McCarson v. Foreman

• Decision Date: 04 December 1984
• Docket Number: No. 7574,7574
• Citation: McCarson v. Foreman, 102 N.M. 151, 692 P.2d 537, 1984 NMCA 129 (N.M. App. 1984)
• Parties: Ronald McCARSON, as Personal Representative of the Estate of Ruel W. McCarson, deceased, and as surviving son of such decedent, Plaintiff-Appellee, v. Skip FOREMAN, Foreman Oil Company, Roy Foreman and Alleene Foreman, his wife, jointly and severally, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 537

692 P.2d 537

102 N.M. 151

Ronald McCARSON, as Personal Representative of the Estate of Ruel W. McCarson, deceased, and as surviving son of such decedent, Plaintiff-Appellee, v. Skip FOREMAN, Foreman Oil Company, Roy Foreman and Alleene Foreman, his wife, jointly and severally Defendants-Appellants.

No. 7574.

Court of Appeals of New Mexico.

Dec. 4, 1984.

Edward E. Triviz, Edward E. Triviz, P.A., Las Cruces, Glenn B. Neumeyer, Norman E. Todd, Keith S. Burn, P.A., Las Cruces, for plaintiff-appellee.

J.E. Casados, Gallagher & Casados, P.C., Albuquerque, for defendants-appellants.

OPINION

MINZNER, Judge.

Defendants-Appellants Roy and Skip Foreman appeal from a jury verdict of $350,000 in a wrongful death suit arising out of an automobile accident which occurred in Las Cruces, New Mexico, on September 27, 1981. On appeal, defendants claim that the trial court erred in admitting certain evidence and that the error requires reversal. Defendants also claim errors in the jury instructions require reversal. We affirm the trial court's rulings.

FACTS

Roy Foreman is the principal owner of Foreman Oil Company. Skip, Roy's son, was employed as a general manager of the marketing branch of the family business. Because Skip's job required extensive travelling, he had unrestricted use of a company vehicle, a one-ton, short-bed truck. Roy was responsible for the company policy permitting Skip's unrestricted use of the vehicle.

Skip attended a barbeque on the evening of the accident. The record contains evidence that he had been drinking at the party. Shortly after Skip left the party, the company truck in which he was travelling crossed the median on New Mexico State Highway 28 and collided with Ruel W. McCarson's vehicle. Ruel suffered extensive injuries, which resulted in his death.

Plaintiff Ronald McCarson's suit alleged negligent driving as to Skip and negligent entrustment as to Roy. Skip defended on the ground that he was not driving at the time of the accident. He testified that he picked up two hitchhikers, one of whom he recognized but could not name, shortly after leaving the party. Skip testified that he let one hitchhiker drive, fell asleep, and awoke after the collision to find that both hitchhikers had departed the scene of the accident. Skip also suffered injuries in the accident. Roy defended on the ground that he had no actual knowledge, or any reason to know, that Skip was a reckless or incompetent driver and that, consequently, the entrustment was not negligent.

Defendants raise four arguments on appeal: (1) admission of a cocaine charge against and plea agreement by Skip was improper on the issue of negligent entrustment against Roy and fatally prejudicial on the negligence claim against Skip; (2) absent evidence of the cocaine charge, there was insufficient evidence to support a verdict against Roy for negligent entrustment; (3) the trial judge gave an improper burden of proof instruction that is reversible error; and (4) the trial judge erred in instructing on damages, because he modified the Uniform Jury Instruction in a way that allowed the jury to award duplicate damages. Because the first and second issues are closely related, we consider them together.

I. ADMISSIBILITY OF COCAINE CHARGE AND PLEA AGREEMENT

The trial court admitted over defendants' objection evidence that Skip was arrested for trafficking in cocaine in January 1981, some eight months prior to the accident. After two trials, the first of which resulted in a hung jury, in October 1982 Skip pled guilty to a reduced charge of possession of cocaine. The cocaine was seized from the company truck. The trial court also admitted over objection evidence of a September 1980 DWI citation, which resulted in conviction prior to the accident. Roy had knowledge of these incidents prior to the accident. The trial judge cautioned the jury that it might consider the plea agreement only on the negligent entrustment claim and not in relation to the claim of negligence against Skip. In response to defendants' renewal of a continuing objection, the trial judge also periodically cautioned the jury that evidence of prior acts was admissible only on the negligent entrustment claim.

Defendants contend first that evidence of the cocaine charge was irrelevant under NMSA 1978, Evid.Rules 401 and 402 (Repl.Pamp.1983), and that, even if relevant, admission of such evidence constituted error because its prejudicial effect outweighed its probative value. NMSA 1978, Evid.R. 403 (Repl.Pamp.1983). On the basis of their argument that evidence of the cocaine charge was inadmissible, defendants reason that Skip was prejudiced on the trial of his negligence and that Roy was prejudiced because the remaining evidence was insufficient to support the negligent entrustment verdict.

There is a risk of prejudice where drug charge testimony is introduced. See United States v. Kizer, 569 F.2d 504 (9th Cir.1978), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71 (1978). However, the risk of prejudice must be weighed against the probative value of the evidence in light of the plaintiff's theory. See Evid.R. 403. The trial judge has a great deal of discretion in making the balance required by the Rule. Mac Tyres, Inc. v. Vigil, 92 N.M. 446, 589 P.2d 1037 (1979). His ruling is reversible error only in case of abuse. Id. Given the trial judge's continued admonitions regarding the restricted use of the evidence, we hold that he did not abuse his discretion in admitting evidence of the cocaine charge. He was entitled to conclude that, given McCarson's theory, the relevance outweighed potential prejudice.

Our prior decisions have recognized negligent entrustment claims, but we have not had occasion in prior cases to identify the elements of the tort. See Bryant v. Gilmer, 97 N.M. 358, 639 P.2d 1212 (Ct.App.1982); McKee v. United Salt Corp., 96 N.M. 382, 385, n. 1, 630 P.2d 1237, 1240 (Ct.App.1980). Courts in other jurisdictions have identified various elements of a negligent entrustment theory in an automobile context. See Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark.L.Rev. 101 (1966). See also Hines v. Nelson, 547 S.W.2d 378 (Tex.Civ.App.1977).

In this case, the court instructed the jury on the essential elements of the tort. Defendants have not challenged the instruction on appeal. Thus, the evidentiary question we must answer is whether the evidence was relevant to the elements as set forth in the instruction. The relevant portions of the instruction were that, in order to recover on the theory of negligent entrustment, McCarson had the burden of proving "(1) [t]hat [Roy] Foreman ... knew or should have known that Skip Foreman was an incompetent or unfit driver; (2) [t]hat [Roy] Foreman permitted the unrestricted use of [the company] truck by Skip Foreman."

As a general rule, evidence of character or reputation of a party to a civil action is inadmissible, as is evidence of prior acts indicating incompetence. See Note, Torts: Negligent Entrustment in Oklahoma, 24 Okla.L.Rev. 392 (1971). In an entrustment case, however, the competence and fitness of the driver are issues of fact. Id. As a result, evidence of prior specific acts indicating incompetence or unfitness are admissible on the separate questions of the entrustee's competence or fitness and the entruster's knowledge. We hold that the evidence is relevant on the issue of Skip's fitness or competency to drive and on Roy's knowledge or reason to know of his son's fitness or competency to drive.

General principles of negligence are relevant to the determination of negligent entrustment. See Hartford Accident & Indemnity Co. v. Abdullah, 94 Cal.App.3d 81, 156 Cal.Rptr. 254 (1979). The theory of negligent entrustment has been described as follows:

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

Restatement (Second) of Torts Sec. 308, at 100 (1965). In other words, it is negligent to make an entrustment that creates an appreciable risk of harm.

McCarson's theory at trial was consistent with the general theory of negligent entrustment and with the elements on which the jury was instructed. McCarson introduced evidence at trial in an effort to prove that Roy was negligent in entrusting a company vehicle without restriction to Skip, given evidence of Skip's habits in connection with the truck. The prior DWI citation and conviction have probative value as to this theory, because that conviction stemmed from an incident during which Skip was stopped while driving the company truck. It was relevant evidence on the issue of Skip's competence or recklessness as a driver. Further, Roy knew about the conviction.

The cocaine charge is also relevant to McCarson's theory that Skip's habits, including the use of drugs, generally made him an unfit driver. Defendants have argued that the plea agreement is irrelevant, because it came after the accident, but the record indicates the plea is related to a charge that occurred prior to the accident.

The charge and the plea agreement are facts from which the jury might infer the use of drugs. Even though the charge was trafficking, Skip ultimately pled to a charge of possession. Drug use during or close to the time the truck was driven would be relevant to a charge of reckless driving. See State v. Sandoval, 88 N.M. 267, 539 P.2d 1029 (Ct.App.1975) (any evidence of drinking is relevant as a circumstance for the jury to consider on the issue of reckless driving). Cf. State v. Lopez, 99 N.M. 791, 664 P.2d 989 (Ct.App.1982) (fact of possession was not probative of plaintiffs' negligence on facts of case). Under the circumstances of this...