Marchese v. Warner Communications, Inc.

• Decision Date: 23 June 1983
• Docket Number: No. 5806,5806
• Citation: 670 P.2d 113,100 N.M. 313,1983 NMCA 76
• Parties: Ada R. MARCHESE and Diego Peter Marchese, as Co-Personal Representatives of the Estate of Luciano Anthony Marchese, Deceased, Plaintiffs-Appellants, v. WARNER COMMUNICATIONS, INC., Malibu Grand Prix Corporation, a subsidiary of Warner Communications, Inc., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 113

670 P.2d 113

100 N.M. 313

Ada R. MARCHESE and Diego Peter Marchese, as Co-Personal Representatives of the Estate of Luciano Anthony Marchese, Deceased Plaintiffs-Appellants, v. WARNER COMMUNICATIONS, INC., Malibu Grand Prix Corporation a subsidiary of Warner Communications, Inc. Defendants-Appellees.

No. 5806.

Court of Appeals of New Mexico.

June 23, 1983.

Certiorari Denied Sept. 15, 1983.

Patricia Ortiz, Charles G. Berry, Michael E. Vigil, Marchiondo & Berry, P.A., Albuquerque, for plaintiffs-appellants

Ranne B. Miller, Alan Konrad, Miller, Stratvert, Torgerson & Brandt, P.A., Albuquerque, for defendants-appellees.

OPINION

HENDLEY, Judge.

Plaintiff sued to recover damages for the death of their child, Luciano. The jury determined the total amount of plaintiff's damage was $4,334.76, with fault attributed 47.5% to Luciano; 47.5% to a non-party (Cousin Joanne Marchese); and 5% to Malibu Grand Prix. Defendant Bowman's motion for a directed verdict had been granted at the end of plaintiff's case. Plaintiff appeals from the judgment and from the order denying the motion for judgment notwithstanding the verdict, or for a new trial.

FACTS

Luciano Marchese was killed in an accident at Malibu Grand Prix racetrack. His death occurred while he was driving the wrong way on Malibu's track. He was involved in a head-on collision with defendant Steve Bowman.

Decedent, age 14, had asked for his mother's permission to drive on the track, but she refused. Luciano filled out two liability release forms stating that his age was 15. He signed the parental consent portion of one form. Joanne Marchese, his twenty-year old cousin, signed the parental consent portion of the other form. She also led an employee of Malibu, over the telephone, to believe that she was Luciano's mother and that he had her consent to drive on the track. Luciano also presented his motor scooter license which showed he was fourteen years of age.

With regard to the accident, there was testimony that Luciano spun off the track onto the dirt; he was pushed back onto the track by an attendant; Luciano started the wrong way; the attendant took the steering wheel and started Luciano in the right direction. During this time, Bowman, who was driving a car behind Luciano and had been stopped when Luciano spun out, was allowed to proceed. Bowman did not start immediately. Shortly thereafter, Bowman saw Luciano traveling in the wrong direction toward him and it appeared Luciano's car was out of control. Luciano was killed when Bowman's car went up over his car.

Plaintiff's first six issues deal with Instruction No. 2 (theory of the case) which was given by the trial court. It states:

Plaintiffs claim that their minor son, Lucian [sic] Marchese, sustained injuries and was killed while using a Virage Formula Racecar on a Malibu Grand Prix racetrack.

Plaintiffs claim that one or more of the following acts or omissions constitutes a failure by the defendants to use the ordinary care required of a supplier of a product and that this failure was a proximate cause of the death of Plaintiffs' minor son.

1) The Defendants entrusted their race car to Plaintiffs' minor son when they knew or should have known that he did not have sufficient skill to operate it safely.

2. The Defendants rented a race car to Plaintiffs' minor son without parental consent as required by law.

3. The Defendants failed to maintain their vehicles and the track in such a manner as to avoid the accident which occurred to Plaintiffs' minor son.

Plaintiffs also claim that the Defendants, Warner Communications, Inc., and Grand Prix Corporation are subject to products liability for an unreasonable risk of injury resulting from a condition of the product or a manner in which it was used, and that this risk was a proximate cause of the injuries sustained by Plaintiffs' minor son. Whereas the claim of failure to use ordinary care is based upon acts or omissions of the suppliers, products liability is based upon the following claimed defects in the product:

1. The race car supplied to Plaintiffs' minor son was in a defective condition.

2. The track did not have adequate warning devices to prevent drivers from traveling in the wrong direction.

3. The track and/or the race car did not have adequate warning devices to control the race cars on the track in the case of emergency.

4. The Defendants failed to warn Plaintiffs' minor son of the risk of injury involved in the use of the race track [sic] and the race car.

Plaintiffs also claim that a proximate cause of the injuries to their minor son was Defendants' breach of warranty in that the race car and racetrack supplied by the Defendants to Plaintiffs' minor son was impliedly warranted to be fit and proper and safe for the purpose for which it was intended, when in fact said vehicle and said racetrack were unsafe for the purpose for which they were intended.

Plaintiffs have the burden of proving that any one of their claims of failure to use ordinary care, or products liability, or breach of warranty, was a proximate cause of the injuries suffered by their minor son.

Defendants deny Plaintiffs' claims and raise the defenses of contributory negligence, assumption of risk and misuse of the product.

Defendants have the burden of proving the following essential elements of their defenses.

Upon the defense of contributory negligence, the Defendants must prove (a) that Lucian [sic] Marchese was contributorily [sic] negligent; and (b) that Lucian [sic] Marchese's contributory negligence was a proximate cause of the injuries sustained by Lucian [sic] Marchese. The Defendants contend that Lucian [sic] Marchese was contributorily [sic] negligent in one or more of the following ways:

1. Lucian [sic] Marchese made false representations to Malibu Grand Prix employees in order to drive on the Malibu Grand Prix track.

2. Lucian [sic] Marchese drove his car in the wrong direction on the track.

3. Lucian [sic] Marchese failed to maintain control of his vehicle.

4. Lucian [sic] Marchese failed to keep a proper look-out [sic] while driving the vehicle.

Any one contention, if proved, establishes the contributory negligence of Lucian [sic] Marchese.

Defendants also contend that Lucian [sic] Marchese assumed the risk of his injury because he drove the Malibu Grand Prix car on the track when he knew or should have known that he was intentionally or unreasonably exposing himself to a known danger.

Defendants further contend that the manner in which Lucian [sic] Marchese operated the Malibu car constitutes a misuse of the product as elsewhere defined in these instructions.

Defendants have the burden of proving the affirmative defenses.

If you find that Plaintiffs have sustained damages and they have proven one or more of the claimed acts of negligence, products liability or breach of warranty was the proximate cause thereof and Defendants have failed to prove any of their affirmative defenses, then your verdict should be for Plaintiffs.

If you find that Plaintiffs have not proved any of their claims, then your verdict should be for Defendants.

If, on the other hand, you find that Plaintiffs have proved one or more of their required claims and Defendants have also proved one or more of their affirmative defenses, you will answer the Special Verdict form submitted to you with these instructions.

Point I.

Plaintiff contends that the making of false representations to gain entry to the track could not be the proximate cause of the accident. We disagree.

Plaintiff argues that, as a matter of law, the misrepresentations could not have been the proximate cause. There was sufficient evidence to submit this theory of causation to the jury. In light of the evidence, causation could not be decided as a matter of law. See Armstrong v. Indus. Elec. and Equip. Service, 97 N.M. 272, 639 P.2d 81 (Ct.App.1981).

Point II.

Plaintiff contends that Instruction No. 2 is wrong in that it stated that contributory negligence was a defense to products liability claims. Plaintiff relies on Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), for this proposition. However, Scott v. Rizzo, supra, did not state that. It states:

With respect to the suggestion that we should also consider the effect of the comparative negligence doctrine upon strict liability claims, we need not decide that point at this time. We do make some observations, however, relying upon the capability of the trial judge to resolve such issues when confronted with a special factual situation requiring adaptation of the rule of comparative negligence: (1) Plaintiff's "conventional" contributory negligence has been held to be inapplicable as an affirmative defense in strict liability cases. Jasper v. Skyhook Corp., 89 N.M. 98, 547 P.2d 1140 (Ct.App.1976), rev'd on other grounds, 90 N.M. 143, 560 P.2d 934 (1977). Nevertheless, New Mexico does not equate "strict" liability with "absolute" liability; plaintiff's conduct is still a material, although limited, issue. (2) Under the view that the comparative negligence doctrine delineates a comparative causation analysis, some courts logically have extended the application of the rule to strict liability design cases, reasoning that the consideration of the jury, under proper instructions, should be focused upon the part played by plaintiff's "misconduct" (rather than his "negligence") which contributed to the injury suffered by use of defendant's defective product. The "misconduct" phrase would embrace such defenses as assumption of risk, misuse or abnormal use of the product, or the "negligence" concept of voluntarily and unreasonably proceeding to encounter a known danger. Such an extension does not clash with these defenses previously allowed to be raised in this jurisdiction, see, e.g., Rudisaile v. Hawk Aviation Inc., 92 N.M. 575, 592 P.2d 175 (1979), in strict liability actions. They simply would not be a complete bar to recovery. ...