Castro v. Jones Contractors, Inc. ( 2023 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: November 7, 2023
4 No. A-1-CA-39686
5 ESPERANZA CASTRO,
6 Plaintiff-Appellant,
7 v.
JONES CONTRACTORS, INC.,
8 Defendant-Appellee,
9 and
10 JOSEPH E. SMITH,
11 Defendant.
12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
13 Raymond L. Romero, District Court Judge
14 Fadduol, Cluff, Hardy & Conaway, P.C.
15 Carlos E. Sedillo
16 Carmela D. Starace
17 Albuquerque, NM
18 for Appellant
19 Guebert Gentile & Piazza, P.C.
20 Robert F. Gentile
21 Elizabeth M. Piazza
22 Albuquerque, NM
1 for Appellee
2 George Bach
3 David J. Stout
4 Albuquerque, NM
5 for Amicus Curiae
1 OPINION
2 DUFFY, Judge.
3 {1} Defendant Jones Contractors, Inc.’s employee, Joseph Smith, caused a car
4 accident while driving to work in his personal vehicle, injuring Plaintiff.1 Plaintiff
5 filed suit alleging that Defendant was directly and vicariously liable for Smith’s
6 negligence. The district court granted summary judgment in favor of Defendant on
7 Plaintiff’s claims for respondeat superior, negligence, negligence per se, and
8 negligent entrustment. The primary issue on appeal concerns Plaintiff’s vicarious
9 liability claim under the doctrine of respondeat superior. Applying the three-part test
10 set forth in Lessard v. Coronado Paint & Decorating Center, Inc., 2007-NMCA-
11 122, ¶ 14, 142 N.M. 583, 168 P.3d 155, the district court concluded as a matter of
12 law that Smith was not acting within the scope of employment when the accident
13 occurred, and thus, Defendant could not be held vicariously liable for Smith’s
14 negligence. We conclude that conflicting inferences can be drawn as to whether
15 Smith was within the scope of employment under the Lessard test, and therefore, the
16 issue of respondeat superior liability must be determined by the fact-finder.
17 Perceiving no error in the district court’s handling of Plaintiff’s other claims, we
18 affirm in part, reverse in part, and remand for further proceedings.
1
All references in this opinion to “Defendant” are solely to Defendant Jones,
as Defendant Smith is not a party to this appeal.
1 BACKGROUND
2 {2} Defendant is a fabrication company that builds tank farms and pipelines in oil
3 fields. Smith worked for Defendant as a welder. Smith was paid an hourly wage of
4 around $48 per hour and an additional $15 per hour for use of his pickup truck and
5 welding equipment mounted in the bed of his truck—hereinafter referred to as his
6 welding rig.
7 {3} Defendant does not provide vehicles or welding equipment to its employees;
8 rather, it relied on its employees to supply the same. In addition, Smith was required
9 to use his own equipment for the job because, as he testified during his deposition,
10 he was required to take a welding test and get certified for the job, and was thereafter
11 required to use the machine he tested with. Smith would drive his welding rig to the
12 job sites where he worked for Defendant.
13 {4} Smith would often drive his assistant, Lee Stevicks, who also worked for
14 Defendant, because they shared temporary housing in Carlsbad, New Mexico, about
15 an hour away from the job site. On the morning of the accident, Smith and Stevicks
16 left Carlsbad at around 4:00 a.m. to arrive at a job site in Texas by 7:00 a.m. They
17 had to leave at that hour to account for the distance as well as the change in time
18 zone.
19 {5} At about 4:30 a.m., Smith attempted to pass a tractor trailer on a two-lane
20 highway. Smith watched the car in front of him pass the tractor trailer first and
2
1 assumed he had enough time to pass as well, so he followed the leading car into the
2 left lane. When the leading car passed the tractor trailer, Smith realized there was a
3 vehicle coming toward him in the opposite direction. Smith did not have time to get
4 around the tractor trailer, and both he and the oncoming vehicle veered off the road,
5 where they collided head-on. Shortly thereafter, paramedics removed Plaintiff from
6 the passenger side of the vehicle Smith had collided with.
7 {6} Plaintiff sued Defendant, alleging Defendant was liable for the accident on
8 theories of respondeat superior, negligence, negligence per se, negligent
9 entrustment, and negligent hiring, training, and supervision. Defendant moved for
10 summary judgment on all claims. For purposes of its motion, Defendant asserted the
11 following facts as undisputed: 2
12 1. On April 30, 2018, Smith was employed by Defendant as
13 a welder.
14 2. Smith owned a 2015 Ford F350 pickup truck, on which
15 was mounted his welding equipment.
16 3. Smith was driving his personal vehicle, the Ford F350 at
17 the time of the accident on April 30, 2018.
18 4. Smith owned the truck and the welding equipment. It was
19 not owned or provided to Smith by Defendant.
2
The statement of material facts set forth in the opinion is taken from RP 124-
26. However, the names of the parties have been modified for consistency with the
usages in this opinion. The changes and omissions have not been noted for
readability.
3
1 5. While employed with Defendant, Smith was paid an
2 hourly wage for his work. He was also paid an hourly sum for the use
3 of his welding equipment.
4 6. In addition, Smith received a daily per diem which he
5 could use in any manner that he felt appropriate. He could elect to use
6 the per diem for rental expenses, food or gas. Defendant did not have
7 any control over how the per diem money was used.
8 7. Smith earned his hourly wages when he was on the job site
9 and logged in as “present.” He was not paid for travel time, or lunch
10 breaks. He was required to log out for lunch, and log out for travel
11 between job sites.
12 8. Smith was not “on the clock” and logged in as present at
13 the work site when the accident occurred.
14 9. Smith was not being paid for travel time to and from the
15 work site at the time of the accident.
16 10. Smith was not performing any work for [Defendant] at the
17 time of the accident.
18 11. Defendant did not reimburse Smith for the damage to
19 Smith’s truck and welding equipment after the accident occurred.
20 12. Defendant did not authorize or ratify Smith’s careless
21 driving during the early morning hours of April 30, 2018.
22 13. Defendant did not loan a company vehicle to Smith to
23 drive to and from work, or during work hours. Smith was required to
24 provide his own transportation and welding equipment.
25 Based on these facts, Defendant argued that Smith was not acting within the scope
26 of employment when the accident occurred, and therefore, Defendant was not
27 vicariously liable for Smith’s negligence. Defendant also argued that Plaintiff’s
28 claims for direct negligence fail because Smith was not driving a company vehicle
4
1 at the time of the accident, and Plaintiff could not show that Defendant had a duty
2 to supervise Smith when he was not on the clock.
3 {7} In her response, Plaintiff disputed facts three through thirteen, offering the
4 same general response to each, that “Smith was driving a personal vehicle leased by
5 [Defendant], in furtherance of Defendant’s business.” (Emphasis added.) Plaintiff
6 also presented additional statements of undisputed fact in support of her claim that
7 Smith was acting within the scope of employment at the time of the accident.
8 Plaintiff noted that Smith worked at multiple locations as part of his job with
9 Defendant, that Defendant provided welding materials—welding rods—to Smith
10 and Smith was carrying them on his truck when the accident occurred.
11 {8} Substantively, Plaintiff’s response only addressed Defendant’s argument
12 regarding her vicarious liability theory. She argued the evidence showed Smith was
13 acting within the scope of his employment under the Lessard test because: (1) Smith
14 was required to travel to job sites and was on the way to the job site when the accident
15 occurred; (2) Defendant paid Smith to provide his own truck and welding equipment
16 to perform the work; and (3) Smith was furthering Defendant’s business at the time
17 of the accident by bringing his rig, materials, and crew to the job site. Plaintiff did
18 not respond to Defendant’s arguments regarding her negligence-based claims.
19 {9} After a hearing, the district court granted Defendant’s motion in part. As to
20 Plaintiff’s claim for respondeat superior liability, the district court concluded as a
5
1 matter of law that Smith was not acting within the scope of his employment. The
2 district court also granted summary judgment on Plaintiff’s claims for negligence,
3 negligence per se, and negligent entrustment, noting that the undisputed facts do not
4 establish any evidence to support those claims and Plaintiff had not addressed them
5 in her response. Even though Plaintiff had also failed to address her claim for
6 negligent hiring, training, supervision, or retention, the district court determined that
7 disputed issues of material fact existed that would need to be resolved by the jury,
8 and denied Defendant’s motion as to that claim. Afterward, Plaintiff stipulated to
9 dismissal of her remaining claims without prejudice and appealed the district court’s
10 summary judgment ruling.
11 DISCUSSION
12 I. Standard of Review
13 {10} “Summary judgment is a drastic measure that should be used with great
14 caution.” Lessard, 2007-NMCA-122, ¶ 8 (internal quotation marks and citation
15 omitted). “Summary judgment is proper if there are no genuine issues of material
16 fact and the movant is entitled to judgment as a matter of law.” Roth v. Thompson,
17 1992-NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241. We review a grant of
18 summary judgment de novo, viewing the facts in a light most favorable to the
19 nonmoving party and drawing all reasonable inferences in support of a trial on the
20 merits. Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 7, 140 N.M. 205, 141
6
1 P.3d 1259. “[W]hen no facts are in dispute and the undisputed facts lend themselves
2 to only one conclusion, the issue may properly be decided as a matter of law.”
3 Ovecka v. Burlington N. Santa Fe Ry., 2008-NMCA-140, ¶ 9, 145 N.M. 113, 194
4 P.3d 728. But “[e]ven where the basic facts are undisputed, if equally logical but
5 conflicting inferences can be drawn from the facts, summary judgment should be
6 denied.” Ponce v. Butts, 1986-NMCA-042, ¶ 20, 104 N.M. 280, 720 P.2d 315.
7 II. Respondeat Superior
8 {11} Plaintiff argues the district court erred in deciding as a matter of law that
9 Defendant was not vicariously liable for Smith’s negligence. We agree with Plaintiff
10 that the evidence in the record does not lend itself to only one conclusion on the
11 matter, and therefore, the issue of whether Smith was acting within the scope of his
12 employment at the time of the accident is a question of fact for the jury. See Lessard,
13 2007-NMCA-122, ¶ 11 (“Generally, whether an employee is acting in the course
14 and scope of employment is a question of fact, unless only one reasonable conclusion
15 can be drawn from the facts presented.” (alteration, internal quotation marks, and
16 citation omitted)).
17 {12} “Under the doctrine of respondeat superior, an employer can be held
18 vicariously liable for the negligent actions of an employee who is acting within the
19 scope of his employment.” Id. As a general rule, “an employee enroute to, or
20 returning from, his place of employment, using his own vehicle is not within the
7
1 scope of his employment.” Nabors v. Harwood Homes, Inc., 1967-NMSC-024, ¶ 6,
2 77 N.M. 406, 423 P.2d 602. However, an employee can be said to be within the
3 scope of employment while driving to and from work in a personal vehicle, such that
4 an employer may be held vicariously labile for the employee’s actions, when three
5 circumstances exist: “(1) the employer must expressly or impliedly consent to the
6 use of the vehicle; (2) the employer must have the right to control the employee in
7 his operation of the vehicle, or the employee’s use of the vehicle must be so
8 important to the business of the employer that such control could be inferred; and
9 (3) the employee must be engaged at the time in furthering the employer’s business.”
10 Lessard, 2007-NMCA-122, ¶ 14.
11 {13} In this case, the district court assumed without deciding that the first and
12 second prongs of the Lessard test were satisfied, but that the third prong failed as a
13 matter of law. We agree that a jury could reasonably infer both consent and control
14 based on the undisputed facts of record. See id. ¶¶ 17-18. Like the district court, we
15 focus our analysis on the third prong of the Lessard test—whether Smith was
16 furthering Defendant’s business at the time of accident.
17 {14} Our uniform jury instructions describe furtherance as an act of an employee
18 “done while the employee was engaged in the employer’s business with the view of
19 furthering the employer’s interest and [that] did not arise entirely from some
20 external, independent and personal motive on the part of the employee.” UJI 13-407
8
1 NMRA (defining “scope of employment”); see also Restatement (Third) of Agency
2 § 7.07(2) (2006) (stating that “[a]n employee’s act is not within the scope of
3 employment when it occurs within an independent course of conduct not intended
4 by the employee to serve any purpose of the employer”). The UJI standard has been
5 applied in a number of cases, but the furtherance prong does not appear to have been
6 a dispositive factor in any scope-of-employment case until Lessard. See, e.g.,
7 Nabors, 1967-NMSC-024, ¶ 5 (noting that an employee driving to a work site on a
8 Sunday “had not arrived at the construction site and he was not furthering the
9 employer’s business at the time of the accident. Further, . . . at the time of the
10 accident the [employee] was using the truck for his personal benefit and the pleasure
11 of his family.”); Lang v. Cruz, 1964-NMSC-205, ¶¶ 5, 21, 74 N.M. 473, 394 P.2d
12 988 (noting that an employee was attempting to further his employer’s business
13 when, during his shift, he borrowed a tractor that he was forbidden to drive in order
14 to return home in search of hay hooks needed for work he was to perform later that
15 evening); Benham v. All Seasons Child Care, Inc., 1984-NMCA-080, ¶ 6, 101 N.M.
16 636, 686 P.2d 978 (concluding that when an employee was involved in an accident
17 while driving her employer’s van to church, “[t]here [was] nothing indicating that
18 driving to church was for the purposes of her employment”).
19 {15} In Lessard, an employee of the defendant was on his way home from work
20 when he was involved in a car accident with the plaintiff. 2007-NMCA-122, ¶ 3. In
9
1 evaluating whether the defendant-employer could be held vicariously liable, this
2 Court noted the following undisputed facts. The employee was hired to repair tile
3 installations at various job sites. Id. The defendant-employer did not provide
4 transportation for the employee or for materials needed for the work. Instead, the
5 employee would pick up the materials needed for a given job or jobs, and the
6 employee regularly visited more than one job site in a day. Id. ¶¶ 6, 17. From these
7 facts, this Court determined that a jury could reasonably infer that the defendant-
8 employer both consented to and exercised control over the employee’s use of his
9 personal vehicle, satisfying the first and second prongs of the Lessard test. Id. ¶¶ 17-
10 18.
11 {16} Turning to the third prong, this Court concluded there was no evidence to
12 support an inference that the employee’s conduct at the time of the accident was in
13 furtherance of the employer’s business. Id. ¶ 19. This Court noted that the only
14 relevant evidence presented regarding furtherance was the employee’s testimony
15 that he was just getting off work, going home on a direct route, and that the employer
16 had provided the employee with a cell phone for communicating with the employer
17 and scheduling appointments with the employer’s customers. Id. ¶¶ 6, 19. The
18 plaintiff offered no evidence that the employee “was on call or otherwise engaged
19 in using the cell phone to further [the employer’s] interest at the time of the
20 accident.” Id. ¶ 19. Applying the standard set forth in UJI 13-407, this Court
10
1 observed there was nothing to show that the employee, “at the time of the accident,
2 was acting in any part to further [the employer]’s interests under these facts.”
3 Lessard, 2007-NMCA-122, ¶ 20. As well, because “the only evidence regarding the
4 reasons for [the employee]’s actions at the time of the accident was his testimony
5 that he was driving home,” this Court concluded that his conduct “arose entirely
6 from this ‘external, independent and personal motive.’” Id. (quoting UJI 13-407(2)).
7 This Court affirmed the district court’s grant of summary judgment because the
8 employee had not satisfied the third prong of the test. Id.9 {17} In this case, the district court concluded that the third prong failed as a matter
10 of law because “the undisputed facts establish that at the time the accident
11 occurred, . . . Smith was driving in a vehicle owned personally by him, was not on
12 the clock, and had not logged in as present at the worksite, was not being paid by
13 Jones for travel time to and from the worksite, and was not performing any work for
14 Defendant[] Jones.” On appeal, Plaintiff acknowledges that these facts could support
15 a finding that Smith was not acting in furtherance of Defendant’s business.
16 Nevertheless, Plaintiff argues that summary judgment was improperly granted
17 because additional facts in the evidentiary record support a finding that Smith was
18 furthering Defendant’s business at the time of the accident, and when evidence can
19 support a reasonable inference proving either party’s position, summary judgment
20 must be denied. Lovato v. Plateau, Inc., 1968-NMCA-060, ¶ 5, 79 N.M. 428, 444
11
1 P.2d 613 (“If the facts admitted or established by the evidence are equally consistent
2 with two hypotheses, then these facts tend to prove neither.”). Plaintiff points
3 specifically to four core facts that, she contends, could support a finding that Smith
4 was acting in furtherance of Defendant’s business at the time of the accident: (1)
5 Smith was on his way to a job site; (2) Smith was transporting his welding assistant,
6 Stevicks, to the job site; (3) Defendant did not own any welding vehicles or welding
7 equipment and paid Smith an additional $15 per hour for use of his welding rig3; and
8 (4) Smith was carrying welding rods provided by Defendant.
9 {18} Defendant claims that none of these facts are sufficient to create an issue of
10 fact as to whether Smith was furthering Defendant’s business. First, Defendant
11 argues that merely commuting to work is not sufficient to demonstrate furtherance
12 of an employer’s business under the general rule expressed in Zamora v. Foster,
13 1972-NMCA-118, ¶ 10, 84 N.M. 177, 500 P.2d 1001, that “employers are not
14 responsible for an employee’s negligence in operating a motor vehicle enroute to or
15 from work.” Similarly, Defendant contends that driving Stevicks to work does not
Defendant asserts that the $15 per hour payment was for the use of Smith’s
3
welding equipment, while Plaintiff characterizes the payment as for the “lease” of
Smith’s truck. The evidence attached to the parties’ submissions—Smith’s
deposition testimony [RP 143 at 14:12-17, RP 144 at 18:25-19:7] and the affidavit
of Heath Jones [RP 155 ¶ 2]—indicates that the payment was for both the truck and
the welding equipment. We therefore reject both parties’ characterizations of this
evidence. We note as well that the outcome of this disagreement does not control the
conclusion we reach today under the Lessard test.
12
1 demonstrate furtherance of Defendant’s business because Defendant did not require
2 Smith to carpool with Stevicks, and Smith testified that they drove together out of
3 convenience. Cf. id. ¶¶ 6, 12 (noting that the employee was carpooling with several
4 colleagues but declining to find vicarious liability). In light of our holding in
5 Zamora, we agree with Defendant that neither commuting nor carpooling, without
6 more, establishes that Smith was furthering Defendant’s business at the time of the
7 accident.
8 {19} But here there is more, the evidence of which could allow a jury to reasonably
9 conclude that Smith’s travel furthered Defendant’s business interest beyond that of
10 placing Smith and Stevicks at the job site. Turning to the additional evidence
11 Plaintiff relies on, Defendant acknowledges that Smith’s welding equipment might
12 be considered essential to its business for purposes of the second prong of the
13 Lessard test, but argues that this is not relevant for purposes of evaluating
14 furtherance under the third prong. We disagree with such a restrictive reading. The
15 Restatement (Second) of Agency § 229 cmt. d (1958), recognizes that when an
16 employer “contracts to supply a vehicle or . . . the supplying of a means of access to
17 the work is one of the inducements to the employment,” these facts may indicate that
18 “the operation of the vehicle is part of the [employer]’s work.” Likewise, “[i]f
19 employees are required to use a particular vehicle and particularly if they are paid
20 while in it, it would ordinarily be found that the driver of the vehicle is acting [within
13
1 the scope of employment].” Restatement (Second) of Agency § 229 cmt. d. Thus, if
2 an employer requires the use of an employee’s personal vehicle or equipment
3 mounted thereon, the employee’s use thereof may be considered part of the
4 employer’s work.
5 {20} In this case, Smith was required to use a particular vehicle—his personal
6 welding rig—while working for Defendant, for three reasons: Defendant did not
7 supply welding equipment for its employees, Smith’s certification required him to
8 use the same equipment he tested with on the job site, and Smith’s welding
9 equipment was affixed to his vehicle. Smith was required to transport his rig to each
10 job site where he worked for Defendant. In addition, Defendant paid Smith an
11 additional $15 per hour for the use of his welding rig. Although Defendant did not
12 begin paying Smith for the use of the rig until he clocked in at the job site, a jury
13 could reasonably determine that Smith would not have been able to perform his
14 assigned duties without bringing his truck and equipment along. From these facts, a
15 jury could conclude that Smith’s act of driving his welding rig to the job site was
16 part of his work for Defendant and in furtherance of the same.
17 {21} Plaintiff also submitted evidence that Smith was transporting welding
18 materials provided by Defendant at the time of the accident. Defendant argues the
19 fact that Smith had welding rods on his truck was not dispositive because Defendant
20 also provided welding rods at the job sites. Regardless, the fact that some materials
14
1 were on Smith’s truck at the time of the accident is evidence from which a jury could
2 conclude that Smith was acting, at least in part, to further Defendant’s business.
3 {22} We briefly address the out-of-state authority Defendant relies upon to support
4 its argument that Smith was outside the scope of employment under the
5 circumstances here. Defendant first cites Koerner v. Hankins, 2012 WL 2664636 (W.D. Pa. 2012) (memorandum decision), where, like this case, a welder was
7 involved in a car accident in his welding rig while on the way to work, and the injured
8 plaintiff sought to recover damages from the welder’s employer. Id. at *1, 3. The
9 United States District Court for the Western District of Pennsylvania granted
10 summary judgment in favor of the employer, concluding that even though the
11 employer might derive a benefit from the employee’s transportation of the “truck
12 and welding rig to and from the job site each day,” the parties had a written contract
13 that specified “such benefit was provided by [the employee] in his role as the lessor
14 of the rig, and not in his role as an employee.” Id. at *5. We perceive two points of
15 distinction that lead us to conclude Koerner distinguishable based on the facts and
16 law at issue. First, the Koerner court grounded its conclusion in the express terms of
17 the parties’ written agreement and did not provide any analysis that would assist us
18 in evaluating whether the employee’s transportation of the rig was otherwise
19 “actuated, at least in part, by a purpose to serve the [employer].” Id. (internal
20 quotation marks omitted); see also Lessard, 2007-NMCA-122, ¶ 25 (equating the
15
1 concept of furtherance with whether the employee’s conduct “is actuated, at least in
2 part, by a purpose to serve the [employer]” under the third prong of the Restatement
3 (Second) of Agency § 228 test). More importantly, the Koerner court’s rationale
4 relied on a “benefit to the employer” analysis this Court had previously rejected in
5 Lessard. See 2007-NMCA-122, ¶¶ 22-24 (holding that the benefit analysis applies
6 in workers’ compensation law, but observing that New Mexico has not expanded the
7 benefit analysis to apply in tort law, which instead focuses on whether the employee
8 was furthering the business of the employer). For these reasons, we cannot agree
9 with the reasoning of the Koerner court and decline to apply it here.
10 {23} Defendant also attempts to distinguish this case from Hunter v. Modern
11 Continental Construction Co., where, again, an employee was involved in a car
12 accident on the way to work. 652 S.E.2d 583, 584 (Ga. Ct. App. 2007), modified,
13 Prodigies Child Care Mgmt., LLC v. Cotton, ___ S.E.2d ___, 2023 WL 661101414 (Ga. 2023). The Georgia Court of Appeals concluded that the employer was not
15 entitled to summary judgment on the plaintiff’s vicarious liability claim because
16 there was some evidence that the employee may have been on his cell phone
17 conducting company business (or distracted by it) when the accident occurred. Id. at
18 583. According to the court, “[s]uch evidence raises a jury question as to whether
19 [the employee] was acting within the scope of his employment.” Id. at 584.
20 Defendant argues that unlike Hunter, there is no jury question here because “Smith
16
1 was not on a cell phone at the time of the accident, nor engaged in work-related
2 business.” But, like Hunter, there is some evidence that might constitute furtherance
3 in this case—the employee’s transportation of necessary welding equipment and
4 supplies to the job site. Defendant has not provided any persuasive authority
5 indicating that those facts are insufficient to raise a jury question regarding of
6 furtherance under the standard applied in New Mexico.
7 {24} Ultimately, while the facts are largely undisputed, they lend themselves to two
8 reasonable, but conflicting, inferences. The facts relied on by the district court could
9 allow the jury to conclude that Smith was not acting in furtherance of Defendant’s
10 business at the time of the accident. At the same time, the fact that Smith was
11 required to drive his personal welding rig to the job site and was carrying materials
12 provided by his employer could allow a jury to determine that Smith was engaged
13 in work at the time of the accident and operating his rig in furtherance of Defendant’s
14 business. Likewise, this evidence is enough to allow a jury to conclude that Smith
15 was not acting entirely from some “‘external, independent and personal motive.’”
16 Lessard, 2007-NMCA-122, ¶ 20 (quoting UJI 13-407(2)). Because two logical
17 inferences can be drawn from these facts, summary judgment was improperly
18 granted. See Lovato, 1968-NMCA-060, ¶ 5; see also Marquez v. Gomez, 1991-
19 NMCA-066, ¶ 15, 116 N.M. 626, 866 P.2d 354 (“Even if the basic material facts are
20 undisputed, if equally logical, but conflicting, reasonable inferences can be drawn
17
1 from these facts, an award of summary judgment is improper.”). On remand, whether
2 Smith was acting in the scope of employment when the accident occurred is a
3 question of fact for the jury.
4 III. Negligence, Negligence Per Se, and Negligent Entrustment
5 {25} The district court also granted summary judgment in favor of Defendant on
6 Plaintiff’s negligence, negligence per se, and negligent entrustment claims,
7 concluding that “[t]he undisputed material facts do not establish any evidence of
8 general negligence or negligence per se on the part of Jones in relation to the
9 accident, or of negligent entrustment. Indeed, [Plaintiff] has not even argued these
10 points in her response [to Defendant’s motion for summary judgment].”
11 {26} On appeal, Plaintiff argues that she presented evidence of disputed material
12 facts regarding her direct negligence claims. In a single paragraph, Plaintiff points
13 to a handful of facts drawn from attachments to Defendant’s summary judgment
14 motion and Plaintiff’s response. While Plaintiff asserts these facts demonstrate that
15 she met her burden to oppose summary judgment, she does not go any further in her
16 analysis. In particular, Plaintiff has not provided any argument or analysis of how
17 these facts are material in the context of the causes of action at issue, nor does she
18 attempt to demonstrate how they create a dispute of fact. Thus, to rule on the merits,
19 we would have to speculate about why the evidence Plaintiff points to presents a
20 jury question on each of three causes of action. It is not our role to develop Plaintiff’s
18
1 arguments for her, nor will we guess at what her arguments are. See Elane
2 Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“To rule on an
3 inadequately briefed issue, this Court would have to develop the arguments itself,
4 effectively performing the parties’ work for them.”). Because we have no duty to
5 review an argument that is inadequately developed, we decline to further consider
6 Plaintiff’s argument that the district court erred in granting summary judgment on
7 her direct negligence claims. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-
8 045, ¶ 15, 137 N.M. 339, 110 P.3d 1076.
9 CONCLUSION
10 {27} We affirm the district court’s grant of summary judgment on Plaintiff’s claims
11 for negligence, negligence per se, and negligent entrustment. On Plaintiff’s
12 respondeat superior claim, we conclude that whether Smith was acting in the scope
13 of employment when the accident occurred is a question of fact that must be resolved
14 by a jury. Accordingly, we affirm in part, reverse in part, and remand for further
15 proceedings consistent with this opinion.
16 {28} IT IS SO ORDERED.
17 _________________________
18 MEGAN P. DUFFY, Judge
19
1 WE CONCUR:
2 ___________________________________
3 J. MILES HANISEE, Judge
4 ___________________________________
5 SHAMMARA H. HENDERSON, Judge
20