Saiz v. Belen School Dist.

Decision Date21 February 1992
Docket NumberNo. 19124,19124
Citation113 N.M. 387,827 P.2d 102,1992 NMSC 18
Parties, 73 Ed. Law Rep. 834 Lorenzo SAIZ, as Personal Representative of the Estate of Jerry Saiz, Deceased, Petitioner, v. BELEN SCHOOL DISTRICT, a governmental entity, Respondent.
CourtNew Mexico Supreme Court
OPINION

RANSOM, Chief Justice.

This is a wrongful death action brought against the Belen School District by the personal representative of a young boy who was electrocuted by a high-voltage lighting system at a high school football game. The accident occurred about twenty-five years after the system was installed. Plaintiff was awarded only a judgment against the school district for its proportionate fault in negligent maintenance subsequent to the installation of the system. That judgment is not at issue and remains undisturbed.

We issued a writ of certiorari to the court of appeals to decide whether, additionally, the school district can be held responsible for the faulty lighting system as initially installed and inspected by independent contractors.1 The court of appeals had affirmed the trial court's ruling against the vesting of such responsibility in the school district. We conclude, to the contrary, that the school district is directly responsible for injuries that were caused by the absence of precautions required in the face of peculiar risks of harm created by locating a high-voltage electrical supply line in an area of public accommodation. However, responsibility is based not upon vicarious liability, but on strict liability for which the school district is granted immunity under the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl.Pamp.1989).2 Therefore, we affirm on a rationale different than was employed by the trial court or the court of appeals.

Facts. This case has its origin in a series of contracts made in 1964. At that time the Belen School District contracted with its chief architect, Kruger, Lake & Henderson, to provide outdoor lighting for its high school football field. Dean Powell, an electrical engineer, was engaged to design the system, and the school district contracted with Yearout Electric Company to build it. As installed, the 250-ampere, 480-volt system consisted of a series of wooden light poles serviced by underground electrical cable. Some of the poles were installed directly in front of bleachers. In about 1973, in order to keep spectators off the playing field, the school district built a metal cyclone fence in front of the bleachers and close to some of the light poles.

On September 2, 1988, thirteen-year-old Jerry Saiz attended a night football game at the high school field. While standing by one of the light poles at halftime, he touched both the metal electrical conduit running up one of the poles and the metal cyclone fence. He was electrocuted and died a few minutes later. The insulation around the buried cable had been damaged by the sharp metal edge of the conduit, and the metal conduit running up the pole was electrified by the high-voltage current. The failure to install a smooth plastic bushing, required under the state electrical code, where the buried insulated cable entered the metal conduit, had caused an electrical short and the electrocution of Jerry Saiz.

Proceedings. Lorenzo Saiz, as personal representative of the estate of Jerry Saiz, brought suit against the school district under the Tort Claims Act, alleging the school district was negligent in the installation and maintenance of the electrical system. Saiz did not sue the architect, the design engineer, or the electrical contractor. His action against these parties was precluded by NMSA 1978, Section 37-1-27 (Repl.Pamp.1990) (suits against builders and other parties furnishing construction services are barred after ten years from date of project's completion).

In its answer to the complaint, the school district raised as an affirmative defense the fault of others. Who was at fault, or how, was not specified. At trial the school district sought to lay off damages against various nonparties, among whom were both the electrical contractor who had failed to install the plastic bushing and the architect for his negligent supervision and inspection of the system. Saiz focused his attention on evidence suggesting the school district was negligent in the installation of the cyclone fence, as well as on evidence indicating the school district should have been aware the lighting system was faulty. For a number of years the school district had experienced serious problems with the lighting system and had made various attempts to correct those problems. Saiz claimed at trial that the school district was negligent in failing to test the system properly and in failing to detect the short circuit that caused the electrocution.

Upon close of the evidence, Saiz tendered a uniform jury instruction on agency, SCRA 1986, 13-405, alleging that the school district, as the employer, was liable for the wrongful acts of various individuals including the electrical contractor. The school district tendered SCRA 1986, 13-404, an instruction that ultimately was given, reciting the general principle of law that an employer is not responsible for the acts of an independent contractor. In response, Saiz tendered an instruction on a common-law exception to nonliability. Citing Montanez v. Cass, 89 N.M. 32, 546 P.2d 1189 (Ct.App.1975), aff'd in part and rev'd in part on other grounds sub nom. New Mexico Electric Service Co. v. Montanez, 89 N.M. 278, 551 P.2d 634 (1976), Saiz claimed that an employer is responsible to third persons for harm caused by the negligence of an independent contractor engaged in an inherently dangerous activity. The trial court refused the latter instruction for the reason that the exception did not apply in this case.3 The jury was instructed that, should it find the electrical contractor violated the state electrical code in omitting the plastic bushing, it was to find him negligent as a matter of law.

Thus instructed, the jury returned a verdict for the plaintiff and allocated fault as follows: to the electrical contractor, sixty percent; to the architect, twenty-five percent; to the school district, fifteen percent; to the design engineer and the deceased, zero percent each. The judgment entered against the school district, $169,902.73, represented fifteen percent of the total damages ($1,250,000.00), less a voluntary payment for hospital and burial expenses previously paid by the school district's insurance carrier.

Disposition below. Saiz filed a posttrial motion under SCRA 1986, 1-059(E), to amend the judgment and to impose joint and several liability against the school district under two theories: (1) for vicarious liability pursuant to NMSA 1978, Section 41-3A-1(C)(2) (Repl.Pamp.1989), for the acts of its independent contractors; and (2) under the "public policy" exception to several liability provided in Section 41-3A-1(C)(4).4 The trial court scheduled the hearing for posttrial motions beyond the thirty-day time limit to appeal the judgment, see SCRA 1986, 12-201(A) and (D), and Saiz timely filed a notice of appeal. The motions were not ruled upon. Saiz pursued in the court of appeals his argument that the independent contractors were engaged in inherently dangerous work and that the school district consequently was jointly and severally liable for the negligence of the contractor and architect. The court of appeals affirmed the judgment by an unpublished opinion, stating that the school district cannot be held vicariously liable for acts of an independent contractor performed twenty-five years earlier. The court also stated that because joint and several liability applies only in certain limited situations, the claim must be raised in the plaintiff's pleadings.

Inherently dangerous activities and nondelegable duties. As a general rule, an employer of an independent contractor is not responsible for the negligence of the contractor or his employees. Scott v. Murphy Corp., 79 N.M. 697, 448 P.2d 803 (1968); Restatement (Second) of Torts Sec. 409 (1964) [hereinafter Restatement ]. The absence of a right of control over the manner in which the work is to be done is the most commonly accepted criterion for distinguishing independent contractors from employees for whose negligence the employer is vicariously liable. W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 71, at 509 (5th ed. 1984) [hereinafter Prosser & Keeton ]; see also SCRA 1986, 13-403 (Uniform Jury Instruction: definition of employee-employer); SCRA 1986, 13-404 (definition of independent contractor). The general rule has no application where the employer has nondelegable duties (1) arising out of some relation toward the public or the particular plaintiff (e.g., duty of lessor to lessee), or (2) because of work that is specially, peculiarly, or inherently dangerous.5 See Restatement ch. 15, Topic 2, at 394-423. Only the latter type of duty has been raised for consideration here.

The Restatement acknowledges that rules regarding liability of the employer under nondelegable duties tend to overlap and that it may be premature to enunciate any general principles. See id. at 394-95. Understandably, confusion and uncertainty exist, for there has been a tendency for courts (this one included) to rely on several distinctive theories to justify their decisions, to characterize the employer's nondelegable duties as exceptions to the general rule, and to use language from these "exceptions" more or less indiscriminately. In this opinion we focus on the nature of nondelegable duties and of liability for inherently dangerous...

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