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Enriquez v. Cochran7/30/1998
ad theories of negligent manufacture, failure to properly warn, and strict liability, among others. If at trial plaintiff chooses to abandon all but the negligence theory, the defendant cannot insist that the other theories of liability be instructed upon so it can defend against them. A defendant cannot force the plaintiff to accept the burden of proving theories upon which he does not wish to rely. That is what BSA was essentially doing when it submitted its instructions B, C, and E.
{72} BSA's instructions B and C are derived from UJIs 13-401 and 13-402 NMRA 1998. They describe a rule of respondeat superior liability based on traditional principal/agent rules. BSA's instruction E describes a franchisor/franchisee theory of liability. While there is some question whether this instruction accurately reflects New Mexico law, we need not decide that issue here. It is enough to observe that these were not theories Plaintiff chose to pursue or argue to the jury. Plaintiff chose to rely on a theory of direct liability based on BSA's failure to prevent untrained persons from felling large trees, or in the alternative, its failure to provide or require adequate training for persons like Plaintiff.
{73} More pointedly in this case, BSA's instructions B, C, and E were not required because of the discovery sanction. As we have noted, part of the sanction was a finding by the trial court of sufficient control by BSA over local activities to impose a duty of care on it. Each of BSA's requested instructions poses control as an aspect of the theory it embodies. Giving the instructions would have imposed on Plaintiff the burden, once again, of proving an element he was no longer required to prove.
V. ADMISSION OF EVIDENCE
{74} The trial court allowed Plaintiff to introduce evidence concerning the use of hard hats during tree felling and evidence of a tree felling injury which occurred in Arizona in 1995. BSA asserts this evidence was so prejudicial that it requires a new trial. We review the trial court's actions under the abuse of discretion standard. See
{75} The evidence regarding hard hats was introduced through Plaintiff's tree felling expert. The expert stated that hard hats should be worn as safety equipment for operations of this kind, and he further stated he wore a hard hat when felling large trees. BSA argues that this testimony was not relevant because it did not go to the issue of the proximate cause of the accident, or to why the tree broke. BSA asserts the hard hat evidence went only to the severity of the injury , which was not contested at trial. Plaintiff responds that evidence of the hard hat was relevant to show BSA's "cavalier" attitude toward the safety of volunteers and Council employees involved in felling large dead trees. While we do not adopt Plaintiff's characterization of BSA's attitude, we do agree that evidence of hard hat use was relevant to provide information to the jury concerning minimal safety precautions that could be taken when cutting down large trees. The fact that BSA did not address even these minimal precautions was relevant to the issue of BSA's failure to require or provide adequate training. Thus, it was not an abuse of discretion for the court to admit this evidence.
{76} The testimony concerning the 1995 tree felling injury came in through BSA's representative at the trial, Keith Gallaway, an area director for BSA. On cross-examination, Mr. Gallaway testified he was unaware of any tree felling accident other than Plaintiff's. On redirect, Plaintiff asked Mr. Gallaway if he knew of the 1995 accident in
Arizona, and Mr. Gallaway testified he was not aware of it. Plaintiff continued to question M
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