Torres v. El Paso Electric Co.

FRANCHINI, J.,

concurring in part, dissenting in part.

{57} I concur in Part II and Part III(B) of the opinion regarding independent intervening causation and intentional spoliation of evidence, respectively.

{58} I do not concur in Part 111(A) of the opinion regarding punitive damages. Punitive damages require “ ‘a positive element of conscious wrongdoing.’ ” Paiz, 118 N.M. at 211, 880 P.2d at 308 (quoting Charles T. McCormick, Handbook on the Law of Damages § 79, at 280 (1935)). “There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.” W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 2, at 9-10 (5th ed.1984) (footnotes omitted) [hereinafter Prosser & Keeton]. Because no evidence of such egregious behavior exists in this case, I would not subject EPEC to punitive damages.

{59} The principal cases cited by the majority, Ferrellgas, Gonzales, and Saiz, are all clearly distinguishable. In Ferrellgas, this court upheld a punitive damages award where the defendant not only negligently installed a propane conversion system in the trunk of a car, but also allowed the customer to pick up the vehicle knowing “the risk of harm of releasing a vehicle in that unsafe condition,” and where, furthermore, the defendant “had done over 100 conversions without ever filing Form 6,” a safety checklist required by the state inspector’s office. 118 N.M. at 272, 881 P.2d at 17. We concluded that “the negligence of [Ferrellgas’s employees] and regular violation of safety regulations by Ferrellgas amount[ed] to corporate indifference and reckless conduct.” Id. Here, Torres can point to no similarly outrageous conduct on the part of EPEC.

{60} In Gonzales, the defendant’s failure to warn patients of the well-documented risks of an eye implantation procedure was aggravated by the fact that the defendant knew its doctors “tended to underreport the number of complications on the follow-up reports that it did send in,” 120 N.M. at 146, 899 P.2d at 589, and further aggravated by the fact that the defendant appointed as its medical monitor the creator of the flawed implant device, “even though he received royalties for each lens sold and was paid to actively promote the lens to hospitals across the nation.” Id. Here, after a full-blown trial, Torres has brought no similarly aggravating circumstances to light. In my view, neither Ferrellgas nor Gonzales support the majority’s decision today that the punitive damages question must go to the jury in a new trial on remand.

{61} Nor does Saiz support the majority opinion. In Saiz, the danger was not nearly as obvious as the one posed in this ease. Instead of an overhead power line in full view, as here, a hidden and deadly peril existed: “The failure to install a smooth plastie bushing, required under the state electrical code, where the buried insulated cable entered the metal conduit, ... caused an electrical short and the electrocution of Jerry Saiz.” 113 N.M. at 392, 827 P.2d at 107. The Saiz court determined that a strict liability standard was appropriate in “the absence of a precaution made reasonably necessary in the face of the peculiar risks inherent” in running electrical cable at a high school football stadium, “where the public could be expected to be crowded closely together and where extensive physical contact with the electrical conduit running up the light pole was a certainty.” Id. at 399-400, 827 P.2d at 114-15. Here, EPEC should not be held to a strict liability standard, but in my view, sending this case to the jury for punitive damages is equivalent to subjecting EPEC to the risk of strict liability.

{62} Decisions from other jurisdictions also illustrate that this is not a proper case for jury consideration of punitive damages. In Potomac Elec. Power Co. v. Smith, 79 Md.App. 591, 558 A.2d 768, 772-73, 778, 782 (1989), the defendant not only knew that the wooden crossbar on a utility pole was dangerously riddled with knots but also failed to replace it when one arm broke and, when the other arm broke, the defendant did not respond for more than a month to repeated calls that a live wire was down, even though the defendant knew the area was one of frequent pedestrian traffic by adults and children. Here Torres’s evidence demonstrates no such positive elements of conscious wrongdoing on EPEC’s part.

{63} This case is more like Carroll Elec. Coop. Corp. v. Carlton, 319 Ark. 555, 892 S.W.2d 496, 501 (1995), wherein the court affirmed a directed verdict for the defendant, stating

There was no evidence tending to prove that CECC acted with actual malice. Nor was there evidence of conscious indifference to the consequences of its actions. The jury was justified in finding negligence in direct connection with the incident and perhaps in the general lack of any inspection program more rigorous than casually viewing the lines as CECC workers drove past. That, however, does not satisfy the criteria for punitive damages. Mere negligence, or even gross negligence, is not sufficient to justify punitive damages.

Here, where EPEC’s inspection of the utility pole was much more comprehensive than CECC’s, the district court’s directed verdict should stand.

{64} By reading into EPEC’s alleged acts and omissions the possibility of recklessness and a willful, wanton, and malicious intent, the majority opens the door for the jury to assess the utility with punitive damages for what is, at most, merely negligent conduct. In the words of Professors Prosser and Keeton, however, to support an award of punitive damages, “mere negligence is not enough, even though it is so extreme in degree as to be characterized as ‘gross.’ ” Prosser & Keeton § 2 at 10. I am afraid that, by ignoring the unique and deeply troubling factual scenarios in which the Ferrell-gas court discerned a “cavalier attitude toward[ ] safety regulations,” 118 N.M. at 272’, 881 P.2d at 17, and the Gonzales court lamented a “betrayal of the medical community,” 120 N.M. at 146, 899 P.2d at 589, the majority unjustifiably expands the potential liabilities of all companies doing business in New Mexico. I would affirm the district court’s directed verdict on the Torres’s claim for punitive damages. The majority holding otherwise, I respectfully dissent.

MINZNER, C.J., concurs.