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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ISABEL and JASMINE CHACON,
3 Plaintiffs-Appellants,
4 v. NO. 30,564
5 MAGNUM BUILDERS,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Geraldine E. Rivera, District Judge
9 Gonzalez & Pizzonia, LLC
10 Justin Pizzonia
11 Albuquerque, NM
12 for Appellants
13 Klecan & Childress
14 Mark J. Klecan
15 Albuquerque, NM
16 for Appellee
17 MEMORANDUM OPINION
18 GARCIA, Judge.
19 This appeal raises a question regarding the duty of care, if any, owed by a
1 general contractor to an unlicensed framing subcontractor. The general contractor
2 hired a skilled subcontractor without actual knowledge that the independent
3 subcontractor did not have the necessary license to perform the framing work.
4 Because there is no issue of fact regarding whether the subcontractor had the
5 necessary skill and fitness to do the framing work that he was hired to perform, we
6 affirm the district court’s grant of summary judgment in favor of the general
7 contractor.
8 BACKGROUND
9 Plaintiffs presented no factual recitation for the benefit of this Court. As such,
10 we assume the facts presented by Defendant are undisputed. Plaintiff Isabel Chacon
11 (Chacon) injured his thumb while working as an independent subcontractor for
12 Defendant on a building project. Chacon had worked as a framer for several years,
13 and as an independent subcontractor for Defendant on approximately seven houses.
14 Chacon provided his own tools while working as a subcontractor for Defendant.
15 Chacon considered himself a skilled framer and presented himself to Defendant
16 as a skilled framer. Defendant did not train Chacon or supervise his work, and
17 Chacon did not expect Defendant to train or supervise him. Defendant knew that his
18 subcontractors must have a license in order to obtain liability insurance, and the
19 subcontract agreement between Chacon and Defendant required Chacon to provide
20 his own liability insurance. Chacon presented a certificate of insurance to Defendant,
2
1 and Defendant claims that he believed Chacon was both licensed and insured.
2 Chacon’s thumb injury occurred when his saw malfunctioned. As a result of
3 his injury, Plaintiffs brought suit against Defendant for negligently hiring Chacon,
4 providing him with unsafe materials, and loss of consortium. Defendant then moved
5 for summary judgment on Plaintiffs’ claims, arguing that they were not supported by
6 fact or law.
7 The district court ruled in favor of Defendant regarding the claim that
8 Defendant provided unsafe work materials and determined that this claim was not
9 supported by the facts. With regard to the negligent hiring claim, the district court
10 relied on Tafoya v. Rael, 2008-NMSC-057, 145 N.M. 4, 193 P.3d 551, and found that
11 Plaintiffs’ claim was not supported by law. The district court explained that, under
12 Tafoya, Plaintiffs must demonstrate that Defendant knew that Chacon was both
13 “unlicensed and that he was unqualified to perform dangerous work.” It found that
14 “Plaintiffs have failed to raise a disputed issue of material fact regarding Defendant’s
15 knowledge that Chacon was unlicensed and that he was not qualified to work as a
16 framer.”
17 Particularly under the facts of the instant case, the district court refused to
18 extend the holding in Tafoya to conclude that a contractor’s constructive knowledge
19 that a subcontractor is unlicensed is sufficient to impose a duty of care. The court
20 reasoned that Plaintiffs’ constructive knowledge argument asked it to create a duty for
3
1 a defendant contractor to investigate whether the documentation provided by a
2 subcontractor that implied that the subcontractor was licensed was false and
3 misleading. As a result, the district court granted Defendant’s motion for summary
4 judgment on all of Plaintiffs’ claims. Plaintiffs timely filed an appeal of the summary
5 judgment decision with regard to the negligent hiring claim.
6 STANDARD OF REVIEW
7 “An appeal from the grant of a motion for summary judgment presents a
8 question of law and is reviewed de novo. Summary judgment is appropriate where
9 there are no genuine issues of material fact and the movant is entitled to judgment as
10 a matter of law.” Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M.
11 21, 150 P.3d 971 (internal quotation marks and citations omitted). At issue in this tort
12 case is the existence of a duty, which is a question of law for the courts. See Solon v.
13 WEK Drilling Co., 113 N.M. 566, 571, 829 P.2d 645, 650 (1992) (“It is thoroughly
14 settled in New Mexico, of course, that whether the defendant owes a duty to the
15 plaintiff is a question of law.”); Schear v. Bd. of Cnty. Comm’rs, 101 N.M. 671, 672,
16 687 P.2d 728, 729 (1984) (“Whether a duty exists is a question of law for the courts
17 to decide.”).
18 DISCUSSION
19 The district court relied on the actual knowledge standard set forth in Tafoya
20 when it granted summary judgment in favor of Defendant. On appeal, the parties ask
4
1 this Court to determine how far a general contractor must go, if at all, to investigate
2 the qualifications of subcontractors that he intends to hire. Plaintiffs assert that the
3 correct legal standard is that an employer who engages an independent contractor with
4 either actual or constructive knowledge that the contractor does not possess that
5 measure of skill required for the proper performance of the work is liable for
6 negligence in hiring the incompetent contractor. Defendant responds that a
7 constructive knowledge standard would be inconsistent with both the holding in
8 Tafoya and the precedent that our New Mexico Supreme Court relied upon to reach
9 its decision in Tafoya.
10 In Tafoya, our Supreme Court recognized a duty of a general contractor to an
11 independent contractor whom the general contractor actually knows is not licensed.
12 2008-NMSC-057, ¶ 26. It was undisputed in Tafoya that the general contractor had
13 actual knowledge that the independent contractor was unlicensed. Id. ¶ 4. As such,
14 the Supreme Court included the following qualifying language:
15 The duty we recognize is stated in terms of the as-yet-undisputed facts
16 of this case; i.e., a duty to take appropriate measures so that independent
17 contractors whom the general contractor knows are unlicensed do not
18 perform dangerous work that requires a license. We offer no opinion as
19 to whether the duty extends outside the parameters of the general
20 contractor’s actual knowledge, which is undisputed in this case for
21 purposes of summary judgment, or how far a general contractor must go,
22 if at all, to investigate the qualifications of the independent contractor he
23 intends to hire.
24 Id. ¶ 26 (emphasis omitted).
5
1 Plaintiffs argue that the Supreme Court’s qualifying language in Tafoya
2 “explicitly left open the question of what knowledge was required” to impose a duty
3 of care on a general contractor and submit that the district court applied the wrong
4 legal standard when it granted summary judgment in favor of Defendant.
5 According to Plaintiffs, the fact that Chacon was not a licensed framer
6 automatically made him unqualified and unfit to perform his work as a framer. It is
7 clear that an employer can be held directly liable for negligent hiring under the
8 common law duty to members of the public whom the employer might reasonably
9 anticipate would be placed in a position of risk of injury as a result of the hiring. See
10 Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 28, 142
11 N.M. 583, 168 P.3d 155; Valdez v. Warner, 106 N.M. 305, 307, 742 P.2d 517, 519
12 (Ct. App. 1987) (“In order to support an instruction on negligent hiring and retention,
13 there must be evidence that the employee was unfit, considering the nature of the
14 employment and the risk he posed to those with whom he would foreseeably
15 associate, and that the employer knew or should have known that the employee was
16 unfit.” (emphasis added) (citations omitted)). Third party liability, therefore, is
17 recognized in order to protect the public from the incompetence that arises from
18 negligently hiring an unqualified subcontractor. See Tafoya, 2008-NMSC-057, ¶¶ 15,
19 17 (recognizing that the Legislature intended to protect the public when it statutorily
20 required that construction contractors be licensed and qualified to do the work they
6
1 are hired to perform).
2 In this case, Plaintiffs seek to disregard the qualification and fitness requirement
3 to establish a negligent hiring claim. Instead, Plaintiffs would substitute a legal
4 presumption that all unlicensed subcontractors are unqualified and unfit to do the
5 work they were hired to preform. We disagree and refuse to make such a broad
6 presumption. See Bank of N.Y. v. Romero, 2011-NMCA-110, ¶ 16, 150 N.M. 769,
7 266 P.3d 638 (“Where a party cites no authority to support an argument, we may
8 assume no such authority exists.”); Headley v. Morgan Mgmt. Corp., 2005-NMCA-
9 045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory argument);
10 see also Tafoya, 2008-NMSC-057, ¶ 19 (“General contractors . . . will be much more
11 hesitant to hire unqualified independent contractors if they know they can be subject
12 to liability for injuries those workers sustain as a result of their lack of
13 qualifications.” (emphasis added)).
14 In order to establish an employer’s liability for negligent hiring, a plaintiff must
15 demonstrate that the employer has not taken the care that a prudent person would take
16 in selecting the contractor for the business at hand. See Lessard, 2007-NMCA-122,
17 ¶ 28 (“Negligence in hiring or retention is based on the employer’s negligent acts or
18 omissions in hiring or retaining an employee when the employer knows or should
19 know, through the exercise of reasonable care, that the employee is incompetent or
20 unfit.”). The record in this case only establishes that Chacon was an unlicensed
7
1 framer when he was hired to do framing work on Defendant’s construction projects.
2 At that time, no contested issue of fact existed regarding Chacon’s qualifications and
3 fitness to do the framing work. As a result, we will only address whether Defendant
4 had actual or constructive knowledge of Chacon’s licensing status if Plaintiffs
5 factually establish that Chacon was unqualified or unfit to perform the framing work
6 Defendant hired him to perform. See S. Farm Bureau Cas. Co. v. Hiner, 2005-
7 NMCA-104, ¶ 9, 138 N.M. 154, 117 P.3d 960 (“A defendant seeking summary
8 judgment bears the initial burden of negating at least one of the essential elements
9 upon which the plaintiff’s claims are grounded. Once such a showing is made, the
10 burden shifts to the plaintiff to come forward with admissible evidence to establish
11 each required element of the claim.” (alteration, internal quotation marks, and
12 citations omitted)).
13 Chacon presented himself as a skilled framer, performed as a skilled framer,
14 and testified that he was a skilled framer. No evidence was presented to establish that
15 Chacon was an unfit or incompetent subcontractor. Instead, Chacon has insisted
16 throughout the course of this trial that he is a skilled framer, and the record shows that
17 Defendant hired Chacon on numerous prior framing jobs and there was no indication
18 of any problems with Chacon’s work. As such, Plaintiffs have failed to present
19 evidence that Chacon lacked the measure of skill and fitness necessary to properly
20 perform the work for which he was hired. See Lent v. Emp’t Sec. Comm’n, 99 N.M.
8
1 407, 410-11, 658 P.2d 1134, 1137-38 (Ct. App. 1982) (recognizing that once movants
2 make a prima facie showing of entitlement to summary judgment, the party opposing
3 the motion has the burden of showing there was an issue defeating summary
4 judgment).
5 The mere fact that Chacon was unlicensed at the time of his injury, in and of
6 itself, is not sufficient to find Chacon unqualified and unfit, thereby creating a legal
7 duty upon Defendant for negligent hiring. The only evidence in the record establishes
8 that Defendant used reasonable care in hiring a skilled framer. Therefore, we
9 conclude that the district court did not err when it granted summary judgment in favor
10 of Defendant on Plaintiffs’ negligent hiring claim. See Glaser v. LeBus, 2012-NMSC-
11 012, ¶ 12, 276 P.3d 959; Maralex Res., Inc. v. Gilbreath, 2003-NMSC-023, ¶ 13, 134
12 N.M. 308, 76 P.3d 626 (“[A]n appellate court will affirm the district court if it is right
13 for any reason and if affirmance is not unfair to the appellant.” (internal quotation
14 marks and citation omitted)). It is unnecessary to address Plaintiffs’ constructive
15 knowledge argument and address issues that may have been left unanswered in
16 Tafoya.
17 CONCLUSION
18 For the foregoing reasons, we affirm the judgment of the district court.
19 IT IS SO ORDERED.
9
1 ______________________________
2 TIMOTHY L. GARCIA, Judge
3 WE CONCUR:
4 _________________________________
5 JAMES J. WECHSLER, Judge
6 _________________________________
7 MICHAEL E. VIGIL, Judge
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