Monett v. Dona Ana County Sheriff's Posse, 12192

• Citation: 114 N.M. 452,840 P.2d 599,1992 NMCA 96
• Decision Date: 25 August 1992
• Docket Number: No. 12192,12192
• Parties: Maurice MONETT, Plaintiff-Appellant, v. DONA ANA COUNTY SHERIFF'S POSSE, Southern New Mexico State Fair, and Charles Dickerson, Inc., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 599

840 P.2d 599

114 N.M. 452

Maurice MONETT, Plaintiff-Appellant, v. DONA ANA COUNTY SHERIFF'S POSSE, Southern New Mexico State Fair, and Charles Dickerson, Inc. Defendants-Appellees.

No. 12192.

Court of Appeals of New Mexico.

Aug. 25, 1992.

[114 N.M. 454] Michael W. Lilley, Lilley & Macias, P.A., Las Cruces, for plaintiff-appellant.

John S. Stiff, Butt, Thornton & Baehr, P.C., Albuquerque, for defendant-appellee Dona Ana County Sheriff's Posse.

Thomas L. Marek, Kevin E. Kane, Marek, Yarbro & Carter, P.A., Carlsbad, for defendant-appellee Southern New Mexico State Fair.

Phyllis A. Dow, Robert L. Pidcock, Hatch, Beitler, Allen & Shepherd, P.A., Albuquerque, for defendant-appellee Charles Dickerson, Inc.

OPINION

PICKARD, Judge.

Plaintiff sued for personal injury after an accident at the Southern New Mexico State Fair and Rodeo. Defendants Dona Ana County and Fairacres Volunteer Fireman Mike Carroll were dismissed from the case with prejudice after settling with plaintiff. Plaintiff appeals from the trial court's orders granting summary judgment to the remaining three defendants, contending that the summary judgments should be reversed because (1) factual issues exist with regard to the theories of vicarious liability and premises liability, making summary judgment inappropriate; and (2) plaintiff's release of Carroll and Dona Ana County did not release the other defendants from liability. We reverse in part and affirm in part.

"Summary judgment is a drastic remedy to be used with great caution." Pharmaseal Labs., Inc. v. Goffe, 90 N.M. 753, 756, 568 P.2d 589, 592 (1977). It is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law, Paca v. K-Mart Corp., 108 N.M. 479, 480, 775 P.2d 245, 246 (1989), or when the material facts are not in dispute and the only question to be resolved is the legal effect of the facts. Savinsky v. Bromley Group, Ltd., 106 N.M. 175, 176, 740 P.2d 1159, 1160 (Ct.App.1987). In this case, the focus of the parties' dispute is centered on the legal effects of the following material facts.

Plaintiff went to the Southern New Mexico State Fair and Rodeo grounds on September 24, 1988. The fair and rodeo were being held on land owned by Dona Ana County. The fair was sponsored by defendant Southern New Mexico State Fair (Fair) and managed by defendant Charles Dickerson, Inc. (Dickerson). The rodeo was sponsored and managed by defendant Dona Ana County Sheriff's Posse (Posse). Although the fair and rodeo were held at the same time on the county property, defendants Fair and Posse were separate and distinct entities, and each entered into separate agreements with the county for use of the fairgrounds and the rodeo arena, respectively. Evidence conflicted on whether fair admission was a prerequisite to rodeo admission in every case, but plaintiff had in fact entered the rodeo area from the fairgrounds.

The fair and rodeo were physically separated by a fence, with an asphalt path running from the fairgrounds to the rodeo grandstand through a double gate in the fence. Inside the gate on the rodeo side was a ticket booth to one side of the path, where patrons could buy rodeo tickets. On the other side of the path was a table where Posse members sold both rodeo admissions and raffle tickets. The accident happened inside the double gate, on the rodeo side of the fence. Only one side of the gate was open at the time. Plaintiff was positioned to the side of the pathway, standing in front of the ticket table. He was facing the table, away from the path.

Mike Carroll, a uniformed member of Fairacres Volunteer Fire Department (FVFD), was on the grounds in an official capacity. FVFD had been the "official" provider of emergency medical services at the fair and rodeo in the past, and had been engaged by Dickerson for the 1988 season to provide emergency medical services for the fair, and by Posse officials to provide such services for the rodeo. At the time of the accident, Carroll was driving a golf cart, taking a coworker to her rodeo duty station. There were numerous people going through the gate and milling about in the area just inside it. The parties disagree as to how the accident happened, but they do agree that there was a collision between plaintiff and Carroll's cart.

FVFD volunteers like Carroll did not receive money, meals, or other compensation for their services, but those on duty were not required to pay an admission fee to enter the fairgrounds or rodeo grounds. In transporting his coworker, Carroll was acting on orders from his immediate supervisor, FVFD Assistant Chief Lee Cothern. The cart Carroll was driving had been borrowed from New Mexico State University by Dickerson for use during the fair. Dickerson had assigned borrowed carts to various departments of the fair, including two carts that went to FVFD for use in connection with their services to the fair and rodeo. FVFD used the carts to transport medical supplies and injured persons, and to take FVFD personnel to and from their duty stations. No accident or problem involving the carts had been reported in the previous four years, in which the carts had been used under identical circumstances.

As a preliminary matter, we discuss plaintiff's contention that the distinction between the rodeo grounds and the fairgrounds was fictional. Plaintiff asserts that defendants Fair and Posse were both responsible for the arrangement of the gate between the two grounds, but offers no citation to the record to substantiate this assertion. Plaintiff also asserts that although the golf carts were designated for official business on the fairgrounds only, they were routinely driven back and forth in service to the rodeo, thus creating a factual question as to whether the fair and rodeo were in fact operating as a single entity or as two separate entities, again without citation to the record or a statement concerning how this contention was raised and preserved below.

Defendant Fair has answered these assertions by maintaining that they lack support in the record and that plaintiff is attempting to raise an issue of joint venture, which was not properly raised and preserved in the trial court. Plaintiff does not refute defendant Fair's argument in his reply brief, nor does he reassert his joint venture claim. Although this court will take note of evidence which puts a material fact in issue, and we will view the matters presented in the light most favorable to support the right to trial on the issues, C & H Constr. & Paving Co. v. Citizens Bank, 93 N.M. 150, 156, 597 P.2d 1190, 1196 (Ct.App.1979), this does not obviate plaintiff's obligation to support each issue presented by pointing out how it arose and was preserved below, with citations to appropriate parts of the record, see SCRA 1986, 12-213(A)(3) (Repl.1992). Accordingly, we do not consider the allegations concerning joint control of the gate or joint venture of the parties. See Beyale v. Arizona Pub. Serv. Co., 105 N.M. 112, 116, 729 P.2d 1366, 1370 (Ct.App.1986) (if a party fails to refer to relevant portions of the transcript, the court will not address that issue on appeal); State v. Martin, 90 N.M. 524, 527, 565 P.2d 1041, 1044 (Ct.App.1977) (appellate court will not search the record to see if an issue was preserved when appellant does not refer the court to appropriate transcript references).

VICARIOUS LIABILITY

Plaintiff contends that summary judgment was improperly granted because the facts presented raise questions of defendants' vicarious liability for Carroll's conduct under the theory of respondeat superior or under the theory that liability will lie for Carroll's acts as an independent contractor or "special employee." We disagree.

Under the doctrine of respondeat superior, the master is liable for the negligent acts of the servant when committed during the course and scope of the servant's employment or agency. In Savinsky, 106 N.M. at 176, 740 P.2d at 1160, we stated that "[i]n determining whether an employer-employee relationship exists, rather than an independent contractor relationship, the primary test is whether the employer has the right to control the details of the work to be performed." We also noted that secondary tests of the employer-employee relationship include direct evidence of the right to control, method of payment of compensation, furnishing of equipment, and the right to end the relationship. Id.

Defendants were only required to make a prima facie showing that they were entitled to summary judgment, and if they did so, the burden was then on plaintiff to show at least a reasonable doubt as to whether genuine issues of fact existed. See Trujillo v. Treat, 107 N.M. 58, 59, 752 P.2d 250, 251 (Ct.App.1988). When undisputed material facts before the court lead to only one logical inference, however, "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). We must decide in this case whether the trial court properly resolved the legal effect of the facts in this regard, based on the showings made by the parties. See Hansler v. Bass, 106 N.M. 382, 383, 743 P.2d 1031, 1032 (Ct.App.1987).

Defendants demonstrated that Carroll was not officially employed by any of them, but rather was present at the fair and rodeo to perform volunteer emergency medical technician services as a member of the FVFD. This evidence constituted a prima facie showing by defendants that Carroll was not their employee, and we also note that the trial court determined that the FVFD was in fact an agent of Dona Ana County. Upon this showing, it became plaintiff's burden to raise at least a reasonable doubt as to the presence of a master-servant relationship between Carroll and defendants. See Savinsky, 106 N.M. at 176-77, 740 P.2d at 1160-61. In attempting to meet this...