Woolwine v. Furr's, Inc.

• Decision Date: 20 October 1987
• Docket Number: No. 9571,9571
• Citation: 1987 NMCA 133,106 N.M. 492,745 P.2d 717
• Court: Court of Appeals of New Mexico
• Parties: Doris WOOLWINE, Plaintiff-Appellant, v. FURR'S, INC., Defendant-Appellee.

Page 717

745 P.2d 717

106 N.M. 492

Doris WOOLWINE, Plaintiff-Appellant, v. FURR'S, INC., Defendant-Appellee.

No. 9571.

Court of Appeals of New Mexico.

Oct. 20, 1987.

[106 NM 493] Anthony F. Avallone, Glenn B. Neumeyer, Law Systems of Las Cruces, P.A., Las Cruces, for plaintiff-appellant.

Thomas A. Sandenaw, Jr., Weinbrenner, Richards, Paulowski & Sandenaw, P.A., Las Cruces, for defendant-appellee.

OPINION

DONNELLY, Chief Judge.

Plaintiff appeals from an adverse judgment following a jury trial in a slip and fall action. Plaintiff argues that the trial court erred: (1) in submitting a jury instruction permitting the jury to compare the negligence of plaintiff, Furr's, Inc., (Furr's) and a nonparty, College Development Corporation (landowner), and submitting certain other jury instructions; (2) admitting into evidence a copy of the lease agreement between the landowner and Furr's, Inc.; and (3) that the trial court committed cumulative error. We affirm the trial court.

Furr's operates a grocery store in premises leased from landowner in Las Cruces, New Mexico. On May 14, 1985, plaintiff, a business invitee, while on her way to the store, caught the heel of her shoe in a hole in (a portion of) a low ramp leading from the parking lot to the sidewalk near one of the entrances to the store. Plaintiff fell and suffered injuries to her shoulder, elbow, wrist and ankle. Plaintiff filed suit alleging negligence on the part of Furr's and seeking general damages for lost earning capacity, inability to perform services, pain and suffering, and medical expenses. Furr's answered denying any negligence on its part and asserted, among other things, that the acts or omissions complained of by plaintiff were due to the negligence of third parties not joined in the action.

The lease between Furr's and the landowner provided, in part, that landowner was responsible for maintaining the parking area (adjacent to the store) for use by Furr's, "its customers, patrons and employees," and that Furr's was responsible for maintaining the interior of the store premises.

At trial, testimony presented by Furr's indicated that the ramp where plaintiff fell rises up from the area of the parking lot to the sidewalk directly in front of the south entrance of the store. The ramp is approximately four-and-one-half inches high at the point where it joins the sidewalk and slopes gradually a distance of several feet into the parking lot.

Furr's presented evidence that at sometime prior to the accident the landowner had painted the curb, ramp, walkways and parking areas. The landowner had also made repairs to cracks in the pavement and area adjacent to the ramp within a two-year period prior to plaintiff's accident. In performing the repairs to the parking lot, oil and tar had been poured into a crack situated near the front of the ramp where plaintiff fell.

The jury returned a verdict finding that Furr's was not negligent and the trial court entered judgment in accordance with the verdict.

I. JURY INSTRUCTIONS

Plaintiff argues that the trial court erred in submitting NMSA 1978, UJI Civ. 13.14 (presently compiled as SCRA 1986, 13-1314) to the jury because the instruction permitted the jury to compare the alleged negligence between plaintiff, Furr's and a nonparty landowner. SCRA 1986, 13-1314 provides: "A landlord who undertakes to make improvements or repairs upon leased premises is under a duty to use ordinary care in carrying out the work [even if the landlord was not under an obligation to make the improvements or repairs]."

Plaintiff contends that the landowner was not a concurrent tortfeasor and the jury should not have been permitted to consider the landowner's alleged acts of negligence under a comparative negligence instruction. In advancing this argument, plaintiff asserts that the landowner had no duty to repair the ramp and did not undertake to make such repairs. We disagree.

In reviewing whether a trial court properly submitted a uniform jury instruction, including bracketed portions thereof, an appellate court construes the facts, together with the inferences reasonably flowing therefrom, in a light most favorable to the party requesting the instruction. See Burnham v. Yellow Checker Cab, Inc., 74 N.M. 125, 391 P.2d 413 (1964). A party is entitled to have the jury instructed on all correct legal theories of his case if it is within the pleadings and supported by the evidence. Adams v. United Steelworkers of America, 97 N.M. 369, 640 P.2d 475 (1982); Salinas v. John Deere Co., 103 N.M. 336, 707 P.2d 27 (Ct.App.1984). Every reasonable presumption and inference in support of the verdict will be indulged in by the reviewing court. Toltec Int'l Inc. v. Village of Ruidoso, 95 N.M. 82, 619 P.2d 186 (1980); Speer v. Cimosz, 97 N.M. 602, 642 P.2d 205 (Ct.App.1982).

In Mitchell v. C & H Transp. Co., 90 N.M. 471, 565 P.2d 342 (1977), the court recited the general rule that where a landlord fully parts with possession of the premises and retains no control or right of control over them, and thereafter does not assume control, he is under no duty to inspect their condition while a tenant remains in possession, and is not accountable with liability for defects not caused by him, or for a failure to make repairs. The court, however, recognized an exception to this general rule, noting that where a landlord reserves the right to enter and to make repairs on the leased premises, he has a continuing duty to invitees and other persons lawfully upon the premises to maintain the premises in a safe condition. See also Torres v. Piggly Wiggly Shop Rite Foods, Inc., 93 N.M. 408, 600 P.2d 1198 (Ct.App.1979).

Where there is evidence tending to show that plaintiff's injury was proximately caused by the negligence of more than one person, the court may properly instruct the jury as to the duty of an absent tortfeasor. Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct.App.1982). In Bartlett, this court held that the trial court properly instructed the jury to consider the negligence and damage resulting from an unknown driver. We stated that " '[t]he jury must ascertain the percentage of negligence of all participants to an occurrence.' " 98 N.M. at 159, 646 P.2d at 586, (quoting Board of County Comm'rs v. Ridenour, 623 P.2d 1174 (Wyo.1981)); see also Wilson v. Galt, 100 N.M. 227, 668 P.2d 1104 (Ct.App.1983) (holding it was not error to instruct the jury as to the duty of absent tortfeasors and the claimed acts of negligence by those tortfeasors); Marchese v. Warner Communications Inc., 100 N.M. 313, 670 P.2d 113 (Ct.App.1983) (where the jury was required to apportion fault of non-party tortfeasor).

The lease imposed a duty upon landlord to maintain and repair the parking area. In addition to the duty to maintain and repair the parking area, there is substantial evidence to indicate landowner did in fact undertake to make some repairs. The evidence before the trial court warranted the giving of SCRA 1986, 13-1314 because at the time of plaintiff's accident landowner was under a continuing duty to maintain and repair the parking area, including the ramp area in question. Under the lease agreement, landowner reserved the right to re-enter the premises when he specifically contracted to make all structural and exterior repairs to the building during the term of the lease and to "keep the parking areas * * * in a good state of repair * * *."

Plaintiff argues, however, that the location of the ramp where her accident occurred was outside the area denominated in the lease as a "parking area." The photographic exhibits introduced into evidence at trial, however, refute this argument. As shown in the photographs, the south ramp where plaintiff fell extends approximately four feet from the sidewalk in front of the store into the parking lot area. The indentation where plaintiff caught the heel of her shoe is painted yellow and is located where the ramp joins the driveway area in the parking lot. Under these facts, it was not error for the trial court to submit SCRA 1986, 13-1314 to the jury because the landowner's contractual obligation to repair and maintain the parking lot area included the ramp area.

Examination of the record reveals that plaintiff's designation of the transcript of proceedings omits the testimony of certain witnesses called by plaintiff. Although we agree with plaintiff's assertion that whether a duty exists is generally a question of law to be decided by the court, based upon the record at trial, Harmon v. Atlantic Richfield Co., 95 N.M. 501, 623 P.2d 1015 (Ct.App.1981), we will not find error on the part of the trial court in submitting an instruction where plaintiff has not included in the record on appeal all of the testimony of the witnesses that testified at trial. Plaintiff in her brief-in-chief asserts that there is no evidence in...