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Apodaca v. AAA Gas Co.3/11/2003
to Plaintiffs.
Preservation
We briefly address preservation. Plaintiffs claim they have preserved this matter by their tender of two instructions and their general pre-trial objections to the opinion testimony of witnesses regarding the applicability of NFPA 58 to Plaintiffs or their employer. Subject to certain exceptions, Rule 12-216(A) NMRA 2003 requires that the record reflect that a ruling by the trial court was fairly invoked. "The principal purpose of the rule . . . is to alert the mind of the trial judge to the claimed error and to accord the trial court an opportunity to correct the matter." Madrid v. Roybal, 112 N.M. 354, 356, 815 P.2d 650, 652 (Ct. App. 1991). The tender but refusal of an instruction is generally sufficient to preserve error. See, e.g., State v. Sarracino, 1998-NMSC-022, 8, 11, 125 N.M. 511, 964 P.2d 72; State v. Montano, 83 N.M. 523, 524, 494 P.2d 185, 186 (Ct. App. 1972); State v. Gonzales, 82 N.M. 388, 392, 482 P.2d 252, 256 (Ct. App. 1971). However, where one instruction is given rather than another, the party must draw the court's attention to the specific defect in the given instruction to preserve it for appellate review. Sonntag v. Shaw, 2001-NMSC-015, 17, 130 N.M. 238, 22 P.3d 1188; Lewis v. Rodriguez, 107 N.M. 430, 435, 759 P.2d 1012, 1017 (Ct. App. 1988).
From all appearances, the trial court did not refuse Plaintiffs' tendered instruction. Rather the trial court modified Plaintiffs' and Defendants' instructions by adding Section 6-6.2.2 and changing "if you find . . . defendant violated this ordinance . . . ." to "if you find . . . any person or entity violated this ordinance. . . ." The court gave one instruction, rather than another. Plaintiffs should have alerted the trial court, on the record, of their objections to the instruction given. We have not found any objection in the record to the instruction given. Rather, it appears the instructions were informally settled off the record. Although the parties were later given an opportunity to make formal objections on the record and Plaintiffs objected to other instructions, they did not specifically object to the "fatal" instruction, much less point out the defect it now argues. As a result, we are deprived of the court's rationale for instructing the jury that the regulation could apply to "any party or company."
On the other hand, we note that neither Defendant has raised this issue. Moreover, the trial court indicated that the "tendered instructions [that were not given were] specifically rejected in spite of [Plaintiffs'] arguments to the contrary that sufficient evidence or the state of the law warrant the giving of said instructions." In light of these circumstances, and Plaintiffs' general pre-trial objections, we believe the trial court was alerted to Plaintiffs' position. We wish to point out, however, that the question of whether Plaintiffs preserved this matter is a close call. We believe it was barely adequate. We caution parties in the future to clearly specify their objections to a given instruction on the record to preserve the matter for appellate review.
Applicability of NFPA 58
Our Supreme Court has adopted the following test to determine whether a negligence per se instruction is appropriate:
(1) here must be a statute which prescribes certain actions or defines a standard of conduct, either explicitly or implicitly, (2) the defendant [or plaintiff] must violate the statute, (3) the plaintiff must be in the class of persons sought to be protected by the statute, and (4) the harm or injury to the plaintiff must generally be of the type the legislature through the statute sought to prevent.
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