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Lewis v. Samson9/14/1999
al motion to exclude the assailant from being considered a concurrent tortfeasor. The motion cited Lujan v. Healthsouth Rehabilitation Corp., 120 N.M. 422, 902 P.2d 1025 (1995), the same authority Plaintiff relies on in this appeal. Plaintiff thus fairly invoked a ruling of the trial court on this issue and preserved it for appeal. See id. (explaining liabilities of concurrent and successive tortfeasors).
{36} We are unpersuaded by Defendants' argument that Plaintiff failed to preserve this issue by failing to object to the trial court's jury instructions on comparative negligence. In so contending, Defendants rely on Pittard v. Four Seasons Motor Inn, Inc., 101 N.M. 723, 729, 688 P.2d 333, 339 (Ct. App. 1984) (holding that party waived complaint regarding instruction where it did not raise specific objection), and Romero v. Mervyn's, 109 N.M. 249, 253 n.2, 784 P.2d 992, 996 n.2 (1989) ("Sufficiency of evidence to submit a case to a jury, or to support a verdict, cannot be raised on appeal unless the lack of substantial evidence on a material issue has been specifically called to the trial court's attention by, e.g., a motion for a directed verdict, objection to instructions, or a motion for [judgment notwithstanding the verdict]."). The real issue in this appeal, however, is whether Defendants were successive tortfeasors as a matter of law and whether the trial court should have so determined. We believe that issue was preserved when Plaintiff filed her motion to preclude Defendants from arguing comparative fault by the assailant on the grounds that Defendants were successive tortfeasors. The trial court denied that motion.
{37} The issue on appeal, as we view it, is not whether Plaintiff failed to tender the proper instruction on successive tortfeasor liability. Instead, the question before us is whether the trial court should have, as a matter of law, excluded all mention during the trial of concurrent tortfeasor liability and the assailant's negligence per se, as irrelevant to the liability of Defendants against whom Plaintiff sought damages as successive, not concurrent, tortfeasors, as to the original liability of the assailant. The claimed error, we believe, essentially occurred during opening and closing arguments and throughout the trial, when Defendants argued the assailant's comparative fault to the jury. The "horse was out of the barn" before the jury was instructed, and Plaintiff's motion would have prevented the error. In this respect, Plaintiff's pretrial request served as a motion in limine seeking to withhold irrelevant and prejudicial information from the jury. She wanted to limit remarks and argument concerning the assailant's criminal or civil liability. The trial court, however, refused to do so.
2. The Trial Court Should Have Determined Prior to Trial That the Assailant Was Not a Concurrent Tortfeasor
{38} We agree with Plaintiff that the holding in Lujan, 120 N.M. at 425-26, 902 P.2d at 1028-29, would permit determination by a trial court of successive tortfeasor liability before trial. As other cases suggest, there may be times when such a determination cannot be made until some or all of the evidence has been adduced at trial. Such is not the case under the facts in this appeal, however, for the reasons we discuss below. Because the Supreme Court in Lujan considered the issues before it in the context of a summary judgment proceeding, it did not have the opportunity to provide guidance for a trial court to consider in addressing and applying successive tortfeasor liability to the manner in which the trial proceedings are conducted. Because we are remanding this appeal for a new trial, for the trial court's guidance, we take this op
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