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DeFillippo v. Neil6/21/2002
5, four months before the accident, and found them to be sound and free from hazards. These materials were sufficient to show that Neil could make a reasonable defense argument of reasonable inspection and lack of notice requiring jury determination. See Klopp v. Wackenhut Corp., 113 N.M. 153, 824 P.2d 293 (1992) (clarifying the standard of care owed by owners and occupiers of property to visitors in light of the adoption of the comparative negligence doctrine).
Plaintiffs do not argue that any intervening equities weigh against setting aside the entry of default. However, when an answer is filed a single day late, as in this case, a legally sufficient showing of intervening equities to prevent the setting aside of an entry of default should be difficult to establish.
G. Jury Trial on Damages
Neil also appeals the trial court's denial of her request for a jury trial on the issue of damages in this case. However, she acknowledges that this Court need not reach this issue if we reverse the trial court's decision denying the motion to set aside the default. Since we have reversed the decision denying the motion to set aside the default, Defendant will be allowed to answer and may take necessary steps to insure the jury trial she wishes to have. We leave for another day the decision regarding whether a jury trial on damages is required when a default judgment is entered on liability due to the failure to timely answer the complaint.
CONCLUSION
We reverse the trial court's denial of Neil's motion to set aside the entry of default and its award of damages and remand this case for a trial on the merits.
IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
LYNN PICKARD, Judge
IRA ROBINSON, Judge
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