Benavidez v. City of Gallup

• Decision Date: 11 May 2007
• Docket Number: No. 29,160.,29,160.
• Citation: 2007 NMSC 026,161 P.3d 853
• Parties: Sonya BENAVIDEZ, Plaintiff-Petitioner, v. CITY OF GALLUP, Defendant-Respondent.
• Court: New Mexico Supreme Court

161 P.3d 853

2007 NMSC 026

Sonya BENAVIDEZ, Plaintiff-Petitioner, v. CITY OF GALLUP, Defendant-Respondent.

No. 29,160.

Supreme Court of New Mexico.

May 11, 2007.

Rosenfelt & Buffington, P.A., Thomas L. Murphy, Gallup, NM, for Petitioner.

Mason, Isaacson & Macik, P.A., Thomas Lynn Isaacson, Gallup, NM, for Respondent.

OPINION

MAES, Justice.

{1} Sonya Benavidez ("Plaintiff") filed suit against the City of Gallup ("City") after tripping and falling over a water meter. After a three-day trial, the jury returned a special verdict in favor of the City. Plaintiff appealed, and the Court of Appeals affirmed the judgment in a Memorandum Opinion. We granted certiorari to review Plaintiff's following claims of error: (1) the trial court erred in refusing to give the basic slip-and-fall instruction, UJI 13-1318 NMRA; (2) the unequal number of peremptory challenges was prejudicial to Plaintiff; and (3) defense counsel's improper closing argument prejudiced Plaintiff's right to a fair trial. We agree with the Court of Appeals that Plaintiff was not prejudiced when the trial court reversed its decision after initially denying a challenge for cause during jury selection. We instruct trial courts that if this situation arises, then they must allow the party who originally requested the challenge to use a peremptory challenge on any jurors previously selected. We also agree with the Court of Appeals that Plaintiff was not prejudiced by statements made by defense counsel during closing arguments. However, we find that the trial court erred in refusing Plaintiff's requested jury instruction. Thus, we reverse the Court of Appeals on this issue and remand for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} While taking the trash out the back door at her mother's store in Gallup, New Mexico, Plaintiff fell and fractured her ankle. She testified that she tripped on a water meter in the alley. Although Plaintiff was not a regular employee of the store, she was assisting her mother at the store at the time of the incident. Plaintiff filed a Complaint for Damages for Personal Injuries under the New Mexico Tort Claims Act against the City of Gallup.¹

{3} At trial, during jury selection, Plaintiff challenged Juror # 14 for cause, because the juror had indicated that he had been represented by defense counsel's law firm and stated that there are "too many lawsuits." The judge denied the challenge and instructed Plaintiff that she could use one of her peremptory challenges on the juror. After seven jurors were empaneled, the judge changed his mind and decided to excuse Juror # 14 for cause. Plaintiff had not exhausted all of her peremptory challenges at this time, and at the end of jury selection still had one challenge left.

{4} At the close of the evidence, the parties submitted their requested jury instructions. Among the tendered instructions was Plaintiff's Requested Instruction No. 28:

An owner owes a visitor the duty to exercise ordinary care to keep the premises safe for the visitor's use. This duty applies whether or not the dangerous condition is obvious. In performing this duty, the owner is charged with knowledge of any condition on the premises of which the owner would have had knowledge had it made a reasonable inspection of the premises or which was caused by the owner or its employees.

This instruction is codified as UJI 13-1318. The court refused the instruction, initially finding that Plaintiff was not a visitor. Plaintiff argued that based on Ford v. Bd. of County Comm'rs, 118 N.M. 134, 879 P.2d 766 (1994), Plaintiff was a visitor. After further discussion between the court and both parties, the court ruled that the instruction was "too ambiguous" and "redundant in view of [UJI 13-1317 NMRA]." Plaintiff objected, but the court maintained its refusal of the instruction.

{5} During closing arguments, defense counsel, referring to literature from the water meter's manufacturer, stated:

And I'm going to suggest that [the manufacturer] wasn't saying anything back in the 1930's of [sic] before. And I'll tell you why [the manufacturer] wasn't saying anything back in the 1930's or before, because the language that you see and the diagrams that you see about proper setting and improper setting are because of people like me and [Plaintiff's counsel]. You know it from all of the instruction manuals you get, a lot of your instructions—

Plaintiff's counsel objected, stating that "I think what counsel is suggesting is that . . . because there have been other lawsuits, that that's the reason that they have to do it." This objection was overruled. Plaintiff's counsel then stated, "I don't think that's a proper argument," to which the court responded, "[o]verruled." Defense counsel continued, "If you've looked at any of your instruction manuals, a lot of it is put in there, the language is put in there by lawyers to try to keep them from being sued." Plaintiff's counsel objected, stating, "There's no evidence in this case that that was prepared by lawyers to keep the company from getting sued." The court responded that "[w]ide latitude is permitted in argument." Later in the argument, defense counsel stated, "The comparative negligence is important because the law says you cannot recover if you were at fault." Plaintiff's counsel objected. The court sustained this objection and instructed counsel to restate the argument, which he did.

{6} The jury returned a special verdict in favor of the City, finding that the City was not negligent. After the judgment was entered, Plaintiff filed a Motion for a New Trial, upon which the trial court apparently never ruled. Plaintiff appealed.

{7} The Court of Appeals affirmed the trial court in a Memorandum Opinion. The Court held that Plaintiff failed to show that she was prejudiced by the court's actions regarding Juror # 14, because Plaintiff did not indicate which juror she would have challenged before the court excused the juror, did not exhaust all of her peremptory challenges, and did not allege that the empaneled jury was partial. On the issue of the statements made by defense counsel during closing argument, the Court found that the statements regarding industry standards being written by attorneys did not require reversal. The Court relied upon Apodaca v. U.S. Fid. & Guar. Co., 78 N.M. 501, 502, 433 P.2d 86, 87 (1967), in which this Court held that "`[b]efore a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.'" (Quoting Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 599 (1953)). The Court in the present case found that Plaintiff had not indicated how the argument caused the jury to come to an improper conclusion. Additionally, the Court held that defense counsel's misstatement of the law did not require reversal. Finally, the Court held that the jury instruction requested by Plaintiff which was refused by the trial court did "not apply to the situation presented by the evidence in this case," and did not "address the particular duty of a city with regard to its streets and sidewalks. Thus, it did not state the law of the case." We granted Plaintiff's Writ of Certiorari to the Court of Appeals to address the above issues.

II. DISCUSSION

A. Plaintiff was Not Prejudiced During Jury Selection, but the Trial Court Should Have Asked Plaintiff if She Wished to Use a Peremptory Challenge Retroactively

{8} During jury selection, Plaintiff challenged Juror # 14 for cause. The court initially denied the challenge, but after seven jurors were selected, the court changed its mind and excused Juror # 14 for cause. Plaintiff did not request to use a peremptory challenge on any of the jurors previously selected or exhaust all of her challenges during jury selection. On appeal, Plaintiff contends that the court's actions resulted in an unequal amount of peremptory challenges between Plaintiff and the City during more than half of the jury selection process. Plaintiff argues that prejudice is shown by alleging that she would have used the challenge that she withheld on one of the previously selected jurors.

{9} The Court of Appeals concluded that Plaintiff failed to show prejudice because she (1) did not indicate which juror she would have challenged, (2) made no allegation that the empaneled jury was partial, and (3) did not use all of her peremptory challenges.

{10} Trial courts are vested with wide discretion regarding the jury selection process, and we will not reverse absent an abuse of that discretion. See Morris v. Cartwright, 57 N.M. 328, 331, 258 P.2d 719, 721 (1953); Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 93, 134 N.M. 77, 73 P.3d 215.

{11} We first address Plaintiff's argument that the trial court's ruling resulted in an imbalance of peremptory challenges. In Carraro v. Wells Fargo Mortgage & Equity, 106 N.M. 442, 443, 744 P.2d 915, 916 (Ct.App. 1987), the defendants requested five peremptory challenges each, based on adverse interests. See Rule 1-038(E) NMRA (providing for additional peremptory challenges to parties on the same side of a lawsuit if they have diverse interests or seek different relief). The plaintiff objected, requesting that the defendants share the five challenges. Id. The court allowed each defendant five challenges, and denied the plaintiff's request to be given another five challenges. Id. After having to call a second jury panel, the trial court allowed the plaintiff and each defendant an extra two challenges. Id. On appeal, the plaintiff argued that it was unfair that the defendants received twice as many challenges as he did. Id. at 444, 744 P.2d at 917. The Court of Appeals pointed to the general rule that errors must be prejudicial in order to be reversible, and held that "an imbalance of...