(dissenting).
I respectfully dissent.
The question before this Court is whether to require Appellees — Fabian Mascarenas, Martin Vargas, and Albino Chacon — to submit to a new trial, even though the jury exonerated each of them from any responsibility in the death of Boyd Buffett. The majority does not base its ruling on any error in the jury instructions regarding the liability of Appellees or on any error with respect to the admission or exclusion of evidence regarding their liability. One indication of the remoteness of the connection between the case against Appellees and the alleged errors requiring a new trial is that the majority opinion does not mention Appellees in its discussion of the alleged errors.
As I understand the majority opinion, it requires a new trial for two reasons. One reason is that there was insufficient evidence to justify a jury instruction on the comparative fault of Buffett and his driver, Peri Ann Denena. The other reason is that the trial judge improperly admitted evidence of the intoxication of Buffett and Denena. I disagree with each of the majority’s reasons on several grounds.
My grounds for disagreeing with the first of the majority’s reasons are (1) the insufficiency of the evidence of proximate cause with respect to Buffett and Denena does not in itself entitle Plaintiff to a new trial against Appellees; and (2) in any event, there was sufficient evidence that the conduct of Buffett and Denena contributed to the accident. My grounds for disagreeing with the second reason are: (1) because there was sufficient evidence of proximate cause, the evidence of intoxication was admissible; (2) evidence of Buffett’s intoxication was admissible (as to damages) even if there was insufficient evidence of proximate cause; (3) Plaintiff failed to preserve in district court his objection to the admission of the evidence of intoxication; and (4) improper admission of evidence of Denena’s intoxication would not in itself justify a new trial against Appellees. I will discuss each of these grounds in the above order.
I. ORDERING NEW TRIAL BECAUSE OF INSUFFICIENCY OF EVIDENCE OF PROXIMATE CAUSE
A. Insufficiency of Evidence of Proximate Cause Does Not in Itself Justify New Trial
It is essential to keep in mind the respective roles of the parties. Buffett was a passenger in a vehicle driven by Denena when it collided with a vehicle driven by Jaramillo. The jury found that Jaramillo, Denena, and Buffett were negligent and that the negligence of each was a proximate cause of the accident. The jury apportioned one-third of the fault to each of them. Appellees — Mascarenas, Vargas, and Chacon — were not present at the accident. Mascarenas had seen Jaramillo earlier in the evening. Plaintiffs contention was that Mascarenas, an off-duty sheriffs deputy, was negligent in failing to take reasonable steps to prevent Jaramillo, who was intoxicated, from driving his vehicle. In answer to a special interrogatory, the jury found that Mascarenas was not negligent. The alleged liability of Vargas and Chacon arose under the New Mexico dram shop statute, NMSA 1978, § 41-11-1(A) (Repl.Pamp.1989). Vargas and Chacon owned interests in the liquor license for Los Compadres Supper Club. Plaintiffs theory was that Los Compadres contributed to causing the accident by selling Jaramillo alcohol when he was intoxicated. Vargas managed Los Compadres and was present there during the night of the accident. The jury answered “no” to special interrogatories asking whether Vargas was negligent and whether Vargas, d/b/a Los Compadres, was negligent in allowing the sale of alcoholic beverages to Jaramillo while he was intoxicated. Chacon had no management responsibilities at Los Compadres, was not present at Los Compadres on the night of the accident, and denied an ownership interest in the business. The only special interrogatory mentioning him asked whether the bartender at Los Compadres on the night of the accident (who was not a named defendant) was Chacon’s agent or servant. The jury answered “no.” The jury also answered “no” to a special interrogatory asking whether anyone not named as a party was negligent.
The majority holds that there was insufficient evidence to sustain the jury’s findings that the conduct of Buffett and Denena contributed to Buffett’s death. The majority then apparently holds that Plaintiff is entitled to a new trial against Mascarenas, Vargas, and Chacon on that ground alone, regardless of the propriety of the admission of evidence that Buffett and Denena were intoxicated. I fail to understand the majority’s rationale.
An appellate court should not set aside a verdict in favor of a party unless the verdict is undermined by prejudicial error, such as when the verdict is not supported by the evidence, see Clinard v. Southern Pac. Co., 82 N.M. 55, 475 P.2d 321 (1970), the jury was instructed improperly on the law necessary to render the verdict, see Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296 (1970), or there was error in the presentation of the case to the jury (such as errors in evidentiary rulings or improper comments by counsel), see Chinará. The requirement of such prejudicial error does not evaporate simply because of the presence of other parties in the trial. Our Supreme Court recognized this proposition in Sanchez v. J. Barron Rice, Inc., 77 N.M. 717, 427 P.2d 240 (1967). Josephine Sanchez died from carbon monoxide poisoning. The administrator of her estate sued three defendants under the wrongful death statute. One defendant manufactured the furnace that allegedly caused the death. A second defendant, R. & H. Enterprises, Inc., purchased the furnace from the first defendant and installed it in the house that was sold to the victim’s father by the third defendant. Each defendant was sued for negligence and breach of implied warranty. The jury rendered verdicts in favor of all three defendants. The Court, finding error in the admission and exclusion of evidence relevant to the negligence of R. & EL, ordered a new trial on the claim of negligence against R. & H. As for the other defendants, the Court wrote: “The warranty claims and the negligence claims against [the two other defendants] are severable from the negligence claim against R. & H. Being severable and having been decided, they need not be retried.” Id. at 725, 427 P.2d at 246. At the very least, Sanchez stands for the proposition that a party exonerated at trial is not automatically subjected to a new trial whenever there has been an error at trial with regard to the liability of someone else.
Decisions in other jurisdictions also support the view that a court may issue an order requiring a new trial for one defendant without requiring a new trial for an exonerated co-defendant. Appellate courts have upheld such orders when there is no indication that the verdict exonerating the co-defendant was affected by the grounds justifying the new trial. See State v. Municipality of Anchorage, 805 P.2d 971, 975 (Alaska 1991) (no indication that jury’s error or misconduct with respect to damages had any effect on determination that co-defendant was not negligent); Kimbell v. DuBose, 139 Ga.App. 224, 228 S.E.2d 205 (1976); Mertsaris v. 73rd Corp., 105 A.D.2d 67, 482 N.Y.S.2d 792, 806 (App.Div.1984) (error with respect to one defendant did not infect verdict exonerating co-defendant); cf. Juneau Square Corp. v. First Wis. Nat’l Bank, 624 F.2d 798, 811 (7th Cir.1980) (error entitling unexonerated defendants to new trial only tended to reinforce verdict in favor of exonerated co-defendant, so no abuse of discretion in failure to order co-defendant to stand trial ¿gain). Indeed, in such circumstances appellate courts have found that it would have been an abuse of discretion for the trial court to require an exonerated co-defendant to stand trial a second time, Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90, 92 (1978), and have even reversed an order granting a new trial as to an exonerated co-defendant, McIntosh v. Lawrance, 255 Or. 569, 469 P.2d 628 (1970) (en banc).
This result does not change with the adoption of comparative negligence. In two of the above cases the doctrine of comparative negligence had been applied at trial. State v. Municipality of Anchorage; Mertsaris v. 73rd Corp. The impact of comparative negligence has been explicitly addressed by the Texas Supreme Court. In Methodist Hospitals v. Sullivan, 714 S.W.2d 302 (Tex.1986), the court rejected the statement by the court of appeals that “ ‘the doctrine of comparative negligence requires reversal and new trial as to all multiple defendants in an action for damages, even though error has been found only as to one.’ ” Id. at 303 (quoting Sullivan v. Methodist Hospitals, 699 S.W.2d 265, 273 (Tex.Ct.App.1985)). Instead, the supreme court stated, “In a multiple defendant case, when one defendant is not found negligent by the jury, and an appeals court leaves that finding intact, remand is improper for the defendant whose liability in negligence has been determined.” Id.; accord State Dep’t of Highways & Pub. Transp. v. Pruitt, 752 S.W.2d 598, 602 (Tex.Ct.App.1988); Conaway v. Roberts, 725 S.W.2d 377, 380 (Tex. Ct.App.1987) (improper directed verdict for defendant did not require new trial as to exonerated co-defendant).
Some confusion on this point may arise because the adoption of comparative negligence can require an otherwise unnecessary retrial of a co-defendant who was found liable at the original trial. Even if there was no error affecting the finding of damages or the finding of liability against that co-defendant, errors with respect to other defendants may require that a new trial include an unexonerated co-defendant because the jury would likely recompute the percentages of fault of those defendants found to be liable. For example, if the jury had found that each of three defendants bore an equal one-third share of the liability and the reviewing court ruled that the trial judge had improperly admitted evidence against one defendant, it probably would be necessary to retry all three defendants because of the chance that the jury would have apportioned fault differently if it had heard only the proper evidence. If exclusion of the improperly admitted evidence would have caused the jury to view one defendant more favorably, the jury could well have imposed a higher percentage of fault on each of the other defendants even though exclusion of the evidence would have had no effect on the jury’s evaluation of the conduct of those two defendants. That consideration does not apply, however, when the defendants who might be subjected to a new trial were all exonerated at the first trial. There is only one way to apportion the absence of fault. If the evidentiary error could have had no effect on the jury’s evaluation of the conduct of the exonerated defendants, then the jury would still find them not liable regardless of whether the jury changed its view regarding the conduct of other persons.
The majority opinion expresses concern that the percentages of comparative fault no longer add up to 100% after the percentages of fault of Buffett and Denena are subtracted. But the ready answer to that concern is to note that Jaramillo would be 100% at fault if the jury exonerated everyone else who could have been found to be at fault.
The cases relied upon by the majority are distinguishable. Blake v. Delhotel, 89 Ill.App.3d 725, 350 N.E.2d 880 (1976), and Blake v. Mahaffey, 39 Ill.App.3d 724, 350 N.E.2d 883 (1976), both involved the trial of a three-car accident. The three drivers were parties. One attorney had improperly impeached a non-party eyewitness by cross-examining him with respect to prior inconsistent statements but then never offering proof that he made the prior inconsistent statements. This error affected the jury’s evaluation of the evidence of fault of each driver. The majority analogizes that situation to this ease, stating that the failure to prove the foundation for impeachment in the Blake cases was similar to the failure in this case to prove that the actions of Denena or Buffett proximately caused the accident. The logic behind this argument escapes me. The majority does not explain why failure of the defendants to prove the liability of Buffett and Denena would in itself affect the jury’s decision regarding the liability of Mascarenas, Vargas, or Chacon. (Later I will address whether the admission of evidence of the intoxication of Buffett and Denena could justify a new trial as to Appellees.)
Turnbull v. Byram, 235 Kan. 891, 684 P.2d 429 (1984), did not order a new trial against an exonerated defendant. One driver had sued another driver and a city. The jury found all three parties to be at fault and apportioned negligence. The appellate court held that the city was not negligent. It was therefore necessary for a new jury to recompute the relative faults of the two drivers. The doctrine of comparative negligence requires the jury to compare the negligence of those persons who are at fault. As I have already discussed, if an appellate court finds that the jury erred in finding a party at fault, then a new comparison must be made — but only between those parties already found to be at fault. The holding in Turnbull seems reasonable. But it hardly stands for the proposition that an exonerated defendant must always be retried if the jury erred in assigning fault to someone else.
In Kuhnke v. Fisher, 210 Mont. 114, 683 P.2d 916 (1984), counsel for one party engaged in improper final argument that prejudiced the plaintiff, thereby favoring all defendants. In that circumstance a new trial was required as to all defendants. Again, as in the Blake eases, this is simply an example of error in the presentation of the trial infecting the verdict as to a party, thereby requiring that the party submit to a new trial.
The case of most help to the majority is Williams v. Slade, 431 F.2d 605 (5th Cir. 1970), which concerned an intersection collision in which both drivers, Slade and Tread-well, claimed to have a green light. The passenger in Treadwell’s vehicle sued both drivers. The trial court improperly directed a verdict in favor of Treadwell at the close of plaintiffs case. The jury found Slade not negligent. The appellate court wrote:
We cannot ignore the inter-relatedness of the automobile tactics of both Slade and Treadwell. There is no suggestion of unavoidable accident or of contributory negligence [of the plaintiff]. As a result, we would need blinders not to see that the plaintiff was injured by the negligence of either Slade or Treadwell or both in tandem. The jury no doubt also perceived this fact. The problem is that we cannot be sure what effect it had upon the jury’s determination as to Slade’s negligence when the jury was deprived of the opportunity to adjudge the responsibility of both Treadwell and Slade together and was left with only an all or nothing choice as to defendant Slade. Consequently, we are not sure under the circumstances of this case that Slade’s liability for the accident was properly determined at the first trial. Slade must therefore stand trial again so that this issue may be properly determined. The jury should have been given the opportunity to view the accident comprehensively, taking into its vista the acts and omissions of both Treadwell and Slade. We see no need to repeat the error by giving the jury on retrial the all or nothing choice as to defendant Treadwell alone. Such procedure would be unjust to Tread-well, who may or may not be solely responsible for the entire accident. On remand, therefore, the jury must be given a binocular rather than a monocular view of the accident, with the hope that in this manner it may properly apportion the responsibility between the two parties to the accident, Treadwell and Slade.
Id. at 609. The court observed that the case illustrated why trial judges should be reluctant to direct verdicts. Id. at 606. In contrast to Williams, in this case the liability of Mascarenas, Vargas, and Chacon is independent of the liability of Buffett and Denena. The jury found Jaramillo liable. The jury would certainly have found Jaramillo more liable if it had been instructed not to consider the negligence of Buffett or Denena. Yet that would not change the jury’s role in determining the negligence of Mascarenas or the liability of Vargas and Chacon. Absent here is the “inter-relatedness” of the actions of (1) Denena and Buffett on the one hand, and (2) Mascarenas and Los Compadres on the other. The determination of whether Mascarenas and Los Compadres contributed to Jaramillo’s intoxicated driving is logically and factually independent of the determination of whether Denena or Buffett could have avoided the accident. In particular, one may wonder how the alleged failure to prove the fault of Denena and Buffett could influence the jury’s determination that the bartender at Los Compadres was not Chacon’s agent, which was the basis for exonerating Chacon. Moreover, in this ease the jury was not deprived of a “binocular” view of the accident. On the contrary, the error found by the majority is that the jury was given a binocular view when its view of the potential liability of the parties should have been restricted (with no opportunity to find Denena or Buffett at fault). Williams is not support for the remand in this case.
To sum up on this point, I fail to see how the jury’s determination that Mascarenas, Vargas, and Chacon were not liable was infected by the trial judge’s instruction permitting the jury to apportion fault to Buffett and Denena. The majority has failed to provide an explanation of how such infection could occur. In the absence of such infection, the law appears clear that an appellate court cannot order a new trial as to an exonerated defendant.
B. There Was Sufficient Evidence of Proximate Cause
In any event, the trial judge properly ruled that the evidence justified an instruction permitting the jury to apportion fault to Buffett and Denena. I will consider first the sufficiency of the evidence that Denena’s conduct was a proximate cause of Buffett’s injury. Then I will address the sufficiency of the evidence that Buffett’s own conduct was a proximate cause.
1. Sufficiency of Evidence That Denena’s Conduct Was a Proximate Cause
The jury could properly find Denena partially at fault if the evidence would support a determination that the accident could have been avoided or mitigated if Denena had been driving sober at a proper speed while maintaining a proper lookout. I agree with the trial judge that the evidence was sufficient for such a finding. On review an appellate court should examine the evidence and the inferences therefrom in the light most favorable to support the verdict, and all evidence and inferences to the contrary should be disregarded. See Clovis Nat’l Bank v. Harmon, 102 N.M. 166, 692 P.2d 1315 (1984). The appellate court does not reweigh the evidence or substitute its judgment for that of the fact finder. See id.; Ideal Basic Indus. v. Evans, 91 N.M. 460, 575 P.2d 1345 (1978).
It was undisputed that Denena had plenty of room to the right of her lane of traffic where she could have driven safely to avoid a collision. It was also undisputed that Jaramillo and Denena were both very intoxicated. An expert witness testified that their levels of intoxication would have greatly slowed their reactions. There was evidence that Jaramillo was driving 30 miles per hour and Denena was driving 45 to 50 miles per hour in the 45-mile-per-hour zone. There was testimony that at the point of collision the right-hand side of Jaramillo’s ear was 2^ feet over the center stripe. The damage to both vehicles was on their left front and left sides. Although the only eyewitness to the accident who testified at trial stated that Jaramillo veered suddenly and Denena had no chance to avoid the accident, her testimony was impeached substantially. She testified that she opened the passenger-side door to Denena’s car after the accident, although the rescue personnel at the scene testified that the doors were, all jammed and the jaws of life were necessary to extricate Buffett from the vehicle. The impeachment apparently had significant impact because Plaintiffs counsel referred to it at least three times in his opening final argument. Also, one officer’s testimony indicated that the eyewitness had told him that Denena had tried to avoid the accident. Jurors could properly have discounted the eyewitness’s version of events. See Plummer v. Devore, 114 N.M. 243, 247, 836 P.2d 1264, 1268 (Ct.App.), cert. denied, 114 N.M. 82, 835 P.2d 80 (1992) (jury free to disregard testimony). Relying instead on the evidence of Jaramillo’s high state of intoxication, on the expert testimony regarding the effects of intoxication, and on their own experiences in sharing the highways with intoxicated drivers, the jurors could have concluded that a more probable scenario is that Jaramillo meandered from side to side before wandering into the wrong lane, giving a sober, alert driver coming from the other direction ample time to observe the potential danger, slow down, and move to the right.
Perhaps more importantly, the investigating officer, Randy Wright, although testifying that Denena did not contribute to the collision, testified that Denena had taken steps to avoid it. As Plaintiffs counsel stated in final argument, “Officer Wright uncontrovertably said that in his opinion, Peri Ann Denena .did take evasive action, tried to turn to the side of the road[.]” Wright’s testimony is consistent with tire marks on a diagram he prepared, which appear to show skid-marks from Denena’s vehicle turning to the right for several feet before the point of impact. In light of the testimony that a person as intoxicated as Denena would have a greatly slowed reaction time, the jury could properly infer that if Denena was able to take some evasive action, a sober person could have accomplished much greater evasive action and avoided the fatal injury to Buffett.
This is not a simple issue to resolve. Appellate courts may be spoiled by the common availability of testimony by accident reconstructionists who can provide considerable detail concerning the paths of colliding vehicles. We have no such detailed reconstruction in this case. Nevertheless, I respectfully disagree with the majority and would hold that the trial judge acted properly in permitting the jury to find Denena at fault in failing to avoid the accident.
2. Sufficiency of Evidence That Buffett’s Conduct Was a Proximate Cause
For the purposes of this discussion, I will assume that the evidence' sufficed to establish that Denena could have avoided or mitigated the accident. If the accident could not have been avoided or mitigated by the Denena vehicle, then any negligence by Buffett could not have contributed to the accident.
Defendant raised two theories of negligence with respect to Buffett. First, as a passenger, Buffett may have had a duty to protect his own safety by maintaining a lookout and warning the driver of impending danger. See Kindschi v. Williams, 86 N.M. 458, 525 P.2d 385 (Ct.App.1974) (passenger apprehensive about danger of driving during a heavy rain may have had duty to stay alert and exercise reasonable care for his own safety). I do not rely on this theory.
The second theory is that Buffett was negligent in subjecting himself to danger by riding in a vehicle driven by a highly intoxicated person. In accordance with our uniform jury instruction, SCRA 1986, 13-1207 (Repl.1991), the trial judge instructed the jury on the duty of a passenger. The instruction contained the following language:
A passenger has a duty to use ordinary care for his own safety. A passenger may not sit idly by and permit himself to be driven carelessly, to his injury, where there are dangers which are known to him or which reasonably should be known to him.
See Janifer v. Jandebeur, 551 A.2d 1351 (D.C.1989); Lee v. Kellenberger, 28 N.C.App. 56, 220 S.E.2d 140 (1975); Dubecky v. Horvitz Co., 64 Ohio App.3d 726, 582 N.E.2d 1087, 1093 (1990); Rollins v. Winn Dixie, 780 S.W.2d 765 (Tenn.Ct.App.1989); Restatement (Second) of Torts § 466(a) (1963-64); 5 Blashfield Automobile Law and Practice § 215.30 (3d ed. 1966).
The evidence sufficed to establish that Buffett knew or reasonably should have known that Denena was too intoxicated to drive safely. There was testimony that shortly before the accident Buffett and Denena had left a nightclub where she worked. There was also expert testimony that at the time of the accident Denena had a blood alcohol level above that at which alcohol generally causes a person (1) to have a great deal of difficulty walking in a coordinated manner, (2) to be irrational, and (3) to pass out. Buffett would be negligent in becoming a passenger in a vehicle driven by a person showing such signs of impairment. See Gravois v. Succession of Trauth, 498 So.2d 140 (La.Ct.App.1986).
II. ADMISSION OF THE EVIDENCE OF INTOXICATION DOES NOT WARRANT A NEW TRIAL
■ The majority’s second reason for ordering a new trial as to Appellees is that the trial judge improperly admitted evidence of the intoxication of Buffett and Denena. As stated above, I disagree on several grounds. The evidence of intoxication was admissible on the issue of liability, and Buffett’s intoxication was also admissible on damages. In any event, Plaintiff did not preserve for appeal any objection to admission of the intoxication evidence. Finally, even if the evidence of Denena’s intoxication was inadmissible, that error would not justify a new trial as to Appellees.
A. The Intoxication Evidence Was Admissible
1. Evidence of Denena’s Intoxication
I agree with the majority that if Denena could not have avoided or mitigated the collision with the Jaramillo vehicle, then Denena’s level of intoxication was irrelevant to any issue in the case. As discussed in Section 1(B)(1) above, however, there was sufficient evidence for the jury to find that Denena could have avoided or mitigated the collision. The discussion in that section also establishes the relevance of Denena’s intoxication in arriving at that finding. See SCRA 1986, 11-401 (“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”) Given that relevance, it was well within the bounds of the trial judge’s discretion to admit the evidence of Denena’s intoxication. See SCRA 1986, 11 — 103.
2. Evidence of Buffett’s Intoxication
The evidence of Buffett’s intoxication was admissible for two purposes. First, as explained in Section 1(B)(2) above, there was evidence that Buffett shared responsibility for his injury because he negligently subjected himself to danger by riding in a vehicle driven by a highly intoxicated person. Buffett’s own substantial intoxication was relevant to explain why he would be willing to be driven by Denena when she was in that condition. See Peavler v. Board of Comm’rs, 557 N.E.2d 1077, 1082 (Ind.Ct.App.1990); Dubecky, 582 N.E.2d at 1092, 1095; Janifer.
Second, even if the majority is correct that Buffett and Denena bore no responsibility for the accident and Buffett’s death, Buffett’s intoxication was admissible on the issue of damages. In accordance with the uniform jury instruction on damages for wrongful death, SCRA 1986, 13-1830 (Repl.1991), the jury was instructed that it could award damages for “pain and suffering experienced by the deceased between the time of injury and death.” There was testimony that Buffett did not die instantaneously. Therefore, Buffett’s intoxication was relevant regarding the extent to which he suffered prior to his death. See Gallagher v. Four Winds Motel-Hotel, 233 Pa.Super. 1, 335 A.2d 394, 397 (1975); Hansen v. Johns-Manville Prods. Corp., 734 F.2d 1036, 1047 (5th Cir.1984) (evidence of use of pain medication may reduce award for pain and suffering); Hernandez v. American Appliance Mfg. Corp., 827 S.W.2d 383, 388-89 (Tex.Ct.App.1992) (same); Helleckson v. Loiselle, 37 Wis.2d 423, 155 N.W.2d 45, 50 (1967) (same); see generally 1 Marilyn Minzer et al., Damages in Tort Action §§ 4.21[3], 4.22 (1992).
3. Failure to Preserve Objection to Intoxication Evidence
Even if the evidence ’ of intoxication was inadmissible, Plaintiff is not entitled to relief on that ground because he failed to preserve in district court his objection to the evidence. To be sure, Plaintiff made a fine start at preserving his objection. Before trial Plaintiff filed a motion in limine with respect to evidence of intoxication of Buffett and any evidence (which would include evidence of intoxication) that Denena was negligent. The motion requested that such evidence not be tendered or mentioned by the defendants without their first seeking a ruling on admissibility outside the presence of the jury. In response one defendant represented to the court that there would be testimony that the accident was avoidable if Denena had been sober. On that representation the trial judge acted within his discretion in denying the motion in limine with respect to evidence of intoxication. As I have explained above, evidence of the intoxication of Denena and Buffett is admissible if Denena’s intoxication contributed to the accident.
Therefore, to preserve his objection to the admission of the intoxication evidence, Plaintiff had a duty to alert the judge at trial to any failure by the defendants to establish the necessary foundation for the intoxication testimony. Many, perhaps most, jurisdictions hold that a motion in limine will not in itself preserve an objection to the admission of evidence, a further objection at trial being required. See 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 103[02], at 103-18 to -20 (1992); 1 Peter Tillers, Evidence in Trials at Common Law by John Henry Wigmore § 18, at 801-07 (1983); Colleen R. Courtade, Annotation, Sufficiency in Federal Court of Motion in Limine to Preserve for Appeal Objection to Evidence Absent Contemporary Objection at Trial, 76 A.L.R.Fed. 619 (1986); cf. Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (by not testifying at trial, defendant failed to preserve contention in motion in limine that he could not be impeached by evidence of prior conviction). In support of this view, the Tenth Circuit Court of Appeals has said, “Only by specific, timely trial objection can the trial court entertain reconsideration of the grounds of the motion in light of the actual trial testimony and the surrounding circumstances developed at trial.” McEwen v. City of Norman, 926 F.2d 1539, 1544 (10th Cir.1991).
Moreover, even in jurisdictions in which a motion in limine may preserve an objection, it does not follow that the motion always preserves every ground for the objection. When the basis of the error in the court’s ruling is that the evidence at trial differed from what the proffering party predicted in response to the motion in limine, I would think that the objecting party would still have the duty to alert the judge at trial that the evidentiary predicate for the ruling on the motion had not been established at trial. Ordinarily, an improper ruling cannot be ground for reversal unless the trial court was alerted to the erroneous basis of its ruling, see State v. Flanagan, 111 N.M. 93, 98, 801 P.2d 675, 680 (Ct.App.), cert. denied, 111 N.M. 77, 801 P.2d 659 (1990), and a pretrial motion in limine can hardly alert the court that a prediction in an opposing party’s response to the motion turned out at trial to be incorrect. Requiring a trial objection in this context finds support in the general rule that when evidence is conditionally admitted over objection at trial, the objecting party must move to strike the evidence if the party offering the evidence does not later offer the foundation evidence necessary to satisfy the condition. See State v. Romero, 34 N.M. 494, 497, 285 P. 497, 498 (1930); Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App.1987); C.T. Foster, Annotation, Necessity and Sufficiency of Renewal of Objection to, or Offer of, Evidence Admitted or Excluded Conditionally, 88 A.L.R.2d 12 (1963). Decisions that have found an objection preserved by a motion in limine appear to make the distinction I am suggesting. Thus, the Ninth Circuit Court of Appeals said, “Perhaps most important, there was nothing in the manner or context in which the [evidence was] introduced at trial that was unforeseen or that cast any doubt on the applicability of the trial court’s in limine ruling.” Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir.1986). Similarly, a leading case holding that a motion in limine may sometimes preserve an issue for appeal distinguishes between occasions when an objection at trial would be akin to a formal exception that serves no real purpose and when a trial objection would call “the court’s attention to a matter it need consider.” American Home Assurance Co. v. Sunshine Supermarket, 753 F.2d 321, 324 (3d Cir. 1985); see United States v. Cobb, 588 F.2d 607, 610-11 (8th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979) (when issue not raised at trial, appellate court will review merits of motion in limine only on basis of information available to trial court at time of ruling on motion). I suspect that almost every jurisdiction would require a trial objection to preserve the issue raised regarding the intoxication evidence in this case.
When the intoxication evidence was offered at trial, Plaintiff should have objected that the defendants had failed to establish that intoxication was relevant because the defendants had not offered evidence that Denena could have avoided the accident. Perhaps it would have sufficed if at the close of evidence Plaintiff had moved to strike the evidence of intoxication. Yet Plaintiff followed neither of these avenues. Plaintiffs briefs have not directed this Court to any occasion during the course of the trial when he alerted the judge to his objection that the intoxication evidence should be excluded or stricken because the defendants had not established a proper foundation for its admission, nor has my review of the record uncovered such an objection. In these circumstances Plaintiff cannot complain of the admission of the intoxication evidence.
An additional comment is in order regarding the evidence that Buffett had used marijuana. The autopsy report noted the presence of THC in Buffett’s blood. The trial judge granted Plaintiffs pretrial motion to exclude evidence of Buffett’s use of marijuana. The judge indicated that the reference to THC in the autopsy report should be blacked out. At trial the judge excluded any reference to marijuana in testimony and in statements by counsel. It appears, however, that the judge had second thoughts about striking the reference to THC in the autopsy report. Perhaps the autopsy report was provided to the jury as an exhibit without any deletion of the reference to THC. But this cannot be determined from the record on appeal. The Plaintiff did not arrange for this Court to receive the trial exhibits. See SCRA 1986, 12-212(A) (Repl.1992). Thus, this issue too has not been preserved for appeal. See State v. Sacoman, 107 N.M. 588, 594, 762 P.2d 250, 256 (1988) (appellate court will not consider claim of error in trial court’s denying access to records when records are not before appellate court for review).
4. Reversal Inappropriate on Basis of Improper Admission of Evidence of Denena’s Intoxication
Finally, I will assume that there was insufficient evidence of proximate cause with respect to Denena and Buffett and that Plaintiff preserved at trial his objection to the evidence of intoxication. Accordingly, the evidence of intoxication would not have been admissible on the issue of liability. The evidence of Buffett’s intoxication, however, would still be admissible on the issue of damages. In this circumstance would Plaintiff be entitled to a new trial against Mascarenas, Vargas, and Chacon?
I think not. As I have explained, a failure of proof that Denena and Buffett shared responsibility for the accident and injury would not in itself justify a new trial against Appellees. A new trial can be justified only if some error in the trial tainted the verdict in favor of Appellees. I fail to see how evidence of Denena’s intoxication could have improperly persuaded the jury to find that Appellees were not liable. Perhaps evidence of Buffett’s intoxication could prejudice the jury against him and cause the jury to be unduly sympathetic to Appellees (although it is unclear why such prejudice would be so finely tuned that it would lead to a verdict exonerating Appellees while imposing substantial liability on the defendant whose drunken driving was allegedly their responsibility), but such prejudice against Buffett is a most unlikely consequence of the evidence of Denena’s intoxication. Improper admission of that evidence could not justify a new trial against Mascarenas, Vargas, and Chacon.
III. CONCLUSION
As I have indicated in the above discussion, the only ground discussed in the majority opinion that could justify a new trial against Appellees would be the improper admission of evidence of Buffett’s intoxication. In my view, however, that evidence was admissible on the issues of both responsibility for the accident and damages, and Plaintiff failed to preserve his objection to the evidence. Therefore, I would not order a new trial as to the exonerated Appellees. I should also note that the verdict of zero damages does not establish that the jury was inflamed by passion or prejudice. Given the absence of any documentation of Buffett’s prior employment or income and the absence of any testimony from former employers, the jury need not have believed that Buffett had ever held a job for more than a brief period of time or earned any substantial income. In accordance with the uniform jury instruction on the measure of damages for wrongful death, SCRA 13-1830, the jury could properly have found no “monetary worth” for his life because his after-tax income was unlikely to exceed his personal living expenses. I respectfully dissent.