Torres v. El Paso Elec. Co., No. 24,300.

Docket NºNo. 24,300.
Citation987 P.2d 386, 127 N.M. 729, 1999 NMSC 29
Case DateJune 30, 1999
CourtSupreme Court of New Mexico

987 P.2d 386
127 N.M. 729
1999 NMSC 29

Francisco J. TORRES and Sonia A. Torres, his wife, Plaintiffs-Appellants,
v.
EL PASO ELECTRIC COMPANY, Defendant-Appellee

No. 24,300.

Supreme Court of New Mexico.

June 30, 1999.


987 P.2d 389
T.O. Gilstrap, Jr., El Paso, TX, Pickett & Associates, Lawrence M. Pickett, Las Cruces, for appellants

Law Office of T.A. Sandenaw, Leonard J. Piazza, Thomas A. Sandenaw, Jr., Las Cruces, Small, Craig & Werkenthin, P.C., Aldean E. Kainz, Jeffrey T. Knebel, Austin, TX, for appellees.

OPINION

SERNA, Justice.

{1} Plaintiffs-Appellants Francisco Torres and Sonia Torres filed a personal injury action against Defendant-Appellee El Paso Electric Company (EPEC) in the district court. The Torreses appeal from a directed verdict in favor of EPEC on a claim of intentional spoliation of evidence, from a directed verdict in favor of EPEC on a claim for punitive damages, and from a jury verdict and judgment in favor of EPEC on claims of negligence and loss of consortium.

{2} Upon certification of the matter to this Court from the Court of Appeals, we hold that the affirmative defense of independent intervening cause does not apply to the negligent actions of a plaintiff. In addition, we conclude that, because the jury instruction on independent intervening cause creates the possibility of jury confusion and is significantly duplicative of the jury instruction on proximate cause, it is no longer an appropriate instruction for cases involving multiple acts of negligence. We also conclude that the doctrine of independent intervening cause is inapplicable to the present matter. As a result, we hold that the jury instruction on this affirmative defense constituted reversible error, and we vacate the judgment in favor of EPEC on the negligence claim.

{3} With respect to the directed verdicts in favor of EPEC, we reverse the district court's directed verdict on the claim for punitive damages due to cumulative actions by EPEC employees giving rise to a reasonable inference of recklessness in the management of an inherently dangerous activity. Finally, we affirm the directed verdict on the claim of spoliation of evidence because, although we hold that tortious spoliation may occur prior to the filing of a complaint, we conclude that Torres failed to demonstrate a malicious intent to disrupt his lawsuit. We remand for a new trial on the negligence claim and on punitive damages.

I. Facts

{4} On July 31, 1992, Francisco Torres's employer, Aldershot of New Mexico, Inc., was in the process of replacing a roof over its greenhouse in Las Cruces, New Mexico. Torres assisted in the installation of the new roof as one of his job duties. While standing in a gutter on the edge of the greenhouse roof and being handed a long metal rod from another Aldershot employee, Torres contacted a high voltage conductor, which was above and behind him, with the metal rod. His contact with the power line caused Torres to fall to the ground outside of the greenhouse. Torres suffered serious injuries, including severe electrical burns and an amputated left foot. At trial, EPEC and Torres stipulated the amount of Torres's medical expenses as $196,808.42.

{5} Torres alleged that EPEC negligently installed and maintained a high voltage power pole adjacent to the greenhouse and that EPEC's negligence proximately caused Torres's contact with the power conductor. EPEC installed the pole in 1981. Torres alleged that the pole was bent and that EPEC, at the time of installation, leaned the pole toward the greenhouse to offset the weight of the conductor. After installation, the pole shifted several feet towards the greenhouse, and the cross-arm of the pole tilted down toward the greenhouse. Additionally, the pole had several cracks, running

987 P.2d 390
both horizontally and vertically, and appeared to be twisted. Torres alleged that several individuals warned EPEC about the condition of the pole and the line's proximity to the greenhouse but that EPEC took no action to alleviate the problem

{6} Torres also alleged that EPEC's investigation of the accident was suspect. According to Torres, an EPEC representative, after conferring with counsel, had the pole removed, cut into sections, and discarded. EPEC had a policy to preserve evidence in cases of serious electrical contact and, in fact, saved and labeled the transformers that had been on the pole. While EPEC provided measurements of the distance between the conductor and both the ground and the pole, Torres alleged that EPEC's removal of the pole prevented an accurate measurement of the distance from the conductor to the greenhouse, a measurement that EPEC did not provide. Although a former EPEC employee testified that he saw an EPEC representative take a measurement from the power conductor to the building prior to the pole's removal, EPEC's records did not reflect that measurement and EPEC employees denied that such a measurement had been taken. Additionally, even though an EPEC employee measured the distance between the conductor and the greenhouse prior to the accident due to the warnings EPEC had received, EPEC was unable to produce that measurement at trial. Finally, Torres alleged that an EPEC employee changed another employee's measurements of the point of electrical contact on the metal rod that Torres had been holding, which had the result of making the conductor appear to be more distant from Torres and the greenhouse at the time of the accident.

{7} At the close of Torres's case-in-chief, EPEC moved for a directed verdict. See Rule 1-050(A) NMRA 1999. The trial court determined that EPEC did not have "any intention to harm anybody" and did not act in a sufficiently willful or wanton manner to form the basis for punitive damages. Additionally, the trial court determined that Torres failed to show that EPEC had knowledge of a lawsuit at the time that it discarded the power pole. The trial court also determined that EPEC did not intend to deprive Torres of evidence. As a result, the trial court granted EPEC's motion for a directed verdict with respect to Torres's claim for punitive damages and his claim of intentional spoliation of evidence.

{8} Following the presentation of evidence on Torres's negligence claim, the trial court instructed the jury on the affirmative defense of independent intervening causes. EPEC claimed that, if it had been negligent, the negligence of Torres, Aldershot, and Aldershot's contractors, L.E. Electric, Inc. and Beukel Greenhouse Services (Beukel), superseded EPEC's negligence and, therefore, constituted independent intervening causes which relieved EPEC of liability. The jury returned a special verdict finding that EPEC had been negligent but that EPEC's negligence had not proximately caused Torres's injuries.

{9} On appeal to the Court of Appeals, Torres argued that the trial court erred in weighing the evidence by granting EPEC's motion for directed verdict on the claim for punitive damages and the claim of intentional spoliation of evidence. In addition, Torres argued that the trial court erred in instructing the jury on the affirmative defense of independent intervening causes. Finally, Torres argued that the trial court's jury instructions, particularly instruction number four concerning affirmative defenses, impermissibly commented on the evidence. The Court of Appeals, recognizing a potential conflict between the defense of independent intervening cause and New Mexico's adoption of comparative negligence, certified the issue "of the continuing viability of the independent intervening cause [jury] instructions and, if viable, the circumstances in which they should be given," as a matter of substantial public importance. See NMSA 1978, § 34-5-14(C)(2) (1972) (stating this Court's appellate jurisdiction over certified matters from the Court of Appeals). We accepted certification and now address each of Torres's claims. See Collins ex rel. Collins v. Tabet, 111 N.M. 391, 404 n. 10, 806 P.2d 40, 53 n. 10 (1991) (construing Section 34-5-14(C) as vesting in this Court appellate jurisdiction over "the entire case in which the

987 P.2d 391
appeal is taken" upon certification from the Court of Appeals)

II. Independent Intervening Cause

{10} In the trial court, EPEC argued to the jury that the actions of Torres, his employer, Aldershot, and Aldershot's contractors proximately caused Torres's injuries. Specifically, EPEC claimed that Torres was aware of the location of the wire and its potential danger and that he failed to exercise ordinary care in replacing the greenhouse roof. EPEC also claimed that Aldershot negligently placed Torres in a dangerous position without adequate training and that Aldershot violated regulations of the Occupational Safety and Health Administration by: (1) failing to inform Torres of the location of the power lines; (2) failing to tell him to stay out of the lines; (3) failing to tell him the consequences of contact with the lines; (4) failing to erect appropriate warning signs; (5) failing to take steps to prevent Torres from falling off the roof; and (6) failing to have the lines de-energized. Allen Clapp, EPEC's engineering expert, testified that the accident would not have occurred if Aldershot had complied with OSHA regulations. Finally, EPEC claimed that Beukel, an expert glass installer hired by Aldershot to assist in the roofing project, and L.E. Electric, Aldershot's electrical contractor, proximately caused Torres's injuries by not advising Aldershot to take precautions such as de-energizing the lines.

{11} Based on these contentions, EPEC requested that the trial court give the uniform jury instruction dealing with independent intervening causes, UJI 13-306 NMRA 1999. Although Torres objected to the instruction, contending that there was "no evidence to support any independent intervening cause in this case," the trial court included UJI 13-306 in its instructions to the jury.1

{12}...

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73 practice notes
  • Prince v. City of Jordan, No. CIV 18-0899 JB\GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 10, 2020
    ...Kennedy v. Dexter Consol. Schs., 2000-NMSC-025, ¶ 32, 10 P.3d at 125 (citing Torres v. El PasoPage 92 Elec. Co., 1999-NMSC-029, ¶ 28, 987 P.2d 386, 397, overruled on other grounds by Herrera v. Quality Pontiac, 2003-NMSC-018, 73 P.3d 181). "Recklessness in the context of punitive damages re......
  • Kennedy v. Dexter Consol. Schools, No. 24,988.
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 14, 2000
    ...than knowledge that the conduct will violate those rights. See Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 28, 127 10 P.3d 126 N.M. 729, 987 P.2d 386 (stating "recklessness in the context of punitive damages refers to `the intentional doing of an act with utter indifference to the consequ......
  • Aken v. PLAINS ELEC. GENERATION & TRANS., No. 26,730.
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 4, 2002
    ...and others in a similar situation from engaging in such conduct in the future); see also Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 30, 127 N.M. 729, 987 P.2d {22} It should be noted with respect to Aken's claim for retaliatory discharge that the testimony at trial that his reporting saf......
  • Nowell v. Medtronic Inc., No. CIV 17-1010 JB\SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 29, 2019
    ...v. Dexter Consol. Schs., 2000-NMSC-025, ¶ 32, 129 N.M. 436, 10 P.3d at 125 (citing Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 28, 127 N.M. 729, 987 P.2d 386, 397 ). "Recklessness in the context of punitive damages refers to ‘the intentional doing of an act with utter indifference to the ......
  • Request a trial to view additional results
73 cases
  • Prince v. City of Jordan, No. CIV 18-0899 JB\GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 10, 2020
    ...Kennedy v. Dexter Consol. Schs., 2000-NMSC-025, ¶ 32, 10 P.3d at 125 (citing Torres v. El PasoPage 92 Elec. Co., 1999-NMSC-029, ¶ 28, 987 P.2d 386, 397, overruled on other grounds by Herrera v. Quality Pontiac, 2003-NMSC-018, 73 P.3d 181). "Recklessness in the context of punitive damages re......
  • Kennedy v. Dexter Consol. Schools, No. 24,988.
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 14, 2000
    ...than knowledge that the conduct will violate those rights. See Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 28, 127 10 P.3d 126 N.M. 729, 987 P.2d 386 (stating "recklessness in the context of punitive damages refers to `the intentional doing of an act with utter indifference to the consequ......
  • Aken v. PLAINS ELEC. GENERATION & TRANS., No. 26,730.
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 4, 2002
    ...and others in a similar situation from engaging in such conduct in the future); see also Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 30, 127 N.M. 729, 987 P.2d {22} It should be noted with respect to Aken's claim for retaliatory discharge that the testimony at trial that his reporting saf......
  • Nowell v. Medtronic Inc., No. CIV 17-1010 JB\SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 29, 2019
    ...v. Dexter Consol. Schs., 2000-NMSC-025, ¶ 32, 129 N.M. 436, 10 P.3d at 125 (citing Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 28, 127 N.M. 729, 987 P.2d 386, 397 ). "Recklessness in the context of punitive damages refers to ‘the intentional doing of an act with utter indifference to the ......
  • Request a trial to view additional results

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