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Madsen v. Scott5/13/1998
. Restatement (Second) Agency 250 (1993); Sell, (supra) at 95 (citing Southern Nat'l Ins. Co. v. Williams, 277 S.W.2d 487 (1955)).
{58} The New Mexico Supreme Court has recognized a distinction between an employer-employee relationship and a principal-agent relationship. ; . All principals are not employers, nor are all agents employees. . A non-employee agent's physical actions are not subject to the direct control of the principal. . Only when the principal controls the details and manner of performance of the agent does the principal become liable for the physical conduct of the agent.
{59} As discussed above, Homeowner did not retain control over Melvin. As such, Melvin's relationship to Homeowner can only be characterized as that of a non-employee agent. Therefore, I would not hold Homeowner liable for the unauthorized conduct of Melvin, a non-employee agent.
C. Policy
{60} Determining that an agency relationship exists and that liability can be imposed upon a homeowner under the circumstances of this case expands agency liability to include a ridiculous number of situations. For example, liability could be imposed on a homeowner who gave instructions to a house-sitter not to allow any one to play with the homeowner's dog and subsequently someone visits house-sitter and is bitten by the neighbor's dog. Or, liability could be imposed on a homeowner who gave instructions not to touch his fifty-year-old bottle of scotch and subsequently someone brings their own alcohol over, drinks it, gets alcohol poisoning and dies. There is simply no connection between the instructions in these scenarios and the instrumentality causing the harm. The same is true in this case. There is no connection between Homeowner instructing Melvin not to let anyone touch his guns and Jason being shot by Richard's gun.
{61} Additionally, imposing liability in a case as tenuous as this creates a standard of strict liability. Any time a homeowner leaves their home in the care of another, they are automatically liable for any accident on their property, foreseeable or not. This standard of strict liability sends a clear message to the insurance companies that they must revise homeowners' policies to encompass this new development. We should not send this message.
{62} This is not to say that individuals with meritorious claims do not deserve their day in court. Indeed, we have a solemn duty to uphold this premise. However, we also have an equally solemn duty to protect the rest of the public from unjustifiably being involved in litigation which is based on an erroneous interpretation of the law.
Conclusion
{63} The actions of Richard and Jason were not foreseeable, there are no facts to show that Melvin was an employee of Homeowner, and there are no material facts in dispute. Homeowner is, therefore, entitled to judgment as a matter of law. Accordingly, I would affirm the trial court's grant of summary judgment. The majority having decided otherwise, I must respectfully Dissent.
A. JOSEPH ALARID, Judge
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