Buttke v. Brown Family ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 ALLEN BUTTKE,
8 Plaintiff-Appellant,
9 v. NO. 29,776
10 BROWN FAMILY, INC., d/b/a
11 Subway Store #26812,
12 Defendant-Appellee.
13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
14 William F. Lang, District Judge
15 Houston Ross
16 Albuquerque, NM
17 for Appellant
18 Riley & Shane, P.A.
19 Mark J. Riley
20 Kristin J. Dalton
21 Albuquerque, NM
22 for Appellee
23 MEMORANDUM OPINION
24 BUSTAMANTE, Judge.
1 Plaintiff appeals a jury verdict in favor of Defendant. In our third calendar
2 notice we proposed to affirm. Both parties have timely responded. We have
3 considered their arguments and affirm.
4 In our third notice, we assumed that Plaintiff agreed with our proposed
5 affirmance of Issue 1as he did not respond to our proposal. See Frick v. Veazey, 116
6 N.M. 246, 247, 861 P.2d 287, 288 (Ct. App. 1993) (pointing out that a failure to
7 respond to the Court’s proposed disposition creates a presumption that the party
8 agrees with the proposal). Plaintiff does not assert otherwise. Therefore, we affirm
9 for the reasons stated in our second notice of proposed disposition. With regard to
10 Issues 2 and 3, Plaintiff conceded that the issues were not properly preserved for
11 review. Therefore, we do not reach them.
12 With regard to Issue 4, we proposed to affirm on the basis that the error was
13 harmless. In so doing, we pointed out that Plaintiff sought to present evidence of
14 negligence per se in order to establish liability on the part of Defendant. This
15 evidence was in addition to other evidence of negligence. Since the jury found
16 negligence, we proposed to conclude that the exclusion of evidence of negligence per
17 se was harmless. Cf. Britton v. Boulden, 87 N.M. 474, 475-76, 535 P.2d 1325, 1326-
18 27 (1975); Lovato v. Crawford & Co., 2003-NMCA-088, ¶ 28, 134 N.M. 108, 73 P.3d
19 246.
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1 Plaintiff’s attempt to distinguish Britton and Lovato is unavailing. We
2 recognize that neither of these cases is directly on point. Nevertheless, they express
3 the rule for harmless error in civil cases and point out that error is harmless if the
4 jury’s decision would not be changed even if the error had not occurred. In Britton,
5 error was asserted in the jury instruction on damages. However, because the jury
6 found no liability on Defendant’s part, it never got to issues on damages. Thus, any
7 error in instructions on damages was harmless. Similarly, in Lovato, there was no
8 error in excluding a claim where the jury found against the plaintiff on the same
9 factual description. The same analysis applies here. Plaintiff alleged negligence and
10 the jury found Defendant negligent. We fail to see how the jury’s verdict on a finding
11 of negligence would be changed with a different method of proof.
12 Contrary to Plaintiff’s argument, we do not see how a jury could view the case
13 any differently if it had had evidence of a violation of the building code. The
14 violation of the code addresses only duty and breach of the duty. With the evidence
15 that it had, the jury found a duty and breach of the duty. Violation of the building
16 code does not address proximate cause. Archibeque v. Homrich, 88 N.M. 527, 532,
17 543 P.2d 820, 825 (1975); Archuleta v. Johnston, 83 N.M. 380, 382, 492 P.2d 997,
18 999 (Ct. App. 1971) (negligence per se does not answer fact question of proximate
19 causation); UJI 13-1503 NMRA (stating that “negligence resulting from a violation
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1 of [statute] is no different in effect from that resulting from other acts or omissions
2 constituting negligence”; causation must still be shown). Where the jury found that
3 Defendant’s negligence was not the cause of Plaintiff’s injuries, we cannot say that
4 the error in excluding different evidence establishing negligence requires a new trial.
5 We conclude that Plaintiff was not prejudiced by the district court’s exclusion of
6 evidence of violation of the building code.
7 For the reasons stated in the several notices of proposed disposition, we affirm.
8 IT IS SO ORDERED.
9
10 MICHAEL D. BUSTAMANTE, Judge
11 WE CONCUR:
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13 CELIA FOY CASTILLO, Judge
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15 MICHAEL E. VIGIL, Judge
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