff was made "later than fifteen days before expiration of the time within which the appeal may be taken." Plaintiff's service of notice of appeal was effective January 8, 1981. The Livingstons appealed January 13, 1981, five days thereafter, within the 15 days allowed.

The Livingstons' appeal was timely filed.

A. Summary judgment granted The Livingstons on res ipsa loquitur is affirmed.

Count II of plaintiff's complaint stated a claim for relief under the doctrine of res ipsa loquitur. U.J.I. 16.23. It alleged that while decedent was in Room 7 of the Livingston Hotel, the exhaust venting from the heater was or became disconnected from the ceiling juncture; that as a proximate result of the disconnection, decedent died from carbon monoxide; that this disconnection does not generally occur except through negligence, and that The Livingstons had exclusive control and management over the gas heater and exhaust venting in this room.

To make a prima facie case, The Livingstons had the burden of establishing as a matter of law that (1) the gas heater and exhaust vents were not in their exclusive control and (2) this death did not ordinarily happen in the absence of negligence. Deakin v. Putt, 93 N.M. 58, 596 P.2d 271 (Ct.App.1979).

The Livingstons attacked one aspect of the doctrine of res ipsa loquitur --lack of "exclusive control"; that decedent "had every opportunity to adjust the heater, the vent, or to dislodge the vent from the ceiling duct. Thus ... [decedent] had at least equal control, if not superior control ...."

Under the doctrine of res ipsa loquitur "exclusive control" of defendant is the first factor to be established. It is stated in U.J.I. 16.23 as follows:

1. that the injury or damage to plaintiff was proximately caused by (Name of instrumentality or occurrence) which was under the exclusive control and management of the defendant .... [Emphasis added.]

Heretofore, only the word "control" was used in the definition of res ipsa loquitur. Today, the words "and management" have been added. "Exclusive control and management" has not yet been defined. In a general way, the word "control" refers to power or authority to manage, superintend, direct or oversee. Hardware Mutual Casualty Company v. Crafton, 233 Ark. 1020, 350 S.W.2d 506 (1961). "Control" and "manage" are synonymous. "Exclusive" as used in this context means "sole." The phrase "exclusive control and management" of an instrumentality means "the sole power or authority of defendant to superintend, direct or oversee" the instrumentality. As it has been said, " 'Exclusive control' is not a rigid, inflexible term ...." Archibeque v. Homrich, 88 N.M. 527, 531, 543 P.2d 820 (1975). It also embodies "right to control," and the doctrine applies if defendant had either "exclusive control" or "right of control," Collins v. Stroh, 426 S.W.2d 681 (Mo.App.1968), but "right of control" is of no consequence unless it can be effectively exercised, Freitag v. City of Montello, 36 Wis.2d 409, 153 N.W.2d 505 (1967).

The application or non-application of "exclusive control" has been discussed in Harless v. Ewing, 81 N.M. 541, 469 P.2d 520 (Ct.App.1970); Renfro v. Coggins Company, 71 N.M. 310, 378 P.2d 130 (1963); and Waterman v. Ciesielski, 87...