                                            I attest to the accuracy and
                                             integrity of this document
                                               New Mexico Compilation
                                             Commission, Santa Fe, NM
                                            '00'05- 15:30:06 2012.11.29
         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-004

Filing Date: February 22, 2012

Docket No. 32,436

ESTATE OF DANIEL RALPH GUTIERREZ, by and through
his personal representative, JANET JARAMILLO, individually
and as next friend of SAGE G., JORDAN G., and NOAH G.,

       Plaintiffs-Petitioners,

v.

METEOR MONUMENT, L.L.C. d/b/a ALAMEDA METEOR,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Timothy L. Garcia, District Judge

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

Vigil Law Firm, P.A.
Jacob G. Vigil
Albuquerque, NM

for Petitioners

Domenici Law Firm, P.C.
Pete V. Domenici, Jr.
Lorraine Hollingsworth
Albuquerque, NM

for Respondent

                                 OPINION

CHÁVEZ, Justice.


                                     1
{1}     On August 31, 2003, while driving at approximately 7:00 p.m., Defendant Dean
Durand crashed his Ford Bronco into a motorcycle driven by Daniel Gutierrez, ultimately
resulting in Gutierrez’s death. Durand admitted that earlier in the afternoon and up until
6:00 p.m., while at the business establishment operated by Defendant Meteor Monument,
L.L.C., he had consumed seven twelve-ounce cans of beer and a twenty-four-ounce can of
malt liquor, which has a higher alcohol content. He also testified that he consumed three
ounces of malt liquor after 6:00 p.m. and ingested heroin and crack cocaine shortly before
the accident. Approximately three and one-half hours after the accident, Durand’s blood
alcohol level was recorded at 0.09 gms/100 ml.

{2}    Gutierrez’s estate and family successfully sued both Durand and Meteor for
Gutierrez’s wrongful death. Only the verdict against Meteor is at issue in this appeal. The
causes of action against Meteor were four-fold: (1) that Meteor was liable under the Alcohol
Licensees Liability Act, also known as the New Mexico Dram Shop Liability Act (Dram
Shop Liability Act), NMSA 1978, § 41-11-1 (1986), for serving alcohol to Durand when it
was reasonably apparent that he was intoxicated; (2) that Meteor was negligent in hiring,
supervising, and retaining Durand, knowing that he was an alcoholic and permitting him to
consume alcohol in excess while working for Meteor (“negligent supervision”); (3) that
Meteor was vicariously liable for the negligence of its employees; and (4) that Meteor’s
conduct was so egregious that it was liable for punitive damages under the dram shop and
employment causes of action.

{3}      Meteor appealed to the Court of Appeals, raising five issues. First, Meteor contended
that the evidence was insufficient to support a verdict on the dram shop liability cause of
action because there was no evidence that identified which Meteor employee served Durand,
nor was there any evidence from which the jury could find that Durand’s intoxication was
reasonably apparent to that server. Second, Meteor claimed as a matter of law that it could
not be vicariously liable for Durand’s actions because there was no evidence that Durand
was in the scope of his employment at the time of the accident. Third, Meteor contended it
did not have notice that the negligent supervision claim included Durand as one of its
employees. Fourth, Meteor argued that the scope of employment instruction given by the
trial court at the request of both parties was erroneous because the instruction inappropriately
conflated vicarious liability and the negligent supervision causes of action. Fifth, Meteor
contended that the evidence was insufficient to support a punitive damages verdict against
it. Estate of Gutierrez ex rel. Jaramillo v. Meteor Monument, LLC, No. 28,799, slip op. at
1 (N.M. Ct. App. May 18, 2010).

{4}    The Court of Appeals reversed the dram shop liability verdict and remanded the
negligent supervision verdict for a new trial, and therefore it did not address the punitive
damages claim. Slip op. at 19. Regarding the dram shop claim, the Court of Appeals
concluded as a matter of law that the evidence was insufficient to support a finding that it
was reasonably apparent to Meteor that Durand was intoxicated at the time he was sold
alcohol because there was no evidence in the record identifying who sold Durand the
alcohol. Slip op. at 17. Regarding the employment claims, the Court of Appeals agreed with

                                               2
Gutierrez that “employer vicarious liability was not argued” to the jury, slip op. at 8, nor
could it have been, because the facts did not support a finding that Durand was acting in the
course and scope of his employment at the time of the accident, slip op. at 9. This holding
has not been challenged. However, with respect to the negligent supervision claim, the
Court of Appeals concluded that Gutierrez did not include a claim for negligent supervision
of Durand in his complaint, nor was such a claim clearly argued at trial, slip op. at 8,
although the claim “was clearly contemplated by Plaintiffs and the court throughout the
course of the trial,” slip op at 12. In addition, the Court of Appeals concluded that scope of
employment was not at issue in the negligent supervision claim. Slip op. at 13-14.
Therefore, the Court determined that the jury was unable to decide the actual issues before
it (1) because the jury was given a scope of employment instruction, (2) because of the
confused fashion in which the case was argued, and (3) because in answering two jury
questions, the trial court advised the jury that to hold Meteor liable, it must find that Durand
was in the scope of his employment. Slip op. at 14. This confusion and uncertainty resulted
in the Court of Appeals remanding the negligent supervision claim for a new trial, and
therefore it did not reach the punitive damages issue. Slip op. at 15. Meteor did not cross-
appeal.

{5}     After granting Gutierrez’s petition for writ of certiorari regarding the dram shop
claim, we conclude that (1) identification of the server was not essential, and (2) the
circumstantial evidence in this case was sufficient for a jury to find that it was reasonably
apparent to Meteor that Durand was intoxicated at the time he was last served alcohol.
Regarding the negligent supervision claim, although the pleadings in this case are not a
model of clarity, the trial court did not err in holding that Meteor was on notice that the
negligent supervision claim included Durand as an employee. In addition, scope of
employment may be a factor in a negligent supervision claim; both Gutierrez and Meteor
requested a scope of employment instruction and agreed with the trial court’s answers to the
jury questions regarding that instruction. As a result, this error was invited, and the trial
court did not abuse its discretion in rejecting Meteor’s motion for a new trial. We therefore
reverse the Court of Appeals and remand to that Court to address the issue regarding punitive
damages.

I.     PLAINTIFFS PRESENTED ENOUGH EVIDENCE UNDER THE DRAM
       SHOP LIABILITY ACT FOR THE JURY TO REASONABLY FIND THAT
       IT WAS “REASONABLY APPARENT” TO DURAND’S SERVER THAT
       DURAND WAS INTOXICATED AT THE TIME OF SERVICE.

{6}     To establish a defendant’s liability under the New Mexico Dram Shop Liability Act,
a plaintiff must prove that the defendant licensee “(1) sold or served alcohol to a person who
was intoxicated; (2) it was reasonably apparent to the licensee that the [patron] . . . was
intoxicated; and (3) the licensee knew from the circumstances that the [patron] . . . was
intoxicated.” Section 41-11-1(A). The issue before us is whether, after viewing the
evidence in the light most favorable to the jury verdict, we are convinced that the verdict
cannot be sustained either by the evidence or reasonable inferences therefrom. Gonzales v.

                                               3
New Mexico Dep’t of Health, 2000-NMSC-029, ¶ 18, 129 N.M. 586, 11 P.3d 550.

{7}      Meteor contends that there is no evidence to support a finding that it was reasonably
apparent to its employee-server that Durand was intoxicated at the time he was served. The
Court of Appeals agreed. Gutierrez, No. 28,799, slip op. at 17. Initially the Court of
Appeals acknowledged that a reasonable jury could find that Meteor’s employees sold
alcohol to Durand when Durand was intoxicated, and based on both the circumstances and
Durand’s history of alcoholism, it was reasonably apparent to Meteor’s employees at the
time they sold alcohol to Durand that he was intoxicated. Slip op. at 16. However, despite
this acknowledgment, the Court of Appeals, applying a de novo standard of review, slip op.
at 7, reversed the district court because “there [was] no evidence in the record regarding who
sold the alcohol to Durand and, therefore, no evidence to support a finding that [Meteor]
knew that Durand was drunk based on what was reasonably apparent.” Slip op. at 17.

{8}     We disagree with the Court of Appeals that the identity of the server who actually
sold or served alcohol to a patron is a prerequisite to proving dram shop liability. In
Plummer v. Devore, 114 N.M. 243, 247, 836 P.2d 1264, 1268 (Ct. App. 1992), overruled on
other grounds by State v. Martinez, 2007-NMSC-025, ¶ 21, 141 N.M. 713, 160 P.3d 894,
the Court of Appeals found sufficient evidence to support liability in a dram shop case
without looking to the identity of the server. There are two reasons why evidence of who
actually served the patron is immaterial: (1) the reasonably-apparent prong is based on an
objective standard—not what the actual server subjectively perceived about the patron’s
level of intoxication; and (2) circumstantial evidence can support a finding of what should
have been reasonably apparent to a server regarding whether the patron was intoxicated at
the time he or she was served alcohol.

A.     THE “REASONABLY-APPARENT” PRONG CREATES AN OBJECTIVE
       STANDARD.

{9}     We have consistently interpreted legislation using the adverb “reasonably” as
imposing an objective standard. In State v. Rudolfo, 2008-NMSC-036, ¶ 17, 144 N.M. 305,
187 P.3d 170, we interpreted an “acted reasonably” requirement for self-defense as an
objective, rather than subjective, element. Similarly, in Shull v. New Mexico Potash Corp.,
111 N.M. 132, 134, 802 P.2d 641, 643 (1990), we contrasted the subjective “good faith”
standard with the objective “reasonable” standard. Accord Kestenbaum v. Pennzoil Co., 108
N.M. 20, 27-28, 766 P.2d 280, 287-88 (1988) (same). As we explained in Rudolfo, 2008-
NMSC-036, ¶ 17 (internal quotation marks and citation omitted), “the [‘acted reasonably’]
requirement is objective in that it focuses on the hypothetical behavior of a reasonable
person acting under the same circumstances as the defendant.” In Plummer, the Court of
Appeals applied an objective standard to the reasonably-apparent prong when it concluded
that the evidence was sufficient to support a finding that the server, who was unidentified,
“knew or should have known” that the patron was intoxicated at the time the patron was sold
alcohol. 114 N.M. at 247, 836 P.2d at 1268.


                                              4
{10} Our interpretation of the reasonably-apparent prong as creating an objective standard
is in accord with how other jurisdictions have interpreted similar dram shop act language.
In Becks v. Pierce, 638 S.E.2d 390 (Ga. Ct. App. 2006), the Georgia Court of Appeals
recognized that its dram shop act holds servers liable “if a provider in the exercise of
reasonable care should have known” that the patron was intoxicated. Id. at 393 (internal
quotation marks and citation omitted). In Hutchens v. Hankins, 303 S.E.2d 584 (N.C. Ct.
App. 1983), the North Carolina Court of Appeals interpreted its dram shop act to impose
liability where the server “knew or should have known that the patron was in an intoxicated
condition at the time he or she was served.” Id. at 594-95. In Perseus, Inc. v. Canody, 995
S.W.2d 202, 206-07 (Tex. App. 1999), the Texas Court of Appeals implicitly read its
statute’s “apparent to the provider” requirement to create an objective test. The Perseus
court defined “apparent,” a term also used in our Dram Shop Liability Act, as “[t]hat which
is obvious, evident, or manifest; what appears, or has been made manifest. That which
appears to the eye or mind; open to view; plain; patent.” Id. at 206 (quoting Black’s Law
Dictionary 88 (5th ed. 1979) (internal quotation marks omitted)). The court reasoned that
“[i]t is not the actual observation of conduct that makes the conduct ‘apparent.’ Rather,
conduct is apparent when it is visible, evident, and easily observed.” Id. at 206. The court
therefore concluded that the “apparent” language indicated an objective standard. Id.

{11} The Perseus court explained its rationale for applying an objective standard, as
follows:

       Were we to construe the statutory “apparent to the provider” requirement [to
       be subjective], then a provider of alcohol could always escape liability by
       merely turning a blind eye to signs of intoxication that are plain, manifest,
       and open to view. Surely this is not what the Legislature intended when it
       enacted legislation to hold providers responsible when they serve obviously
       intoxicated individuals.

Id. The Georgia Supreme Court echoed this same concern in Riley v. H & H Operations,
Inc., 436 S.E.2d 659, 661 (Ga. 1993), reasoning that “a construction of [its dram shop act]
requiring actual knowledge would render the Act an ineffective sanction, since only when
the defendant admitted its own knowledge could the plaintiff prevail.”

{12} Similarly, in Miller v. Ochampaugh, 477 N.W.2d 105, 109 (Mich. Ct. App. 1991),
the Michigan Court of Appeals held that Michigan’s dram shop act requirement that the
intoxication be “apparent to an ordinary observer” was an objective standard. The court
reasoned, “had the Legislature wished to create a subjective standard, it could have worded
the dramshop act accordingly.” Id. The Miller court also expressed concern that the
“adoption of a subjective standard would essentially do away with the dramshop cause of
action,” noting that a defendant could escape liability if the serving employee simply
testified that he or she did not personally observe the patron to be intoxicated. Id. We agree
and are persuaded that, in New Mexico, the Legislature intended the reasonably-apparent
prong to require an objective standard of proof.

                                              5
B.     PLAINTIFFS MAY RELY ON CIRCUMSTANTIAL EVIDENCE OTHER THAN
       EVIDENCE AT THE TIME OF SERVICE TO PROVE WHAT WAS
       REASONABLY APPARENT TO THE SERVER.

{13} Although Meteor acknowledges that circumstantial evidence may support a finding
under the reasonably-apparent prong, it contends that the circumstantial evidence must be
from witnesses who were present at the time of service. Meteor does not cite case law to
support this argument; instead it advances a policy argument that “the use of circumstantial
evidence could be stretched to the point that evidence that is remote in either time or place
could be used to find a licensee liable.” We disagree. Again, the Court of Appeals opinion
in Plummer is instructive. In Plummer, the Court of Appeals found sufficient evidence to
support a finding under the reasonably-apparent prong, despite the lack of evidence from
witnesses who were present at the time the patron was served alcohol. 114 N.M. at 247, 836
P.2d at 1268. The evidence in Plummer consisted of testimony from the patron regarding
the length of time he was present at the bar, the results of a Breathalyzer test, and expert
testimony interpreting the results of the test. Id.

{14} Other states with similar dram shop acts allow circumstantial evidence to be used to
prove what the server should have known of the patron’s intoxication. In Kish v. Farley, 24
A.D.3d 1198 (N.Y. App. Div. 2005), New York’s intermediate appellate court explicitly
addressed this issue. It stated that “visible intoxication may be established by circumstantial
evidence,” id. at 1200, and that no “direct proof in the form of testimonial evidence from
someone who actually observed the allegedly intoxicated person’s demeanor at the time and
place that the alcohol was served” is required, id. (internal quotation marks and citation
omitted). See also Perseus, 995 S.W.2d at 206-07 (holding that proof that the server actually
witnessed the drunken behavior was not required).

{15} Applying this principle, in Cadillac Cowboy, Inc. v. Jackson, 69 S.W.3d 383, 389-90
(Ark. 2002), the Arkansas Supreme Court found sufficient evidence that the patron was
visibly intoxicated at the time of service, based on evidence that the patron consumed several
beers before going to a club, followed by consuming at least one mixed drink at the club,
combined with a police officer’s testimony that the patron appeared intoxicated at the
accident scene. Similarly, in Studer v. Veterans of Foreign Wars Post 3767, 925 N.E.2d
629, 637 (Ohio Ct. App. 2009), the Ohio Court of Appeals found a genuine issue of material
fact as to what was apparent to the server based on several pieces of circumstantial evidence:
the patron had consumed four beers before arriving at the serving bar; he had then consumed
nine beers at the bar; he was a regular at the bar in question; bar employees had many
chances to observe the patron at the bar; he appeared drunk at the time of his arrest shortly
after the car accident following service; and he had a blood alcohol content well over the
legal limit.

{16} In permitting the plaintiff to rely on circumstantial evidence that the patron’s
intoxication was obvious at the time of service, the Studer court reasoned:


                                              6
       [I]t is logical to presume that a liquor permit holder, or its employee(s), may
       never make the admission that they continued to serve a person after that
       person exhibited signs of intoxication. For a liquor permit holder to make
       such an admission would be to concede liability on his behalf. Thus, the only
       way for a third party injured by an intoxicated person to substantiate his
       claim against the liquor permit holder would be by use of circumstantial
       evidence.

Id. at 636-37 (internal quotation marks and citation omitted). In summary, because the
reasonably-apparent prong in the Dram Shop Liability Act is based on an objective standard,
and because circumstantial evidence at a time other than the time of service may be
sufficient to prove what a server should have known regarding the level of the patron’s
intoxication at the time the patron was served, the identity of the server is not essential. We
next turn to the evidence in this case to determine whether the evidence was sufficient for
the jury to find Meteor liable to Gutierrez under the Dram Shop Liability Act.

C.     PLAINTIFFS PRESENTED SUFFICIENT                       EVIDENCE        UNDER       THE
       “REASONABLY-APPARENT” PRONG.

{17} In assessing the sufficiency of the evidence, we review for substantial evidence. See
Weststar Mortg. Corp. v. Jackson, 2003-NMSC-002, ¶ 8, 133 N.M. 114, 61 P.3d 823. “In
reviewing the jury verdict for substantial evidence, we examine the record for relevant
evidence such that a reasonable mind might accept as adequate to support a conclusion,”
viewing the facts in the light most favorable to the verdict. Nava v. City of Santa Fe, 2004-
NMSC-039, ¶ 10, 136 N.M. 647, 103 P.3d 571 (internal quotation marks and citations
omitted).

{18} Meteor contends that the only testimony regarding Durand’s appearance at the time
of sale was Durand’s own testimony that he did not think he appeared drunk when he was
last sold a beer by Meteor. Durand testified at his deposition that he was not intoxicated at
the time Meteor employees sold him beer on the day of the accident, but later stipulated that
he was intoxicated at the time Meteor employees sold him the beer that same day. He also
testified that Meteor’s employees knew that he was drinking while working on August 31,
2003, because sometimes one of the employees would ask him for a drink. Durand believed
that he could not have appeared intoxicated, boasting that he could still walk straight, and
that in the past he would drink 18-20 beers and then drive to buy more beer. However, other
evidence at trial calls into question Durand’s self-assessment.

{19} The manager admitted that Durand’s alcoholism was “pretty well-known” among
Meteor employees. The manager also testified that Durand, a daily patron who also worked
there, was usually visibly intoxicated by 3:00 p.m. Durand testified that the Meteor place
of business is the only place he bought his beer. See Studer, 925 N.E.2d at 637 (noting that
“[s]ignificantly, [the patron] was a regular at the . . . [bar] and admitted to consuming about
eight beers per day”). Durand testified that the store’s employees who were working on the

                                              7
day of the accident knew that when he purchased beer he was working and that he had been
drinking all day long, because they observed him doing so. See Plummer, 114 N.M. at 247,
836 P.2d at 1268 (relying in part on the length of time that the patron spent at the bar);
Studer, 925 N.E.2d at 637 (finding relevant that the servers had plenty of opportunities to
observe the patron while on the premises).

{20} Moreover, Durand admitted that he drank seven twelve-ounce cans of beer and one
twenty-four-ounce can of malt liquor, which has a higher alcohol content than regular beer,
while he was at the Meteor business establishment. See Plummer, 114 N.M. at 247, 836
P.2d at 1268 (relying in part on the quantity of alcohol that the patron had consumed before
the relevant service). Approximately one hour after Durand left Meteor, he crashed into
Gutierrez. Officer Richard Castillo, who investigated the accident, testified that Durand’s
appearance indicated that Durand was intoxicated. He further testified that Durand’s speech
was slurred and his eyes were bloodshot. When Officer Castillo administered field sobriety
tests to Durand, Durand was unable to complete the tests as instructed. Durand swayed
heavily from side to side and missed the tip of his nose when he was asked to touch it with
his forefinger. See Studer, 925 N.E.2d at 637 (an officer’s observation of the patron at the
accident scene was relevant to the patron’s drunken state at the earlier time of service). Five
hours after the accident and six hours after he was sold his last beer by Meteor, Durand’s
blood alcohol level was 0.09 gms/100 ml. See Plummer, 114 N.M. at 247, 836 P.2d at 1268
(relying in part on the patron’s blood alcohol level). All of this circumstantial evidence was
sufficient to support a jury finding that Durand was intoxicated at the time Meteor
employees sold him beer and that it was reasonably apparent that he was intoxicated.
Although Durand attributed his dangerous driving and poor performance on field sobriety
tests to his consumption of illegal drugs minutes before the accident, the jury was free to
reject this testimony.

II.    BECAUSE BOTH PARTIES REQUESTED INSTRUCTIONS ON SCOPE OF
       EMPLOYMENT AND AGREED WITH THE COURT’S ANSWERS TO
       JURY QUESTIONS REGARDING SCOPE OF EMPLOYMENT,
       FUNDAMENTAL ERROR DOES NOT WARRANT A REMAND FOR A
       NEW TRIAL.

{21} The Court of Appeals remanded the negligent supervision claim for a new trial for
three reasons. First, it was not clear in either the pleadings or during trial that Gutierrez
contended that Meteor was negligent in hiring, supervising, and retaining Durand.
Gutierrez, No. 28,799, slip op. at 8. Second, the Court of Appeals disagreed with the trial
court that if the scope of employment instruction was given in error, it was not fundamental
error. Slip op. at 14. Third, because scope of employment was not an issue in this case, the
jury was misdirected. Slip op. at 14-15.

{22} The Court of Appeals recognized that Meteor never objected to either of these jury
instructions or counsel’s arguments. Slip op. at 10-11. However, the Court decided that
these errors, in sum, “created an environment in which the jury would have been unable to

                                              8
fairly determine the actual issues before it,” and cited to a case reviewing unpreserved jury
instruction error for fundamental error. Slip op. at 14.

{23} Gutierrez contends that the Court of Appeals was wrong to remand this case for a
new trial under the fundamental error doctrine because this doctrine does not apply in civil
cases and, in any event, because Meteor actively advocated for the instructions, there was
no fundamental error. Meteor did not appeal the Court of Appeals’ remand of the negligent
supervision claim for a new trial. However, Meteor defends the Court of Appeals’ remand,
arguing that the Court did not rely on fundamental error because Meteor preserved all of the
issues considered by the trial court, and the Court of Appeals was correct to conclude after
a de novo review that the jury was confused or misdirected by the jury instruction on scope
of employment. As part of this argument, Meteor contends that it did not have notice that
Gutierrez alleged that Durand was one of the employees whom Meteor negligently
supervised. See Gutierrez, No. 28,799, slip op. at 8, 10-12.

{24} Regarding the notice issue, we acknowledge that the pleadings in this case did not
expressly list Durand as an employee whom Meteor negligently hired, supervised, or
retained. In the pretrial order, which governed the proceedings, Gutierrez alleged that
Meteor “negligently hired, trained, supervised, and retained [Nena] Brackeen, John
Brackeen, and other employees and agents.” Although it would have been a simple matter
to name Durand as one of the “other employees,” we agree with the trial court that the claim
was “sufficiently pled [and] factually presented.” The evidence during trial from witnesses
and transcripts of depositions preserved for use during trial was primarily focused on
Meteor’s hiring and supervision of Durand. The evidence developed by Gutierrez was that
the employees knew that Durand was an alcoholic, he consumed alcohol while performing
work for Meteor, he was served alcohol while he worked, and he drove away from work
after having consumed alcohol. Although the pleadings were imperfect, as was the trial of
this case, Meteor had sufficient notice that Durand was the focus of Gutierrez’s negligent
supervision claim. In any event, Meteor has neither argued nor demonstrated any prejudice
as a result of the negligent supervision claim being submitted to the jury. The trial court did
not abuse its discretion when it allowed the claim of negligent supervision of Durand to go
to the jury. See Bellet v. Grynberg, 114 N.M. 690, 692, 845 P.2d 784, 786 (1992) (no abuse
of discretion in allowing a claim that was not well-pled unless the defendant did not have a
fair opportunity to defend against the claim, creating prejudice).

{25} The more complicated issue concerns the scope of employment instruction that was
given to the jury. Generally when a plaintiff seeks to hold an employer vicariously liable
for the negligence of its employees, whether the employees’ negligence occurred in the
scope of their employment may be at issue. Lessard v. Coronado Paint & Decorating Ctr.,
Inc., 2007-NMCA-122, ¶ 40, 142 N.M. 583, 168 P.3d 155. However, even when an
employee is alleged to have negligently caused injury to a plaintiff outside the employee’s
scope of employment, scope of employment may still be a factor for the jury to consider
under a negligent hiring, supervision, or retention claim. Id.


                                              9
{26} In this case, Gutierrez and Meteor each prepared a scope of employment instruction
to be submitted to the jury. While the parties and the trial court were settling the jury
instruction on the negligent supervision claim, the trial judge suggested that the parties
needed to define the employer-employee relationship in the body of the negligent
supervision instruction. Meteor’s attorney advised the trial court that he also wanted to
define scope of employment for the jury at that point in the instructions.

{27} Gutierrez’s attorney indicated that he had the scope of employment instruction in his
package of proposed instructions. Meteor’s attorney next persuaded the trial court to modify
the scope of employment instruction to specify that “Defendant Dean Durand’s acts of
smoking crack cocaine and injecting heroin were not within the scope of his employment.”
However, this was not without objection from Gutierrez, who contended that the revision
of the standard uniform jury instruction seems to “completely negate the idea that anything
Dean Durand does would be within the scope of employment.” Thus, Gutierrez suggested
that if the language proposed by Meteor were added, the trial court should also add that
“[d]rinking alcohol and being served alcohol is within the course and scope of employment.”
Meteor responded, “[w]ell, that’s a fact issue for the jury.” Although the parties did not
describe for the trial court the specifics of why they wanted a scope of employment
instruction, they both wanted the instruction. Meteor appeared to believe that the instruction
was significant on the issue of Durand drinking on the job. As we have indicated, scope of
employment may be a factor for the jury to consider in a negligent supervision case.
Lessard, 2007-NMCA-122, ¶ 40. How the parties thought that scope of employment might
be a factor for the jury was not revealed to the trial court, but what is clear is that both parties
wanted a scope of employment instruction. The trial court rejected Gutierrez’s scope of
employment instruction by modifying it at Meteor’s request.

{28} During its deliberations, the jury asked two questions related to the scope of
employment instruction. First, it asked whether, in order to find Meteor liable, it had to find
both that Durand was an employee of Meteor and that he was “acting within the scope of his
employment at the time of the occurrence.” The trial court responded, with the consent of
all parties, that both elements needed to be proven to find Meteor liable under the claim for
negligent supervision. Second, the jury asked whether it could assess punitive damages if
it found that Durand was an employee but was not acting in the scope of employment at the
time of the occurrence. The trial court again responded, with the consent of all parties, that
the jury could not assess punitive damages against Meteor if they found that Durand was not
acting in the scope of his employment at the time of the occurrence.

{29} After the jury returned its verdict, Meteor moved for judgment as a matter of law
notwithstanding the verdict and for a new trial. In this motion, Meteor did not challenge
either the scope of employment instruction or the employer liability jury instruction, but
rather insisted that these jury instructions were “the law of the case,” quoting Payne v. Hall,
2004-NMCA-113, ¶ 18, 136 N.M. 380, 98 P.3d 1030. Meteor capitalized on these
instructions to urge the trial court to conclude that there was insufficient evidence to support
the jury’s verdict.

                                                10
{30} It was not until the hearing on Meteor’s motion for judgment as a matter of law that
Meteor first contended that the scope of employment instruction should not have been given.
Meteor argued that the scope of employment instruction mixed vicarious liability and direct
liability for negligent hiring and “may have colored the whole jury deliberations.” Meteor
went on to argue that there was no evidence that Durand was in the scope of his employment
at the time of the accident. The trial court replied that the argument was that “the scope of
his employment was getting drunk and his employer letting him get drunk and then leaving
and putting the public at risk.” Meteor disagreed with the trial court’s interpretation.

{31} The post-trial objection to the scope of employment instruction is not sufficient for
Meteor to have preserved this error. See Kelly v. La Cueva Ranch Co., 25 N.M. 674, 678,
187 P. 547, 548 (1920) (“It is not the function of a motion for a new trial to raise
propositions not raised in the progress of the cause.”). The time to object to the scope of
employment instruction was at the time it was tendered, not in a post-trial motion. See
Williams v. Town of Silver City, 84 N.M. 279, 281, 502 P.2d 304, 306 (Ct. App. 1972)
(applying the principle that issues not raised until the judgment notwithstanding the verdict
are “too late to be the subject of review”). Meteor cannot have it both ways. By requesting
the scope of employment instruction and then insisting post-trial that it was the law of the
case, Meteor endorsed the instruction. Meteor’s post-trial argument that the scope of
employment instruction should not have been given was simply too late.

{32} Therefore, because Meteor did not object to the instruction before it went to the jury,
we agree with Gutierrez that the Court of Appeals had to have remanded the case for a new
trial based on fundamental error. The fundamental error doctrine provides that a court may
remand for a new trial where an error is so fundamental that it puts the jury’s verdict into
grave doubt. See State v. Reyes, 2002-NMSC-024, ¶¶ 41-42, 132 N.M. 576, 52 P.3d 948,
abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-001, ¶ 36, 267 P.3d 806.
The fundamental error doctrine is codified in Rule 12-216(B)(2) of the Rules of Appellate
Procedure, which provides: “This rule shall not preclude the appellate court from
considering . . . in its discretion, questions involving . . . (2) fundamental error . . . .” There
is nothing in the rule’s text to indicate that this discretion is confined only to criminal cases.

{33} However, this Court has applied the doctrine in civil cases under the most
extraordinary and limited circumstances. See Rivera v. Am. Gen. Fin. Servs., Inc., 2011-
NMSC-033, ¶¶ 19, 20, 150 N.M. 398, 259 P.3d 803; Payne, 2006-NMSC-029, ¶¶ 37-38.
In Payne, a successive tortfeasor claim that was relatively new to New Mexico
jurisprudence, the plaintiff argued on appeal that the jury was confused about what law to
apply, based on instructions to which she had not objected at trial. 2006-NMSC-029, ¶¶ 8-9,
31. This Court agreed that the instructions at issue “were particularly likely to confuse the
jury.” Id. ¶ 35. We recognized that the plaintiff had in fact suggested some of the offending
instructions, and noted that we usually do not “grant a new trial if the original error was the
fault of the complaining party.” Id. ¶ 37. However, because the case was unique in that at
the time of the trial, there were no uniform jury instructions for successor tortfeasor cases,
and there was very little case law on the subject, which was in flux, we remanded for a new

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trial. Id. ¶ 38.

{34} Here, unlike in Payne, while no uniform jury instruction on negligent hiring existed
at the time of trial, see UJI 13-1647 NMRA Use Note (adopted December 3, 2010), well-
established case law laying out the elements of negligent hiring did exist. See Valdez v.
Warner, 106 N.M. 305, 307-08, 742 P.2d 517, 519-20 (Ct. App. 1987) (describing the
standard for negligent hiring); see also Spencer v. Health Force, Inc., 2005-NMSC-002, ¶¶
10, 22-24, 137 N.M. 64, 107 P.3d 504 (discussing causation in the negligent hiring context);
Pittard v. Four Seasons Motor Inn, Inc., 101 N.M. 723, 729, 688 P.2d 333, 339 (Ct. App.
1984) (recognizing that a showing of “scope of employment” is unnecessary under a
negligent hiring theory). Because Meteor invited jury instruction error in the face of
established case law on this issue, it would be improper to reward Meteor with a new trial
based on these errors. Allowing a party “to invite error and to subsequently complain about
that very error would subvert the orderly and equitable administration of justice.” State v.
Collins, 2007-NMCA-106, ¶ 27, 142 N.M. 419, 166 P.3d 480 (internal quotation marks and
citation omitted).

{35} As a final note, even if it were error, we doubt that this error was fundamental,
because a finding of “scope of employment” was consistent with a finding of causation under
the negligent supervision theory. The trial court adopted this analysis below, finding that
this jury instruction error was not fundamental, but rather harmless, because the “scope of
employment” instruction could “be reconciled with all of the factual requirements” under
the negligent supervision claim.

III.    CONCLUSION.

{36} Because the Court of Appeals erred both in reversing the jury verdict under the Dram
Shop Liability Act and in granting a new trial under Plaintiffs’ negligent supervision claim,
the Court of Appeals is reversed and this case is remanded to the Court of Appeals to
consider the issue regarding punitive damages.

{37}    IT IS SO ORDERED.

                                              ____________________________________
                                              EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice


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____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

Topic Index for Estate of Gutierrez v. Meteor Monument, No. 32,436

AE    APPEAL AND ERROR
      AE-FE    Fundamental Error
      AE-HE    Harmless Error
      AE-IE    Invited Error
      AE-PA    Preservation of Issues for Appeal

CP    CIVIL PROCEDURE
      CP-MN     Motion for New Trial

EL    EMPLOYMENT LAW
      EL-SE   Scope of Employment

EV    EVIDENCE
      EV-CV    Circumstantial Evidence
      EV-SS    Substantial or Sufficient Evidence

JI    JURY INSTRUCTIONS
      JI-CI     Civil Jury Instructions

NG    NEGLIGENCE
      NG-NG    Negligence, General
      NG-NH    Negligent Hiring

TR    TORTS

      TR-NH         Negligent Hiring
      TR-TK         Tavernkeeper’s and Social Host’s Liability




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