Medina v. Graham's Cowboys, Inc.

• Decision Date: 04 February 1992
• Docket Number: No. 12496,12496
• Citation: 827 P.2d 859,1992 NMCA 16,113 N.M. 471
• Parties: , 7 Indiv.Empl.Rts.Cas. (BNA) 399 C.K. "Rocky" MEDINA, Plaintiff-Appellee, v. GRAHAM'S COWBOYS, INC., Defendant-Appellant, and Steven Trujillo, Defendant.
• Court: Court of Appeals of New Mexico

Page 859

827 P.2d 859

113 N.M. 471, 7 Indiv.Empl.Rts.Cas. (BNA) 399

C.K. "Rocky" MEDINA, Plaintiff-Appellee, v. GRAHAM'S COWBOYS, INC., Defendant-Appellant, and Steven Trujillo, Defendant.

No. 12496.

Court of Appeals of New Mexico.

Feb. 4, 1992.

[113 NM 472] Jeff Romero, Albuquerque, for plaintiff-appellee.

Mark E. Komer, Jerrald J. Roehl, Corbin P. Hildebrandt, the Roehl Law Firm, P.C., Albuquerque, for defendant-appellant.

OPINION

HARTZ, Judge.

On December 13, 1984, Steven Trujillo assaulted C.K. "Rocky" Medina (Medina) in the parking lot of Graham's Cowboys, Inc. (Cowboys). Medina filed a complaint for personal injury against Trujillo and Cowboys on April 1, 1985. Medina raised three theories of liability against Cowboys: (1) Cowboys was liable under the doctrine of respondeat superior because Trujillo was acting within the course and scope of his employment with Cowboys when he assaulted Medina, (2) Cowboys was liable for negligently hiring and supervising Trujillo, and (3) Cowboys was liable for failure to comply with its duty to provide safe premises for its patrons. After a non-jury trial the district court rejected the respondeat superior claim but held Cowboys liable on the other two theories. Cowboys appeals on the grounds that (a) liability was not proper under either theory, (b) substantial evidence did not support the damage award, and (c) under the doctrine of comparative fault, Cowboys should have been held liable for only a portion of Medina's damages. We affirm.

I. LIABILITY

Because we can sustain the judgment under Medina's negligent hiring theory, we need not address the claim of premises liability.

The district court made the following findings concerning the negligent hiring and training of Trujillo:

10. Trujillo's employment with Cowboys was that of a doorman.

11. The duties of a Cowboys doorman included assisting in maintaining peace and order in Cowboys, using force if necessary.

12. Cowboys doormen were necessarily in constant contact with members of the public, most of whom would have been drinking and ma[n]y of whom might tend to be argumentative.

....

15. Trujillo had been involved in several fights at Cowboys and in the parking lot as a Cowboys patron.

16. Trujillo was unfit to be employed as a Cowboys doorman.

17. Cowboys knew or should have known that Trujillo had previously been involved in fights at Cowboys and elsewhere and that he was unsuitable for employment considering the risk he posed to those with whom he would foreseeably come into contact during his employment.

We accept these findings as correct because Cowboys' brief-in-chief does not attack these findings or challenge the contention that Cowboys was negligent in hiring Trujillo. In addition, the district court concluded:

7. Trujillo's attack on Plaintiff was foreseeable by Defendant Cowboys.

8. Cowboys was negligent in hiring and training Trujillo, which negligence was the proximate cause of Plaintiff's injuries.

Cowboys predicates its challenge to the negligent-hiring theory on the ground that Trujillo was not on duty the night of the assault. (There was also a substantial dispute at trial as to whether Trujillo had ever been hired by Cowboys, but there was clearly sufficient evidence to justify the district court's finding in that regard, and Cowboys does not press that point in its brief-in-chief.) Because Trujillo was not on duty, Cowboys argues, Medina did not meet Trujillo as a direct result of the employment, and therefore Cowboys had no duty to Trujillo, the act of hiring Trujillo could not be the proximate cause of Medina's injuries, and Cowboys could not have reasonably foreseen that hiring Trujillo would result in the injury to Medina.

Even if he was not on duty, however, Trujillo was present on the premises at Cowboys' request. Cf. Restatement (Second) of Agency Secs. 219 cmt. d, 233 cmt. c (1957) [hereinafter Restatement (Second) of Agency ] (relating to responsibility of employer for acts of on-call employee). The district court made the following finding:

9. Trujillo was not actually working when the incident occurred. He had come to Cowboys to work that night and had been told by a Cowboys employee to remain, and he did remain inside Cowboys or in the parking lot. Trujillo was not paid for waiting to see [i]f he would be needed to work.

At trial Cowboys vigorously contested that Trujillo was on call the evening of the incident. Nevertheless, there was sufficient evidence to support the district court's finding. One witness testified that Trujillo was wearing a jacket with the Cowboys logo on it. Trujillo himself had testified in a deposition read at trial that "if I wasn't working I probably would have left and went home"; and he testified at trial that the assistant door manager had told him "to show up in case they needed me." Although Trujillo encountered Medina in the parking lot, Trujillo testified that he was heading toward the front door of the bar at the time.

In its reply brief Cowboys challenges the finding that Trujillo remained inside Cowboys or in the parking lot. It points to evidence that Trujillo was returning from a nearby nightclub at the time of the incident. Even were we to consider a challenge to a finding of fact not made until a reply brief, but see Jaramillo v. Fisher Controls Co., 102 N.M. 614, 625, 698 P.2d 887, 898 (Ct.App.1985) (issue raised for first time in reply brief will not be considered), the alleged error does not affect the result. The point is that the district court could properly find that at the time of the incident Trujillo was on the premises at Cowboys' request for the purpose of being available to work.

The district court's findings establish the duty of Cowboys to Medina. Liability for negligent hiring "flows from a direct duty running from the employer to those members of the public whom the employer might reasonably anticipate would be placed in a position of risk of injury as a result of the hiring." Valdez v. Warner, 106 N.M. 305, 307, 742 P.2d 517, 519 (Ct.App.1987). See Garcia v. Duffy, 492 So.2d 435 (Fla.App.1986). That duty encompasses a duty of Cowboys not to endanger patrons by negligently hiring violent persons who are on call on the premises at Cowboys' request.

We also sustain the district court's conclusions regarding proximate cause and foreseeability. The district court's findings establish that Trujillo encountered Medina as a direct result of Trujillo's employment relationship with Cowboys. Also, Findings Nos. 16 and 17, regarding Trujillo's propensity to engage in fights, provide a proper basis for concluding that Cowboys could have reasonably foreseen the danger of Trujillo's engaging in a fight with a patron if Trujillo were asked to remain "on call" on the premises.

We therefore affirm the district court's determination that Cowboys was liable for damages under a negligent-hiring theory.

II. DAMAGES

Cowboys contends that the damage award was not supported by substantial evidence. The sole point raised in its brief-in-chief is that there was insufficient evidence to support a finding that Medina's condition had remained and would remain the same. We acknowledge that Cowboys offered evidence to the contrary, but our function is not to reweigh the evidence; it is only to determine whether there was substantial evidence to support the district court's findings. See Clovis Nat'l Bank v. Harmon, 102 N.M. 166, 168-69, 692 P.2d 1315, 1317-18 (1984).

Cowboys' brief-in-chief fails to note the following testimony by Dr. Don F. Seelinger, a neurologist who had examined Medina in July 1986:

Q. Let me ask you a hypothetical question if I could. If Mr. Medina today were to tell you that he's continuing to have headaches; he continues to have memory lapse and he continues to complain of the symptoms that he complained to you, pointed out to you at the same time that you saw him, would you have an opinion as to whether or not his condition, number one, had improved and, number two, would be likely to improve?

A. If the symptoms were essentially unchanged, I would think subsequent future improvement would be unlikely. If I were to learn that the symptoms were essentially unchanged, that would not surprise me greatly even if someone had been in a treatment program.

Q. Why is that?

A. Because the kind of complaints that are seen following trauma often are sustained and enduring and continue to be problems for long, long periods of time, if not indefinite.

Medina testified that he was suffering the same symptoms he had previously reported to Dr. Seelinger.

This evidence is sufficient to sustain a finding that Medina's condition had not improved and was unlikely to improve. In its reply brief Cowboys suggests that Medina's testimony concerning his symptoms at the time of trial cannot be considered in the absence of medical testimony establishing those symptoms. Cowboys cites no authority for that proposition, and we know of none. Dr. Seelinger's response was predicated on the continuation of symptoms described by Medina, not on the existence of symptoms that could be detected only by a medical expert. There is no reason to require that Medina express his symptoms to a physician rather than testify to them at trial.

We therefore reject Cowboys' challenge to the amount of damages.

III. COMPARATIVE FAULT

Cowboys' final contention is that its fault should be compared to the fault of Trujillo and it should be liable only for the percentage of fault attributable to it. This argument raises an issue of first impression in this jurisdiction. New Mexico abolished joint and several liability for negligent tortfeasors in Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct.App.1982). Yet no New Mexico opinion has addressed what happens when one tortfeasor commits an intentional tort and a concurrent tortfeasor is negligent. Cf. Trujillo v. Berry, 106 N.M. 86, 738 P.2d 1331 (Ct.App.1987) (considering...