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Baer v. Regents of University of California9/8/1994
considering the recording of the telephone conference call related to the filing of the amended order granting summary judgment.
In addition, although Plaintiff's underlying complaint does not mention physician's assistant Pederson by name or the theory of respondeat superior, it does clearly identify Defendant Regents based on their status of doing business in New Mexico and as operators of LANL. Moreover, the complaint clearly identifies that the alleged negligence was reportedly committed by Mr. Baer's private physician, as well as Dr. Williams and "other medical personnel at LANL." Although less than sweeping, these pleadings give adequate notice that one of Plaintiff's theories of the case against Defendant Regents is vicarious liability. See ("In considering whether a complaint states a claim upon which relief can be granted[,] we assume as true all facts well pleaded."), overruled on other grounds by ; see also ) ("We consider all of plaintiff's arguments concerning the facts she alleges she will be able to prove under the claim."). And finally, Defendants have not pointed out, and we know of no authority for the proposition that, in order to prove agency, the agent must be joined as a party to the action. See .
Therefore, given the fact that "an entity or agency can only act through its employees," ), cert. quashed, 106 N.M. 35, 738 P.2d 907 (1987), we conclude the complaint gives fair notice to Regents and should be decided on the merits. See ("the principal function of pleadings is to give fair notice of the claim asserted"). We note that this Court recently reached the merits of an issue in an analogous case on the basis that "an issue is raised when there is some evidence in the record in dispute." See Gillin v. Carrows Restaurants, Inc., No. 15,067, slip op. at 5 (N.M. Ct. App. June 30, 1994). In that case, Judge Hartz specially concurred on the basis that "though [Plaintiff] did not alert the district court to the issue, the district court considered it. The issue was thereby preserved for appeal." Id. (Hartz, J., specially Concurring). In this case, there is evidence in the record in dispute, and we are persuaded that the district court considered the issue of vicarious liability. Further, the complaint contains enough to support the legal theory argued on appeal. For all of these reasons, we conclude the issue of vicarious liability was preserved.
Conclusion
For the reasons provided above, we reverse the district court's grant of summary judgment in favor of Regents, but affirm the grant of summary judgment in favor of Dr. Williams.
IT IS SO ORDERED.
A. JOSEPH ALARID, Judge
WE CONCUR:
PAMELA B. MINZNER, Chief Judge
BENNY E. FLORES, Judge
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