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Spencer v. Health Force1/31/2005
that the phone message is inadmissible and notes that it preserved its objection to the admission of the evidence. However, Respondent does not discuss whether the district court ruled on the admissibility of the evidence, and we find no such ruling. Thus, we will not address admissibility of this evidence for the first time on appeal and instead leave this issue for the district court to resolve on remand. See State v. Worley, 100 N.M. 720, 723, 676 P.2d 247, 250 (1984) ("Admission of evidence is entrusted to the discretion of the trial court . . . ."); cf. Torres v. Plastech Corp., 1997-NMSC-053, 26, 124 N.M. 197, 947 P.2d 154 (concluding that the "initial resolution" of the question of whether a worker is entitled to scheduled injury benefits, a mixed question of law and fact, should be left to the workers' compensation judge based on the principle that this "Court on appeal will not originally determine the questions of fact in a case since such function lies within the province of the trial court") (quotation marks and quoted authority omitted). Further, Petitioner presented evidence in addition to the phone message supporting an inference that Williams was an employee at the time of Rigolosi's death. Whitley, Respondent's former employee, stated that she believed that she and Williams would resume home care services for Rigolosi following her discharge from UNMH. Respondent answers this evidence with the bare assertion that "non-management employees" are not "individuals who are entitled to speak for the company," and that Whitley's testimony "is nothing more [than] supposition and conjecture" without argument or authority. We reject this contention; Whitley's statements regarding her belief as to Rigolosi's future care was based on a conversation Whitley stated she had with Pendleton, Health Force's owner. Petitioner also presented evidence by an employee of UNMH that Rigolosi had introduced Williams as her care giver. Viewed in a light most favorable to a trial on the merits, an inference may be drawn from Petitioner's evidence that Williams continued to be Respondent's employee at the time of Rigolosi's death, which precludes summary judgment.
At trial, Petitioner has the burden of demonstrating every element of the tort claims at issue. Whether Williams was an employee, whether Respondent breached its duty to Rigolosi, and whether Respondent's actions were the cause in fact and proximate cause of Rigolosi's death are disputed issues of material fact that preclude summary judgment.
III. Conclusion
We reverse the Court of Appeals and district court. The Court of Appeals appears to have confused the question of duty with the issue of breach of duty. As recognized by statute and common law, Respondent, an agency which provided home care workers to disabled individuals, owed, at the very least, a duty of ordinary care to those individuals with regard to the actions of the agency's employees, including the hiring and retention of its employees. An inability to comply with specific statutory requirements is relevant to a statutory breach of duty, or negligence per se, but does not negate a general duty recognized by both statute and common law. Genuine issues of material fact in this case preclude summary judgment. We remand this case to the district court for further proceedings consistent with this opinion.
IT IS SO ORDERED.
PATRICIO M. SERNA, Justice
WE CONCUR:
RICHARD C. BOSSON, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHAVEZ, Justice
PAMELA B. MINZNER, Justice (recused).
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