Sitton v. Sw. Pub. Serv. Co.

COLE SITTON and TERRI SITTON, Plaintiffs-Appellants, v. SOUTHWESTERN PUBLIC SERVICE COMPANYand ERIC COPPINGER, Defendants-Appellees.

No. A-1-CA-37335

COURT OF APPEALS OF THE STATE OF NEW MEXICO

August 27, 2020

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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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 SANTA FE COUNTY

Francis J. Mathew, District Judge

Underwood Law Firm, P.C.

Kelly Utsinger

Amarillo, TX

Sommer, Udall, Hardwick & Jones P.A.

Cullen Hallmark

Santa Fe, NM

for Appellants

Davis Graham & Stubbs LLP

Michiko A. Brown

Jacqueline V. Roeder

Denver, CO

Montgomery & Andrews, P.A.

Michael R. Heitz

Timothy L. Garcia

Santa Fe, NM

for Appellees

MEMORANDUM OPINION

BOGARDUS, Judge.

{1} Plaintiffs Cole Sitton and Terri Sitton appeal from the district court's final judgment, wherein the district court, following a bench trial, found in favor of Defendants Southwestern Public Service Company (SPS) and Eric Coppinger and dismissed Plaintiffs' complaint with prejudice. Plaintiffs raise a number of issues on appeal. For the reasons that follow, we affirm.

BACKGROUND

I. Factual Background

{2} The following factual background is taken from the unchallenged findings of fact made by the district court, which are binding in this appeal. See Robey v. Parnell, 2017-NMCA-038, ¶ 22, 392 P.3d 642 ("An unchallenged finding of the [district] court is binding on appeal." (internal quotation marks and citation omitted)).

{3} SPS is a public utility that provides electrical services in several states, including New Mexico. SPS contracted with Plaska, a Texas limited liability company and Cole's employer, for construction and maintenance of an electric transmission line in Lea County, New Mexico, including the Bopco Switch. Construction at the Bopco Switch included building the switch pole, hanging insulating bells, and building a fence around the switch. It is undisputed that Cole was struck by at least one insulating bell on the left side of his hardhat, left side of his neck, and his left shoulder during the process of hanging the insulating bells at the Bopco Switch (the Bell Incident).

{4} On the day of the Bell Incident, Cole was helping his Plaska colleagues, Chris Campbell and Matt Jones,¹ tie a medium-length string of eleven insulating bells to the railing of a bucket truck as Plaska had trained its employees to do. Cole and Campbell were standing on the ground and lifting up the bells to tie them to the railing of the bucket; Campbell tied the bells while Cole held them. After Campbell tied the bells, he let them go. Because Campbell left too much slack in the rope, some of the bells slipped from their tie into the slack when Cole let go of the bells and turned to walk away. This slippage resulted in at least one of the insulating bells striking or grazing the left side of Cole's hardhat, the left side of his neck, and his shoulder. After striking or grazing Cole, the bells did not fall to the ground and instead were hanging from the rope attached to the bucket.

{5} Cole was stunned by the impact of the insulating bells; however, his hardhat was not cracked or knocked from his head. Cole helped Campbell reload the string of insulating bells onto the bucket railing using the same tie-off method they had just used. Cole then continued to work for the rest of the day, performing such tasks as unloading and carrying cattle panel, pipe, and eighty-pound bags of concrete. Although the exactday the Bell Incident occurred was disputed, the daily job briefing log for January 16, 2014, reflected that Plaska's crew planned to hang the insulating bells that day and listed tools necessary to complete the bell work as tools needed for the day.

{6} Cole continued to work for the two days that followed the Bell Incident, performing manual labor including running a digger truck, carrying fifty- to seventy-five-pound "X" braces and knee braces, and carrying more eighty-pound bags of concrete. After a full day of work on January 18, 2014, Cole and his colleagues went to dinner and the casino in Hobbs, New Mexico. Cole stayed at the casino with his colleagues and gambled for a couple of hours.

{7} After Cole and his Plaska colleagues returned to the hotel from the casino, Cole drove himself to Lea Regional Medical Center's (LRMC) emergency department around midnight. Cole testified at trial that his neck was so painful and weak that he had to hold it with both hands, and that he was dragging his feet on the ground as he walked due to his injury; however, at LRMC, Cole complained only of mid-back pain. Further, Cole told the emergency department staff that he had been injured lifting heavy objects and attempting to stop a 100-pound insulator from tipping over, an injury that had occurred shortly before the Bell Incident. Although Cole mentioned the Bell Incident to the emergency department staff, he denied that it resulted in any injury. A nurse and a physician in the emergency department conducted separate exams of Cole's head, neck, back, extremities, and neurological condition to determine the cause of his mid-back pain and to rule out a cervical spine or neurological injury. Cole exhibited no signs of any cervical or neurological injury nor did he complain of cervical pain at LRMC. Cole was diagnosed with a thoracic sprain and provided a prescription for pain medication. The emergency department physician ruled out the Bell Incident as a cause of Cole's visit to and complaints at LRMC. Upon discharge, Cole walked out of the emergency department to his car and drove himself back to the hotel. Cole testified that he lost bladder control in the parking lot after being discharged; however, he did not return to LRMC to report what happened.

{8} On January 20, 2014, Cole returned to his home in Amarillo, Texas, and was seen by his chiropractor, Dr. Brock Lovett.² The medical records from that visit indicated that Dr. Lovett's staff performed a doorbell test—designed to identify cervical disc herniation—on Cole, and the test was negative. The negative doorbell test indicatedthat Cole had no cervical disc herniation when his treatment began that day. Cole then underwent spinal manipulation and decompression treatment.

{9} On January 21, 2014, Cole returned to Dr. Lovett's office. Cole testified that when he sat on the treatment table, he felt shocks in his legs and his legs jumped so much that a nurse grabbed his ankles to hold them down. Dr. Lovett's staff proceeded with decompression treatment. Cole could not stand up after the decompression treatment, and Cole's son was called from Dr. Lovett's office to drive Cole to Baptist St. Anthony's Hospital (BSA Hospital).

{10} Shortly after arriving at BSA Hospital, Cole lost feeling in his stomach region. After several cervical spine MRIs were taken, Dr. Jonathan Brett Gentry performed emergency surgery on Cole. Following surgery, Cole was diagnosed with quadriplegia as a result of a cervical disc herniation that compressed his spinal cord.

II. Procedural Background

{11} In January 2016, Plaintiffs filed a complaint seeking damages for personal injuries and loss of consortium. Plaintiffs asserted claims of negligence, negligence per se, and strict liability. Plaintiffs filed an amended complaint in May 2016, wherein Plaintiffs removed some of the named defendants after the parties agreed they were improper, leaving only SPS and Coppinger as defendants. Plaintiffs' claims remained the same under the amended complaint.

{12} Before trial, Defendants filed a number of motions to exclude certain evidence and to exclude experts on whom Plaintiffs intended to rely at trial. As relevant to this appeal, Defendants moved to exclude the testimony of Dr. Victor Taylor, one of Plaintiffs' designated experts. After the parties briefed the issue, the district court granted Defendants' motion and excluded Dr. Taylor's causation testimony at trial.

{13} Beginning February 12, 2018, this matter was tried to the bench over seven days. Following trial, the parties submitted both written closing statements and proposed findings of fact and conclusions of law. The district court entered extensive findings of fact and conclusions of law, entered judgment in favor of Defendants, and dismissed Plaintiffs' complaint with prejudice. Plaintiffs appeal.

DISCUSSION

{14} On appeal, Plaintiffs argue that the district court (1) applied the wrong causation standard; (2) misapplied the Restatement (Second) of Torts §§ 411, 413, and 414 (1965); (3) erred by excusing SPS's duty to exercise the control it retained under its contract and common law; (4) misapplied the law governing "controlling employers"; (5) erred by not applying successive tortfeasor liability to Defendants or, alternatively, erred in excluding Plaintiffs' expert on medical causation; (6) erred by failing to consider Coppinger's liability individually and find that his negligence was a proximate cause of Plaintiffs' injuries; (7) erred in failing to award damages; (8) erred in excluding evidenceof corporate corruption; and (9) erred in limiting negligent hiring liability to injuries to third parties. In addition to responding to Plaintiffs' claims of error, Defendants argue that Plaintiffs have failed to follow New Mexico's rules of appellate procedure and failed to properly develop a number of their arguments for appellate review.

{15} At the outset, we remind Plaintiffs that litigants are encouraged to limit the number of issues they choose to raise on appeal in order to ensure that those presented are adequately supported by argument, authority, and factual support in the record. See Rio Grande Kennel Club v. City of Albuquerque, 2008-NMCA-093, ¶¶ 54-55, 144 N.M. 636, 190 P.3d 1131; see also Rule 12-318 NMRA (identifying the...