Porter v. Ortiz , 100 N.M. 58 ( 1983 )

BIVINS, Judge

(concurring in part, dissenting in part).

I concur with that part of the majority opinion holding that under Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982) and MRC Properties, Inc. v. Gries, 98 N.M. 710, 652 P.2d 732 (1982) the complaint states a claim against Ortiz.

I disagree with the conclusion reached by the majority allowing the common law principle announced in Lopez and MRC to apply to the present case.

Lopez made a major change in the law. It imposed a new liability on tavernowners and in doing so expressly overruled Marchiondo v. Roper, 90 N.M. 367, 563 P.2d 1160 (1977) and Hall v. Budagher, 76 N.M. 591, 417 P.2d 71 (1966). In discussing the application of this new liability the Supreme Court in Lopez said:

If the new law imposes significant new duties and conditions and takes away previously existing rights, then the law should be applied prospectively, (citation omitted). For example, the imposition of this new liability on tavernowners may subject the tavernowners to liability when they are not properly insured, (citations omitted).

98 N.M. at 632, 651 P.2d at 1276.

The Supreme Court applied the new law to Lopez, because it afforded the opportunity to change an outmoded and unjust rule of law, and to prospective cases in which the damages and injuries arise after the date of the mandate in that case. The new liability was also applied to MRC, but only because that case was pending on appeal before the Supreme Court at the same time as Lopez. The present case was not pending before the Supreme Court when Lopez was decided; it was pending before the Court of Appeals. The Supreme Court expressed no intent to include other cases which were then on appeal.

Justice Riordan said in Lopez “It is within the inherent power of the state’s highest court to give a decision prospective or retrospective application without offending constitutional principles” Id. at 632, 651 P.2d at 1276. (citation omitted). In deciding on the application the Supreme Court in Lopez was sensitive to the effect the new liability would have on those who had relied on Marchiondo v. Roper and Hall v. Budagher. See special concurring opinion of Chief Justice Oman in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1976). This Court should not modify that application.

I would proceed to consider plaintiffs’ alternative theories of liability. The majority holding otherwise, I respectfully dissent.