(Concurring in part, dissenting in part).
{60} I agree with the majority that the exclusivity provisions of the Workers’ Compensation Act (WCA) do not apply to this case. However, I dissent from the result reached by the majority for three reasons. First, I think the trial court erred in admitting the extremely prejudicial evidence of Alire’s arrest and conviction. Second, in my view, Wal-Mart was entitled to present to the jury fully and fairly its theory that the degree of emotional distress suffered by the Plaintiffs’ had other causes than those alleged by the Plaintiffs. Third, I do not believe substantial evidence supports the verdict on intentional infliction of emotional distress or the award of punitive damages.
{61} The Plaintiffs do not deny that when the two-page newspaper article detailing Alire’s arrest for the May 25, 1994 beating of his girlfriend was read to the jury pool, there was an audible gasp from the prospective jurors. A brief excerpt of the article reads:
It was obvious ... that the victim had been beaten as her left eye had a severe hemotoma [sic] covering the area around it. In addition, it was reported that the victim had serious bruising over her body including her chest, arms, shoulders and face. In addition, [police] ... noticed bruising consistent with a person being choked on both sides of her neck.
The article goes on to describe how the victim, in her interview with police, “appeared visibly shaken and shocky [sic], her mannerism was that of a person who had been severely beaten.” The article further pointedly noted that before Alire allegedly raped the victim on the morning after he beat her, he “allegedly called his employer, Sam’s Club [a division of Wal-Mart] in Santa Fe, and told them he would not be at work that day.” Additionally, according to the article, “Alire was charged with false imprisonment and assault and battery in August 1993, but the district attorney’s office said those charges apparently were dropped because of insufficient evidence.” Upon hearing the gasp from the jury, counsel for Wal-Mart asked that the venire be stricken and a mistrial granted, but the trial court denied the request.
{62} Rule 11-401 NMRA 1999 defines “relevant evidence” as “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.” Rule 11-402 NMRA 1999 states: “All relevant evidence is admissible, except as otherwise provided by ... these rules or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible.” Rule 11-403 NMRA 1999 provides that, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ...”
{63} The majority opinion sees relevance in the above newspaper article and the fact of Alire’s subsequent conviction for false imprisonment and aggravated battery in that they somehow “rebut Wal-Mart’s claim that it had in place a policy that was effective in protecting its employees from sexual harassment after it had notice of an employee’s misconduct.” Apparently the majority is disturbed that Wal-Mart did not fire Alire upon publication of the newspaper article, even though the article itself notes that similar charges had been made and dropped against Alire in the past. For my part, I simply do not understand the majority’s “notice and protection” rationale since there is no evidence that there were any complaints by Wal-Mart employees that they needed protection from Alire after publication of the newspaper article. Indeed, Alire was jailed the week before the newspaper article was published and it appears from the article that he remained there, unable to make bond. Additionally, I note that Wal-Mart’s sexual harassment policy as applied to its employees generally was not on trial in this ease — else this suit would have been brought under the New Mexico Human Rights Act or Title VII of the federal Civil Rights Act. Rather, two individual plaintiffs sued Wal-Mart for tort damages done to them particularly. Those plaintiffs, Coates and Duran, had already left employment with Wal-Mart months before publication of the newspaper article, so I fail to see how the article or evidence of Alire’s later conviction was relevant to Coates and Duran’s case for damages against Wal-Mart.
{64} It is easy to see how the common perception might be that if Alire was the kind of person who would commit such abominable acts against his girlfriend as were detailed in the newspaper article, he probably did whatever Coates and Duran said he did to them at Wal-Mart. In a court of law, however, evidence offered to show that a defendant must have done a particular act on a particular occasion because it conforms to his alleged character is highly suspect and generally inadmissible. See Rule 11-404(A) NMRA 1999; see also Baum v. Orosco, 106 N.M. 265, 267, 742 P.2d 1, 3 (Ct.App.1987) (admissibility of character evidence in a civil case is even narrower than in a criminal case). Similarly, however influential on popular opinion, evidence of other wrongful behavior is generally considered non-probative and irrelevant in a court of. law, at least in New Mexico. Compare Rule 11-404(B) NMRA 1999 (exceptions listed for admission of evidence of other wrongful behavior do not include Plaintiffs’ implied theory that Alire acted in conformity with his alleged propensity for bad acts) with Fed.R.Evid. 415 (allowing admission of evidence regarding “Similar Acts in Civil Cases Concerning Sexual Assault”). Perhaps these are the reasons the trial court initially granted Wal-Mart’s motion in limine to exclude the newspaper article and evidence of Alire’s conviction. Inexplicably, the trial court later reversed itself— even going so far as to allow a poster-sized blow-up of the newspaper article to be presented to the jury — and I believe it did so in error.
{65} In my view, the newspaper article and evidence of Alire’s conviction had no probative value or relevance to the case brought to trial by Coates and Duran. Its singular effect was to inflame the jury against Alire — and Wal-Mart by association since two were joined together as Defendants in Plaintiffs’ Complaint. When Coates and Duran settled their claims against Alire for $100 apiece on the day the petit jury was impaneled, dismissing him from the suit, the jury could not hold him responsible for his conduct. Instead, the jury could only express its disgust by punishing Wal-Mart. Thus, in light of the gasp of horror from the venire in response to the newspaper article regarding Alire’s arrest, I cannot agree with the majority’s conclusion that ‘Wal-Mart has not offered any proof that the admission of the evidence unfairly prejudiced it.” Moreover, because Plaintiffs asked for punitive damages in their Complaint and because I think it is likely that the facts surrounding Alire’s arrest and conviction played a role in the jury’s assessment of such damages, I cannot agree with the majority’s conclusion that, “at worst, the evidence was merely cumulative.” I would hold that the evidence of Alire’s arrest and conviction should have been excluded.
{66} The second reason I dissent from the majority opinion is that I believe WalMart should have been allowed to present fully to the jury its theory and evidence regarding possible contributing causes of the Plaintiffs’ emotional distress. Wal-Mart’s evidence had to do not just with the fact that Coates’ ex-husband was incarcerated for murder and could not pay child support, but also with the fact that Duran had her driver’s license suspended for 100 years and had spent 29 days in jail for driving under the influence and disorderly conduct during the period she claimed to be suffering from emotional distress as a result of Alire’s actions. To my mind (and perhaps the jury’s), these facts might very well have had an on-going, detrimental impact on the emotional health of the Plaintiffs, as the majority concedes in Paragraph 41 with regard to “the stress Coates was suffering.”
{67} The majority justifies exclusion of this concededly relevant evidence by repeating the trial court’s opinion that the probative value of such evidence against the Plaintiffs “is substantially outweighed by the danger of unfair prejudice.” However, neither the trial court nor the majority specifies the prejudicial aspect of such evidence. Surely the evidence could not have been more prejudicial than the newspaper article about Alire admitted against Wal-Mart? In any event, the prejudicial nature of potentially excludable evidence is not measured by the degree that it inflames the jury against a party, but insofar as it unfairly does so or confuses the issues in a case or misleads the jury. See Rule 11-403.
{68} I note that if Wal-Mart had been allowed to present its evidence against Coates and Duran on the causation issue directly and forcefully instead of indirectly and weakly, the jury might well have viewed Wal-Mart’s theory as an appalling, added indignity perpetrated on AJire’s victims. In my view, Wal-Mart had the right to run that risk without interference from the trial court, with the possibility that the jury would be persuaded that the Plaintiffs’ causation theory was oversimplified and inaccurate. For this reason, even on the limited, indirect evidence that was admitted, I think WalMart was entitled to an instruction presenting its theory of intervening causation to the jury. Cf. Poore v. State, 94 N.M. 172, 174-75, 608 P.2d 148, 150-51 (1980) (reversing trial court’s refusal to give a criminal defendant’s requested intervening cause instruction and holding that a defendant “should be accorded some semblance of liberality in having the jury instructed with particularity as to his defenses that are supported by the evidence”).
{69} The third reason I dissent from the majority opinion is that I am not persuaded by Section Y of the opinion that substantial evidence supports the jury’s verdict on intentional infliction of emotional distress or the award of punitive damages against WalMart. On the IIED award, the only intentional acts alleged are those of Alire, but there is no suggestion that Wal-Mart “ ‘commanded or expressly authorized’ ” those acts, so Wal-Mart cannot be held liable on that basis. Gallegos v. Chastain, 95 N.M. 551, 554, 624 P.2d 60, 63 (Ct.App.1981) (holding that battery of co-worker by another employee was not the intentional tort of the employer) (quoted authority omitted). Moreover, I do not think this Court can simply impute Alire’s acts to Wal-Mart without discussion beyond the statement in Paragraph 48 that “apparently Wal-Mart was aware” of Alire’s conduct. See Martin-Martinez v. 6001, Inc., 1998-NMCA-179, ¶¶ 13-20, 126 N.M. 319, 968 P.2d 1182 (refusing to impute manager’s abusive actions towards employee to employer on alter ego or managerial capacity theories), cert. denied, No. 25,455, 126 N.M. 532, 972 P.2d 351 (Nov. 30, 1998). For this reason, in addition to disagreeing with Section V, I also disagree with Section 11(B) of the majority opinion. Cf. id. at ¶¶ 9-12 (rejecting contention that Beavers v. Johnson Controls World Serv., Inc., 120 N.M. 343, 901 P.2d 761 (Ct.App.1995), relied on in Section 11(B), was decided on imputation of employee’s intentional acts to employer).
{70} On the punitive damages award, I do not believe a showing was made in this case that the failings of high level supervisory personnel in dealing with Alire were “maliciously intentional.” See, e.g., Green Tree Acceptance, Inc. v. Layton, 108 N.M. 171, 174, 769 P.2d 84, 87 (1989) (noting that intentional conduct is only properly the subject of an award of punitive damages “when the wrongdoer’s conduct may be said to be ‘maliciously intentional’ ”) (quoted authorities omitted). The majority opinion cites a libel case, Herron v. Tribune Publishing Co., 108 Wash.2d 162, 736 P.2d 249, 256 (Wash.1987) (en banc), cited in a Cf. string citation by this Court in Clay v. Ferrellgas, Inc., 118 N.M. 266, 270, 881 P.2d 11, 15 (1994), for the proposition that the other managers’ omissions may establish an inference of “actual malice.” “Actual malice” in a libel case, however, is a specialized term of art that until now has not been properly applicable in a punitive damages case not involving libel. Without discussion, the majority opinion makes it proper in New Mexico in this non-libel case and into the future.
{71} Lastly, while I agree with the majority’s holding that the trial court properly refused to impose prejudgment interest on the punitive damages awarded to the Plaintiffs, it should be clear from the above discussion that I do not believe the issue should have been reached. Wal-Mart, like any party, deserved a fair trial before a jury fully presented with proper evidence and instructions, not an unfair trial on evidence improperly admitted. I would have ordered reversal and remand to ensure such a trial in this ease. The majority holding otherwise, I respectfully dissent.