Talbott v. Roswell Hospital Corp.

• Decision Date: 04 June 2008
• Docket Number: No. 27,135.,27,135.
• Citation: 2008 NMCA 114,192 P.3d 267
• Parties: Kim TALBOTT and Bonnie M. Talbott as Personal Representatives of the Estate of Damon K. Talbott, Deceased, Plaintiffs-Appellees, v. ROSWELL HOSPITAL CORPORATION d/b/a Eastern New Mexico Medical Center, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

192 P.3d 267

2008 NMCA 114

Kim TALBOTT and Bonnie M. Talbott as Personal Representatives of the Estate of Damon K. Talbott, Deceased, Plaintiffs-Appellees, v. ROSWELL HOSPITAL CORPORATION d/b/a Eastern New Mexico Medical Center, Defendant-Appellant.

No. 27,135.

Court of Appeals of New Mexico.

June 4, 2008.

Certiorari Granted, No. 31,185, August 25, 2008.

Sanders, Bruin, Coll & Worley, P.A., Michael T. Worley, Clay H. Paulos, Ian D. McKelvy, Roswell, NM, Slack & Davis, L.L.P., Michael L. Slack, Austin, TX, Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Jocelyn Drennan, Albuquerque, NM, for Appellees.

Miller Stratvert, P.A., Stephen M. Williams, Thomas R. Mack, Lorenz & Goble, P.C., Alice Tomlinson Lorenz, Albuquerque, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} Defendant Roswell Hospital Corporation (the Hospital) appeals from a jury verdict in favor of Plaintiffs Kim and Bonnie Talbott. Plaintiffs are co-personal representatives of the estate of Damon Talbott (Decedent) in a wrongful death action. After the first jury trial in this case resulted in a verdict for Plaintiffs, this Court reversed and remanded to the district court for a new trial. See Talbott v. Roswell Hosp. Corp., 2005-NMCA-109, ¶ 43, 138 N.M. 189, 118 P.3d 194. After the second jury trial, a verdict for Plaintiffs was again entered, and the Hospital was found to be partially liable for Decedent's wrongful death because it negligently selected the helicopter air ambulance provider with which it contracted and its negligence resulted in the helicopter crash that killed Decedent. On appeal, the Hospital contends that the district court erred in (1) allowing Plaintiffs to try the case on a Restatement (Second) of Torts § 411 (1965) (Section 411) theory, (2) giving deficient jury instructions, and (3) denying its motion for a new trial. We conclude that the district court did not err and affirm.

FACTUAL BACKGROUND

{2} In the summer of 2000, MedFlight Air Ambulance (MedFlight) approached Medical Air Transport, Inc. (MAT) with a proposal to form a joint business operation that would provide air ambulance services in southeastern New Mexico. Shortly thereafter, MedFlight and MAT succeeded in agreeing to terms to form the operation. For the purpose of deciding this case, we refer to the MedFlight/MAT operation as "the Business" and note that MedFlight withdrew from the operation in May 2001, leaving MAT to ultimately run the operation on its own.

{3} The Business contacted the Hospital in late 2000 and proposed a deal to establish its base of operations on the Hospital's helipad. The Business's proposal was potentially beneficial to the Hospital because (1) although the Hospital had a helipad, it did not regularly base a helicopter at its facility to transport patients and (2) having a helicopter based on its premises would enable the Hospital to provide enhanced services to its patients, allow the Hospital to provide care to a greater number of patients, and create additional revenue for the Hospital.

{4} Following the Business's proposal, negotiations with the Hospital began. The Hospital's chief executive officer, Ronald Schaffer, gave the Hospital's chief operating officer, Brian Bickel, the task of handling the negotiations. During the course of the negotiations, Bickel contacted the chief executive officer of a hospital in Arizona, which had used the Business's air ambulance services, to inquire about the Business's track record. Bickel did not make any further specific inquiries into the Business's safety history; rather, he relied on the Business's Federal Aviation Administration (FAA) and state licensure as sufficient to establish that the Business was a competent air ambulance operator. Ultimately, the Hospital and the Business reached an agreement under which the Business was permitted to establish its base of operations on the Hospital's helipad. The Hospital also agreed to give the Business the "first call" opportunity to respond to the need to transport patients by helicopter from the Hospital's helipad. Accordingly, the agreement went into effect in December 2000.

{5} On October 19, 2001, Decedent, who was a police officer employed by the New Mexico State Police, was participating in a training program offered by the Business to train local law enforcement officers regarding how to establish a landing zone and direct a helicopter to land at accident scenes and other remote locations. At the end of the training session, Decedent and two other law enforcement officers boarded the helicopter owned by the Business and piloted by Shawn Kling, an employee of the Business, for an orientation flight. The helicopter crashed during the flight, killing Decedent. As we stated in our first appellate opinion concerning this case, "there were two possible direct causes of the accident: (1) overly aggressive maneuvering of the helicopter or (2) failure of the hydraulic system." Talbott, 2005-NMCA-109, ¶ 4, 138 N.M. 189, 118 P.3d 194. Regardless, neither party contests in this appeal the conclusion that Kling's negligence directly caused both the crash and Decedent's death.

PROCEDURAL BACKGROUND

{6} After the helicopter crash, Plaintiffs filed suit in district court. In their second amended complaint, Plaintiffs included a claim, invoking Section 411, that the Hospital was negligent because it "failed to exercise reasonable care to employ a competent and careful contractor" to provide air ambulance services and "failed to properly investigate or inquire about the fitness of" the Business as an air ambulance operator. The case proceeded to trial on Plaintiffs' Section 411 theory, and the jury returned a verdict for Plaintiffs. The Hospital appealed, and this Court reversed. Talbott, 2005-NMCA-109, ¶ 1, 138 N.M. 189, 118 P.3d 194.

{7} On its first appeal to this Court, the Hospital did not question the viability of Section 411 as a basis for recovery; rather, it challenged the application of Section 411 to the specific circumstances of the case. Talbott, 2005-NMCA-109, ¶ 7, 138 N.M. 189, 118 P.3d 194. In doing so, the Hospital argued that Section 411 did not apply because the evidence presented at trial did not support the district court's directed verdict concluding that an employer-independent contractor relationship with the Business existed. Talbott, 2005-NMCA-109, ¶ 8, 138 N.M. 189, 118 P.3d 194. We concluded that the district court erred in directing a verdict regarding that issue because the evidence presented at trial "was capable of supporting conflicting inferences on the existence of a contractual relationship"; therefore, "[t]he district court should have permitted the jury to resolve [the] issue." Id. ¶ 22. Accordingly, the case was reversed and remanded for a new trial. Id. ¶ 43.

{8} At the second trial, the existence of a contractual relationship between the Hospital and the Business was framed for the jury's determination. Once again, the jury returned a verdict for Plaintiffs based on the Hospital's liability pursuant to Section 411. The Hospital now appeals a second time.

RESTATEMENT (SECOND) OF TORTS SECTION 411

{9} In this appeal, the Hospital contends that because New Mexico has not expressly adopted Section 411, the district court erred in allowing Plaintiffs to try the case on such a theory. Specifically, the Hospital argues that Plaintiffs should not have been permitted to proceed on their Section 411 claim because New Mexico law does not require an employer to exercise reasonable care in selecting and retaining an independent contractor to conduct potentially dangerous activities. We apply a de novo review to this question of law. See Chavez v. Desert Eagle Distrib. Co. of N.M., 2007-NMCA-018, ¶ 7, 141 N.M. 116, 151 P.3d 77, cert. denied, 2007-NMCERT-001, 141 N.M. 164, 152 P.3d 151.

{10} Typically, the employer of an independent contractor is not liable for physical harm caused to a third person by a negligent act or omission of the independent contractor. Valdez v. Yates Petroleum Corp., 2007-NMCA-038, ¶ 17, 141 N.M. 381, 155 P.3d 786, cert. denied, 2007-NMCERT-006, 142 N.M. 16, 162 P.3d 171. However, Section 411 provides an exception to that general rule as follows:

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor

(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or

(b) to perform any duty which the employer owes to third persons.

Restatement, supra, § 411, at 376. Section 411 defines a "competent and careful contractor" as one "who possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others" and one "who also possesses the personal characteristics which are equally necessary." Id. § 411 cmt. a, at 377.

{11} A number of jurisdictions across the country have expressly adopted Section 411 as a valid cause of action. See, e.g., W. Stock Ctr., Inc. v. Sevit, Inc., 195 Colo. 372, 578 P.2d 1045, 1048-49 (1978) (en banc); McDonnell v. Music Stand, Inc., 20 Kan.App.2d 287, 886 P.2d 895, 900 (1994); Dexter v. Town of Norway, 1998 ME 195, ¶ 10, 715 A.2d 169, 172; Lee v. Pulitzer Publ'g Co., 81 S.W.3d 625, 634-35 (Mo.Ct.App.2002); Puckrein v. ATI Transp., Inc., 186 N.J. 563, 897 A.2d 1034, 1041-42 (2006); Sipple v. Starr, 205 W.Va. 717, 520 S.E.2d 884, 890-91 (1999). Recently, in Dye v. WMC, Inc., 38 Kan. App.2d 655, 172 P.3d 49, 51 (2007), the Kansas Court of Appeals considered a Section 411 claim in a case that was factually similar to this case. In Dye, the co-personal representatives of a man killed in an air ambulance crash brought a claim, based on Section 411, against a medical center for negligently hiring the air ambulance contractor that was...