Trujeque v. Service Merchandise Co.

• Decision Date: 29 March 1994
• Docket Number: No. 20368,20368
• Citation: 872 P.2d 361,117 N.M. 388,1994 NMSC 36
• Court: New Mexico Supreme Court
• Parties: Carmen TRUJEQUE, Petitioner, v. SERVICE MERCHANDISE COMPANY, Respondent.

Page 361

872 P.2d 361

117 N.M. 388

Carmen TRUJEQUE, Petitioner, v. SERVICE MERCHANDISE COMPANY, Respondent.

No. 20368.

Supreme Court of New Mexico.

March 29, 1994.

[117 N.M. 389] John Perrine, Albuquerque, for petitioner.

Sager, Curran, Sturges & Tepper, P.C., Christopher P. Bauman, C. Kristine Osnes, Albuquerque, for respondent.

OPINION

RANSOM, Justice.

Carmen Trujeque sued Service Merchandise for injuries sustained when a chair that Service Merchandise provided for customers collapsed as Trujeque sat down. The trial court instructed the jury on res ipsa loquitur, and the jury returned a special verdict for the defendant. The Court of Appeals affirmed in an unpublished opinion. We issued a writ of certiorari to review the error alleged to have occurred when, in response to a question from the jury foreman, the trial judge instructed the jury on the meaning of the term "exclusive control." Because we find that the instruction given was inappropriate under the facts of this case, we reverse the Court of Appeals and the trial court and remand for a new trial.

Factual and procedural history. Trujeque was shopping at Service Merchandise and waiting for her order to be processed when she decided to sit in one of the chairs that Service Merchandise provided for its customers' convenience. As she sat down, the chair broke, causing her to fall and injure her arm. The store manager took the chair pieces and apparently disposed of them before suit was filed. In addressing the store's motion for summary judgment, the trial court ruled that Trujeque could present her case to the jury only on the theory of res ipsa loquitur. At trial, Trujeque provided evidence that the chair was owned and maintained by Service Merchandise. Service Merchandise provided evidence from which the jury could infer that it was more probable than not that other customers also had sat in the chair on the day of the accident. In opening argument, the attorney for Service Merchandise told the jury that to find Service Merchandise liable, it would have to find that "Service Merchandise or its employees were the last people to use the chair before Mrs. Trujeque sat in it" and that "it's more probable than not that [the] chair had been used during that day by a customer." Trujeque argued in closing that "[e]xclusive management and control is a common sense idea that what's going on is their business, their concern, their responsibility, their control, their management."

During discussions concerning jury instructions, Service Merchandise tendered Instruction 14A, stating that the instruction adopted the language of Gonzales v. Shoprite Foods, Inc., 69 N.M. 95, 364 P.2d 352 (1961). The instruction articulated a standard of proof for the element of "exclusive control":

In order to prove that the defendant had exclusive control and management over the instrumentality causing plaintiff's accident and injuries, plaintiff must show from the evidence that others did not have an opportunity of equal access to the instrumentality.

Trujeque objected as follows:

Mr. Perrine: The second phrase, "plaintiff must show from the evidence that others did not have an opportunity of equal access to the instrumentality." First of all, is any additional evidentiary requirement after the trial; secondly "others" would be 41,000 customers.

The court refused to give the instruction.

The jury was instructed in accordance with SCRA 1986, 13-1623 (Repl.Pamp.1991), that Trujeque had the burden of proving that the chair was under the "exclusive control and management" of Service Merchandise. Shortly after the jury retired, the jury foreman presented a written question to the court requesting a "precise legal definition of the term 'exclusive control.' " The trial judge summoned counsel and proposed instructing the jury according to Instruction 14A. Trujeque again objected:

Mr. Perrine: [Tuso v.] Markey[, 61 N.M. 77, 294 P.2d 1102 (1956),] is a chair case, not a merchandise case. Whether--which defendant is arguing Gonzales v. Shoprite, 69 N.M. 95, 364 P.2d 352, that that case should apply to this particular case. Gonzales v. Shoprite is a merchandise case where merchandise is stacked in defendant's self-service supermarket. And there was--the Court accepted that the stacking was done in a customary manner; and that, therefore, the normal service of 900 to a thousand people on the same day of the week did not mean that that merchandise was within the sole and exclusive control of defendant. However, Tuso v. Markey is a chair case.

....

Mr. Perrine: ... There's another case, Chapin [v. Rogers, 80 N.M. 684, 459 P.2d 846 (Ct.App.1969),] ... and it's a similar type of chair case.

In Tuso the plaintiff alleged, generally, the unsafe condition of the chair and ... that the accident ... would not have happened if the defendant used due care since the chair was within [the] sole and exclusive control of the management.

This Court found that, "The general allegations of negligence, accompanied by an allegation and proof that the instrumentality causing the accident was under the exclusive control of appellees, warranted its application."

I would vigorously argue that this is a chair case and not a stack of merchandise that can become under the control, or maybe different customers who are bumping it around and changing the conditions of the stability, and thereby causing a potential for injury to a subsequent customer. This is not the same type of case at all, and this instruction should not apply since there are 41,000 other customers who, naturally, are going to be using that chair.

Despite this objection, the trial court submitted the instruction to the jury. After receiving Instruction 14A, the jury asked, "Does the sitting in the chair by a customer constitute equal access to the instrumentality (chair)?" Over Trujeque's objection, the court answered affirmatively.

Trujeque sufficiently preserved error for appeal. Service Merchandise argues that Trujeque did not tender a different instruction or point out the specific vice in the challenged instruction as required by Budagher v. Amrep Corp., 97 N.M. 116, 119, 637 P.2d 547, 550 (1981). It contends that Trujeque's arguments on appeal that the instruction is "rigid and inflexible" and mischaracterized the legal principle for which Gonzales stands were not raised below and therefore should not be considered by this Court. Although we agree that neither Tuso nor Chapin contain a definition of the phrase "exclusive control and management," we believe that instructions to the jury require no definition of that self-explanatory phrase. It is for counsel to argue the facts and inferences to be drawn as to exclusive control and management, subject to objection that a meaning is being attributed to that phrase that is not intended by the law. Trujeque sufficiently drew the court's attention to the fact that this case is to be distinguished from Gonzales and that New Mexico appellate courts have applied res ipsa loquitur in chair cases similar to the one at bar without requiring proof that would negate use by other customers. We also believe that Trujeque had defined what she interpreted the meaning of "exclusive control" to be in closing argument. We find that the error was sufficiently called to the trial court's attention and preserved for appeal.

The doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur applies only when evidence establishes that in the ordinary course of events an injury would not occur except through negligence of the person in exclusive control and management of the injuring instrumentality. See SCRA 13-1623; Hepp v. Quickel Auto & Supply Co., 37 N.M. 525, 528, 25 P.2d 197, 199 (1933). "It bases its chief claim to justification on the fact that ordinarily the cause of the injury is accessible to the party charged and inaccessible to the person injured." Hepp, 37 N.M. at 528, 25 P.2d at 199. Generally, cases in which the theory of res ipsa loquitur is presented fall into two categories: those in which the defendant directly uses an instrumentality so as to cause injury, see, e.g., Archibeque v. Homrich, 88 N.M. 527, 528-29, 543 P.2d 820, 821-22 (1975) (driver ran off road, killing himself and passenger/owner); Buchanan v. Downing, 74 N.M. 423, 424, 394 P.2d 269, 270 (1964) (plaintiff sued doctor for injuries resulting from injection), and those in which the defendant is in charge of, created, or last controlled an instrumentality that inexplicably becomes dangerous and injures the victim outside of the defendant's presence, see, e.g., Waterman v. Ciesielski, 87 N.M. 25, 27, 528 P.2d 884, 886 (1974) (plaintiff truck driver sued warehouse operator for injuries sustained while unloading crate that unexpectedly shifted); Tafoya v. Las Cruces Coca-Cola Bottling Co., 59 N.M. 43, 45-46, 278 P.2d 575, 577 (1955) (plaintiff sued bottler for injuries caused by drinking tainted soda); Begay v. Livingston, 99 N.M. 359, 363, 658 P.2d 434, 438 (Ct.App.1981) (decedent's estate sued motel owner after heating exhaust vent was found inexplicably detached from ceiling duct, causing carbon monoxide poisoning of decedent), rev'd in part on other grounds, 98 N.M. 712, 714, 652 P.2d 734, 736 (1982); Strong v. Shaw, 96 N.M. 281, 282-83, 629 P.2d 784, 785-86 (Ct.App.1980) (plaintiff sued mobile park owner for damages caused by fire that started in hot water closet located outside plaintiff's apartment), cert. quashed, 96 N.M. 543, 632 P.2d 1181 (1981); Harless v. Ewing, 81 N.M. 541, 543-45, 469 P.2d 520, 522-24 (Ct.App.1970) (plaintiff sued truck owner for damages sustained when tire fell off truck and then blew up). The case at bar falls into the second category.

The meaning of "exclusive control and management" is fact specific. In order to make a prima facie case from which the jury may infer that the defendant is liable for the damages caused by the instrumentality outside of the defendant's presence, ...