     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2   ESTATE OF DANIEL RALPH GUTIERREZ,
 3   by and through his personal representative,
 4   JANET JARAMILLO, individually, and as
 5   Next Friend of SAGE GUTIERREZ,
 6   JORDAN GUTIERREZ, and
 7   NOAH GUTIERREZ, minors,

 8          Plaintiffs-Appellees,

 9 v.                                                                            NO. 28,799

10 METEOR MONUMENT, LLC
11 d/b/a ALAMEDA METEOR,

12          Defendant-Appellant.


13 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
14 Timothy L. Garcia, District Judge

15 Vigil Law Firm, P.A.
16 Jacob G. Vigil
17 Albuquerque, NM

18 for Appellees

19 Domenici Law Firm, P.C.
20 Pete V. Domenici, Jr.
21 Lorraine Hollingsworth
 1 Albuquerque, NM

 2 for Appellant


 3                             MEMORANDUM OPINION

 4 WECHSLER, Judge.

 5        This appeal concerns the jury verdict against Defendant Meteor Monument,

 6 L.L.C. (Meteor) resulting from an automobile accident involving Defendant Dean

 7 Durand and Daniel Gutierrez that resulted in Gutierrez’s death. Estate of Gutierrez

 8 ex rel. Jaramillo v. Meteor Monument, L.L.C., 2012-NMSC-004, ¶ 1, 274 P.3d 97.

 9 The district court proceeding concluded in a jury verdict for Plaintiffs Estate of Daniel

10 Ralph Gutierrez and Janet Jaramillo, individually and as next friend of Sage Gutierrez,

11 Jordan Gutierrez, and Noah Gutierrez (Plaintiffs). Id. ¶ 2. This Court reversed the

12 verdict with respect to Meteor’s dram shop liability and remanded to the district court

13 to conduct a new trial with respect to Plaintiffs’ negligent hiring, retention, and

14 supervision claim (negligent supervision claim). Id. ¶ 4. We concluded that

15 Plaintiffs’ vicarious liability claim was not argued to the jury, and we did not address

16 Plaintiffs’ punitive damages claim because of our holding on the negligent hiring

17 claim. Id.

18        We now consider this appeal on remand from our Supreme Court, which

19 reversed our opinion and instructed that we address the issues concerning punitive

                                               2
 1 damages. Id. ¶ 5. In this regard, Meteor argues that the district court erred in (1)

 2 refusing to dismiss the punitive damages claim against it because the award was not

 3 supported by an established cause of action; (2) refusing to disallow the punitive

 4 damages award because there was no evidence of ratification or reckless or wanton

 5 conduct by Meteor; and (3) refusing to disallow or remit the punitive damages. The

 6 opinions of this Court and our Supreme Court discuss the facts of this appeal, and we

 7 only discuss the facts underlying this opinion as necessary. We affirm.

 8 ESTABLISHED CAUSE OF ACTION

 9        After the jury verdict, Meteor moved the district court to dismiss the punitive

10 damage award because Plaintiff Estate of Daniel Ralph Gutierrez failed to establish

11 a claim for employer liability. On appeal, Meteor argues that “there was no evidence

12 to support a finding that [Defendant Dean] Durand was within the scope of his

13 employment [with Meteor] at the time of the accident,” and, therefore, “there was no

14 basis for punitive damages.”

15        The only claim before us concerning the punitive damages award is that for

16 negligent hiring, retention, and supervision; Plaintiff did not challenge our holding

17 concerning the vicarious liability claim in its appeal to our Supreme Court. Id. ¶ 4.

18 A negligent supervision claim is different from a claim based on vicarious liability.

19 Negligent supervision requires an “employer’s negligent acts or omissions in hiring


                                             3
 1 or retaining an employee when the employer knows or should know, through the

 2 exercise of reasonable care, that the employee is incompetent or unfit.” Lessard v.

 3 Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 28, 142 N.M. 583, 168

 4 P.3d 155. A negligent supervision claim does not depend on the employer’s vicarious

 5 responsibility “for the employee’s negligent acts under a theory of respondeat

 6 superior.” Id.

 7        In the district court, the parties requested a jury instruction concerning scope

 8 of employment. Estate of Gutierrez, 2012-NMSC-004, ¶ 26. The district court gave

 9 the instruction as modified by Meteor. Id. ¶ 27. In response to two separate jury

10 questions during deliberations, the district court, with the consent of the parties, stated

11 that it was necessary for the jury to find that Durand was acting within the scope of

12 his employment for the jury to (1) find Meteor liable and (2) assess punitive damages.

13 Id. ¶ 28.

14        Although the answers to these jury questions may not have been accurate, see

15 Lessard, 2007-NMCA-122, ¶ 28, we do not believe that they materially impacted the

16 jury’s verdict. As our Supreme Court noted in discussing Plaintiffs’ negligent

17 supervision claim, “scope of employment may . . . be a factor” in a negligent

18 supervision claim. Estate of Gutierrez, 2012-NMSC-004, ¶ 25. Indeed, the answers

19 may have added an element for the jury to find before it could find liability or award


                                                4
 1 punitive damages. Its verdict indicates that it made such additional findings.



 2 METEOR’S CONDUCT

 3        Meteor further argues that the district court should have disallowed the punitive

 4 damages award because there was no evidence that Meteor either ratified Durand’s

 5 action or that it engaged in reckless or wanton conduct. We address each argument

 6 in turn.

 7 Scope of Employment and Ratification

 8        Meteor first argues that the punitive damages award against it for the tortious

 9 conduct of Durand as its employee is improper because there was no showing that

10 Durand acted within the scope of his employment and that Meteor participated in,

11 authorized, or ratified Durand’s tortious conduct. Meteor again emphasizes the

12 district court’s response to the jury that it could award punitive damages only if it

13 found that Durand was acting within the scope of his employment at the time of the

14 accident.

15        However, we do not agree that scope of employment or participation,

16 authorization, or ratification pertain to a claim based on Durand’s tortious conduct.

17 Plaintiffs’ claim of negligent hiring was for direct, not vicarious, liability. As we have

18 discussed, although Durand’s acting within the “scope of [his] employment may . . .


                                               5
 1 be a factor” in a negligent supervision claim, it is not an element of the claim. Estate

 2 of Gutierrez, 2012-NMSC-004, ¶ 25. Plaintiffs’ negligent supervision claim did not

 3 depend on whether Durand acted within the scope of his employment or whether

 4 Meteor participated in, authorized, or ratified Durand’s tortious conduct. It required

 5 only that, during Durand’s employment with Meteor, Meteor became aware or should

 6 have become aware of problems with Durand “that indicated his unfitness,” that

 7 Meteor failed “to take further action such as investigating, discharge or

 8 reassignment[,]” and that Plaintiffs’ damages were caused by Meteor’s negligent

 9 hiring, retention, or supervision of Durand. The punitive damages award is not

10 deficient because of lack of evidence concerning scope of employment or Meteor’s

11 participation, authorization, or ratification.

12 Reckless or Wanton Conduct of Meteor

13        On the other hand, the punitive damages award did require evidence of reckless

14 of wanton conduct on the part of Meteor. See Peters Corp. v. N.M. Banquest

15 Investors Corp., 2008-NMSC-039, ¶ 44, 144 N.M. 434, 188 P.3d 1185

16 (acknowledging that proof of “evil motive or culpable mental state” is required for

17 punitive damages (internal quotation marks and citation omitted)).            The jury

18 instructions defined “reckless conduct” as “the intentional doing of an act with utter

19 indifference to the consequences[,]” and “wanton conduct” as “the doing of an act


                                               6
 1 with utter indifference to or conscious disregard for a person’s rights and/or safety.”

 2        There was evidence that Meteor employed Durand at its convenience store to

 3 maintain the premises. Durand regularly consumed alcoholic beverages at the

 4 premises and purchased alcoholic beverages at the store. He “was usually intoxicated

 5 by 3:00 or 4:00 p.m.” On the day of the accident, Durand consumed seven 12-ounce

 6 cans of beer at the premises. He additionally purchased two 24-ounce cans of malt

 7 liquor early that afternoon. He drank one and exchanged the other for a cold can at

 8 around 6:00 p.m. The accident occurred thereafter when Durand was returning to the

 9 convenience store after driving a customer home. Meteor knew of Durand’s drinking

10 habits and intoxication. The evidence was sufficient for a jury to conclude that

11 Meteor acted recklessly or wantonly with respect to its hiring, retention, or

12 supervision of Durand.

13 EXCESSIVE PUNITIVE DAMAGES

14        Meteor lastly argues that the district court erred in refusing to remit or disallow

15 the punitive damages award because it was excessive and a result of jury passion and

16 prejudice. According to Meteor, the award violated the requirements of due process.

17 We address the issue under de novo review, independently assessing the record. See

18 Aken v. Plains Electric Generation & Transmission Coop., Inc., 2002-NMSC-021, ¶

19 17, 132 N.M. 401, 49 P.3d 662.


                                               7
 1        The jury awarded Plaintiffs $4,550,000 in compensatory damages.               It

 2 apportioned fault sixty percent to Meteor and forty percent to Durand. It awarded

 3 punitive damages of $10,000,000 against Meteor and $10,000 against Durand.

 4        With regard to Meteor’s due process concern, it is our obligation to ensure that

 5 “the measure of punishment is both reasonable and proportionate to the amount of

 6 harm to the plaintiff and to the general damages recovered.” State Farm Mut. Auto.

 7 Ins. Co. v. Campbell (State Farm), 538 U.S. 408, 426 (2003). To do so, we analyze

 8 the factors discussed in BMW of North America, Inc. v. Gore, 517 U.S. 559, 574

 9 (1996). Aken, 2002-NMSC-021, ¶ 19. As relevant to this case, they are: (1) the

10 degree of reprehensibility of the defendant’s conduct; and (2) the disparity between

11 the harm (or potential harm) suffered by the plaintiff and the punitive damages award.

12 Id. ¶ 20.

13        As to the first factor, the evidence establishes a significant degree of

14 reprehensibility. There was evidence that Meteor hired Durand with knowledge of his

15 propensity to drink and drive and allowed him to work and remain on the convenience

16 store premises while he regularly consumed liquor and became intoxicated, knowing

17 that he would drive when leaving the premises. Moreover, Meteor sold Durand beer

18 on the day of the accident. The dangers of drinking and driving are well known.

19 Mendoza v. Tamaya Enters., Inc., 2011-NMSC-030, ¶ 35, 150 N.M. 258, 258 P.3d


                                              8
 1 1050 (recognizing the “senseless havoc and destruction caused by intoxicated

 2 drivers” (internal quotation marks and citation omitted)).            Meteor’s actions

 3 demonstrated an indifference to and a reckless disregard for the health and safety of

 4 others—drivers and passengers whom Durand would encounter when leaving the

 5 convenience store premises. See Jolley v. Energen Res. Corp., 2008-NMCA-164, ¶

 6 32, 145 N.M. 350, 198 P.3d 376 (analyzing the types of conduct that determine

 7 reprehensibility).

 8        As to the second factor, Plaintiffs suffered extraordinary injury and death as the

 9 result of the accident at issue in this case. The jury awarded compensatory damages

10 in the amount of $4,550,000 and allocated sixty percent, $2,730,000, to Meteor. As

11 in Jolley, we do not determine whether it is appropriate to consider the entire

12 compensatory damages award or only Meteor’s portion in reviewing Meteor’s due

13 process argument. Jolley, 2008-NMCA-164, ¶ 36. Rather, we consider whether the

14 amount of the punitive damages award reflects the limited purposes of punishment

15 and deterrence and whether the amount of an award is “so unrelated to the injury and

16 actual damages proven as to plainly manifest passion and prejudice rather than reason

17 or justice.” Id. (internal quotation marks and citation omitted.)

18        Analysis of the evidence in this case does not indicate that the punitive damages

19 award was excessive in relation to the injury and compensatory damage award.


                                              9
 1 Plaintiffs’ decedent, age 32, was struck and injured in a head-on crash while his

 2 motorcycle was stopped at an intersection. He later died. The jury attributed sixty

 3 percent comparative fault to Meteor. Even if it is appropriate for this Court to

 4 consider only the compensatory damages attributed to Meteor, the ratio of punitive

 5 damages to the harm suffered as quantified by the jury is 3.67 to 1. The amount was

 6 not excessive in the circumstances.

 7        Nor must we reverse because the jury did not award a lesser ratio in view of the

 8 amount of its compensatory damage award. Meteor cites to the language of State

 9 Farm, 538 U.S. at 425. In that case, the United States Supreme Court addressed the

10 lack of rigid benchmarks or ratios when examining the due process requirements of

11 a punitive damage award. Id. It had noted the 4 to 1 ratio in Gore, 517 U.S. at 581,

12 and noted the likelihood that single digit multipliers would comport with due process.

13 State Farm, 538 U.S. at 425. In this context, the Court observed that when economic

14 damages were small, a higher ratio may be appropriate, and, conversely, “[w]hen

15 compensatory damages are substantial, then a lesser ratio, perhaps only equal to

16 compensatory damages, can reach the outermost limit of the due process guarantee.”

17 Id. This latter language relied on by Meteor does not establish any requirement on

18 which this Court can rely. Rather, it states only broad guidelines for a due process

19 analysis.


                                             10
 1        Meteor also argues that the punitive damages award was excessive by

 2 contrasting it to the $10,000 punitive damages award against Durand. According to

 3 Meteor, “[t]here is no reasonable basis for the discrepancy in the amount of punitive

 4 damages, particularly given the fact that the actions of Durand were the direct cause

 5 of . . . Plaintiffs’ damages.” Regardless of whether Durand was the direct cause of the

 6 accident, the jury determined that Meteor’s conduct contributed sixty percent to

 7 Plaintiffs’ damages. As to the discrepancy between the punitive damages awarded

 8 against Meteor and Durand, a jury is entitled to consider the financial condition of a

 9 defendant in reaching a punitive damages award. Cf. Gonzales v. Sansoy, 103 N.M.

10 127, 131, 703 P.2d 904, 908 (Ct. App. 1984) (holding that the introduction of

11 defendant’s financial statement was relevant and admissible to the issue of punitive

12 damages). Moreover, the issue for us on appeal does not address the award against

13 Durand. The jury was entitled to decide that the larger award against Meteor better

14 served the purposes of punishment and deterrence. As we have discussed, the award

15 against Meteor does not violate due process guidelines.

16 CONCLUSION

17        We affirm the punitive damages award against Meteor.

18        IT IS SO ORDERED.




                                             11
1                                      ________________________________
2                                      JAMES J. WECHSLER, Judge


3 WE CONCUR:



4 __________________________________
5 CELIA FOY CASTILLO, Chief Judge



6 __________________________________
7 MICHAEL D. BUSTAMANTE, Judge




                                  12
