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Talbott v. Roswell Hospital Corp.6/22/2005
ove, the Hospital has attacked the district court's reliance upon Section 411 to establish a duty of care on two grounds. The first prong of the attack is focused on the existence of a contractual relationship. For the reasons described above, we conclude that the evidence was not conclusive on this point. As a result, the district court erred in taking the issue from the jury.
The second prong of the Hospital's attack is focused on the definition of an independent contractor as one that does something for its employer. Below, Plaintiffs argued that the evidence definitively established that MAT performed a service for the Hospital. The Hospital contends that Plaintiffs adduced no evidence in support of this determination. Once again, we conclude that the evidence is capable of supporting conflicting inferences.
Our published authorities do not directly address the aspect of an independent contractor-employer relationship that contemplates the performance of a service by the independent contractor for the employer. However, it seems reasonably clear that this is meant to reflect that the independent contractor has engaged in some undertaking on the employer's behalf or for the employer's benefit. This is a common thread throughout the law of agency. See generally UJI 13-401 NMRA ("An agent is a person who, by agreement with another called the principal, . . . manages some affair or does some service for the principal, with or without compensation .").
No evidence appears to have been presented to suggest that MAT acted on the Hospital's behalf, in any representative capacity. However, as described above, evidence was presented on the question of benefit to the Hospital. For the reasons previously stated, the evidence supported conflicting inferences on this point. As a result, the provision-of-services issue neither provides a basis for affirmance of the district court's ruling on the independent contractor issue nor a basis for judgment as a matter of law in the Hospital's favor. Instead, this is another issue that should have been submitted to the jury for resolution, such that the case must be remanded.
Association and/or Facilitation
As an alternative basis for affirmance, Plaintiffs advance a new theory of tort liability. Plaintiffs urge the Court to adopt a rule by which "an actor who empowers or enables a third person to act in a capacity in which that person's negligence or misconduct may foreseeably injure another is under a duty to exercise ordinary care in selecting the third person or facilitating the third person's conduct."
Plaintiffs' theory represents a significant departure from current tort liability jurisprudence in New Mexico, for which we have an inadequate basis in law. The authorities upon which Plaintiffs rely in support of their novel argument merely illustrate the existence of a duty of care in a variety of well-established situations. See, e.g., Reichert v. Atler, 117 N.M. 623, 624, 875 P.2d 379, 380 (1994) (observing that a business proprietor owes a duty of care toward patrons under a theory of premises liability); Eckhardt, 1998-NMCA-017, 36, 40 (observing that a hospital owes a duty to act with reasonable care in furnishing services to patients); Diaz v. Feil, 118 N.M. 385, 389, 881 P.2d 745, 749 (Ct. App. 1994) (" t is beyond question in New Mexico that a hospital owes an independent duty of care to patients at the hospital."); Valdez v. Warner, 106 N.M. 305, 307, 742 P.2d 517, 519 (Ct. App. 1987) (observing that an employer owes a duty of care toward members of the public who might forseeably be injured as a result of the hiring of an employee); see also Herrera v. Quality Pontiac, 2003-NMSC-018,
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