Buffett v. Jaramillo, 11759

Citation914 P.2d 1011, 1996 NMCA 40, 121 N.M. 514
Case DateMay 25, 1993
CourtCourt of Appeals of New Mexico

Appeal from the District Court of Taos County; Jay G. Harris, District Judge.

Turner W. Branch, Branch Law Firm, Rudolph B. Chavez, Albuquerque, for plaintiff-appellant.

John L. Lenssen, Lenssen and Mandel, Santa Fe, for defendant-appellee Fabian Mascarenas.

Harold Worland, Albuquerque, for defendant-appellee Martin Vargas.

Robert S. Skinner, Raton, for defendant-appellee Albino Chacon.


ALARID, Judge.

Plaintiff appeals the trial court's judgment notwithstanding the verdict (judgment N.O.V.) following a jury trial which denied all recovery in a wrongful death action. Plaintiff argues several issues on appeal, contending the trial court erred in (1) failing to exclude jurors where voir dire revealed them to be prejudiced; (2) failing to order a new trial where the jury verdict apportioning fault equally among one of the Defendants, Decedent, and the non-party driver was not supported by evidence; (3) failing to order a new trial where the jury determined Decedent's life to have no worth; (4) admitting evidence of the blood alcohol levels of Decedent and the non-party driver of the car in which Decedent was riding when killed; and (5) failing to order a new trial where Defendants violated the trial court's order on Plaintiff's motion in limine.

Because we find errors in the presentation of evidence to the jury regarding intoxication and in the trial court's use of a special verdict jury instruction regarding assignment of liability, we remand for a new trial.


This appeal concerns the all too frequent and tragic problem of automobile accidents and alcohol. In the morning hours of October 19, 1985, Plaintiff's son, Boyd Buffett (Decedent), 24, was a passenger in a car travelling south on N.M. Highway 3. The car he was riding in was driven by Peri Ann Denena (Denena). Witness testimony established that a northbound vehicle, driven by Defendant Frank Jaramillo, swerved suddenly into Denena's lane and struck her car nearly head-on. The impact injured Denena and killed Decedent. Denena is not a party to this action.1

A jury trial was held in Taos County District Court. In a motion in limine, motion for directed verdict at the close of all evidence, and again in a motion for a new trial following the jury verdict, Plaintiff asserted substantial evidence did not support the submission of a special verdict form permitting the jury to apportion fault between Defendants and the occupants of the Denena vehicle. The jury returned the special verdict form apportioning fault equally between Jaramillo, Denena, and Decedent, and awarded zero damages. The jury found no liability on the part of any other Defendants. The trial judge corrected the amount of damages to $1037.73 in a judgment N.O.V., the amount of Decedent's funeral costs. Plaintiff moved for a new trial notwithstanding the verdict, which the trial court denied.


Approximately eight hours after the accident, the state police obtained a search warrant to perform a blood alcohol test on Denena. Denena's blood samples and Decedent's autopsy report both indicated consumption of alcohol in the hours preceding the accident. In addition, Decedent's autopsy report indicated the presence of THC, the active ingredient in marijuana.

Before trial, Plaintiff filed a motion in limine requesting, inter alia, that all evidence regarding the intoxication of both Denena and Decedent, and the level of THC present in Decedent be excluded at trial. Plaintiff argued that the introduction of intoxication of Denena and Decedent would be irrelevant and would "essentially be prejudicial to the case and divert the true issues, being Frank Jaramillo's intoxication, Fabian Mascarenas' duty to take reasonable steps to prevent him from driving, the sale of alcohol to Frank Jaramillo when he was intoxicated by Martin Vargas at Los Compadres...."

Plaintiff stressed that admission of the test results, in the absence of other evidence of proximate causation, would only serve to unfairly prejudice the jury under SCRA 1986, 11-403 (Recomp.1985). Plaintiff predicated his assertion of irrelevance on the failure of the factual record developed for trial to establish direct or circumstantial evidence demonstrating that either Denena's or Decedent's alleged intoxication was a proximate cause of the fatal accident.

Defendants argued that Denena could have swerved onto the right road shoulder and avoided Jaramillo's "slow moving automobile" had she not been intoxicated. In addition, Defendants' response to the motion in limine asserted that, based on the circumstances of this case, "had either driver been sober, the accident was avoidable."

During the hearing on the motion in limine, the trial court concluded, "I'm going to deny the motion [in limine]. I feel that the evidence of [Peri Ann] Denena's intoxication is an immaterial [sic] issue of fact that the jury should be able to consider." When considering the motion as it applied to Decedent's alleged intoxication, the trial court added, "I'm going to go ahead and allow evidence concerning the intoxication of the deceased. I think that is as important as the intoxication of Ms. Denena and Mr. Jaramillo." However, the trial court granted Plaintiff's motion to exclude evidence of the level or presence of marijuana in Decedent's blood.

I. Introduction of Evidence of Intoxication

As an initial matter, we note that New Mexico's Supreme Court recently considered the issue of introducing evidence of intoxication in automobile accident situations. Romero v. State, 112 N.M. 332, 815 P.2d 628 (1991). In Romero, the Supreme Court upheld a trial court decision excluding evidence of intoxication of passengers killed in a single car accident. The Supreme Court explained, "[t]hat decision was the trial court's to make considering all the surrounding circumstances." Id. at 333, 815 P.2d at 629. The Court stated, "[w]hile the jury might have been served in evaluating this evidence by considering the effect of the passengers' intoxication on the passengers' decision to ride in an overcrowded vehicle, we cannot say ... that the jury should have considered this effect." Id.

Accordingly, our beginning premise is that evidence of intoxication is not automatically admitted, but is fact sensitive and largely depends upon the circumstances of each case. Two recent decisions by this Court are illustrative. In Plummer v. Devore, 114 N.M. 243, 836 P.2d 1264 (Ct.App.), cert. denied, 114 N.M. 82, 835 P.2d 80 (1992), we held that evidence of a driver's intoxication, admitted at trial through breathalyzer test results and expert testimony, was error and required reversal. We noted, "[t]here was no showing whatsoever that the machine [an Intoxilyzer 5000] was properly calibrated or that it was functioning properly at the time of the test." Id. at 246, 836 P.2d at 1267. Moreover, we explained that except for the erroneously admitted test results and expert testimony on the effects of alcohol, "[t]here was little, if any, other evidence of ... intoxication." Id. As discussed below, we believe this is important because here, as in Plummer v. Devore, there is no evidence of intoxication or negligence on the part of the non-party driver of the car in which Decedent was riding when killed--except for the breathalyzer test results and expert testimony on the effects of alcohol.

Moreover, in Estate of Mitchum v. Triple S Trucking, 113 N.M. 85, 823 P.2d 327 (Ct.App.), cert. denied, 113 N.M. 16, 820 P.2d 1330 (1991), we considered the affirmative defense of intoxication in workers' compensation cases. We held that evidence of intoxication was properly considered in that case. Most important for our consideration in the present appeal is the discussion of causation in that decision. We stated, "in order to establish the affirmative defense of intoxication, an employer must present evidence satisfying a dual requirement indicating (1) that the worker was intoxicated at the time of his or her accident, and (2) that such intoxication was a proximate cause of the resulting injury." Id. at 89-90, 823 P.2d at 331-32. Using these two recent decisions as guides, we think it appropriate to require the same showing of proximate causation in the present case. See Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981) (thrust of comparative negligence is to apportion fault between or among negligent parties whose negligence proximately causes any part of a loss or injury). Accordingly, our concern and the dispositive issue before us is whether the intoxication of either Decedent or the non-party driver was a proximate cause of the damages involved in this case. The evidence bearing on the issue of proximate causation was principally established by an eyewitness, the investigating state police officer, a traffic reconstruction report prepared at the request of the district attorney, and the testimony of the district attorney's investigator. Plaintiff's expert on the effects of alcohol testified regarding possible negligence, but not proximate cause. Defendants' witnesses testified that the road in the vicinity of the accident is straight, flat and has wide shoulders.

The eyewitness, Rose Ortiz, testified:

A Well, we were just being real cautions [sic] and we were driving--well, the blue car [Denena vehicle] and I were driving approximately 45 or 50 miles an hour, and I saw a car coming northbound and everything seemed fine, really. Everybody was going in their lane and everything seemed normal. And just as we got right by the...

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2 cases
  • Buffett v. Vargas, s. 21405
    • United States
    • Supreme Court of New Mexico
    • 27 Marzo 1996
    ...court denied. 7. Buffett then appealed to the Court of Appeals, which reversed and remanded for a new trial. Buffett v. Jaramillo, 121 N.M. 514, 914 P.2d 1011 (Ct.App.1993). Mascarenas, Vargas, and Chacon petitioned this Court for a writ of certiorari to review the decision of the Court of ......
  • 1998 -NMCA- 142, Jaramillo v. Kellogg, 18,647
    • United States
    • Court of Appeals of New Mexico
    • 24 Septiembre 1998
    ...... Consequently, we hold that the trial court did not err in refusing to submit Defendant's special verdict form to the jury. See Buffett v. Jaramillo, 1996-NMCA-040, 121 N.M. 514, 519, 914 P.2d . Page 795. 1011, 1016, (decided in 1993) ("It is well settled that a jury may be ......

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