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Talbott v. Roswell Hospital Corp.6/22/2005
to establish consideration. However, the evidence presented below failed to establish a reciprocal obligation on MAT's part. MAT was not required to provide air ambulance services when contacted by the Hospital. To the contrary, the evidence appears to have indicated that any action or forbearance on MAT's part was optional.
The Hospital contends that this lack of obligation on MAT's part definitively resolves the question of the existence of a contract in its favor. However, " n optional contract may be enforced . . . when mutuality comes into existence by reason of an executed consideration." Acme Cigarette Servs., Inc. v. Gallegos, 91 N.M. 577, 581, 577 P.2d 885, 889 (Ct. App. 1978). Accordingly, where a contract lacks mutuality at its inception, performance may act as a substitute for consideration. Id. at 582, 577 P.2d at 890.
In this case, there was evidence that MAT commenced operations from the Hospital's helicopter pad in December of 2000 and provided air ambulance services to a number of the Hospital's patients prior to the accident. Accordingly, the question arises whether these actions should be characterized as the sort of "performance" that supplies consideration. To constitute consideration in support of the putative contract, MAT's actions must have been something for which the Hospital bargained. See Romero v. Earl, 111 N.M. 789, 791, 810 P.2d 808, 810 (1991) (stating that " onsideration adequate to support a promise is essential to enforcement of the contract and must be bargained for by the parties"). Something is bargained for "if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise." Id. (internal quotation marks and citation omitted).
Based on the evidence presented below, the finder of fact could infer that the Hospital bargained for MAT's activities. As previously described, the Hospital allowed MAT to occupy its helicopter pad and assured MAT that it would receive the first opportunity to perform transport services to or from the Hospital. Having extended itself in this fashion, it might be presumed that the Hospital felt that MAT's presence was desirable. Further, evidence was presented that the Hospital was able to provide enhanced services to its patients as a consequence of MAT's presence, and the Hospital received a number of patients by virtue of MAT's air transport services. These benefits further suggest that the Hospital bargained for MAT's performance.
However, evidence was also presented which would support a conflicting inference. Representatives of the Hospital testified below that the Hospital did not regard MAT's presence as any particular benefit to it and that the Hospital neither sought nor desired anything from MAT. The absence of any clear obligation on MAT's part, from the inception of the relationship onward, supports this assertion. The fact that the Hospital received no direct financial benefit from its relationship with MAT further supports the inference that MAT's activities were not bargained for. Accordingly, we conclude that the evidence falls short of definitively establishing consideration to support the putative contract between the parties.
In summary, the evidence was capable of supporting conflicting inferences on the existence of a contractual relationship between MAT and the Hospital. This, in turn, creates a question of fact concerning the characterization of MAT either as an independent contractor, such that Section 411 applies, or as a licensee, such that Section 411 does not apply. The district court should have permitted the jury to resolve this issue.
2. Provision of Services
As stated ab
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