Budagher v. Amrep Corp.

• Decision Date: 19 November 1981
• Docket Number: No. 13587,13587
• Citation: 97 N.M. 116,1981 NMSC 121,637 P.2d 547
• Parties: John BUDAGHER and Frances D. Budagher, Petitioners, v. AMREP CORPORATION, d/b/a Rio Rancho Estates, Inc., Respondent.
• Court: New Mexico Supreme Court

Page 547

637 P.2d 547

97 N.M. 116

John BUDAGHER and Frances D. Budagher, Petitioners, v. AMREP CORPORATION, d/b/a Rio Rancho Estates, Inc., Respondent.

No. 13587.

Supreme Court of New Mexico.

Nov. 19, 1981.

Rehearing Denied Dec. 18, 1981.

Rebecca S. Sitterly, Ronald C. Morgan, Albuquerque, for petitioners

Jerrald J. Roehl, Albuquerque, for respondent.

OPINION

SOSA, Senior Justice.

The issue before this Court on certiorari is whether appellants (the Budaghers) sufficiently alerted the trial court to the error in the court's instructions concerning the nonliability of appellee (Amrep) for the negligence of an independent contractor in designing and constructing a water dam.

The parties own adjoining property in Sandoval County. Amrep's property is located on a mesa above the Budaghers' property. Amrep graded the mesa during its development into a residential area. An expert testified that in 1972 this grading caused a runoff of the surface water from the mesa onto the area below, cutting arroyos where none had existed. As a result, Gordon Herkenhoff and Associates, a private engineering firm, was hired by Amrep to prepare a final report for the construction of three dams and drainage culverts on the edge of the mesa. In 1973, three dams were built for the purpose of collecting the runoff and discharging it down the natural watercourses at the same rate and volume as discharged prior to grading.

That same year, the Budaghers began construction of their home below the mesa. In 1974 and 1975, heavy rainstorms occurred and the Budaghers' house and two lots were flooded. They brought suit against Amrep alleging that the damage to their property resulted from the "faulty design, location and construction" of Amrep's culverts. Amrep answered alleging as one defense that the damage to the Budaghers' property was due to the negligence of an independent contractor, for whose negligence Amrep, as the employer, was not liable.

The trial court gave, over the Budaghers' objection, several instructions relating to the general rule that employers are not liable for the negligent acts of their independent contractors. The jury returned a verdict in favor of Amrep.

On appeal, the Budaghers claimed error in the giving of the instructions on independent contractors. The Court of Appeals (Andrews, J., dissenting) affirmed the trial court, holding that the Budaghers failed to sufficiently alert the trial judge to the problem with the instruction. We granted certiorari and reverse the decision of the Court of Appeals and remand this cause for a new trial.

The focus of this appeal is the sufficiency of the Budaghers' objection to Instruction No. 6, which reads:

Defendant claims that Gordon Herkenhoff and Associates, Inc. was an independent contractor.

The term "master and servant" indicates a relationship which exists when one person who employs another to do certain work has the right of control over the performance of the work to the extent of prescribing the manner of (sic) which it is to be executed. The employer is the master and the person employed is the servant. Master is synonymous with employer and servant is synonymous with employee.

An independent contractor is one who undertakes a specific job where the person who engages him does not have the right to control the manner in which details of the work are to be accomplished.

The master is liable to third persons for the negligence of his servant if the servant is acting within the scope of his employment at the time and place of the occurrence. But one who employs an independent contractor is not liable to others for the negligence of the contractor.

The Budaghers' objection to this instruction was twofold: (1) there was insufficient evidence to establish Herkenhoff as an independent contractor and (2) the instruction itself was inconsistent with the duty of a landowner. Amrep argues that these objections were insufficient to alert the trial judge to any error in the instruction.

In order for a party to preserve error to a given instruction, he must either tender a correct instruction and alert the mind of the trial court to the fact that the tendered instruction corrects the defect complained of, or point out the specific vice in the instruction given by proper objection. Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362 (1961). It has been held that the mere assertion that the given instruction is not an accurate statement of the law is insufficient to alert the mind of the trial judge to the claimed vice of the instruction. See Morris v. Dodge Country, Inc., 85 N.M. 491, 513 P.2d 1273 (Ct.App.), cert. denied, 85 N.M. 483, 513 P.2d 1265 (1973); McBee v. Atchison, Topeka and Santa Fe Railway Co., 80 N.M. 468, 457 P.2d 987 (Ct.App.1969).

We find that the requirements set forth in Zamora, supra, were satisfied by the Budaghers in the case at bar. It is clear that their statement that Instruction No. 6 was "inconsistent with the duty of a landowner" is not a mere assertion that the given instruction is not the law, but rather it specifically states the vice complained of. In addition to this specific objection, they tendered the following instruction which accurately states the duty of the landowner in this particular situation:

The possessor of land is answerable for the negligent failure of an independent contractor to put or maintain buildings and structures thereon in reasonably safe condition; this includes the inadequate design by the independent contractor of the building or structures.

This tendered instruction alerted the trial judge to the liability of a landowner under these facts and circumstances. An analysis of the general rules governing surface waters and the exceptions to the independent contractor rule may serve to clarify this issue.

New Mexico has adopted the civil law governing surface waters. Martinez v. Cook, 56 N.M. 343, 244 P.2d 134 (1952). Under this rule, a landowner does not have the right to collect surface water in an artificial channel and discharge it upon his neighbor's lands to his injury, in a different manner or in a greater volume or at a greater rate than it would have flowed naturally. Little v. Price, 74 N.M. 626, 397 P.2d 15 (1964); Rix v. Town of Alamogordo, 42 N.M. 325, 77 P.2d 765 (1938); Groff v. Circle K. Corporation, 86 N.M. 531, 525 P.2d 891 (Ct.App.1974).

The rule was reaffirmed recently in Gutierrez v. Rio Rancho Estates, Inc., 93 N.M. 755, 605 P.2d 1154 (1980). This Court went on to state that

once the plaintiff proves the elements of liability stated by the rule, no more is required, and plaintiff will have established that the defendant's activity constitutes negligence. The burden then shifts to defendant, in order to avoid liability, to plead and prove any defense which would have been applicable in any ordinary negligence case.

Id. at 757, 605 P.2d at 1156.

The next issue, then, is the availability of the defense of independent contractor which would insulate the landowner from liability for the negligent design, location and construction of the dams and culverts under the rule of Gutierrez, supra. We hold that a landowner cannot hide behind an independent contractor where the landowner causes the dam to be built upon his property which alters the natural flow or volume of surface waters in such a way as to injure adjoining landowners.

While it is a general rule that an employer is not liable for the negligence of an independent contractor, the rule is subject to numerous exceptions. Srader v. Pecos Construction Company, 71 N.M. 320, 378 P.2d 364 (1963); Restatement (Second) of Torts §§ 409-429 (1965). One exception is that one who employs an independent contractor to do work, which the employer should recognize as likely to create a peculiar risk of harm to others unless special precautions are taken, is subject to liability for the failure of the contractor to exercise reasonable care in taking the precautions. Restatement, supra § 416. It has been held that an employer who contracted to have a dam built across a river was liable where plaintiff's property was flooded when the dam broke during heavy rains because the injury was "one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance." Trump v. Bluefield Waterworks & Improvement Co., 99 W.Va. 425, 129 S.E. 309, 311 (1925). In Taylor v. Conti, 149 Conn. 174, 177 A.2d 670 (1962), the Connecticut Supreme Court of Errors, applying this exception to a situation very similar to the one before us, found a landowner liable, in spite of his defense of an independent contractor, where the development of this property into building lots altered the natural flow of surface waters causing damage to plaintiff's property. The exception is applicable to the case at bar since the construction of the dams by Amrep created a peculiar risk of harm (i.e., flooding) to Budaghers' property which might have been anticipated as a direct or probable consequence of the construction of the dams, had reasonable care been omitted.

Another exception to the general rule is that one who employs an independent contractor to do...