Estate of Saenz v. Ranack Constructors, Inc., 32,373.

CourtCourt of Appeals of New Mexico
Citation362 P.3d 134
Docket NumberNo. 32,373.,32,373.
Parties ESTATE OF Charles Anthony SAENZ, by and through his personal representative, Virginia SAENZ, individually and as Next Friend of Robin Brandy Saenz, minor child, Marcus Anthony Saenz, and Jason Ray Saenz, Plaintiffs–Appellants, v. RANACK CONSTRUCTORS, INC., Defendant–Appellee.
Decision Date18 August 2015

Law Office of Jane B. Yohalem, Jane B. Yohalem, Santa Fe, NM, Cervantes Law Firm, PC, Joseph Cervantes, Las Cruces, NM, Scherr & Legate PLLC, Maxey M. Scherr, El Paso, TX, for Appellants.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Jocelyn Drennan, Albuquerque, NM, for Appellee.



{1} Defendant Ranack Constructors, Inc., a general contractor, was hired to build a multi-screen movie theater. Ranack hired Alamo General Contractors, Inc. as a subcontractor to build the steel framework of the theater. Decedent Charles Saenz was an ironworker employed by Alamo and its related entity T & T Staff Management (T & T), a staffing agency. Saenz was working on the theater project at a height in excess of twenty-five feet, without fall protection, when he fell and died. This appeal follows a jury trial.

{2} The case raises two issues. First, whether the concept of joint and several liability in Saiz v. Belen School District, 1992–NMSC–018, ¶¶ 18–21, 113 N.M. 387, 827 P.2d 102 should be applied in favor of employees of subcontractors. And, second, whether a new trial on wrongful death damages for Saenz's estate is appropriate. We conclude that Saiz is not applicable to claims made by employees of subcontractors. We also conclude that a new trial addressing the estate's damages only should be held. We thus affirm in part and reverse in part.


{3} Saenz fell as the Alamo crew was attempting to set a roof joist on the building. Saenz's job was to receive one end of the joist as it was suspended by a crane and put it in place. The joist was supposed to be placed on an intersecting beam. Saenz could have accomplished this task by using a ladder to get on top of the beam that he needed to reach and employing his fall-protection equipment. Instead, Saenz approached the placement point by walking on the top edge of a concrete and Styrofoam wall that was part of the unfinished structure and that was more than twenty-five feet above the concrete floor. By one witness account, Saenz slipped as he reached for the joist tag lines, and by another witness account, the roof joist struck the wall and caused him to lose his balance. Whatever the cause of his loss of balance, Saenz fell to the concrete below and died from the impact.

{4} In terms of personal fall-protection equipment, evidence at trial showed that Saenz was wearing a harness equipped with a lanyard. In addition, a beamer—a device that clamps to a beam and provides an anchor point for the lanyard—was on the beam where the joist was to be placed. When a worker has hooked his fall-protection equipment to a secure point he is "tied off." Saenz was required to be tied off when he was performing the task that led to his fall. Saenz was not tied off when he fell.

{5} Testimony at trial also demonstrated that Ranack failed in a number of respects to ensure the safety of the job site. Summarized, those failures included, among other things: a failure to provide and enforce an adequate fall-protection safety plan; a failure to ensure that subcontractors were adequately and safely performing their work; a failure to ensure that workers were, in fact, protected from fall hazards; a failure to staff the job with full-time safety personnel; and an emphasis on hurrying to get the job done that caused subcontractors and workers to take shortcuts, including shortcutting safety.

{6} Plaintiff Virginia Saenz, individually and as personal representative of her husband's estate and as next friend of Saenz's children, Robin, Marcus, and Jason, filed a wrongful death lawsuit against Ranack. Because Alamo and T & T were Saenz's employers, workers' compensation provided the exclusive remedy against them. As such, they were not named in the complaint, but were identified together as a single potential tortfeasor in the jury instructions. The original complaint specifically asserted premises liability and simple negligence causes of action against Ranack. The complaint contains no mention of Saiz -type liability based on its concepts of peculiar risk or inherent danger. Id. ¶¶ 18–21.

{7} After a ten-day trial, the case was submitted to the jury on ordinary care, negligence, and premises liability theories. The "theory of the case" instruction detailed the ways each party thought the other was negligent. The list in the instruction echoed and expanded upon the summary provided above in Paragraph 5. The special interrogatory instruction submitted did not ask the jury to specify which asserted theories it credited. Given its verdict, it is obvious that the jury found a degree of fault in all of the actors' acts or failures to act.

{8} Pursuant to a comparative fault instruction, the jury found Ranack forty-five percent at fault, Alamo and T & T thirty percent at fault, and Saenz twenty-five percent at fault for his death. The district court entered a judgment ordering Ranack to pay forty-five percent of the wrongful death judgment in addition to jury-awarded punitive damages.

{9} Ranack has not appealed, nor does it otherwise contest, the district court's legal determination that it owed Saenz a duty of ordinary care. Interestingly, Ranack requested that UJI 13–401 NMRA—defining independent contractors and limiting the liability of employers for the wrongful acts of the independent contractors' employees—be given to the jury, but then withdrew the request. Ranack also does not refute the propriety of the jury's attribution to it for forty-five percent of the fault for Saenz's death.

{10} The jury found the total amount of damages suffered by Plaintiff Virginia Saenz, individually, to be $482,000. Additionally, the jury found Robin's damages to be $50,000, and Marcus and Jason to each have suffered $25,000 in damages. Saenz's wife and children were also awarded $10,000 each in punitive damages. As to Saenz's estate, however, the jury awarded zero damages.

{11} In a post-trial motion, Plaintiff requested a mistrial on the basis of the zero damages award to the estate. At the hearing on the motion, Plaintiff argued that the jury's decision to award zero damages to Saenz's estate was the result of jury confusion and, alternatively, that it was not supported by substantial evidence. The district court denied Plaintiff's motion. The court concluded that based on the facts at trial, in particular, Saenz's criminal history and his prior incarceration, the jury could reasonably have found that the zero value was appropriate.

{12} With regard to whether the jury was confused by the instructions as to the damages it should award to Saenz's estate, the district court apparently decided that Plaintiff waived any objection on that ground because Plaintiff's counsel agreed to the district court's proposed response to a jury question regarding estate damages. During its deliberations, the jury sent the following question to the district court: "Does 'total amount of damages to the Estate of Charles Saenz' include all amounts awarded to Virginia, Rob[in], and sons[,] or is it meant to be a separate amount?" After conferring with counsel, the district court suggested that it respond by saying that "[t]he 'total amount of damages to the Estate of Charles Saenz' is separate." All counsel agreed with that suggestion.

{13} As an alternative to a mistrial, Plaintiff requested in her post-trial motion that the district court enter a judgment notwithstanding the verdict on the ground that Saenz was engaged in inherently dangerous work and that, as a result, "Ranack should be held strictly liable for the damages herein[.]" At the hearing, Plaintiff's counsel argued that there should be no reduction for comparative negligence. Standing by an earlier ruling on this issue, the district court declined to hold that Saenz was engaged in inherently dangerous work at the time of his death.

{14} On appeal, Plaintiff continues to argue that Saenz was engaged in an inherently dangerous activity and that, accordingly, Ranack should be held jointly and severally liable for his death. Plaintiff also contends that reversal and remand for a new trial is required because jury confusion arising from conflicting instructions as to loss of consortium may have led the jury to mistakenly award to Plaintiff and to Saenz's children damages that should have been awarded to the estate. Alternatively, Plaintiff argues that the zero damages award to the estate was not supported by substantial evidence.

The Joint and Several Liability Issue

{15} Plaintiff argues that Ranack should be held jointly and severally liable for all damages found by the jury. Plaintiff recognizes that joint and several liability is not generally available in New Mexico. This Court abolished joint and several liability in toto in Bartlett v. New Mexico Welding Supply, Inc., 1982–NMCA–048, ¶¶ 33–37, 98 N.M. 152, 646 P.2d 579, superseded by statute as stated in Payne v. Hall, 2006–NMSC–029, 139 N.M. 659, 137 P.3d 599. The holding in Bartlett was seen as a logical imperative flowing from our Supreme Court's adoption of pure comparative negligence in Scott v. Rizzo, 1981–NMSC–021, ¶ 30, 96 N.M. 682, 634 P.2d 1234 (adopting in full the Court of Appeals opinion in the same consolidated cases), superseded in part by statute as stated in Rodriguez v. Williams, 2015–NMCA–074, 355 P.3d 25 (2015). Six years later, the Legislature addressed the subject. See NMSA 1978, § 41–3A–1 (1987). Echoing Bartlett, the Legislature also abolished joint and several liability in cases involving comparative fault. Unlike Bartlett, however, the Legislature provided four exceptions to the...

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  • Estate of Saenz v. Ranack Constructors, Inc., S-1-SC-35515
    • United States
    • Supreme Court of New Mexico
    • April 30, 2018
    ...damages that should have been awarded to the estate." Estate of Saenz ex rel. Saenz v. Ranack Constructors, Inc. , 2015-NMCA-113, ¶ 14, 362 P.3d 134, cert. granted 2015-NMCERT-010, 369 P.3d 372. The Court of Appeals recognized that Instruction No. 17 erroneously included the two conflicting......

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