Yardman v. San Juan Downs, Inc.

• Citation: 1995 NMCA 106,906 P.2d 742,120 N.M. 751
• Decision Date: 23 August 1995
• Docket Number: No. 11888,11888
• Parties: George S. YARDMAN, Plaintiff-Appellee and Cross-Appellant, v. SAN JUAN DOWNS, INC., a New Mexico Corporation, and Board of County Commissioners of San Juan County, Defendants-Appellants and Cross-Appellees.
• Court: Court of Appeals of New Mexico

Page 742

906 P.2d 742

120 N.M. 751

George S. YARDMAN, Plaintiff-Appellee and Cross-Appellant, v. SAN JUAN DOWNS, INC., a New Mexico Corporation, and Board of

County Commissioners of San Juan County,

Defendants-Appellants and Cross-Appellees.

No. 11888.

Court of Appeals of New Mexico.

Aug. 23, 1995.

Certiorari Denied Oct. 26, 1995.

[120 N.M. 754] David Duhigg, Duhigg, Cronin & Spring, P.A., Albuquerque, for Plaintiff-Appellee and Cross-Appellant.

Mark L. Ish, Carol J. Ritchie, Mariana G. Geer, Felker & Ish, P.A., Santa Fe, for Defendants-Appellants and Cross-Appellees.

Tom Udall, Attorney General, Randall W. Childress, Deputy Attorney General, Santa Fe, Sorenson & Schutte, P.C., By: Stephen J. Rhoades, Special Assistant Attorney General, Albuquerque, for Amicus Curiae, Risk Management Div., General Services Dep't of State of N.M.

William H. Carpenter, Chairman, Amicus Committee, New Mexico Trial Lawyers Ass'n, Michael B. Browde, Albuquerque, for Amicus Curiae, New Mexico Trial Lawyers Ass'n.

OPINION

DONNELLY, Judge.

1. Defendants, San Juan Downs, Inc. and the Board of County Commissioners of San Juan County (the County) appeal, and Plaintiff, George S. Yardman, cross-appeals, from the judgment entered by the trial court following a trial by jury. This cause was initially certified to the New Mexico Supreme Court; however, by order dated June 29, 1995, that Court remanded certain of the issues posed by the appeal and cross-appeal to this Court for resolution.

2. Defendants' appeal raises seven issues: (1) whether the trial court erred in refusing Defendants' requested jury instructions on comparative fault and standard of care, and in giving Plaintiff's requested instruction concerning insurance and taxes; (2) whether the trial court erred in allowing certain opinion testimony and evidence of Defendants' subsequent remedial action following the accident; (3) whether Plaintiff presented a prima facie case of negligence warranting submission of the case to the jury; (4) whether the conditions which caused Plaintiff's injuries were design defects for which there was no waiver of sovereign immunity; (5) whether comments by the trial court were improper; (6) whether the trial court erred in failing to permit an offset for the amount of medical and disability insurance policies purchased by the County; and (7) whether each of the errors complained of combined to constitute cumulative error.

3. Plaintiff's cross-appeal presents four issues involving the constitutionality of NMSA 1978, Section 41-4-19(A) (Repl.Pamp.1989), imposing a statutory cap on the amount of damages that may be awarded in an action under the New Mexico Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl.Pamp.1989 & Cum.Supp.1995). These issues are still presently pending before our Supreme Court. The decision reached by us today, however, obviates the need to address the constitutional issues in the present appeal. In considering Plaintiff's cross-appeal, we discuss: (1) whether the Tort Claims Act permits an award of post-judgment interest on money judgments against governmental entities and public employees; and (2) whether the term "single occurrence," as used in the Tort Claims Act, permits a court to determine that there were two proximate causes which resulted in Plaintiff's injuries so as to permit the doubling of the $300,000 statutory damage cap imposed under the Act.

4. For the reasons discussed herein, we reverse and remand.

FACTS

5. Plaintiff, a jockey at San Juan Downs, was injured on April 19, 1987, during a race when the horse he was riding suddenly swerved causing him to be thrown from his horse and strike a post and track railing. As a result of his fall, Plaintiff suffered substantial injuries to his head and neck. At the time of the accident, the race track was owned by the County.

6. Plaintiff filed suit against San Juan Downs and the County. Plaintiff alleged that his injuries were caused by the County's negligence in the construction, operation, and maintenance of the track rails and posts. At trial, Plaintiff presented evidence tending to show that (1) the type of track rails enclosing the track were dangerous, and (2) the County negligently maintained an opening in the rail where the horses could exit. The County denied any negligence and argued that, at most, the matters complained of by Plaintiff were design defects for which there has been no waiver of sovereign immunity. The trial court denied the County's motion for summary judgment on its claim that Plaintiff's injuries stemmed from a design defect.

7. The jury found an absence of any negligence on Plaintiff's part, that Defendants were 100% negligent, and that Plaintiff should be awarded $400,000 in damages. Because of the $300,000 limitation imposed under former Section 41-4-19(A)(2) of the Tort Claims Act on the amount of damages that could be awarded, the trial court reduced Plaintiff's damage award to $300,000.

DEFENDANTS' APPEAL

1. Jury Instructions

8. Defendants' initial issue raised on appeal involves first, a claim of error arising out of the trial court's denial of a requested instruction tendered by Defendants, and second, a challenge to a jury instruction submitted by Plaintiff which was given by the trial court over Defendants' objection.

(a) Instruction Re Voluntary Exposure to Known Danger

9. Defendants' answer to Plaintiff's complaint denied any negligent acts or omissions on its part and raised as an affirmative defense that "[t]he injuries, if any, complained of by Plaintiff occurred as a direct and proximate result of Plaintiff's own negligent conduct, which precludes Plaintiff's recovery herein or reduces it by that percentage extent attributable to his own negligence in accordance with the law of comparative fault."

10. At trial, Defendants tendered a proposed jury instruction based on SCRA 1986, 13-302C (Repl.1991), stating that Defendants denied any negligence on their part and that Plaintiff himself was negligent in two respects. Defendants' requested instruction stated in part that Defendants "ha[d] the burden of proving at least one of the following contentions: 1. That [Plaintiff] was careless or inattentive in the manner in which he rode his horse[, and] 2. That [Plaintiff] was aware of or had reason to know of the type of rail used at San Juan Downs." The trial court refused Defendants' tendered instruction but did give another instruction which covered Defendants' claim that Plaintiff was "careless or inattentive in the manner in which he rode his horse."

11. Defendants contend on appeal that the trial court erred in refusing their tendered instruction that required the jury to consider both of its comparative negligence theories and its claim that Plaintiff was negligent in riding a horse at the track when he was "aware of or had reason to know of the type of rail used at San Juan Downs." Defendants rely in part onThompson v. Ruidoso-Sunland, Inc., 105 N.M. 487, 734 P.2d 267 (Ct.App.1987), in support of their claim that the trial court should have permitted the jury to compare Plaintiff's fault, if any, in riding at the track when, purportedly, he knew or should have known that the track rail constituted a hazard and voluntarily exposed himself to a known danger. In Thompson, similar to the factual situation involved in the instant case, the plaintiff was a jockey who was injured when she fell from a horse and was thrown against the track rail. In her cross-appeal, Thompson argued that the trial court erred in apportioning negligence based on the defendant's assertion that she voluntarily assumed the risk inherent in falling or being thrown from a horse in such manner so that she struck the track rail.

12. The Thompson Court held: "Plaintiff ... also challenges the trial court's findings on the apportionment of negligence. There is ample evidence in the record to support the trial court's apportionment of negligence. See Marcus v. Cortese, 98 N.M. 414, 649 P.2d 482 (Ct.App.1982)." Thompson, 105 N.M. at 490, 734 P.2d at 270. Judge Alarid, speaking for the Court, also noted:

In her cross-appeal, plaintiff argues that she should not have been held to be negligent to any extent.... As we have already pointed out, there was evidence from which the trial court [sitting without a jury] could and did conclude that plaintiff voluntarily encountered a known danger. Plaintiff's rejoinder is that she was economically coerced into riding at defendant's track, because if she was to pursue her trade as a jockey, she must do so at a race track. The existence and weight[, however,] to be given to extenuating circumstances are questions of fact.

Thompson, 105 N.M. at 492, 734 P.2d at 272. We think the rationale articulated in Thompson concerning the necessity of the fact finder to apportion the amount of fault, if any, based on the plaintiff's purported voluntary exposure to a known hazard is also applicable in the instant case.

13. Plaintiff argues that Thompson does not apply here, however, because there was insufficient evidence to warrant giving Defendants' requested instruction. Our review of the record leads us to a contrary conclusion. Defendants raised as an affirmative defense their claim that Plaintiff's conduct was negligent, thus precluding any recovery "or reduc[ing] it by that percentage extent attributable to his own negligence in accordance with the law of comparative fault."

14. Defendants also presented evidence indicating that Plaintiff rode in approximately seventy-five races at San Juan Downs prior to his accident and had been around the track for a period of approximately three years. Other witnesses, including Plaintiff, testified that prior to his accident Plaintiff had ridden in seventeen races in Grand Junction, Colorado. Plaintiff had also ridden at other tracks in New Mexico: four in Raton, one in Santa Fe, and two in Albuquerque. Additionally, Defendants presented the testimony of two...