Madsen v. Scott

• Citation: 128 N.M. 255,992 P.2d 268,1999 NMSC 42
• Decision Date: 03 November 1999
• Docket Number: No. 25,218.,25,218.
• Parties: Ronald Dale MADSEN and Terrisa Ruth Madsen, individually and as personal representatives of the Estate of Jason Madsen, deceased, Plaintiffs-Respondents, v. Shawn D. SCOTT, Defendant-Petitioner.
• Court: Supreme Court of New Mexico

992 P.2d 268

128 N.M. 255

1999 NMSC 42

Ronald Dale MADSEN and Terrisa Ruth Madsen, individually and as personal representatives of the Estate of Jason Madsen, deceased, Plaintiffs-Respondents, v. Shawn D. SCOTT, Defendant-Petitioner.

No. 25,218.

Supreme Court of New Mexico.

November 3, 1999.

Atwood, Malone, Turner & Sabin, P.A., Robert E. Sabin, Victoria Davis Armstrong, Roswell, for Petitioner.

Tucker Law Firm, P.C., Steven L. Tucker, Santa Fe, for Respondents.

OPINION

SERNA, Justice.

{1} Ronald and Terrisa Madsen, Plaintiffs, are suing Shawn Scott, Defendant-Home-owner, for the death of their son, Jason. The trial court granted summary judgment for Homeowner, finding that there was no genuine issue of material fact and that there was no principal-agent relationship between Homeowner and his house-sitter, Melvin Franklin. A majority of the Court of Appeals reversed, Madsen v. Scott, 1998-NMCA-092, 125 N.M. 475, 963 P.2d 552, and we granted Homeowner's petition for writ of certiorari to the Court of Appeals. We conclude that Homeowner was not an employer or principal and that the accident was unforeseeable. Thus, we reverse the Court of Appeals and affirm the trial court's grant of summary judgment.

Facts and Background

{2} In January of 1992, Homeowner decided to visit his father in another state, and he asked Melvin Franklin, a friend and coworker, to housesit for him. Homeowner gave Melvin general instructions to care for his house, including watering his plants, as well as general rules of conduct, including not letting anyone touch his guns and not throwing wild parties. Homeowner called on one occasion, asking Melvin if anyone had burglarized his house or handled his weapons, and Melvin asked Homeowner if Melvin's brother, Richard Franklin, could stay at the residence. Homeowner agreed that Richard could stay at his house.

{3} Homeowner, Melvin, Richard, and Jason all had an interest in guns, and Homeowner owned several guns. Homeowner's guns were located at the residence, unsecured and unloaded, and there was no ammunition belonging to Homeowner at the residence during his absence.

{4} Richard brought his own weapon, a .38 caliber handgun, and his own ammunition to Homeowner's residence. Homeowner gave permission to the brothers to have guests. Jason, without the knowledge and specific consent of Homeowner, was staying at Homeowner's house at the invitation of Melvin or Richard. On January 26, 1992, Melvin and Richard had several people at Homeowner's house for a party, including Jason. Melvin was sitting on the floor, watching a game on television, and Richard and Jason were behind him, playing a game of "quick draw," with Richard using his own .38 and Jason using Homeowner's unloaded .22. Richard believed his .38 to be unloaded, but it contained at least one bullet, which killed Jason during this game of quick draw.

{5} Plaintiffs sued both Richard and Homeowner, alleging that Melvin and Richard were Homeowner's employees, agents or servants, that Melvin negligently failed to control and supervise the use and misuse of weapons in the house by Richard and Jason, and that Homeowner was vicariously liable for the negligence of Melvin and Richard. The district court found that there was no genuine issue of material fact and that no principal-agent relationship existed between Homeowner and Melvin.

{6} A majority of the Court of Appeals reversed the trial court's grant of summary judgment, holding that genuine issues of material fact exist regarding whether an employer-employee relationship was created between Homeowner and Melvin, whether Melvin was acting within the scope of his employment when he "failed to act," and whether this type of accident was foreseeable. Madsen, 1998-NMCA-092, ¶ 36, 125 N.M. 475, 963 P.2d 552. On certiorari, Homeowner argues that the house-sitting arrangement did not constitute an employment relationship, that Melvin's conduct did not occur in the scope of any such relationship, and that, as a matter of law, the accident was not foreseeable to Homeowner.

Standard of Review

{7} If there are no genuine issues of material fact or the moving party is entitled to judgment as a matter of law, an award of summary judgment is proper. Carmona v. Hagerman Irrigation Co., 1998-NMSC-007, ¶ 7, 125 N.M. 59, 957 P.2d 44. On appeal, this Court considers the facts in the light most "favorable to support a trial on the issues because the purpose of summary judgment is not to preclude a trial on the merits if a triable issue of fact exists." Ruiz v. Garcia, 115 N.M. 269, 271, 850 P.2d 972, 974 (1993). Once Homeowner, as the movant, has made a prima facie showing that he is entitled to summary judgment, "the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits." See Roth v. Thompson, 113 N.M. 331, 335, 825 P.2d 1241, 1245 (1992)

.

Discussion

Employment Relationship

{8} The first issue is whether Melvin was an agent of Homeowner, and whether Homeowner and Melvin's house-sitting arrangement constituted an employer-employee relationship. "An agent is a person who, by agreement with another called the principal, represents the principal in dealings with third persons or transacts some other business, manages some affair or does some service for the principal, with or without compensation." UJI 13-401 NMRA 1999. If Melvin was Homeowner's agent, Homeowner may be liable for Melvin's negligent acts if Melvin was acting within the scope of his agency and Homeowner had the right to control the manner in which the details of the work were to be performed at the time of the accident. See UJI 13-402 NMRA 1999.

{9} As the Madsen majority noted, the Restatement (Second) of Agency § 220(1) (1958), expresses that "[a] servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control." See Madsen, 1998-NMCA-092, ¶ 12,

125 N.M. 475,

963 P.2d 552; see also Romero v. Shelton, 70 N.M. 425, 428, 374 P.2d 301, 303 (1962),

overruled on other grounds by Archuleta v. Pina, 86 N.M. 94, 95, 519 P.2d 1175, 1176 (1974). This Court has noted that "[p]rinciples of respondeat superior apply when the claim is based in tort and the plaintiff alleges the employer is liable for the conduct of an employee because the employee was acting within the scope of employment." Romero v. Mervyn's, 109 N.M. 249, 254, 784 P.2d 992, 997 (1989). "Where the material facts are undisputed and susceptible of but one logical inference, it becomes a conclusion of law as to whether the status of an employer-employee relationship exists." Jelso v. World Balloon Corp., 97 N.M. 164, 167, 637 P.2d 846, 849 (Ct.App.1981).

{10} In support of its conclusion that an employer-employee relationship existed in this case, the Madsen majority relied in part upon State Farm Fire & Casualty. Co. v. Miller Metal Co., 83 N.M. 516, 494 P.2d 178 (Ct.App.1972). Madsen, 1998-NMCA-092, ¶ 22,125 N.M. 475,963 P.2d 552. In State Farm, husband and wife homeowners left their house vacant but gave a key to their daughter and son-in-law and requested that they prepare the house for winter, giving specific instructions to winterize the home and open the dampers on the furnace. 83 N.M. at 518,494 P.2d at 180. There was testimony that the furnace would overheat to up to 400 degree if the dampers were not opened, and in fact, a fire which began at or near the furnace damaged the house. Id. A majority of the Court of Appeals in State Farm upheld the trial court's determination that the "doctrine of respondeat superior applies and the acts or omissions of the [the daughter and son-in-law] were imputed to the [homeowners]," because the homeowners "gave specific, detailed instructions to [their] daughter for winterizing the home." Id. at 520, 494 P.2d at 182. Comparing State Farm to the present case, the Madsen majority stated:

Just as the injury in [State Farm] was precipitated by the housesitter's failure to follow the involved instructions regarding the furnace, the injury in this case may be viewed as precipitated by the housesitter's failure to follow the less involved, but nonetheless specific, instruction not to let anyone touch the guns. Thus, it may be said that a master-servant relationship exists with respect to the very thing from which the injury arose....

Madsen, 1998-NMCA-092, ¶ 22, 125 N.M. 475, 963 P.2d 552 (citation and quotation marks omitted). We respectfully disagree with the majority's assessment of the facts. Jason's death was caused, not by Melvin's failure to follow Homeowner's instruction not to let anyone handle his guns, but by Richard bringing a loaded weapon into Homeowner's house and by Richard and Jason engaging in a game of "quick draw." As Judge Alarid notes in his dissent, there is no nexus between Melvin's safeguarding of Homeowner's guns and Richard shooting Jason with his own gun and ammunition. See Madsen, 1998-NMCA-092, ¶ 55,

125 N.M. 475,

963 P.2d 552 (Alarid, J., dissenting).

{11} Homeowner argues that this case is more similar to Lai v. St. Peter, 10 Haw.App. 298, 869 P.2d 1352 (1994), a proposition which the majority rejected. Madsen, 1998-NMCA-092, ¶ 22, 125 N.M. 475, 963 P.2d 552. In Lai, the plaintiffs sued a homeowner under the theory of respondeat superior following an automobile accident involving the homeowner's car, which was driven by his cousin. 869 P.2d at 1356. The cousin stayed at the homeowner's residence while he was out of town, and the homeowner left a list which described daily operation of the house and requested that the cousin water the plants. Id. at 1358. The list also requested that no one sit on the furniture with wet clothes, wear shoes in the house, or leave valuables in the car when visiting tourist destinations. Id. In Lai, the court stated that "[i]t has been...