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Lozoya v. Sanchez3/24/2003
of the typical married couple, or that a reasonable jury could so find. They had lived together in a house that they owned together for at least fifteen years. They had three children whom they raised together. They carried the same last name, and they generally enjoyed spending time with one another and participating in social events as a couple. Further, their intent to be committed to one another indefinitely is evidenced by their marriage shortly after the first accident, despite Ubaldo's debilitating injuries.
On the record before us, it seems clear that a reasonable jury could find that Ubaldo and Sara would have met the test for common law marriage under the standard followed in Johnson. They held themselves out as a married couple. Further, they testified as to their mutual dependence on each other in their day to day lives. Every single factor we have enunciated for determining whether they had an intimate familial relationship also appears to cut in their favor. We believe that the evidence presented demonstrates that Sara may be able to present a cognizable claim for loss of consortium. She should therefore be allowed to present this claim to the jury.
B.
The district court submitted a special verdict form to the jury regarding the second accident, which required the jury to decide whether Mr. McWaters was negligent, and if so, instructed the jury to apportion the amount of fault between Osbaldo and Mr. McWaters. Plaintiffs claim that this was error, presumably because the evidence did not support a finding of any negligence on Osbaldo's part. Mr. McWaters points out, however, that the only portion of the special verdict form which the jury completed was virtually identical to the proposed form submitted by Plaintiffs. This portion of the special verdict form simply asked whether Mr. McWaters was negligent, and it was based on our Uniform Jury Instructions. See UJI 13-2220 NMRA 2003. We see no error in the use of this form. The purpose of the trial was to determine whether Mr. McWaters was negligent. This form asked that very question. Regarding the second part of the form, which would have apportioned fault between Osbaldo and Mr. McWaters, if the jury had needed to reach it, this was of course entirely appropriate. We have "adopted a form of pure comparative negligence in which the jury apportions fault, regardless of degrees of fault, between the plaintiff and the defendant." Torres v. El Paso Elec. Co., 1999-NMSC-029, 13, 127 N.M. 729, 987 P.2d 386 (citing Scott v. Rizzo, 96 N.M. 682, 689-90, 634 P.2d 1234, 1241-42 (1981)).
Plaintiffs raise a second, related issue regarding Mr. McWaters' negligence. They claim that there is no substantial evidence to support the jury's verdict that Mr. McWaters was not negligent. NMSA 1978, ยง 66-7-318(A) (1971), states that " he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." Violation of this statute constitutes negligence as a matter of law. See Rogers v. Thomas, 81 N.M. 723, 724, 472 P.2d 986, 987 (Ct. App. 1970); see also Fitzgerald v. Valdez, 77 N.M. 769, 773, 427 P.2d 655, 657 (1967) ("Statutory violations are negligence per se if the statute violated was enacted for the benefit of the person injured."). The district court recognized this, and instructed the jury properly in this regard.
In reviewing a sufficiency of the evidence claim, we view the evidence "in a light most favorable to the prevailing party and disregard any inferences and evidence to the contrary." Montoya v. Torres, 113 N.M. 105, 109, 823 P.2d 905, 909 (1991). Mr.
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