Estate of Gutierrez v. Meteor Monument, L.L.C.

• Decision Date: 22 February 2012
• Docket Number: No. 32,436.,32,436.
• Citation: 274 P.3d 97,2012 -NMSC- 004
• Parties: ESTATE OF Daniel Ralph GUTIERREZ, by and through his personal representative, Janet JARAMILLO, individually and as next friend of Sage G., Jordan G., and Noah G., Plaintiffs–Petitioners, v. METEOR MONUMENT, L.L.C. d/b/a Alameda Meteor, Defendant–Respondent.
• Court: New Mexico Supreme Court

2012 -NMSC- 004

274 P.3d 97

ESTATE OF Daniel Ralph GUTIERREZ, by and through his personal representative, Janet JARAMILLO, individually and as next friend of Sage G., Jordan G., and Noah G., Plaintiffs–Petitioners,

v.METEOR MONUMENT, L.L.C. d/b/a Alameda Meteor, Defendant–Respondent.

No. 32,436.

Supreme Court of New Mexico.

Feb. 22, 2012.

Law Offices of Jane B. Yohalem, Jane B. Yohalem, Santa Fe, NM, Vigil Law Firm, P.A., Jacob G. Vigil, Albuquerque, NM, for Petitioners.

Domenici Law Firm, P.C., Pete V. Domenici, Jr., Lorraine Hollingsworth, Albuquerque, NM, for Respondent.

OPINION

CHÁVEZ, Justice.

{1} On August 31, 2003, while driving at approximately 7:00 p.m., Defendant Dean Durand crashed his Ford Bronco into a motorcycle driven by Daniel Gutierrez, ultimately resulting in Gutierrez's death. Durand admitted that earlier in the afternoon and up until 6:00 p.m., while at the business establishment operated by Defendant Meteor Monument, L.L.C., he had consumed seven twelve-ounce cans of beer and a twenty-four-ounce can of malt liquor, which has a higher alcohol content. He also testified that he consumed three ounces of malt liquor after 6:00 p.m. and ingested heroin and crack cocaine shortly before the accident. Approximately three and one-half hours after the accident, Durand's blood alcohol level was recorded at 0.09 gms/100 ml.

{2} Gutierrez's estate and family successfully sued both Durand and Meteor for Gutierrez's wrongful death. Only the verdict against Meteor is at issue in this appeal. The causes of action against Meteor were four-fold: (1) that Meteor was liable under the Alcohol Licensees Liability Act, also known as the New Mexico Dram Shop Liability Act (Dram Shop Liability Act), NMSA 1978, § 41–11–1 (1986), for serving alcohol to Durand when it was reasonably apparent that he was intoxicated; (2) that Meteor was negligent in hiring, supervising, and retaining Durand, knowing that he was an alcoholic and permitting him to consume alcohol in excess while working for Meteor (“negligent supervision”); (3) that Meteor was vicariously liable for the negligence of its employees; and (4) that Meteor's conduct was so egregious that it was liable for punitive damages under the dram shop and employment causes of action.

{3} Meteor appealed to the Court of Appeals, raising five issues. First, Meteor contended that the evidence was insufficient to support a verdict on the dram shop liability cause of action because there was no evidence that identified which Meteor employee served Durand, nor was there any evidence from which the jury could find that Durand's intoxication was reasonably apparent to that server. Second, Meteor claimed as a matter of law that it could not be vicariously liable for Durand's actions because there was no evidence that Durand was in the scope of his employment at the time of the accident. Third, Meteor contended it did not have notice that the negligent supervision claim included Durand as one of its employees. Fourth, Meteor argued that the scope of employment instruction given by the trial court at the request of both parties was erroneous because the instruction inappropriately conflated vicarious liability and the negligent supervision causes of action. Fifth, Meteor contended that the evidence was insufficient to support a punitive damages verdict against it. Estate of Gutierrez ex rel. Jaramillo v. Meteor Monument, LLC, No. 28,799, slip op. at 1, 2010 WL 4162106 (N.M.Ct.App. May 18, 2010).

{4} The Court of Appeals reversed the dram shop liability verdict and remanded the negligent supervision verdict for a new trial, and therefore it did not address the punitive damages claim. Slip op. at 19. Regarding the dram shop claim, the Court of Appeals concluded as a matter of law that the evidence was insufficient to support a finding that it was reasonably apparent to Meteor that Durand was intoxicated at the time he was sold alcohol because there was no evidence in the record identifying who sold Durand the alcohol. Slip op. at 17. Regarding the employment claims, the Court of Appeals agreed with Gutierrez that “employer vicarious liability was not argued” to the jury, slip op. at 8, nor could it have been, because the facts did not support a finding that Durand was acting in the course and scope of his employment at the time of the accident, slip op. at 9. This holding has not been challenged. However, with respect to the negligent supervision claim, the Court of Appeals concluded that Gutierrez did not include a claim for negligent supervision of Durand in his complaint, nor was such a claim clearly argued at trial, slip op. at 8, although the claim “was clearly contemplated by Plaintiffs and the court throughout the course of the trial,” slip op at 12. In addition, the Court of Appeals concluded that scope of employment was not at issue in the negligent supervision claim. Slip op. at 13–14. Therefore, the Court determined that the jury was unable to decide the actual issues before it (1) because the jury was given a scope of employment instruction, (2) because of the confused fashion in which the case was argued, and (3) because in answering two jury questions, the trial court advised the jury that to hold Meteor liable, it must find that Durand was in the scope of his employment. Slip op. at 14. This confusion and uncertainty resulted in the Court of Appeals remanding the negligent supervision claim for a new trial, and therefore it did not reach the punitive damages issue. Slip op. at 15. Meteor did not cross-appeal.

{5} After granting Gutierrez's petition for writ of certiorari regarding the dram shop claim, we conclude that (1) identification of the server was not essential, and (2) the circumstantial evidence in this case was sufficient for a jury to find that it was reasonably apparent to Meteor that Durand was intoxicated at the time he was last served alcohol. Regarding the negligent supervision claim, although the pleadings in this case are not a model of clarity, the trial court did not err in holding that Meteor was on notice that the negligent supervision claim included Durand as an employee. In addition, scope of employment may be a factor in a negligent supervision claim; both Gutierrez and Meteor requested a scope of employment instruction and agreed with the trial court's answers to the jury questions regarding that instruction. As a result, this error was invited, and the trial court did not abuse its discretion in rejecting Meteor's motion for a new trial. We therefore reverse the Court of Appeals and remand to that Court to address the issue regarding punitive damages.

I. PLAINTIFFS PRESENTED ENOUGH EVIDENCE UNDER THE DRAM SHOP LIABILITY ACT FOR THE JURY TO REASONABLY FIND THAT IT WAS “REASONABLY APPARENT” TO DURAND'S SERVER THAT DURAND WAS INTOXICATED AT THE TIME OF SERVICE.

{6} To establish a defendant's liability under the New Mexico Dram Shop Liability Act, a plaintiff must prove that the defendant licensee “(1) sold or served alcohol to a person who was intoxicated; (2) it was reasonably apparent to the licensee that the [patron] ... was intoxicated; and (3) the licensee knew from the circumstances that the [patron] ... was intoxicated.” Section 41–11–1(A). The issue before us is whether, after viewing the evidence in the light most favorable to the jury verdict, we are convinced that the verdict cannot be sustained either by the evidence or reasonable inferences therefrom. Gonzales v. New Mexico Dep't of Health, 2000–NMSC–029, ¶ 18, 129 N.M. 586, 11 P.3d 550.

{7} Meteor contends that there is no evidence to support a finding that it was reasonably apparent to its employee-server that Durand was intoxicated at the time he was served. The Court of Appeals agreed. Gutierrez, No. 28,799, slip op. at 17. Initially the Court of Appeals acknowledged that a reasonable jury could find that Meteor's employees sold alcohol to Durand when Durand was intoxicated, and based on both the circumstances and Durand's history of alcoholism, it was reasonably apparent to Meteor's employees at the time they sold alcohol to Durand that he was intoxicated. Slip op. at 16. However, despite this acknowledgment, the Court of Appeals, applying a de novo standard of review, slip op. at 7, reversed the district court because “there [was] no evidence in the record regarding who sold the alcohol to Durand and, therefore, no evidence to support a finding that [Meteor] knew that Durand was drunk based on what was reasonably apparent.” Slip op. at 17.

{8} We disagree with the Court of Appeals that the identity of the server who actually sold or served alcohol to a patron is a prerequisite to proving dram shop liability. In Plummer v. Devore, 114 N.M. 243, 247, 836 P.2d 1264, 1268 (Ct.App.1992), overruled on other grounds by State v. Martinez, 2007–NMSC–025, ¶ 21, 141 N.M. 713, 160 P.3d 894, the Court of Appeals found sufficient evidence to support liability in a dram shop case without looking to the identity of the server. There are two reasons why evidence of who actually served the patron is immaterial: (1) the reasonably-apparent prong is based on an objective standard—not what the actual server subjectively perceived about the patron's level of intoxication; and (2) circumstantial evidence can support a finding of what should have been reasonably apparent to a server regarding whether the patron was intoxicated at the time he or she was served alcohol.

A. THE “REASONABLY–APPARENT” PRONG CREATES AN OBJECTIVE STANDARD.

{9} We have consistently interpreted legislation using the adverb “reasonably” as imposing an objective standard. In State v. Rudolfo, 2008–NMSC–036, ¶ 17, 144 N.M. 305, 187 P.3d 170, we interpreted an “acted reasonably” requirement for self-defense as an objective, rather than subjective, element. Similarly, in Shull v. New Mexico Potash Corp., 111 N.M. 132, 134, 802 P.2d 641, 643 (1990), we contrasted the subjective “good faith” standard with the...