Mesfin v. Sw. Airlines Corp.

HEWOT MESFIN, Plaintiff-Appellant, v. SOUTHWEST AIRLINES CORPORATION, Defendant-Appellee.

No. A-1-CA-37512

COURT OF APPEALS OF THE STATE OF NEW MEXICO

April 29, 2021

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Denise Barela Shepherd, District Judge

Law Offices of Roger Moore

Roger Moore

Albuquerque, NM

for Appellant

Stiff, Keith & Garcia, LLC

John S. Stiff

Edward F. Snow

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

ATTREP, Judge.

{1} Plaintiff Hewot Mesfin was injured while working for ABM, an independent contractor of Defendant Southwest Airlines Corporation (SWA), when a portable stairway used to access aircraft for cleaning collapsed. Mesfin sued, and the case proceeded to trial on three theories: (1) negligence, (2) negligence per se, and (3) res ipsa loquitur. At trial, SWA presented evidence that Mesfin and her coworkers had damaged the stairway and that this damage ultimately led to the stairway's collapse.

Mesfin presented evidence that SWA failed to inspect and maintain the stairway on a weekly basis, as, according to Mesfin, the manufacturer recommended. The district court directed verdicts on Mesfin's negligence per se and res ipsa loquitur claims, and the jury returned a verdict in favor of SWA on Mesfin's negligence claim. Mesfin asserts on appeal that the district court erred in granting the directed verdicts. We affirm.

DISCUSSION

{2} Before we address the merits of Mesfin's arguments, we pause to note the myriad deficiencies in Mesfin's briefing. As an initial matter, the brief in chief utterly fails to set out comprehensible arguments and to cite supportive legal authority. See Rule 12-318(A)(4) NMRA (requiring that the brief in chief include "an argument which, with respect to each issue presented, . . . contain[s] a statement of the applicable standard of review, the contentions of the appellant, and a statement explaining how the issue was preserved in the court below, with citations to authorities, record proper, transcript of proceedings, or exhibits relied on"); Guest v. Berardinelli, 2008-NMCA-144, ¶ 38, 145 N.M. 186, 195 P.3d 353 ("To present an issue on appeal for review, appellants must submit argument and authority."). Additionally, the brief in chief fails to include the substance of all the evidence bearing upon the propositions asserted, instead largely setting out only the evidence that tends to support Mesfin's position. See Rule 12-318(A)(3) (requiring that the brief in chief contain "a summary of proceedings, briefly describing the nature of the case, the course of proceedings, and the disposition in the court below, and including a summary of the facts relevant to the issues presented for review"); cf. State ex rel. Foy v. Vanderbilt Cap. Advisors, LLC, ___-NMCA-___, ¶ 28, ___ P.3d ___ (No. A-1-CA-36925, June 9, 2020) ("To the extent the [brief in chief] cites material from the record, it discusses only those aspects which tend to support its position. This is not in keeping with the letter or spirit of the Rules of Appellate Procedure.").

{3} Because of these deficiencies, it is extremely difficult to discern the particular arguments that Mesfin attempts to present on appeal. See Lukens v. Franco, 2019-NMSC-002, ¶ 7, 433 P.3d 288 ("Courts are not required to try and make sense of work product so flawed that its meaning cannot be discerned."). Importantly, "it is the appellant's burden to demonstrate, by providing well-supported and clear arguments, that the district court has erred." Premier Tr. of Nev., Inc. v. City of Albuquerque, 2021-NMCA-004, ¶ 10, 482 P.3d 1261 (emphasis added); see also Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (stating that the burden is on the appellant to affirmatively demonstrate that the trial court erred). Indeed, this Court presumes correctness in the trial court's rulings, and we will affirm when that presumption is not overcome. See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there is a presumption of correctness in the rulings of the district court, and the party claiming error bears the burden of showing such error). In light of Mesfin's arguments, such as they are, and for the reasons that follow, Mesfin has failed to overcome this presumption and we accordingly affirm.

I. Negligence Per Se

{4} Mesfin first argues that the district court erred in directing a verdict on her negligence per se claim. A district court may direct a verdict only "when the facts and inferences are so strongly and overwhelmingly in favor of the moving party that the judge believes that reasonable people could not arrive at a contrary result and when there are no true issues of fact to be presented to a jury." Wirth v. Sun Healthcare Grp., Inc., 2017-NMCA-007, ¶ 18, 389 P.3d 295 (alterations, omission, internal quotation marks, and citation omitted). Normally, we review a district court's decision to direct a verdict de novo. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, ¶ 56, 326 P.3d 50. As we explain below, however, we decline even to consider Mesfin's contention that the district court erred in directing a verdict on her negligence per se claim because she fails to develop her argument.

{5} At trial, Mesfin apparently based her negligence per se claim on provisions of the federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651-678 (2018), and the New Mexico Occupational Health and Safety Act (NMOHSA), NMSA 1978, §§ 50-9-1 to -25 (1972, as amended through 2017), both of which require employers to provide their employees a safe work environment. See 29 U.S.C. § 654(a)(1) ("Each employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees[.]"); § 50-9-5(A) ("Every employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."). In support of her contention that the district court erred in directing a verdict on her negligence per se claim, Mesfin merely references these general statutory provisions and then sets out testimony pertaining to the relationship between herself, ABM, and SWA. Without citing any authority or providing any analysis, Mesfin then baldly asserts that, "[d]ue to the above, it is proper for this Court to reverse the district court order" granting a directed verdict on her negligence per se claim.¹

{6} We decline to review Mesfin's argument because it is unsupported and woefully undeveloped. See, e.g., In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 ("Issues raised in appellate briefs which are unsupported by cited authority will not be reviewed by us on appeal."); Truong v. Allstate Ins. Co., 2008-NMCA-051, ¶ 7, 143 N.M. 831, 182 P.3d 814 (characterizing the appellant's briefing on postjudgment motions as insufficient under the Rules of Appellate Procedure because, "[a]lthough [the appellants] discuss certain evidence . . . , they do not explain why the district court erred[; instead they] simply assert . . . that the trial court abused its discretion in denying the motion, [and then cite] a case with no explanatory parenthetical"), rev'd on other grounds, 2010-NMSC-009, 147 N.M. 583, 227 P.3d 73. To rule on the merits, we would have to speculate about why the evidence presented a jury question, because Mesfin's brief in chief contains no such argument. It is not our role to develop Mesfin's arguments for her; nor will we guess at what her arguments are. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 ("To rule on an inadequately briefed issue, this Court would have to develop the arguments itself, effectively performing the parties' work for them."). And while SWA admirably attempts to address why the evidence was insufficient to create a jury question on Mesfin's negligence per se claim, Mesfin does not respond in reply with any cogent arguments or persuasive authority to the contrary. But even if she did, a reply brief is not the place for an appellant to explain for the first time how the district court erred. See Doe v. City of Albuquerque, 1981-NMCA-049, ¶ 8, 96 N.M. 433, 631 P.2d 728 (declining to review arguments made by the appellant in its reply brief, even though the appellees' answer briefs somewhat cured the factual and legal deficiencies in the appellant's brief in chief).

{7} Because we have "no duty to review an argument that is not adequately developed[,]" Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701, we decline to consider Mesfin's contention that the district court erred in directing a verdict on her negligence per se claim.² See, e.g., Doe v. City of Albuquerque, 1981-NMCA-049, ¶ 8 ("Points of error not properly briefed or argued will not be considered; rather, we will indulge all presumptions in favor of the correctness of the procedures in the trial court[.]" (citation omitted)).

II. Res Ipsa Loquitur

{8} Mesfin next argues that the district court erred in directing a verdict on her res ipsa loquitur claim. As an initial matter, the doctrine of res ipsa loquitur in New Mexico is simply a rule of evidence; it is not a tort claim in its own right. See Strong v. Shaw, 1980-NMCA-171, ¶ 10, 96 N.M. 281, 629 P.2d 784 ("[Res ipsa loquitur] helps to establish negligence[,] nothing else. Res ipsa loquitur is a rule of evidence, not of substantive tort law. Its sole function is to supply inferences from which some negligent conduct...