                                                    I attest to the accuracy and
                                                     integrity of this document
                                                       New Mexico Compilation
                                                     Commission, Santa Fe, NM
                                                    '00'05- 08:59:02 2015.12.09

Certiorari Granted, October 23, 2015, No. 35,515

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-113

Filing Date: August 18, 2015

Docket No. 32,373

ESTATE OF CHARLES ANTHONY SAENZ, by
and through his personal representative, VIRGINIA
SAENZ, individually and as Next Friend of ROBIN
BRANDY SAENZ, minor child, MARCUS ANTHONY
SAENZ, and JASON RAY SAENZ,

       Plaintiffs-Appellants,

v.

RANACK CONSTRUCTORS, INC.,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Manuel I. Arrieta, District Judge

Law Office of Jane B. Yohalem
Jane B. Yohalem
Santa Fe, NM

Cervantes Law Firm, PC
Joseph Cervantes
Las Cruces, NM

Scherr & Legate PLLC
Maxey M. Scherr
El Paso, TX

for Appellants

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward Ricco
Jocelyn Drennan

                                        1
Albuquerque, NM

for Appellee

                                         OPINION

BUSTAMANTE, Judge.

{1}     Defendant Ranack Constructors, Inc., a general contractor, was hired to build a multi-
screen movie theater. Ranack hired Alamo General Contractors, Inc. as a subcontractor to
build the steel framework of the theater. Decedent Charles Saenz was an ironworker
employed by Alamo and its related entity T&T Staff Management (T&T), a staffing agency.
Saenz was working on the theater project at a height in excess of twenty-five feet, without
fall protection, when he fell and died. This appeal follows a jury trial.

{2}      The case raises two issues. First, whether the concept of joint and several liability
in Saiz v. Belen School District, 1992-NMSC-018, ¶¶ 18-21, 113 N.M. 387, 827 P.2d 102
should be applied in favor of employees of subcontractors. And, second, whether a new trial
on wrongful death damages for Saenz’s estate is appropriate. We conclude that Saiz is not
applicable to claims made by employees of subcontractors. We also conclude that a new
trial addressing the estate’s damages only should be held. We thus affirm in part and reverse
in part.

BACKGROUND

{3}     Saenz fell as the Alamo crew was attempting to set a roof joist on the building.
Saenz’s job was to receive one end of the joist as it was suspended by a crane and put it in
place. The joist was supposed to be placed on an intersecting beam. Saenz could have
accomplished this task by using a ladder to get on top of the beam that he needed to reach
and employing his fall-protection equipment. Instead, Saenz approached the placement point
by walking on the top edge of a concrete and Styrofoam wall that was part of the unfinished
structure and that was more than twenty-five feet above the concrete floor. By one witness
account, Saenz slipped as he reached for the joist tag lines, and by another witness account,
the roof joist struck the wall and caused him to lose his balance. Whatever the cause of his
loss of balance, Saenz fell to the concrete below and died from the impact.

{4}      In terms of personal fall-protection equipment, evidence at trial showed that Saenz
was wearing a harness equipped with a lanyard. In addition, a beamer—a device that clamps
to a beam and provides an anchor point for the lanyard—was on the beam where the joist
was to be placed. When a worker has hooked his fall-protection equipment to a secure point
he is “tied off.” Saenz was required to be tied off when he was performing the task that led
to his fall. Saenz was not tied off when he fell.

{5}    Testimony at trial also demonstrated that Ranack failed in a number of respects to

                                              2
ensure the safety of the job site. Summarized, those failures included, among other things: a
failure to provide and enforce an adequate fall-protection safety plan; a failure to ensure that
subcontractors were adequately and safely performing their work; a failure to ensure that
workers were, in fact, protected from fall hazards; a failure to staff the job with full-time
safety personnel; and an emphasis on hurrying to get the job done that caused subcontractors
and workers to take shortcuts, including shortcutting safety.

{6}      Plaintiff Virginia Saenz, individually and as personal representative of her husband’s
estate and as next friend of Saenz’s children, Robin, Marcus, and Jason, filed a wrongful
death lawsuit against Ranack. Because Alamo and T&T were Saenz’s employers, workers’
compensation provided the exclusive remedy against them. As such, they were not named
in the complaint, but were identified together as a single potential tortfeasor in the jury
instructions. The original complaint specifically asserted premises liability and simple
negligence causes of action against Ranack. The complaint contains no mention of Saiz-type
liability based on its concepts of peculiar risk or inherent danger. Id. ¶¶ 18-21.

{7}     After a ten-day trial, the case was submitted to the jury on ordinary care, negligence,
and premises liability theories. The “theory of the case” instruction detailed the ways each
party thought the other was negligent. The list in the instruction echoed and expanded upon
the summary provided above in Paragraph 5. The special interrogatory instruction submitted
did not ask the jury to specify which asserted theories it credited. Given its verdict, it is
obvious that the jury found a degree of fault in all of the actors’ acts or failures to act.

{8}      Pursuant to a comparative fault instruction, the jury found Ranack forty-five percent
at fault, Alamo and T&T thirty percent at fault, and Saenz twenty-five percent at fault for
his death. The district court entered a judgment ordering Ranack to pay forty-five percent
of the wrongful death judgment in addition to jury-awarded punitive damages.

{9}     Ranack has not appealed, nor does it otherwise contest, the district court’s legal
determination that it owed Saenz a duty of ordinary care. Interestingly, Ranack requested
that UJI 13-401 NMRA—defining independent contractors and limiting the liability of
employers for the wrongful acts of the independent contractors’ employees—be given to the
jury, but then withdrew the request. Ranack also does not refute the propriety of the jury’s
attribution to it for forty-five percent of the fault for Saenz’s death.

{10} The jury found the total amount of damages suffered by Plaintiff Virginia Saenz,
individually, to be $482,000. Additionally, the jury found Robin’s damages to be $50,000,
and Marcus and Jason to each have suffered $25,000 in damages. Saenz’s wife and children
were also awarded $10,000 each in punitive damages. As to Saenz’s estate, however, the
jury awarded zero damages.

{11} In a post-trial motion, Plaintiff requested a mistrial on the basis of the zero damages
award to the estate. At the hearing on the motion, Plaintiff argued that the jury’s decision to
award zero damages to Saenz’s estate was the result of jury confusion and, alternatively, that

                                               3
it was not supported by substantial evidence. The district court denied Plaintiff’s motion.
The court concluded that based on the facts at trial, in particular, Saenz’s criminal history
and his prior incarceration, the jury could reasonably have found that the zero value was
appropriate.

{12} With regard to whether the jury was confused by the instructions as to the damages
it should award to Saenz’s estate, the district court apparently decided that Plaintiff waived
any objection on that ground because Plaintiff’s counsel agreed to the district court’s
proposed response to a jury question regarding estate damages. During its deliberations, the
jury sent the following question to the district court: “Does ‘total amount of damages to the
Estate of Charles Saenz’ include all amounts awarded to Virginia, Rob[in], and sons[,] or is
it meant to be a separate amount?” After conferring with counsel, the district court suggested
that it respond by saying that “[t]he ‘total amount of damages to the Estate of Charles Saenz’
is separate.” All counsel agreed with that suggestion.

{13} As an alternative to a mistrial, Plaintiff requested in her post-trial motion that the
district court enter a judgment notwithstanding the verdict on the ground that Saenz was
engaged in inherently dangerous work and that, as a result, “Ranack should be held strictly
liable for the damages herein[.]” At the hearing, Plaintiff’s counsel argued that there should
be no reduction for comparative negligence. Standing by an earlier ruling on this issue, the
district court declined to hold that Saenz was engaged in inherently dangerous work at the
time of his death.

{14} On appeal, Plaintiff continues to argue that Saenz was engaged in an inherently
dangerous activity and that, accordingly, Ranack should be held jointly and severally liable
for his death. Plaintiff also contends that reversal and remand for a new trial is required
because jury confusion arising from conflicting instructions as to loss of consortium may
have led the jury to mistakenly award to Plaintiff and to Saenz’s children damages that
should have been awarded to the estate. Alternatively, Plaintiff argues that the zero damages
award to the estate was not supported by substantial evidence.

DISCUSSION

The Joint and Several Liability Issue

{15} Plaintiff argues that Ranack should be held jointly and severally liable for all
damages found by the jury. Plaintiff recognizes that joint and several liability is not
generally available in New Mexico. This Court abolished joint and several liability in toto
in Bartlett v. New Mexico Welding Supply, Inc., 1982-NMCA-048, ¶¶ 33-37, 98 N.M. 152,
646 P.2d 579, superseded by statute as stated in Payne v. Hall, 2006-NMSC-029, 139 N.M.
659, 137 P.3d 599. The holding in Bartlett was seen as a logical imperative flowing from our
Supreme Court’s adoption of pure comparative negligence in Scott v. Rizzo, 1981-NMSC-
021, ¶ 30, 96 N.M. 682, 634 P.2d 1234 (adopting in full the Court of Appeals opinion in the
same consolidated cases), superseded in part by statute as stated in Rodriguez v. Williams,

                                              4
___-NMCA-___, ___ P.3d ___, 2015 WL 1412633 (Nos. 33,138 and 33,668) (Mar. 26,
2015). Six years later, the Legislature addressed the subject. See NMSA 1978, § 41-3A-1
(1987). Echoing Bartlett, the Legislature also abolished joint and several liability in cases
involving comparative fault. Unlike Bartlett, however, the Legislature provided four
exceptions to the general rule of abolition. Section 41-3A-1(C). Only one of the four
exceptions is directly relevant here. Section 41-3A-1(C)(4) provides that joint and several
liability shall apply “to situations . . . having a sound basis in public policy.”

{16} Our Supreme Court relied on Section 41-3A-1(C)(4) to impose joint and several
liability in cases involving work or endeavors which are “inherently dangerous” or carry
“peculiar risks.” Saiz, 1992-NMSC-018, ¶¶ 15-19 (relying on Sections 413, 416, and 427 of
the Restatement (Second) of Torts (1965)). The Supreme Court held that engaging in such
work created a nondelegable duty of care that could only be effectively enforced through
imposition of joint and several liability. Saiz, 1992-NMSC-018, ¶¶ 35-36.

{17} Plaintiff also recognizes that Saiz by itself does not provide a basis for imposing joint
and several liability in this case. In an earlier opinion involving a factual scenario much
closer to this case, the Supreme Court held specifically that Sections 413, 416, and 427 of
the Restatement (Second) of Torts should not be applied in favor of employees of
independent contractors. N.M. Elec. Serv. Co. v. Montanez, 1976-NMSC-028, ¶¶ 14-15, 89
N.M. 278, 551 P.2d 634. There are material factual dissimilarities between Saiz and this
case. We will detail the factual distinctions in a later section of this Opinion. Nevertheless
Plaintiff argues that developments in New Mexico case law—including Saiz and this Court’s
opinion in Enriquez v. Cochran, 1998-NMCA-157, 126 N.M. 196, 967 P.2d 1136—support
a conclusion that Montanez should not control the outcome here. To the contrary, as we will
explain, we conclude that Montanez is still good law and is in keeping with the vast majority
of cases across the nation addressing the issue.

{18} Our discussion will start with a detailed review of the district court’s consideration
of Plaintiff’s request to impose Saiz-based liability on Ranack. We will then analyze Saiz and
Enriquez. Finally, we will review the case law across the country and the Restatement
Second and Third of Torts. Because we conclude that Saiz-based joint and several liability
is not applicable to the employees of subcontractors on construction sites, we need not, and
will not, consider whether Saenz was engaged in inherently dangerous work.

A.      The District Court Decision

{19} As we noted above, Plaintiff did not include a claim for nondelegable duty and joint
and several liability in her complaint. Saiz and its progeny were first mentioned during
argument on the parties’ pretrial motions in limine about a week before trial commenced.
The first matter argued was Ranack’s motion to exclude testimony concerning delays on the
project assertedly caused by improper steel design and foundation work. Ranack couched
its argument as a question of duty, asserting that it had no duty of care to its subcontractor’s
employees and thus evidence as to delays in construction was irrelevant. In partial response

                                               5
to Ranack’s argument, Plaintiff argued that Ranack could be found to have a duty under Saiz
and Enriquez. Enriquez, 1998-NMCA-157, ¶ 98 (holding that felling of large trees was
inherently dangerous). The district court eventually denied Ranack’s motion, noting
specifically that it had not “looked at the issue of inherently dangerous” and holding the
issue for a later time.

{20} A week later at the beginning of the trial, the parties discussed whether the idea of
“peculiar risk of danger” should be included in the pre-voir dire description of the case to
the jury. Ranack objected to its inclusion and the district court agreed, noting that it was still
thinking about the issue.

{21} The parties and the district court took the matter up in earnest as they started work
on the jury instructions. Referring to an apparently off-the-record discussion from the
previous day, the district court asked to reopen the issue in order “to reconsider its ruling
yesterday on inherently dangerous condition or peculiar risk.” The district court articulated
a number of reasons why it had decided not to impose Saiz-based strict liability even though
“both experts and a number of individuals [had testified] that this is inherently dangerous
work.” The district court’s rationale was that to impose strict liability would (1) “ignore the
contractual relationship between [the] parties[;]” (2) “nullify all those OSHA standards and
directives about controlling contractors,” and (3) make every general contractor and every
landowner “strictly liable for any fall of any person from any building during construction.”
In addition, the district court noted that prior cases finding inherent danger involved injured
third parties rather than individuals who were directly involved in the dangerous activity and
who may have contributed to their own injury. The district court decided to “submit this case
to the jury on the basis of negligence and premises liability.”

{22} Later that same day the matter was argued again, allowing Ranack to be heard more
fully. Ranack started its argument by citing Montanez and its holding that general contractors
do not owe a duty of care to the employees of its independent contractors under Sections
413, 416, and 427 of the Restatement (Second) of Torts. Ranack did not argue that the work
Saenz was engaged in was not inherently dangerous. Its arguments revolved around the type
of duty Ranack owed as a general contractor to employees of its subcontractors.

{23} In the end, the district court adhered to its prior ruling that it would not deem the
“steel erection being done in this case” to be an inherently dangerous activity. When
prompted by Plaintiff’s counsel, the district court confirmed that its decision was based on
the policy implications it had articulated earlier.

{24} The next day the district court held a more formal proceeding in which the parties
made their record with regard to specific jury instructions. Plaintiff had requested that UJI
13-1634 NMRA—describing strict liability for nondelegable duties—be given to the jury.
The district court formally refused the instruction, restating its prior rationale. The district
court expanded its prior rulings by noting that it did “not feel that a contractor/landowner
should be strictly liable for any steel erection on the premises when the majority of the

                                                6
control for the safety precautions is within the independent contractor’s authority and within
the control of the injured individual.”

{25} The district court’s rationale was internally consistent, reflecting appropriate policy
concerns for the potentially far-reaching and largely unknown impact of imposing Saiz-based
strict liability on landowners and general contractors engaged in construction projects. But
the district court never conducted the analysis set out by our Supreme Court in Gabaldon v.
Erisa Mortgage Co., 1999-NMSC-039, 128 N.M. 84, 990 P2d 197, to determine whether
steel erection on relatively large projects is inherently dangerous. Neither did it squarely
decide whether—as argued by Plaintiff—the Supreme Court’s clear holding in Montanez had
been overtaken by its opinion in Saiz and our opinion in Enriquez. We certainly do not fault
the district court for not undertaking these analyses. Counsel’s arguments were not well-
focused, coming as they did at the end of a long trial. It is left to us with the luxury of time
to more directly deal with the legal issues raised by this factual scenario.

B.      Nondelegable Duty Does Not Apply to Employees of Subcontractors

1.     The Montanez Opinion

{26} As the parties recognize, Montanez stands as a substantial impediment to the
application of Saiz-based joint and several liability to general contractors such as Ranack.
The plaintiff worker in Montanez was injured when he came into contact with a live wire in
the process of dismantling a secondary power line feeding an oil well. 1976-NMSC-028, ¶
3. The plaintiff worked for the independent contractor hired to take down the secondary
lines. The named defendants were Wolfson Oil Company, Cass-Fitts Electric Company, and
the New Mexico Electric Service Company. Wolfson owned the oil well and hired Gary
Electric, the plaintiff’s employer, to dismantle the secondary system. Cass-Fitts built the
secondary system originally for Wolfson. The utility supplied power through its primary
system which occupied the same poles as the secondary system. Id. ¶¶ 6-7.

{27} The district court entered summary judgment in favor of all the defendants, though
it is not clear on what ground. Each of the defendants argued that they had no duty toward
the plaintiff, and that he was in any event contributorily negligent as a matter of law. See
Montanez v. Cass (Cass), 1975-NMCA-142, ¶¶ 3, 5, 89 N.M. 32, 546 P.2d 1189, aff’d in
part and rev’d in part by Montanez, 1976-NMSC-028. The plaintiff appealed.

{28} We will examine the Court of Appeals opinion in some detail because it provides an
elucidative backdrop to the Supreme Court’s holding. The Court of Appeals reversed as to
all the defendants finding that each of them owed a duty of ordinary care toward the plaintiff.
Cass, 1975-NMCA-142, ¶ 28. Of particular relevance to us is its discussion of Wolfson’s
duty. Wolfson hired the plaintiff’s employer to take down the secondary system. Wolfson
argued that it had no duty to the plaintiff because he was an employee of independent
contractors—Cass-Fitts and Gary Electric, the plaintiff’s employer. Id. ¶¶ 29-30. The Court
of Appeals recognized, “[t]he traditional rule is that the employer of an independent

                                               7
contractor is not liable for physical harm caused to another by an act or omission of the
contractor or his servants.” Id. ¶ 31. The Court of Appeals also recognized that “[a]n
exception to this traditional rule arises when the independent contractor is engaged in the
performance of inherently dangerous work.” Id. In that circumstance, the employer is liable
to third persons for physical harm caused by its independent contractor. Id. (citing Prosser,
Law of Torts, at 472 (4th ed. 1971)).

{29} The Court of Appeals then embarked on what can be reasonably described as an
impassioned statement as to why [p]ublic policy demands that third persons . . . be [so]
protected and why the concept of third persons should include the employees of
subcontractors. Cass, 1975-NMCA-142, ¶¶ 33-36 (internal quotation marks omitted). The
Court of Appeals noted that New Mexico had already included employees of subcontractors
as protected third persons—or “others” in the parlance of the Restatement (Second) of
Torts—when it adopted Restatement (First) of Torts § 414 (1934) in DeArman v. Popps,
1965-NMSC-026, ¶ 21, 75 N.M. 39, 400 P.2d 215. Cass, 1975-NMCA-142, ¶¶ 39-41. The
Court of Appeals then explicitly held that the same rationale and rule applied to the duty
described in Sections 416 and 427 of the Restatement (Second) of Torts. That is, the term
“others” in these two sections included employees of independent contractors within its
ambit. Cass, 1975-NMCA-142, ¶¶ 42-46.

{30} The Court of Appeals recognized that there was authority to the contrary and that the
Restatement (Second) itself included indications that employees of independent contractors
should not receive the benefit of Sections 416 and 427 protection. Cass, 1975-NMCA-142,
¶¶ 48-49. The Court of Appeals opinion brushed those concerns aside and held that based
on the Restatement, public policy, and the “long sustenance of the rule,” employees of
independent contractors were owed a duty of due care when the work being performed was
inherently dangerous. Id. ¶ 54.

{31} The Court of Appeals opinion in Cass mirrors substantively the opinion Plaintiff
would have us issue in this case. The difficulty for Plaintiff is that our Supreme Court
specifically disagreed with and disapproved of the Court of Appeals’ holding and rationale.
Montanez, 1976-NMSC-028, ¶¶ 15-16. The Supreme Court specifically held that the
employees of independent contractors were not within the class of persons protected by
Sections 413, 416, and 427 of the Restatement (Second) of Torts. The Court explicitly
approved the underlying rationale of other cases so holding, in particular cases that the Court
of Appeals had cited with disapproval.1 Montanez, 1976-NMSC-028, ¶ 15; see Welker v.
Kennecott Copper Co., 403 P.2d 330 (Ariz. Ct. App. 1965), rejected on other grounds by


       1
        On the other hand, the Court reaffirmed liability under Section 414 of the
Restatement (First) of Torts (1934), when an owner or general contractor retains some
control over the work being done. Montanez, 1976-NMSC-028, ¶ 17. This type of duty
continues to be recognized in New Mexico. Hinger v. Parker & Parsley Petroleum Co.,
1995-NMCA-069, ¶ 36, 120 N.M. 430, 902 P.2d 1033.

                                              8
Lewis v. N.J. Riebe Enters., Inc., 825 P.2d 5 (Ariz. 1992); King v. Shelby Rural Elec. Coop.
Corp., 502 S.W.2d 659 (Ky. Ct. App. 1973). Contra Cass, 1975-NMCA-142, ¶ 49.

2.     Saiz and Enriquez Do Not Undermine Montanez

{32} Plaintiff’s response is that developments in New Mexico law have superseded the
Supreme Court’s reasoning in Montanez. We disagree.

{33} Plaintiff relies on Saiz and Enriquez for her position. Saiz, of course, was the case in
which New Mexico adopted Sections 413, 416, and 427 of the Restatement (Second) of
Torts and their concepts of peculiar risk and inherent danger. The facts in Saiz are so
different from Montanez, however, that Saiz says little if anything about whether the
Supreme Court would decide Montanez differently now. Saiz involved a classic “innocent
bystander.” A high school student attending a football game simultaneously touched a metal
electric conduit running up a wooden light pole and a nearby metal fence. He was
electrocuted because the contractor who installed the electrical service used the wrong kind
of bushing where the buried electrical service line met the metal conduit. Saiz, 1992-NMSC-
018, ¶¶ 3-4, 29. Given these facts, the Supreme Court had no reason to consider the effect,
if any, its decision would have on the holding of Montanez. In our position as an
intermediate appellate court we are loath to speculate whether the Court would now modify
or reverse Montanez. State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, ¶ 21, 135
N.M. 375, 89 P.3d 47 (stating that Supreme Court “decisions remain binding precedent until
[the Supreme Court] see[s] fit to reconsider them, regardless of whether subsequent cases
have raised doubts about their continuing vitality” (internal quotation marks and citation
omitted)); Behrens v. Gateway Court, LLC, 2013-NMCA-097, ¶ 16, 311 P.3d 822 (stating
that the Court of Appeals is bound by Supreme Court precedent); Dunning v. Buending,
2011-NMCA-010, ¶ 11, 149 N.M. 260, 247 P.3d 1145 (stating that the Court of Appeals is
bound by Supreme Court precedent even when aspects of that precedent have been rejected
by other authorities).

{34} Similarly, Enriquez provides little or no guidance as to how the Supreme Court
would decide the Montanez issues today. First, Enriquez is an opinion of this Court and
cannot be deemed to have reversed or modified Supreme Court case law which is otherwise
in good standing. More to the point, however, the facts in Enriquez again are materially
different from the facts in Montanez.

{35} In Enriquez, an employee of a local Boy Scouts council was badly injured when a
large tree he was helping to cut down broke and fell in an unexpected direction. 1998-
NMCA-157, ¶¶ 12-17. He sued the Boy Scouts of America asserting that it should have
provided more training and supervision of the tree cutting process in its position as the
chartering organization for the local council. Id. ¶ 51. The relationship between the plaintiff
in Enriquez and the Boy Scouts of America was not that of a general contractor or owner and
an independent contractor and its employees. Enriquez recognized this factual difference
with Montanez explicitly. Enriquez, 1998-NMCA-157, ¶ 113. Thus, Enriquez cannot be read

                                              9
to alter or call into question the holding in Montanez.

{36} In interpreting Saiz, we did observe that the “relationship between the
owner/employer and the independent contractor is not, and should not be, the focus of the
inquiry.” Enriquez, 1998-NMCA-157, ¶ 103. But, again, that comment was made in the
course of analyzing a factual scenario much different from the one present here. Further, we
made clear that imposition of strict liability was a policy- driven inquiry and that undertaking
inherently dangerous work does not necessarily require a finding of joint and several
liability. See Abeita v. N. Rio Arriba Elec. Coop., 1997-NMCA-097, ¶ 15, 124 N.M. 97, 946
P.2d 1108 (holding that an electrical utility that was held sixty percent liable for an
electrocution on a construction job was not jointly and severally liable given that it had no
power to actually halt work at the site).

{37} In sum, neither Saiz nor Enriquez undermine the rationale and holding of Montanez.
And, as we will discuss in the next section of this Opinion, the vast majority of cases
addressing the issue agree with Montanez.

3.     The Great Weight of Authority From Other Jurisdictions Follows the Montanez
       Approach

{38} As evidenced by the discussions and outcomes in Montanez and Cass, the status of
employees of independent contractors as beneficiaries of the protection offered by the
“peculiar risk” provision of the Restatement has been uncertain from the beginning. Dean
Prosser, as the reporter for the 1965 edition of the Restatement (Second) of Torts, suggested
a Special Note that would disallow claims by employees of independent contractors against
owner/employers. See Restatement (Third) of Torts § 55 cmt. h (2012) (providing an
overview of the history of the issue within the Restatement process and an overview of the
case law). The Special Note was not included apparently because the case law was still in
flux, though Dean Prosser did note that the “prevailing point of view is that there is no
liability on the part of the employer of the independent contractor.” Id.

{39} In the fifty years since the 1965 version of the Restatement (Second) of Torts
debuted, the prevailing view has only strengthened. The commentary to Section 57 of the
Restatement (Third) of Torts—which replaces former Sections 416 and 427, among
others—now flatly states that “[t]he hirer of an independent contractor is not subject to
liability to an employee of the independent contractor under any of the vicarious-liability
avenues in this [c]hapter.” Id. cmt. d. And Subsection (d) of the Reporters’ Notes to Section
57 states that the “vast majority of cases disallow claims by employees of independent
contractors against hirers on vicarious-liability theories.”

{40} Our own research confirms this observation. We found only two cases allowing such
claims against a general contractor under Sections 416 and 427 of the Restatement (Second)
of Torts. See Makaneole v. Gampon, 777 P.2d 1183, 1187 (Haw. 1989); Elliott v. Pub. Serv.
Co. of N.H., 517 A.2d 1185, 1187-89 (N.H. 1986). It would serve little purpose to list all of

                                              10
the contrary authority. The cases are, as they say, “legion.” Representative of the cases
holding that Sections 416 and 427 do not apply to personal injury claims by employees of
subcontractors against general contractors or owners are: Welker, 403 P.2d at 335-38;
Privette v. Superior Court, 854 P.2d 721, 727-29 (Cal. 1993) (in bank); DeShambo v.
Nielsen, 684 N.W.2d 332, 339-41 (Mich. 2004); Conover v. N. States Power Co., 313
N.W.2d 397, 403-05 (Minn. 1981); Gaytan v. Wal-Mart, 853 N.W.2d 181, 200-02 (Neb.
2014) (overruling prior case law allowing such claims); Zueck v. Oppenheimer Gateway
Props., Inc., 809 S.W.2d 384, 390 (Mo. 1991) (en banc).2

{41} In contrast, the liability of hirers of subcontractors for their own negligence in the
exercise of retained control is alive and well. Section 56 of the Restatement (Third) of Torts
replaces Section 414 of the Restatement (Second) of Torts. New Mexico has recognized the
applicability of Section 414 liability since at least our Supreme Court’s opinion in DeArman.
See 1965-NMSC-026, ¶ 21; see also Valdez v. Cillessen & Son, Inc., 1987-NMSC-015,
¶¶ 16, 20-27, 105 N.M. 575, 734 P.2d 1258 (reversing summary judgment in favor of general
contractor because there were genuine issues of fact as to the extent and nature of the control
it has over injury-causing activity); Moulder v. Brown, 1982-NMCA-078, ¶ 16, 98 N.M. 71,
644 P.2d 1060.3 Of course, such negligence claims based on retained control do not provide
a basis for imposing joint and several liability.4

{42} In sum, we conclude that Montanez still controls claims made by employees of
subcontractors against property owners and general contractors. And neither Saiz nor
Enriquez provide any basis for questioning its continuing vitality. As an intermediate
appellate court, we cannot change or overrule Montanez. As such, there is no basis for

       2
         The special concurrence proposes an employee centric approach to evaluating
whether an activity should be considered inherently dangerous. The approach it suggests is
contrary to the Restatement emphasis on “activities” rather than personal attributes of
potential plaintiffs. In addition, it would be difficult to administer. Assessing the level of
training and the capabilities of individual plaintiffs in the activity at issue would make
inherent danger a question for the jury rather than the question of law it currently is. Here,
for example, if Saenz had been a newcomer to the job, would the activity have been
inherently dangerous as to him, but not to someone on the same job with more experience
and training? Such issues are more appropriately handled by applying our normal and
familiar rules of comparative negligence.
       3
        We note that our Supreme Court cited Montanez with approval in Valdez. See
Valdez, 1987-NMSC-015, ¶¶ 29-31. Justice Ransom, the author in Saiz, concurred.
       4
         Valdez has likely been partially reversed. In Tafoya v. Rael, 2008-NMSC-057, ¶ 17,
145 N.M. 4, 193 P.3d 551, the Supreme Court recognized a limited cause of action for
negligent hiring of a subcontractor in favor of an employee of the subcontractor. The Court
was careful to point out, however, that the liability would be subject to normal comparative
fault principles. Id. ¶ 22.

                                              11
imposing joint and several liability on Ranack.

JURY INSTRUCTION AND JURY VERDICT ISSUES

{43} Plaintiff puts forth separate arguments concerning the jury instruction and the verdict
entered by the jury. First, she argues that the district court erred in giving—over
objection—an incorrect formulation of the wrongful death damages instruction and thus
confusing the jury as to the proper allocation of damages between Saenz’s estate and his
survivors. Second, she argues that the jury’s decision to award zero in damages to the estate
is not supported by substantial evidence. We disagree with her first argument, but agree with
the second.

1.      The UJI 13-1830 NMRA Instruction Given Was Wrong but no Prejudice Is
        Apparent

{44} UJI 13-1830 is the uniform instruction on the measure of damages in a wrongful
death case. It includes, as a bracketed option, a paragraph on loss of consortium damages.
Id. ¶ 6. It also includes bracketed language in its last paragraph that instructs the jury that it
must not permit the amount of damages to be influenced by “the loss of the deceased’s
society to the family.” This language is in direct conflict with the language describing loss
of consortium damages. As a result, the Use Notes for UJI 13-1830 provide that “[i]f the
personal representative is also the surviving spouse . . . the damages described in [I]tem 6
should be included and the bracketed material in the last sentence of the instruction should
be excluded.”

{45} Plaintiff’s requested UJI 13-1830 instruction mistakenly included both provisions.
Noting the mistake, Plaintiff pointed it out to the district court and asked that the latter
material be deleted. Plaintiff cited concerns for jury confusion but did not cite the Use Note
to the district court. The district court refused the request.

{46} Given the Use Notes, the instruction given to the jury was wrong. But, as Plaintiff
notes, not every defective jury instruction, even one that deviates from the UJI, gives rise to
reversible error. Plaintiff must demonstrate that the error created prejudice or harmed
substantial rights. Kennedy v. Dexter Consol. Sch., 2000-NMSC-025, ¶ 26, 129 N.M. 436,
10 P.3d 115. Our review is de novo. Salopek v. Friedman, 2013-NMCA-087, ¶ 16, 308 P.3d
139. And while we will resolve doubts in favor of the party claiming prejudice where an
instruction is inconsistent with the UJI, Kennedy, 2000-NMSC-025, ¶¶ 26-27, we will not
set aside a judgment based on mere speculation that the erroneous instruction influenced the
outcome of the case. Fahrbach v. Diamond Shamrock, Inc., 1996-NMSC-063, ¶ 31, 122
N.M. 543, 928 P.2d 269.

{47} Plaintiff argues that the jury’s confusion was evident from the way it distributed the
damages it did award—comparable amounts to each of the children, and a substantially
greater amount to Plaintiff for loss of consortium, but zero to the estate. Plaintiff also relies

                                               12
on the fact that toward the end of its deliberations the jury posed the following question:
“Does ‘total amount of damages to the Estate of Charles Saenz’ include all amounts awarded
to Virginia, Rob[in], and sons[,] or is it meant to be a separate amount?”

{48} We perceive no prejudice to Plaintiff from the jury instruction. The most natural kind
of prejudice to be expected from the error would be a reduction in loss of consortium
damages. But Plaintiff makes no argument that those damages were inadequate or even
reduced as a result of the error. Rather, Plaintiff suggests that the jury may have awarded
damages actually belonging to the estate to the individuals to somehow make up for a
presumed belief that they could not award loss of society damages. On the face of it, this
suggestion is mere speculation and provides no basis for setting aside the verdict.

{49} In any event, Plaintiff’s suggestion is all but an impossible scenario. Unusually, we
have in this case an indication of the jury’s thinking. The jury question quoted above shows
that the jury was thinking about the issue of division of damages. With all counsels’
approval, the district court responded that the “[t]otal amount of damages to the Estate of
Charles Saenz” is separate. Given the question and the answer, combined with the absence
of any indication about confusion about loss of consortium damages, there is no basis to
suspect that the jury apportioned any damages belonging to the estate to the individuals.
Thus there is no basis to suspect, much less conclude that prejudice flowed from the UJI 13-
1830 error.

2.     There Is No Substantial Evidence to Support an Award of Zero Damages to the
       Estate.

{50} Finally, Plaintiff argues that the district court erred in denying her motion for a new
trial because the award of zero damages to the estate was contrary to the evidence. To the
extent that Ranack argues that this contention was not preserved because Plaintiff failed to
raise it before the jury was excused, we disagree. The rule stated in Thompson Drilling, Inc.
v. Romig, 1987-NMSC-039, 105 N.M. 701, 736 P.2d 979, and its progeny applies only to
challenges of a jury verdict based on inconsistency, ambiguity, or indefiniteness. In
Thompson, the defendant argued that “the jury verdict [was] invalid because it [was]
ambiguous and indefinite as to the amount of damages.” Id. ¶ 5. Similarly, in Ramos v.
Rodriguez, the appellant argued that “the special verdict form submitted by the judge omitted
necessary language which thereby resulted in a jury verdict that was contradictory and
inconsistent on its face.” 1994-NMCA-110, ¶ 9, 118 N.M. 534, 882 P.2d 1047. In both cases,
these arguments were not addressed on appeal because the appellant failed to raise them
before the jury was discharged. Thompson, 1987-NMSC-039, ¶ 5; Ramos, 1994-NMCA-110,
¶ 13; see also G & G Servs., Inc. v. Agora Syndicate, Inc., 2000-NMCA-003, ¶ 41, 128 N.M.
434, 993 P.2d 751 (“A litigant who fails to object to an alleged inconsistency in a jury’s
verdict before the jury is dismissed may be held to have waived any further challenge to the
alleged inconsistency.”).

{51}   But this rule does not apply to motions for a new trial based on a lack of substantial

                                             13
evidence under Rule 1-059 NMRA. Addressing a fact pattern similar to that here, the Alaska
Supreme Court held that the

       rule [that a challenge to a verdict based on inconsistency is waived if not
       raised before the jury is discharged] has limited application here. The
       [plaintiff’s] failure to raise the issue of inconsistency before the court
       discharged the jury precluded it from later asserting that the inconsistency
       entitled it to a new trial as a matter of law. But that failure did not strip the
       estate of its right to move for a new trial on the discretionary ground that the
       verdict was against the weight of the evidence.

Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1176-77 (Alaska 2002).

{52} Reaching a similar conclusion, the Kentucky Supreme Court explained that the
difference lies in whether the verdict contains a “patent irregularity” or is a “complete
verdict.” Cooper v. Fultz, 812 S.W.2d 497, 499 (Ky. 1991), abrogated on other other
grounds by Cooper v. Leatherman, 532 U.S. 424 (2001). In Cooper, the jury awarded
damages for medical expenses but entered “0” on the line for mental and physical suffering
on the verdict form. Id. at 498. On appeal, the Court considered “whether, by thus specifying
a deliberate intention to make no award for one (or more) elements of damages, the jury has
returned a verdict with a patent irregularity which is waived by failing to timely object, or
whether this represents a completed verdict which is subject to challenge as inadequate on
motion for a new trial.” Id. at 499. It noted that the explicit entry of zero on the jury form
differs fundamentally from leaving the form blank, stating, “it is futile to require a jury that
has consciously inserted ‘0’ or its equivalent to reconsider its decision. This is not the same
situation as that created when a jury has left a verdict slot blank. Such a verdict is patently
irregular or incomplete.” Id. at 500 (internal quotation marks and citation omitted). Citing
Kentucky’s version of Rule 59, it went on,

       Where there is a patent deficiency or irregularity, the [rule requiring
       objection before the jury is discharged] should be followed. However, it is
       untenable to utilize that procedure where the jury has deliberately awarded
       nothing, despite the evidence and instructions to the contrary. Such a verdict
       is no more incomplete or irregular than had the jury inserted one dollar. It
       may be defective as contrary to the evidence and the law that relates to the
       adequacy of an award, but such a defect is one appropriate to be addressed
       by the trial court upon a motion for a new trial.

Id. (internal quotation marks and citation omitted).

{53} Other states have echoed this reasoning. The West Virginia Supreme Court explained
that “[c]ritically, the objective that underlies the general rule of requiring that an objection
to the verdict form must be made prior to the jury’s discharge is to provide the trial court
with an opportunity to ‘cure’ any alleged defect or irregularity in the form prepared by the

                                              14
jury.” State ex rel. Valley Radiology, Inc. v. Gaughan, 640 S.E.2d 136, 141 (W. Va. 2006).
It went on to state that

       [n]o similar opportunity to cure is required for an inadequate award of
       damages . . . because a request for a new trial based on the inadequacy of
       damages is not a procedural objection to the verdict form, but a substantive
       objection to the amount of damages awarded in view of the evidence
       presented and the findings of the jury as to fault. Consequently, there is no
       basis for invoking the waiver rule . . . when the post-trial objection is solely
       to the adequacy of the damages.

Id.; accord Ga. Farm Bureau Mut. Ins. Co. v. Hyers, 661 S.E.2d 682, 683 (Ga. Ct. App.
2008) (“Failure to move for a directed verdict also bars the party from contending on appeal
that he is entitled to judgment as a matter of law because of insufficient evidence. This
failure does not, however, bar the party from contending that he is entitled to a new trial on
that ground.” (citation omitted)); Clay v. Choctaw Nation Care Ctr., LLC, 2009 OK CIV
APP 35, ¶¶ 20-21, 210 P.3d 855, 860 (affirming the grant of a new trial where the movant
failed to object before the jury was discharged, stating, “there was nothing irregular,
incorrect, or confusing about the form of the verdict[,]” noting that “[t]he alleged
error . . . [did] not involve the verdict’s form, but its substance[,]” and finding no waiver).

{54} Plaintiff did not specify in her motion the rule under which she moved for a new trial.
Consequently, we examine the arguments in the motion to determine which rule applies.
Century Bank v. Hymans, 1995-NMCA-095, ¶ 10, 120 N.M. 684, 905 P.2d 722 (“The
movant need not cite the provision authorizing the motion; the substance of the motion, not
its title, controls.”). In Plaintiff’s motion, she argued that the jury’s award of zero damages
to the estate “was . . . against the overwhelming evidence propounded upon the [j]ury in this
matter.” A claim that the verdict is contrary to the clear weight of the evidence falls within
the proper ground for a new trial under Rule 1-059. See Rule 1-059(A) (“A new trial may
be granted to all or any of the parties and on all or part of the issues in an action in which
there has been a trial by jury, for any of the reasons for which new trials have heretofore
been granted.”); see also Pool v. Leone, 374 F.2d 961, 963 (10th Cir. 1967) (stating that the
plaintiff’s claim that the verdict was contrary to the evidence is a ground “recognized at
common law and in the courts of the United States prior to the adoption of Rule 59(a) as
proper grounds for the granting of a new trial”). Hence, we understand Plaintiff’s motion for
a new trial to invoke Rule 1-059 and conclude that her argument that the verdict was not
supported by the evidence was not waived by her failure to object to it on these grounds
before the jury was discharged.

{55} “The grant or denial of a new trial is a matter resting within the sound discretion of
the trial court, and the reviewing court will not reverse absent a manifest abuse of that
discretion.” Martinez v. Ponderosa Prods., Inc., 1988-NMCA-115, ¶ 4, 108 N.M. 385, 772
P.2d 1308.


                                              15
{56} “We are of the opinion that proof of a wrongful death of necessity implies
recoverable damages.” Baca v. Baca, 1970-NMCA-090, ¶ 25, 81 N.M. 734, 472 P.2d 997.
Contra Marchese v. Warner Commc’ns, Inc., 1983-NMCA-076, ¶¶ 32, 35, 100 N.M. 313,
670 P.2d 113 (rejecting the plaintiff’s argument that “one cannot find a life valueless in New
Mexico” and stating that “the amount of damages is a correct one for the jury to decide”).
Such damages may be based on, but are not limited to, pecuniary injury. Baca, 1970-NMCA-
090, ¶ 25; Stang v. Hertz Corp., 1969-NMCA-118, ¶ 8, 81 N.M. 69, 463 P.2d 45 (“Damages
for the wrongful death may be recovered by proof of the present worth of life of decedent
to the decedent’s estate.”), aff’d 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14. Damages
based on pecuniary injury to the estate are rarely zero. Reffitt v. Hajjar, 892 S.W.2d 599, 603
(Ky. Ct. App. 1994) (stating that it is not “proper in a wrongful death action to award
nothing for destruction of earning power unless there is evidence from which the jury could
reasonably believe that the decedent possessed no power to earn money” (internal quotation
marks and citation omitted)); see Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72
U. Chi. L. Rev. 537, 544 (2005) (stating that zero damages are appropriate for a “victim who
has no future income, no dependents, and no spouse, and who dies without feeling pain” as
a matter of “formal law,” but that this rule is not always followed in practice). Even in the
absence of pecuniary injury, however, the jury may also consider “[t]he present worth of the
life, . . . [based on] the age, occupation, earning capacity, health, habits, and the probable
duration of the life of decedent.” Baca, 1970-NMCA-090, ¶ 25; see Posner & Sustein, supra
(stating that New Mexico recognizes hedonic damages in wrongful death cases).

{57} In Jones v. Pollock, 1963-NMSC-116, ¶ 5, 72 N.M. 315, 383 P.2d 271, the Court
considered whether a new trial should have been granted where the jury found the appellees
liable for the appellants’ injuries but awarded little or no damages for their medical costs
incurred as a result of those injuries. The Court concluded that “[i]t does not stand to reason
for the jury to have arrived at the determination that [the] appellees are liable for the injuries
suffered by [the] appellants without it also finding that [the] appellants merited an award for
the injuries.” Id. ¶ 10. As to the amount of the award, the appellees argued that while they
had stipulated to the total amount of the appellants’ medical bills, they did not stipulate to
the recoverable amount. Id. ¶ 9. The Court rejected this argument, stating that the “appellees
cite no evidence in the record which would tend to lessen the amount which [the] appellants
claim they incurred as a result of the accident. There was no controversy as to the amount
of the medical expenses. The only evidence offered on this point was that submitted by [the]
appellants.” Id. There being no evidence tending to reduce the recovery for medical costs,
the Court concluded that “where it is shown, . . . that the verdict of the jury on the question
of damages is clearly not supported by substantial evidence adduced at the trial of the case,
a motion for a new trial should be granted, and not to do so is an abuse of discretion by the
court.” Id. ¶ 12; see Hammond v. Blackwell, 1966-NMSC-258, ¶ 13, 77 N.M. 209, 421 P.2d
124 (holding that a new trial was required where the district court found the plaintiff suffered
a loss of earning ability as a result of an accident but failed to award any damages for such
loss).

{58}    Here, Plaintiff presented evidence that Saenz was working at the time of his death

                                               16
and that he was a competent and dependable employee making between $10 and $33 per
hour. There was also evidence presented on Saenz’s role in his family and his relationship
with his wife and children. While there was evidence that Saenz’s wage-earning capacity
was mitigated by the fact that he had been convicted and incarcerated for a felony charge and
that he had a fitful relationship with his wife, these factors could work to reduce the amounts
Saenz might have earned or contributed to his family—they cannot cancel them out entirely.
Having found that Ranack was forty-five percent at fault for Saenz’s death, the jury could
not find under the evidence presented to it that the damage to his estate was zero. The jury
was free to settle on essentially any figure—ranging from a nominal sum to an amount akin
to the amounts awarded to his survivors—but it could not under the evidence find zero
damages. We conclude that an award of zero damages to Saenz’s estate is not supported by
the evidence and remand for a new trial as to damages to the estate only.

{59}   IT IS SO ORDERED.

                                               ____________________________________
                                               MICHAEL D. BUSTAMANTE, Judge

I CONCUR:

____________________________________
TIMOTHY L. GARCIA, Judge

JONATHAN B. SUTIN, Judge
(specially concurring in part and dissenting in part).

SUTIN, Judge (specially concurring in part and dissenting in part).

{60} I do not disagree with the Majority’s analysis and conclusion that Montanez
precludes a holding that Ranack is jointly and severally liable for all of the damages found
by the jury. Majority Op. ¶¶ 15, 26-42. I write separately to address what I believe to be an
important issue raised in this case, namely, whether the work that Saenz was doing at the
time of his death may be considered “inherently dangerous” as a matter of law. This issue
was addressed by the district court, it is central to Plaintiff’s argument on appeal, and in my
view, it highlights an aspect of New Mexico case law that needs to be clarified. See id. ¶¶ 14,
21, 23. Additionally, I disagree with the Majority’s decision to remand for a new trial as to
damages to the estate, and as to that issue, I respectfully dissent. Id. ¶¶ 50-59.

As a Matter of Law, Saenz Was Not Engaged in an Inherently Dangerous Activity

{61} Acting pursuant to Section 41-3A-1(C), in Saiz, our Supreme Court established a
public policy exception to several liability. 1992-NMSC-018, ¶ 34. The Saiz Court began its
analysis by recognizing the longstanding tort principle that, although an employer of an
independent contractor is not generally responsible for the independent contractor’s

                                              17
negligence, the general rule has no application where, by virtue of work that is “inherently
dangerous,” the employer has a nondelegable duty to ensure that precautions are taken. Id.
¶¶ 10-12, 15. In order to serve the policy underlying the imposition of a nondelegable duty
to ensure that safety precautions are taken in regard to inherent dangers, the Saiz Court
determined that employers should be held strictly liable for injuries caused by the failure to
ensure such precautions. Id. ¶ 33. This, in turn, would promote the “special public policy”
of protecting “third persons in an area of inherent danger” and encouraging “conscientious
adherence to standards of safety where injury likely will result in the absence of
precautions.” Id. ¶ 35. To effectuate these public policy considerations, the Saiz Court held
that, pursuant to Section 41-3A-1(C)(4), “when precautions are not taken against inherent
danger, the employer is jointly and severally liable for harm apportioned to any independent
contractor for failure to take precautions reasonably necessary to prevent injury to third
parties arising from the peculiar risk.” Saiz, 1992-NMSC-018, ¶¶ 34, 36. I refer to this public
policy exception in Saiz as “the Saiz exception.”

{62} The Saiz exception was derived from Sections 416 and 427 of the Restatement
(Second) of Torts. Saiz, 1992-NMSC-018, ¶¶ 11-14. Section 416 of the Restatement
(Second) of Torts, “Work Dangerous in Absence of Special Precautions,” provides that when
one employs an independent contractor to do work that the employer “should recognize as
likely to create during its progress a peculiar risk of physical harm to others unless special
precautions are taken,” the employer is subject to liability for physical harm to “others”
caused by the independent contractor’s failure to exercise reasonable care to take the special
precautions. This is so regardless of whether “the employer has provided for such
precautions in the contract or otherwise.” Id. The Restatement’s illustrations of the
application of Section 416 demonstrate that it was intended to apply to injured third parties
who had no connection to the employer or to the independent contractor and who were
injured through no fault of their own by virtue of the independent contractor’s failure to take
precautions for the safety of the general public. See id. cmt. c, e (illustrating the intended
application of Section 416).

{63} Section 427 of the Restatement (Second) of Torts, “Negligence as to Danger Inherent
in the Work,” subjects an employer of an independent contractor to liability for injuries to
“others” caused by the independent contractor’s failure to take reasonable precautions
against “a special danger” where the work for which the independent contractor was hired
involves a “special danger to others which the employer knows or has reason to know to be
inherent in or normal to the work[.]” Like those accompanying Section 416, the
Restatement’s illustrations of the application of Section 427 demonstrate that it was intended
to apply to circumstances in which a third party, a member of the public, with no relationship
to the employer or to the independent contractor was injured as a result of the independent
contractor’s failure to take precautions necessary to alert the public to a dangerous condition.
See id. cmt. d (providing illustrations).

{64} Recognizing that Sections 416 and 427 were different formulations of the same
principle, the Saiz Court synthesized the respective sections in its holding that “one who

                                              18
employs an independent contractor to do work that the employer as a matter of law should
recognize as likely to create a peculiar risk of physical harm to others unless reasonable
precautions are taken is liable for physical harm to others caused by an absence of those
precautions.” Saiz, 1992-NMSC-018, ¶ 15 (emphasis added); see id. ¶ 12 n.6 (stating that
work that presents a “peculiar risk” or “special danger”5 is “inherently dangerous”).

{65} Plaintiff argues that Saenz’s work activity was inherently dangerous under the Saiz
exception. Plaintiff’s theory of inherent danger is based on an argument that the work
activity that Saenz was performing when he died satisfies the three-part test established in
Gabaldon, 1999-NMSC-039, ¶ 13, for evaluating whether an activity is inherently dangerous
as a matter of law.

{66} To be considered inherently dangerous as a matter of law, the at-issue activity must
present a “peculiar risk.” Saiz, 1992-NMSC-018, ¶ 12 n.6 (stating that work is inherently
dangerous because it presents a peculiar risk). In general, a “peculiar risk” is one that is
outside the realm of personal experience, such that the person subjected to the risk is
unfamiliar with the associated danger. See Valdez v. Yates Petroleum Corp., 2007-NMCA-
038, ¶ 11, 141 N.M. 381, 155 P.3d 786 (stating that personal experience with an activity that
results in familiarity with its dangers defies a conclusion that the risks of the activity are
peculiar). In the context of construction work, a peculiar risk is one that is “not routinely
encountered in the contractor’s line of work.” Sievers v. McClure, 746 P.2d 885, 889-90
(Alaska 1987).

{67} Under the particular circumstances of this case, the work that Saenz was engaged in
at the time of his death does not come within the legal definition of “inherently dangerous”
work. Saenz was a skilled, experienced, and knowledgeable ironworker, equipped with fall-
protection devices, aware of the hazards and required safety precautions of his trade, aware
of normal routine matters of ironwork activity, and aware of the risk and hazard of falling
from the height of an unfinished building. Furthermore, Saenz had worked on large
construction projects, including having participated in the structural steel construction work
of several buildings from the ground up.

{68} Saenz had trained both of his sons, Jason and Marcus, to be ironworkers. Jason
testified that Saenz was “extremely safety conscious” and that Saenz had trained him in
ironwork safety precautions, including how to use a harness, a beamer, and a lanyard, and
eventually, how to work at heights. Marcus, who was working with Saenz on the day of
Saenz’s accident, testified that Saenz warned him “several times” not to work at heights or
to walk across beams without being tied off. Saenz also advised his co-workers on safety


       5
        The Saiz Court concluded that although the terms “peculiar risk” and “special
danger” both appear in the Restatement, it would treat them as equivalent; following the
Court’s lead in Saiz, I do not distinguish these terms and, for simplicity, use the term
“peculiar risk” exclusively. See id. ¶ 12 n.6.

                                             19
matters, including “how to be careful[,]” “how to tie off[,]” and “how to make sure that
[they] were working safely at the job.”

{69} Both Ranack’s and Alamo’s employees were required to use fall protection,
including a requirement to tie off when working from elevated areas, which, according to
Ranack’s policy, included any height over six feet. Thus, Saenz was required to be tied off
when working at the height from which he fell. Evidence at trial established that the task that
Saenz was attempting to perform when he fell could have been accomplished safely by, in
keeping with the tie-off requirement, tying himself off to a joist or to the steel structure that
was in place, or by using a ladder to reach his destination rather than walking across the
concrete wall. Evidence at trial also showed that had Saenz tied off, he would have fallen no
more than six feet before his lanyard would have arrested his fall. The foregoing factual
presentation was credited both by the jury and by the district court.

{70} Owing to his knowledge and experience in regard to the dangers of the ironwork
trade and the fact that he was skilled in guarding against the dangers, the risk of death or
injury from falling was not “peculiar” to Saenz. See Valdez, 2007-NMCA-038, ¶ 11 (stating
that personal experience with an activity that results in familiarity with its dangers defies a
conclusion that the risks of the activity are peculiar); see also Warnick v. Home Depot
U.S.A., Inc., 516 F. Supp. 2d 459, 469 (E.D. Pa. 2007) (“All construction work involves a
risk of some harm; only where the work is done under unusually dangerous circumstances
does it involve a . . . peculiar risk.” (internal quotation marks and citation omitted)); Sievers,
746 P.2d at 889-90 (holding that, in the context of construction work, a peculiar risk is one
that is “not routinely encountered in the contractor’s line of work” such that the employer
of a contractor may only be held liable for “those hazards which the independent contractor
is unlikely to be aware of and therefore unable to protect against”). To the contrary, Saenz
was well aware of the risk of falling and the ever-present need to guard against that risk
when working from heights. Because the presence of a peculiar risk is an inextricable
element of “inherent danger,” the circumstances here do not support a conclusion that Saenz
was engaged in an inherently dangerous activity. Saiz, 1992-NMSC-018, ¶¶ 11, 12 n.6
(explaining that work is inherently dangerous because it presents a peculiar risk).

{71} Having concluded that the work that Saenz was performing does not come within the
meaning of “inherent danger” as that term was used in Saiz, I further conclude that the three-
part test established by the Gabaldon Court for evaluating whether an activity is inherently
dangerous does not apply under the circumstances of this case. See Gabaldon, 1999-NMSC-
039, ¶ 13 (establishing a three-part test to determine whether an activity should be
considered “inherently dangerous” as that term was used in Saiz). Under the Gabaldon test,
in order to conclude that an activity is inherently dangerous: (1) “the activity must involve
an unusual or peculiar risk of harm that is not a normal routine matter of customary human
activity”; (2) “the activity is likely to cause a high probability of harm in the absence of
reasonable precautions”; and (3) “the danger or probability of harm must flow from the
activity itself when carried out in its ordinary, expected way[.]” Id. Because they were
derived from the Saiz definition of “inherent danger,” the factors of the Gabaldon test

                                               20
contemplated an unwitting plaintiff, a member of the general public, who is unable, by virtue
of his lack of experience with the dangerous condition awaiting him, to guard against the risk
presented by a dangerous condition. See id. ¶ 14 (“The first prong addresses the relative
rarity of the activity and the concomitant lack of contact or experience with the activity and
its dangers by the general public.” (internal quotation marks and citation omitted)). In light
of Saenz’s knowledge and experience as an ironworking tradesman and that Saenz was a
subcontractor’s employee, instead of a third party, the Gabaldon three-factor analysis is too
limited an analysis through which to evaluate Saenz’s ironwork task. Even if the Gabaldon
test were construed to apply to a circumstance in which the injured party was the employee
of a subcontractor (contrary to Montanez), additional factors would have to be
considered—particularly, the knowledge, skill, and experience of the injured party.
Considering these additional factors would, for the reasons that I set forth earlier, lead to a
conclusion that, under the circumstances of this case, Saenz was not engaged in an inherently
dangerous activity.

The District Court’s Denial of Plaintiff’s Motion for a New Trial Should Be Affirmed

{72} On the special verdict form, the jury returned verdicts finding “the total amount of
damages suffered by Plaintiff Virginia Saenz, Individually to be $482,000” and finding “the
total amount of damages suffered by the Estate of Charles Anthony Saenz, Deceased, to be
$0.” The jury’s verdict was read in open court. Plaintiff’s counsel did not raise any issue in
regard to estate damages prior to the discharge of the jury. Rather, the issue was raised for
the first time more than two weeks after the trial ended, when Plaintiff filed a motion for a
mistrial. In that motion, Plaintiff sought a mistrial in the post-jury-discharge proceeding
based on an argument that, in arriving at the zero verdict for the Estate, the jury ignored
“overwhelming evidence,” somehow measured by a substantial evidence standard,
constituting jury abuse of discretion, including jury bias, prejudice, or passion. Ranack
asserted in response that the elements of possible injury to Saenz and his estate was
vigorously contested and set out examples of Saenz’s difficulties retaining employment, his
criminal history, the impact of that history on his future employment opportunities, his
having lived apart from his family while in prison and while not in prison, and his failure to
support his offspring. The district court denied Plaintiff’s mistrial motion, seemingly
convinced that substantial evidence supported the verdict given the “number of items
brought into evidence[,]” including “[t]he criminal history of this individual, the fact that he
had just gotten out of jail some months earlier, so on and so forth.”

{73} “The jury’s verdict is presumed to be correct[,]” and “[w]hen the jury makes a
determination and the trial court approves, the amount awarded in dollars stands in the
strongest position known in the law.” Ennis v. Kmart Corp., 2001-NMCA-068, ¶ 27, 131
N.M. 32, 33 P.3d 32 (internal quotation marks and citation omitted). In this appeal, there
exists no issue of bias, passion, prejudice, excessive verdict, or improper admission of
evidence. There exists no contention of district court error in regard to the special verdict
submitted to the jury. Plaintiff undisputedly did not preserve in the district court any concern
with the special verdict. The jury was discharged with Plaintiff’s full knowledge of the

                                              21
verdict.

{74} Instead of attacking the basis on which the district court concluded that substantial
evidence existed, Plaintiff and the Majority rely on notions of an “inadequate” verdict,
“contrary to the evidence,” and “overwhelming evidence” of the jury’s erroneous failure to
award damages to the estate. Majority Op. ¶¶ 50-52, 54. The Majority buttresses its position
with foreign (and in my view, inapplicable) authorities to support the assertion for the case
at hand that the waiver rule does not apply. Ranack relies on Thompson, 1987-NMSC-039,
¶ 11, for the proposition that by failing to object to the jury’s verdict or otherwise alert the
district court to the alleged error prior to the jury’s dismissal, Plaintiff waived the
opportunity to raise any claim of error in regard to the amount of estate damages. I agree
with Ranack. See id. (“[T]he right to object to an improper verdict is waived when not made
at the time of the verdict and cannot be reclaimed and revived by resorting to a motion for
a new trial or on appeal.”). For the reasons that follow in this dissent, the denial of Plaintiff’s
post-jury-discharge motion can and should be upheld, if not based on substantial evidence
as determined by the district court, then, contrary to the Majority’s analysis, because Plaintiff
failed to preserve an attack on the jury’s verdict and the fault lay not in verdict inadequacy
but in Plaintiff’s litigation approach or failures.

{75} Embedded in New Mexico law is the requirement that a party object to an improper
verdict before the jury is discharged, and that the party that fails to object waives the right
to a new trial after the jury’s discharge. Id.; Guest v. Allstate Ins. Co., 2009-NMCA-037, ¶
36, 145 N.M. 797, 205 P.3d 844, reversed in part on other grounds by 2010-NMSC-047, 149
N.M. 74, 244 P.3d 342; G & G Servs., Inc., 2000-NMCA-003, ¶¶ 40-42; Diversey Corp. v.
Chem-Source Corp., 1998-NMCA-112, ¶ 39, 125 N.M. 748, 965 P.2d 332; Ramos, 1994-
NMCA-110, ¶ 13; see also Philippine Nat’l Oil Co. v. Garrett Corp., 724 F.2d 803, 806 (9th
Cir. 1984) (recognizing that failure to object to a no-damages verdict at the time that it is
read constitutes a waiver of any future objections to the form of the verdict and further
stating that in the federal system “failure to award damages does not by itself render a
verdict invalid”); Balderas v. Starks, 2006 UT App 218, ¶¶ 17-19, 138 P.3d 75 (stating that
a failure to object to the sufficiency or legality of a verdict before the jury is discharged
constitutes a waiver of the objection and recognizing that the waiver rule avoids “the
expense and additional time for a new trial by having the jury which heard the facts clarify
the [matter] while it is able to do so” (internal quotation marks and citation omitted)).

{76} In Diversey, this Court explored whether a fundamental error could override the
failure to timely object to an ambiguous verdict. 1998-NMCA-112, ¶¶ 36-40. The question
of ambiguity involved whether the use of “and/or” in an instruction rendered the jury’s
verdict ambiguous with the consequence that the jury improperly awarded a double recovery
for the same injury. Id. ¶ 36. The Court determined that fundamental error generally did not
apply in civil cases and limited any exception to waiver to specific “exceptional
circumstances” found in four specific cases. Id. ¶ 40 (stating that fundamental error may be
found in civil cases in which “substantial justice was not done, the court was deprived of
jurisdiction to hear the case, the issue was one of general public interest that would impact

                                                22
a large number of litigants, or[] there was a total absence of anything in the record of the
case showing a right to relief” (internal quotation marks and citation omitted)). None of the
exceptional circumstances exist in the present case. Furthermore, Plaintiff created all of
which she now complains.

{77} The jury was instructed based on UJI 13-1830 that “[t]he lawsuit has been brought
by Virginia Saenz, Individually and on behalf of the estate of . . . Saenz, who is now
deceased.” This instruction was adopted verbatim by the court from Plaintiff’s requested UJI
13-1830 which she modified, substituting “on behalf of the surviving beneficiaries” with “on
behalf of the estate[.]” The term “estate” was not defined for the jury in any jury instruction.
The special verdict form given to the jury was likewise, in pertinent part relating to damages,
adopted from Plaintiff’s requested special verdict form. Plaintiff’s requested special verdict
form given to the jury did not carry out UJI 13-1830’s use note suggestion that the “various
elements of damages . . . be broken out separately on the special verdict form . . . in order
to identify damages recoverable by the estate” as distinguished from those recoverable by
the decedent’s spouse and beneficiaries for loss of consortium. Thus, neither the UJI 13-
1830-based instruction nor the special verdict form as given to the jury at Plaintiff’s request
explained the distinguishing factors inherent in “Virginia Saenz, Individually and on behalf
of the estate,” as those words appeared in the instruction, or “Virginia Saenz” as the
“surviving spouse,” as those would have appeared in an unmodified UJI 13-1830. And,
importantly, Plaintiff did not point out or explain to the jury any differences or
distinguishing factors about damages recovery in closing argument.

{78} Plaintiff’s UJI 13-1830-based instruction could easily have given an impression to
and reasonably have been interpreted by the jury to say that Virginia Saenz was entitled to
one recovery encompassing both her individual and representative capacities. Plaintiff’s
special verdict form did not clarify potential recoveries. The special verdict form provided
a blank space for damages “suffered by Plaintiff Virginia Saenz, Individually[,]” which,
given the way the instruction read, namely, “Individually and on behalf of the estate,” could
reasonably be read as calling for recovery of one amount consisting of damages in both
capacities. Nowhere in the special verdict form was there a separate place for the jury to
consider damages recoverable by “Virginia Saenz on behalf of the estate.” Further, Virginia
Saenz as “surviving spouse” appears nowhere in the special verdict form. In awarding zero
as “damages suffered by the Estate of Charles Anthony Saenz” (with “the Estate” nowhere
described, nowhere differentiated from “Virginia Saenz, Individually,” and nowhere
indicating whether the award should be given to Virginia Saenz in her “on behalf of the
estate” capacity) the jury could reasonably have concluded from the instructions, the special
verdict form, and the lack of any explanation to the jury by Plaintiff, that its award of
$482,000 properly included all of the compensation for “Virginia Saenz, Individually and
on behalf the estate” according to Plaintiff’s UJI 13-1830-based and modified instruction.
(Emphasis added.)

{79} During its deliberations, the jury sent a note to the court asking the following
question: “Does ‘total amount of damages to the Estate of . . . Saenz’ include all amounts

                                              23
awarded to [Plaintiff and the children] or is it meant to be a separate amount?” This question
lacked clarity. Given the manner in which Plaintiff had the jury instructed, including how
her special verdict form read, the question could reasonably be interpreted as asking not
whether there should be separately awarded damages pursuant to a division or distinction
between “Individually” on the one hand and either “on behalf of the estate” or “the Estate”
on the other hand, but whether, upon or after an award “of all amounts” to Plaintiff,
individually and on behalf of the estate (and to the children), the Estate was still to receive
a separate amount. The court consulted counsel for both parties regarding how to respond
to the question. Initially, Plaintiff’s counsel suggested sending the jury an answer saying:
 “Yes.” To which the court astutely responded that the problem with that answer would be
that the jury would then ask, “What is the estate entitled to?” The court insightfully
explained, from “looking at the damages instruction for wrongful death, . . . I am not quite
sure if it itemizes the damages for the estate.” The court instructed counsel to recess and look
at the issue to figure out a way to respond to the note. Counsel returned with an agreed upon
answer for the jury, still lacking in clarity, that read, “It is separate[,]” which the court
suggested be slightly modified to state, “The ‘total amount of damages to the Estate of . . .
Saenz is separate.” Both parties agreed to the court’s modification and that answer was
submitted to the jury.

{80} The evidence at trial was that the value of Saenz’s lost wages over the remainder of
his working lifetime was estimated to be $450,000. No other dollar amounts were in
evidence with respect to damages. On the face of the special verdict form, the jury awarded
$482,000 in damages “suffered by Plaintiff Virginia Saenz, Individually[.]” And the jury
awarded damages “suffered by” the children: to Saenz’s daughter, $50,000 and to each of
Saenz’s sons, $25,000. The special verdict form made no mention of “consortium.”

{81} It is reasonable to conclude that the $482,000 award to Plaintiff, individually,
indicates that the jury likely included in the award “all amounts awarded to [Plaintiff]”—that
is, all amounts that would flow to her “Individually and on behalf of the estate,” as
instructed. This conclusion is supported, among other things, by the fact that the jury asked:
“Does ‘total amount of damages to the Estate of . . . Saenz’ include all amounts awarded to
[Plaintiff and the children,] or is it meant to be a separate amount?” The question of how
much of any intended award to Virginia Saenz on behalf of the estate should flow to her as
a wrongful death beneficiary under the Wrongful Death Act and how much should be
allocated to Virginia Saenz, individually, for loss of consortium, is not suggested or argued
by Plaintiff on appeal. See generally NMSA 1978, § 41-2-3 (2001) (governing the
distribution of the proceeds of a wrongful death judgment).

{82} Under the circumstances, one can reasonably assume that the jury’s award of
$482,000 to “Virginia Saenz, Individually” represented more than the value of Plaintiff’s
loss of consortium, given Plaintiff’s evidence of economic damages of $450,000. It is
reasonable to conclude that, within its $482,000 award, the jury included damages to
Plaintiff in both capacities, individually and on behalf of the estate, based on the instruction
and special verdict form given to the jury, Plaintiff’s counsel’s misunderstanding or

                                              24
misinterpretation of the jury’s question and failure to ask the court to inquire further, and
counsel’s failure or decision not to explain to the jury the distinctions and differences in
Plaintiff’s capacities, the damages elements, the commensurate recovery rights, and how the
jury should read and complete the special verdict form. It is likely that the jury did not intend
to award $482,000 to Plaintiff solely for consortium.

{83} The outcome in this case is not a fault of the district court, and it does not fall within
any of Diversey’s alternatives to fundamental error. See 1998-NMCA-112, ¶¶ 36-40. The
outcome was the product of Plaintiff not having assured that the jury was properly and
carefully instructed on the damages elements and the different capacities and recoveries,
together with a conforming special verdict form.

{84} The Majority holds that a failure to timely object, before the jury was discharged, to
an inadequate damages award and particularly a zero damages award, as opposed to an
inconsistent or ambiguous verdict, does not constitute a waiver. Majority Op. ¶¶ 50-53. New
Mexico has not addressed that issue. As noted by the Majority, on the waiver issue, cases
outside New Mexico have made a distinction between verdicts with alleged inadequate
damage awards and verdicts that are inconsistent with respect to such awards. Id. ¶¶ 51-53.

{85} The Majority’s reliance on foreign case law is misplaced. See id. ¶¶ 51-54. Each
foreign authority is distinguishable for several reasons. In none of the authorities on which
the Majority relies was there complicity by the plaintiff in submitting a defective or
ambiguous jury instruction and special verdict form and, as here, in perpetuating a
misunderstanding of the jury’s question. In none of the relied upon authorities does it appear
that the plaintiff failed in closing argument to explain how to decide what to award. In none
of the authorities was there a special verdict awarding substantial compensatory damages
considerably close in amount to the evidence of economic damages presented in the case and
reasonably interpretable to include loss of consortium. In none of the authorities was a sum
awarded to a plaintiff in a wrongful death case “individually” when the award rationally
could have been intended by the jury, based on its reading of the instructions and verdict
form, to cover not just damages “individually” (for consortium) but also “on behalf of the
estate.”

{86} Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir. 2003), is
significantly factually different from our case, and when carefully analyzed, supports this
dissent. Zhang shows that the special verdict in our case consisted of two legal conclusions
of damages and that, despite the claimed inconsistency, the verdict should stand. Zhang also
makes clear that with general verdicts or legal conclusions in a special verdict form, such as
in the present case, a party can waive a sufficiency of evidence argument when the issue
does not involve factual findings of the jury in a special verdict circumstance, as here, but
instead involves legal conclusions as to damages. 339 F.3d at 1031-34. Further, and
significantly, the Zhang court stated:

        Another persuasive line of cases involves discrepancies between findings of

                                               25
        liability and damage awards, typically arising when a jury finds liability but
        nonetheless awards zero damages. . . . [T]he damage award is not really a
        separate general verdict, but it is nonetheless a legal conclusion, and so these
        types of cases involve purported conflicts between two legal conclusions. . . .
        Justice Brandeis wrote that the trial court’s refusal to grant a new trial cannot
        be held erroneous as a matter of law. Appellate courts should be slow to
        impute to juries a disregard of their duties, and to trial courts a want of
        diligence or perspicacity in appraising the jury’s conduct. This rule retains
        vitality, and we have noted that the federal rule is that failure to award
        damages does not by itself render a verdict invalid.

Id. at 1036 (internal quotation marks and citations omitted).

{87} The outcome here stemmed from the lack of clarity of the UJI 13-1803-based
instruction and the special verdict form, from the inadequate understanding of and response
to the jury question, and from the failure to explain to the jury in closing argument how the
awards should be made and divided, including what the “Estate” as shown in the special
verdict form meant, as opposed to what “Virginia Saenz, Individually and on behalf of the
estate” (as stated in the modified instruction) meant. This footprint of complicity is the
culprit here, not verdict inadequacy.

{88} Further, it simply cannot be disputed that the several problems created by Plaintiff
could have been resolved if, upon hearing the zero damages verdict for the estate along with
the substantial award to Plaintiff, individually, Plaintiff had raised the issues at the time. This
would have given the district court the opportunity to consider ways in which the jury could
be further instructed or the parties could make further argument to clarify and resolve
questions about the verdict.

{89} This case is not about exceptional circumstances, and there is no clear inadequacy
in the verdict that should give rise to a new trial. This case was fully and fairly tried before
a jury by experienced counsel. The district court did not abuse its discretion or otherwise err
in denying Plaintiff’s motion for a new trial. See id. (stating that where a jury finds liability
but nonetheless awards zero damages, the “refusal to grant a new trial cannot be held
erroneous as a matter of law [because a]ppellate courts should be slow to impute to juries
a disregard of their duties, and to trial courts a want of diligence or perspicacity in appraising
the jury’s conduct” (internal quotation marks and citation omitted)).

{90} In conclusion, I fully understand and am sympathetic with the difficulties even
experienced litigators have in the vicissitudes, challenges, and surprises in the litigation
arena. Attorneys must be immediately aware of the problematic occurrences. They must
make on-the-spot decisions. Litigators ought not to enter into the fray without careful
thought about every aspect of trial, from anticipating evidentiary issues, to readiness in
making clear objections, to anticipating and perceiving error, to assuring clear, correct, and
complete jury instructions and special verdict forms, to anticipating jury misunderstanding

                                                26
of instructions and forms, and to jury error. It should be the rare instance in which this Court
overturns, in a fully and fairly tried case, what appears to be an ambiguous or unclear jury
verdict, or even one that may appear to be inadequate, but, as here, stems from the
complaining party’s own steps or mis-steps. This Court should not be in the business of
saving parties from their trial strategies or mis-steps and forcing complete new trials on trial
courts and prevailing parties under these circumstances.

                                               __________________________________
                                               JONATHAN B. SUTIN, Judge




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