{ "id": 4362354, "name": "ISABEL ARMENTA, Personal Representative for ESTATE OF MANUEL ARMENTA, Deceased, Plaintiff-Appellant, v. A.S. HORNER, INC., a New Mexico corporation, JOHN DOE I and JOHN DOE II, Defendants-Appellees", "name_abbreviation": "Armenta v. A.S. Horner, Inc.", "decision_date": "2015-08-26", "docket_number": "No. 35,398; Docket No. 33,813", "first_page": "467", "last_page": "476", "citations": [ { "type": "official", "cite": "2015-NMCA-092" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2006-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2543928 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0012-01" ] }, { "cite": "119 N.M. 397", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561220 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/119/0397-01" ] }, { "cite": "1995-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "opinion_index": 0 }, { "cite": "89 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2864187 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0562-01" ] }, { "cite": "1976-NMSC-068", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "57 N.M. 451", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842111 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/57/0451-01" ] }, { "cite": "1953-NMSC-064", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0 }, { "cite": "109 N.M. 584", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590203 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0584-01" ] }, { "cite": "1990-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "opinion_index": 0 }, { "cite": "621 N.E.2d 43", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "45" } ], "opinion_index": 0 }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] }, { "cite": "2005-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929173 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0192-01" ] }, { "cite": "512 N.Y.S.2d 276", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1987, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "436 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "145", "parenthetical": "stating that \"the plaintiffs' claim is barred by decedent's contributory negligence as alleged in the complaint\"" } ], "opinion_index": 0 }, { "cite": "881 N.E.2d 996", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8393498 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "1003", "parenthetical": "noting that Indiana follows a modified comparative fault system and stating that \"one who drives while intoxicated is generally more at fault than one who permits another to drive while intoxicated\"" }, { "page": "1003", "parenthetical": "disagreeing with the rationale in Casebolt and stating, \"We do not believe that allowing drunk drivers to recover from those who allow them to drive drunk significantly furthers the already existing public policy against drunk driving.\"" } ], "opinion_index": 0, "case_paths": [ "/ne2d/881/0996-01" ] }, { "cite": "583 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 217277 ], "year": 2003, "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/sc/355/0036-01" ] }, { "cite": "208 Cal. Rptr. 703", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1984, "pin_cites": [ { "page": "707" } ], "opinion_index": 0 }, { "cite": "541 N.E.2d 847", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "852", "parenthetical": "stating that \"a suit brought by an injured entrustee against his entrustor is a viable cause of action in a comparative negligence jurisdiction\" and observing that \"the [s]tates that have adopted comparative negligence seem to uniformly accept such a cause of action\"" } ], "opinion_index": 0 }, { "cite": "2015 UT 30", "category": "reporters:neutral", "reporter": "UT", "case_ids": [ 6880177 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/p3d/345/0661-01" ] }, { "cite": "523 So. 2d 1215", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7572886 ], "year": 1988, "pin_cites": [ { "page": "1218", "parenthetical": "agreeing with Section 390 of the Restatement (Second) of Torts and listing states in which a first-party negligent entrustment claim is recognized" } ], "opinion_index": 0, "case_paths": [ "/so2d/523/1215-01" ] }, { "cite": "384 S.W.3d 330", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 7094955 ], "year": 2012, "pin_cites": [ { "page": "336-37" } ], "opinion_index": 0, "case_paths": [ "/sw3d/384/0330-01" ] }, { "cite": "829 P.2d 352", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10357713 ], "weight": 4, "year": 1992, "pin_cites": [ { "parenthetical": "enbanc" }, { "page": "362" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/p2d/829/0352-01" ] }, { "cite": "111 N.M. 64", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715073 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/111/0064-01" ] }, { "cite": "1990-NMSC-106", "category": "reporters:neutral", "reporter": "NMSC", "opinion_index": 0 }, { "cite": "104 N.M. 379", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594974 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0379-01" ] }, { "cite": "1986-NMCA-052", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 1" } ], "opinion_index": 0 }, { "cite": "27 F.3d 716", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10529690 ], "year": 1994, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/f3d/27/0716-01" ] }, { "cite": "358 S.W.2d 758", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10174946 ], "year": 1962, "pin_cites": [ { "page": "761" } ], "opinion_index": 0, "case_paths": [ "/sw2d/358/0758-01" ] }, { "cite": "776 N.E.2d 1184", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "1193", "parenthetical": "holding that where \"there was no express or implied permission granted to [the driver] to use the vehicle at the time the collision occurred[,] there was no entrustment.\"" } ], "opinion_index": 0 }, { "cite": "582 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2237964 ], "year": 2003, "pin_cites": [ { "page": "532-33", "parenthetical": "holding there was no entrustment where the driver had permission to drive a truck on the owner's property but not off of it" } ], "opinion_index": 0, "case_paths": [ "/ga-app/261/0375-01" ] }, { "cite": "756 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 4303694 ], "year": 2014, "pin_cites": [ { "page": "713", "parenthetical": "\"Where the uncontroverted evidence shows that [the driver] took the [vehicle] without [the owner's] permission and knowledge, it cannot be said that [the owner] lent [the driver] the car or otherwise entrusted him with it.\"" } ], "opinion_index": 0, "case_paths": [ "/ga-app/326/0477-01" ] }, { "cite": "1999-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106537 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/128/0084-01" ] }, { "cite": "1997-NMCA-120", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18473 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "305" }, { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0296-01" ] }, { "cite": "102 N.M. 692", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580224 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0692-01" ] }, { "cite": "1985-NMCA-033", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "2000-NMCA-096", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217122 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0721-01" ] }, { "cite": "343 S.E.2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "463", "parenthetical": "\"An employee may abandon his employment by reaching an advanced state of intoxication which renders the employee incapable of engaging in his duties.\"" } ], "opinion_index": 0 }, { "cite": "497 N.E,2d 969", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "971" } ], "opinion_index": 0 }, { "cite": "90 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873599 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0433-01" ] }, { "cite": "1977-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 4" } ], "opinion_index": 0 }, { "cite": "113 N.M. 85", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723314 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/113/0085-01" ] }, { "cite": "1991-NMCA-118", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "647 P.2d 1062", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "pin_cites": [ { "page": "1066", "parenthetical": "stating that \"[wjhether [the decedent's] intoxication constituted an abandonment of his employment was for the jury to decide\"" } ], "opinion_index": 0 }, { "cite": "97 N.M. 765", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555175 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0765-01" ] }, { "cite": "1982-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "2011-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250715 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0164-01" ] }, { "cite": "2001-NMCA-039", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352348 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0524-01" ] }, { "cite": "2000-NMCA-011", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106582 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 7" }, { "parenthetical": "internal quotation marks omitted" }, { "page": "\u00b6 16" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0601-01" ] }, { "cite": "2007-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3668336 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0559-01" ] }, { "cite": "98 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582604 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0340-01" ] }, { "cite": "1982-NMCA-094", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 49" } ], "opinion_index": 0 }, { "cite": "1997-NMCA-068", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142250 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 16" }, { "page": "\u00b6 16" }, { "page": "\u00b6 20" }, { "page": "\u00b6 23", "parenthetical": "enbanc" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0537-01" ] } ], "analysis": { "cardinality": 1366, "char_count": 32834, "ocr_confidence": 0.767, "pagerank": { "raw": 5.507831572789559e-08, "percentile": 0.34435019184516164 }, "sha256": "3a11dfec4dfbfedfd6f0ea20faaac68f0b595f42ebde6c60750eb66c919155af", "simhash": "1:a715ce10c4850ef0", "word_count": 5281 }, "last_updated": "2023-07-14T20:13:54.428467+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "WE CONCUR:", "CYNTHIA A. FRY, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "ISABEL ARMENTA, Personal Representative for ESTATE OF MANUEL ARMENTA, Deceased, Plaintiff-Appellant, v. A.S. HORNER, INC., a New Mexico corporation, JOHN DOE I and JOHN DOE II, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} In this appeal from the grant of summary judgmentto A.S. Horner, Inc. (Defendant), we address whether there exist disputed material facts as to (1) whether the Workers\u2019 Compensation Act provides the exclusive remedy for Isabel Armenia\u2019s claim, and (2) whether Defendant negligently entrusted one of its vehicles to Manuel Armenta (Manuel), Plaintiffs husband and decedent. We reverse.\nBACKGROUND\n{2} Isabel Armenia, (Plaintiff), personal representative of the estate of her husband, Manuel, brought suit against Manuel\u2019s employer, Defendant, for negligent entrustment after Manuel was killed in a single-car accident while driving Defendant\u2019s vehicle. The undisputed facts leading to Manuel\u2019s death are as follows. Manuel and a number of other workers were sent to Springer, New Mexico, to work on road maintenance on 1-25. Defendant arranged for motel rooms for some of its workers, including Manuel, while they were in Springer. During the last week of work in Springer, Defendant provided a Chevy Suburban vehicle to transport some of the workers from Albuquerque to Springer.\n{3} Because Manuel had been convicted for driving while intoxicated in 2001, Defendant\u2019s safety director had determined that Manuel would not be permitted to drive Defendant\u2019s vehicles, and he was listed on Defendant\u2019s \u201cdo not drive\u201d list. Nevertheless, although the parties dispute whether Manuel was issued the Suburban in Albuquerque, they agree that at some point Manuel drove the vehicle after it waspickedup from Defendant\u2019s facility. They also agree that after work on the day of the accident, Manuel drove the Suburban from the motel to the grocery and liquor stores and returned with supplies for a barbecue with the other employees. The employees at the motel, including Manuel\u2019s supervisor, had pitched in money to purchase these supplies. Both Manuel\u2019s supervisor and a superintendent employed by D efendant knew that Manuel had driven the Suburban to or while in Springer. The superintendent had advised Manuel in the week before the accident that Defendant\u2019s vehicles were supposed to be parked after work hours, except that they could be used to pick up supplies needed for the night. In addition, on the evening of the accident, after eating dinner with the employees and as he was leaving for his room, Manuel\u2019s supervisor told the employees, including Manuel, \u201cto drink moderately and to not leave [the motel].\u201d\n{4} In spite of this warning, Manuel and another employee left the motel in the Suburban headed toward Raton. Manuel was killed in an accident about five miles north of Springer on 1-25. Manuel\u2019s blood alcohol concentration (B AC) was .23 at the time of his death.\nDISCUSSION\n{5} Defendant argued in the motion for summary judgment that Plaintiffs claims \u201care barred by the exclusivity provisions of the Workers\u2019 Compensation Act\u201d or, alternatively, \u201cPlaintiff cannot meet the requisite evidentiary standard of gross negligence and reckless disregard set forth in Sanchez v. San Juan Concrete Co., 1997-NMCA-068, 123 N.M. 537, 943 P.2d 571.\u201d It is not clear from the district court\u2019s order on which basis summary judgment was granted. Defendantpoints to the district court\u2019s oral rulings as evidence that summary judgment was granted on the ground that the Workers\u2019 Compensation Act was Plaintiffs exclusive remedy. But \u201c[a district] court\u2019s oral statements as to the basis for its ruling, made before judgment is entered, and not embodied therein, cannot be considered part of the judgment.\u201d In re Adoption of John Doe, 1982-NMCA-094, \u00b6 49, 98 N.M. 340, 648 P.2d 798. We therefore consider whether summary judgment is appropriate under either theory advanced by Defendant.\nA. Workers\u2019 Compensation\n{6} Defendant argues that the Workers\u2019 Compensation Act (the Act) provides the exclusive remedy for Plaintiffs claim because Manuel was a traveling employee covered by the Act at the time of the accident. See NMS A 1978, \u00a7\u00a7 52-1-1 to -70 (1929, as amended through 2013). Generally, \u201cthe Act makes workers\u2019 compensation benefits the worker\u2019s exclusive remedy for all accidental injuries.\u201d Salazar v. Torres, 2007-NMSC-019,\u00b6 11, 141 N.M. 559, 158 P.3d 449; see \u00a7 52-1-9; see also \u00a7 52-1-6(E) (\u201cThe Workers\u2019 Compensation Act provides exclusive remedies.\u201d). Section 52-1-19 precludes compensation under the Act for injuries suffered while going to work or returning home from work. This provision is known as the \u201cgoing-and-coming rule.\u201d Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, \u00b6 7, 128 N.M. 601, 995 P.2d 1043. The exception to the going-and-coming rule invoked by Defendant is known as the \u201ctraveling-employee exception.\u201d Id. (internal quotation marks omitted).\n{7} Under the \u201ctraveling-employee exception,\u201d \u201c[t]he general rule is that an employee whose work entails travel away from the employer\u2019s premises is, in most circumstances, under continuous workers\u2019 compensation coverage from the time he leaves home until he returns.\u201d Id. \u00b6 11 (internal quotation marks and citation omitted). \u201cThe rationale behind the traveling[- ] employee rule is that an employee who is required to travel away from home is furthering the business of his employer as he eats, sleeps, and performs other acts necessary to his health and comfort during his travels.\u201d Id. \u00b6 12 (internal quotation marks and citation omitted). A traveling employee is one who travels to various locations as an integral part of his or her work. Id. \u00b6 11.\n{8} Since the exception applies during the entire time the employee is traveling, it necessarily encompasses injuries incurred while the employee is not actually working, such as when the employee is engaged in leisure or recreational activities. Id. \u00b6 13. However, \u201cone seeking compensation for an injury must still demonstrate that the injury arose out of and in the course of employment.\u201d Id. \u00b6 14 (internal quotation marks and citation omitted); see \u00a7 52-1-9(B). As it pertains to leisure and recreational activities by traveling employees, this requirement is \u201cmet if the traveling employee was injured while engaging in an activity that was both reasonable and foreseeable!)]\u201d id. \u00b6 15, and if that activity is not \u201cconducted in an unreasonable or unforeseeable manner.\u201d Id. \u00b6 16. Finally, the activity \u201cmust confer some benefit on the employer; ... it must be reasonably related or incidental to employment.\u201d Id. \u201cThe benefit to the employer need not be pecuniary, and may be as intangible as a well-fed and well-rested employee.\u201d Id. \u00b6 17.\n{9} A number of factors define whether a traveling employee\u2019s activity falls within the reach of the Act. These include \u201cwhether the injury takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it.\u201d Chavez v. ABF Freight Sys., Inc., 2001-NMCA-039, \u00b6 11, 130 N.M. 524, 27 P.3d 1011 (internal quotation marks and citation omitted). The Chavez Court stated the factors as \u201cwhether the activity was reasonable and foreseeable; whether the injury occurred during a distinct departure from employment for a personal errand; whether the activity was conducted in an unreasonable or unforeseeable manner; and whether the activity giving rise to the injury conferred some benefit on the employer.\u201d Id.; see also Rodriguez v. Permian Drilling Corp., 2011-NMSC-032, \u00b6 14, 150 N.M. 164, 258 P.3d 443 (listing additional factors). These factors \u201crepresent an attempt to draw the line between conduct reasonably related to employment and conduct that is so foreign to and removed from the employee\u2019s usual employment as to constitute an abandonment thereof.\u201d Chavez, 2001-NMCA-039, \u00b6 12 (alteration, internal quotation marks, and citation omitted).\n{10} Instead of disputing the basic facts related to the traveling-employee exception, Defendant simply argues that the exception applies and, therefore, the Act is Plaintiffs exclusive remedy. For the most part, Plaintiff does not contest that Manuel was a traveling employee. Rather, Plaintiff argues thatManuel was not in the scope and course of employment when the accident occurred. Plaintiff also argues that Manuel\u2019s conduct was unreasonable and therefore did not fall within the type of leisure activities encompassed by the Act. Although whether an employee is acting within the course of employment for purposes of the traveling-employee exception is generally a question of fact, when the relevant facts are undisputed an appellate court may resolve the issue as a matter of law. See City of Santa Fe v. Hernandez, 1982-NMSC-036, \u00b6 6, 97 N.M. 765, 643 P.2d 851 (stating that an appellate court may determine whether an employee was in the scope of employment as a matter of law based on undisputed facts); Flavorland Indus., Inc. v. Schumacker, 647 P.2d 1062, 1066 (Wash. Ct. App. 1982) (stating that \u201c[wjhether [the decedent\u2019s] intoxication constituted an abandonment of his employment was for the jury to decide\u201d). We agree with Plaintiff that given the undisputed facts here, Manuel was not within the course of employment when he left the motel in the Suburban in an intoxicated state.\n{11} First, the parties agree that Manuel was headed to Raton, that Defendant had no business interests in Raton, and that Manuel was not instructed to go to Raton and was, in fact, instructed not to leave the motel. Indeed, Defendant agrees that Manuel \u201ctook the vehicle to party in Raton.\u201d Thus, there was no reason related to his employment for Manuel to be driving the Suburban at all. Second, there is also no dispute that Manuel had been drinking alcohol before he got in the Suburban, that he was intoxicated while driving, and that an autopsy after the accident found that Manuel\u2019s BAC was .23. Even if Manuel\u2019s decision to take the vehicle for a ride could be considered foreseeable and reasonable conduct under the traveling-employee exception, doing so under the significant influence of alcohol was not reasonable. Ramirez, 2000-NMCA-011, \u00b6 16 (agreeing with other courts holding that \u201cinjury incurred in an otherwise reasonable and foreseeable recreational activity will not be compensable if the activity was conducted in an unreasonable or unforeseeable manner\u201d); cf. Estate of Mitchum v. Triple S Trucking, 1991-NMCA-118, \u00b6 18, 113 N.M. 85, 823 P.2d 327 (holding that the evidence, including a BAC of .141, the employee\u2019s admission that he had been drinking the night before the accident, beer cans found in his truck, and testimony that he smelled of alcohol, was sufficient to show that the employee was intoxicated); see NMSA 1978, \u00a7 66-8-102(C)(1), (D)(1) (2010) (stating that it is unlawful to drive with a BAC of over .08 and that driving with a BAC of over .16 constitutes aggravated driving while intoxicated). Furthermore, no benefit can have been conferred on Defendant by Manuel\u2019s drinking excessively. See Ramirez, 2000-NMCA-011, \u00b6 16 (stating that \u201cthe activity giving rise to the injury must confer some benefit on the employer\u201d). We conclude that under these facts, Manuel was not within the course of his employment at the time of the accident. Cf. Fernandez v. Lloyd McKee Motors, Inc., 1977-NMCA-045, \u00b6 4, 90 N.M. 433, 564 P.2d 997 (holding that an employee was not in the scope of his employment where the employee was driving his employer\u2019s vehicle while intoxicated, was not pursuing the employer\u2019s business, and did not have permission to drive the vehicle at that time); Phelps v. Positive Action Tool Co., 497 N.E,2d 969, 971 (Ohio 1986) (stating that \u201cvoluntary intoxication which renders an employee incapable ofperforming his work is a departure from the course of employment [and that] when the employee is injured in that condition, his injury does not arise out of his employment\u201d and holding that an employee with .21 percent BAC was \u201cgrossly intoxicated\u201d); Am. Safety Razor Co. v. Hunter, 343 S.E.2d 461, 463 (Va. Ct. App. 1986) (\u201cAn employee may abandon his employment by reaching an advanced state of intoxication which renders the employee incapable of engaging in his duties.\u201d); see generally 3 A. Larson, Larson\u2019s Workers\u2019 Compensation Law, \u00a7 36.02 (2014). Hence, the Act does not apply to Plaintiff\u2019s claim. To the extent the district court granted summary judgment on this basis, we reverse.\nB. Negligent Entrustment\n{12} We turn next to whether summary judgment could properly be granted on Plaintiffs negligent entrustment claim. We begin with an overview of the law of negligent entrustment. New Mexico has adopted the general definition of negligent entrustment from the Restatement (Second) of Torts. See Hermosillo v. Leadingham, 2000-NMCA-096, \u00b6 19, 129 N.M. 721, 13 P.3d 79. Section 308 states that\n[i]t is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.\nRestatement (Second) of Torts \u00a7 308 (1965). Consistent with this definition, \u201cthe burden is upon the plaintiff to establish that [t]he motor vehicle was driven with the permission ... of the defendant^ t]he entrustee was ... an incompetent driver[; and t]he defendant had actual or constructive knowledge,. . . that the entrustee was incompetent.\u201d 8 Am. Jur. 2d Automobiles \u00a7 1109 (2015); see Spencer v. Gamboa, 1985-NMCA-033, \u00b6 8, 102 N.M. 692, 699 P.2d 623 (stating that to prevail on a vehicle negligent entrustment claim, a \u201cplaintiff must show that the defendant loaned the car to a person it either knew or should have known was an incompetent driver, and the driver\u2019s incompetence caused the injury\u201d). Another section, Section 390, \u201cstates a specialized rule pertinent to automobiles.\u201d Gabaldon v. Erisa Mortg. Co., 1997-NMCA-120, \u00b6 26, 124 N.M. 296, 305, 949 P.2d 1193, aff\u2019d in part, rev\u2019d in part on other grounds, 1999-NMSC-039, 128 N.M. 84, 990 P.2d 197. Section 390 provides that\nOne who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.\nRestatement (Second) of Torts \u00a7 390 (1965). A central feature of these definitions is the act of entrustment, or permission, to use the vehicle. See 61 C.J.S. Motor Vehicles \u00a7 956 (2015) (stating that \u201cin order that the doctrine apply, it is essential that the person sought to be held legally responsible have the right of control over the vehicle. Permission, either express or implied, is thus a prerequisite to a suit for negligent entrustment of an automobile.\u201d (footnote omitted)). In Gabaldon, this Court observed that an important aspect of Section 308 of the Restatement (Second) of Torts \u201cis the idea that the \u2018third person is entitled to possess or use the thing or engage in the activity only by the consent of the actor, and that the actor has reason to believe that by withholding consent he can prevent the third person from using the thing or engaging in the activity.\u2019 \u201d Gabaldon, 1997-NMCA-120, \u00b6 27 (quoting Section 308 cmt. a of the Restatement (Second) of Torts). Hence a number of negligent entrustment cases hinge on the presence or absence of such consent. See, e.g., McManus v. Taylor, 756 S.E.2d 709, 713 (Ga. Ct. App. 2014) (\u201cWhere the uncontroverted evidence shows that [the driver] took the [vehicle] without [the owner\u2019s] permission and knowledge, it cannot be said that [the owner] lent [the driver] the car or otherwise entrusted him with it.\u201d); Butler v. Warren, 582 S.E.2d 530, 532-33 (Ga. Ct. App. 2003) (holding there was no entrustment where the driver had permission to drive a truck on the owner\u2019s property but not off of it); Evans v. Shannon, 776 N.E.2d 1184, 1193 (Ill. 2002) (holding that where \u201cthere was no express or implied permission granted to [the driver] to use the vehicle at the time the collision occurred[,] there was no entrustment.\u201d).\n{13} This principle obviously extends to preclude a negligent entrustment claim where the owner has prohibited the driver from using the vehicle. Thus, negligent entrustment does not \u201cimpose liability upon the alleged \u2018trustor\u2019 for the negligent operation of a vehicle which he had expressly forbidden the alleged \u2018trustee\u2019 to drive.\u201d Farney v. Herr, 358 S.W.2d 758, 761 (Tex. Civ. App. 1962); accord Favorito v. Pannell, 27 F.3d 716, 721 (1st Cir. 1994) (\u201cThe authorities are in substantial accord that where the alleged entrustor has prohibited the entrustee from operating the automobile or using the instrumentality in question, there is no responsibility because there has been no entrustment.\u201d (internal quotation marks and citation omitted)).\n{14} Typical vehicle negligent entrustment claims involve claims against an entrustor by a person injured by a driver. It is clear that under New Mexico law such \u201cthird-party claims\u201d are recognized. Sanchez, 1997-NMCA-068, \u00b6 11 (\u201c[0]ne who negligently entrusts a motor vehicle to an incompetent driver may be liable for injury to a third person caused by the driver\u2019s incompetence.\u201d). In Sanchez, this Court examined for the first time whether \u201cfirst-party claims\u201d would also be recognized. In other words, is an entrustor liable to the entrustee when the entrustee is injured \u201cas a result of driving while intoxicated[?]\u201d Id. \u00b6 12. The Court began by noting that the holding in Trujillo v. Trujillo, 1986-NMCA-052, \u00b6 1, 104 N.M. 379, 721 P.2d 1310, which was that \u201ca tavernkeeper who unlawfully serves alcohol to an intoxicated patron is [not] civilly liable for injuries suffered by the patron as a result of that act[,]\u201d was later restricted by statute. Sanchez, 1997-NMCA-068, \u00b6 16. After passage of NMSA 1978, Section 41-11-1(B) (1986), \u201cif the tavernkeeper acted with gross negligence and reckless disregard for the patron\u2019s safety, the tavernkeeper may be liable to the patron.\u201d Sanchez, 1997-NMCA-068, \u00b6 16, Because it concluded that the balance of policy concerns evident in Section 41-11-1 (B) justified extension of this framework to entrustors, the Court held that \u201cone who entrusts a motor vehicle to an intoxicated person may be liable to the entrustee if the entrustor acts with gross negligence and reckless disregard for the safety of the entrustee.\u201d Sanchez, 1997-NMCA-068, \u00b6 20.\n{15} In Sanchez, the entrustee stated in an affidavit that he told the entrustor, his employer, that he was \u201cdrunk, tired, hung overf,] and unfit to operate [a] cement truck.\u201d Id. \u00b6 26. Nevertheless, the employer \u201crefused to let [him] off work, and ordered [him] to get [his] truck, load up and begin [his] runs for the day.\u201d Id. Even though the entrustee told the employer again later in the day that he was drunk and unfit to drive the cement truck, the employer again refused to release him and \u201ctold [him he would] be fired if [he] did not continue to work that day.\u201d Id. The entrustee was injured in a single-car accident in the cement truck. Id. \u00b6 2. The Court concluded that the fact finder could determine that the entrustee \u201cwas ordered to drive his truck despite the factthathe was visibly intoxicated, said he was intoxicated, and asked to be relieved of duty.\u201d Id. \u00b6 28. It further concluded that \u201c[i]f such facts were found, the fact finder could decide that the [employer] acted with gross negligence and reckless disregard for [the entrustee\u2019s] safety when he entrusted [the entrustee] with the [employer\u2019s] truck.\u201d Id. Consequently, summary judgment was improper. Id.\n{16} But the Sanchez Court did not decide \u201cwhether an entrustor should be liable to a voluntarily intoxicated entrustee for simple negligence,\u201d calling this question \u201ca more difficult issue.\u201d Id. \u00b6 21 (emphasis added). In dicta, the Court recognized that \u201cthe language o\u00ed Trujillo suggests that voluntary intoxication should be treated as a special species of fault\u201d and that \u201csome New Mexico authority treats voluntary intoxication as akin to intentional misconduct,\u201d both factors which weigh against allowing an intoxicated entrustee to recover from entrustors. Id. \u00b6 22 (citing California First Bank v. State, 1990-NMSC-106, \u00b6 34 n.6, 111 N.M. 64, 801 P.2d 646). It also recognized, however, that the commentary to Section 390 of the Restatement (Second) of Torts supported liability of entrustors and that this section had been relied upon by the Colorado Supreme Court to permit recovery by an intoxicated entrustee. Sanchez, 1997-NMCA-068, \u00b6 23 (citing Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992) (enbanc)). Finally, it noted that in adopting comparative negligence principles, \u201cNew Mexico has largely eliminated distinctions between degrees of negligence and there is a strong presumption against introducing them in our tort law.\u201d Id. \u00b6 21.\n{17} In addition to Colorado, a number of states have recognized a first-party negligent entrustment cause of action for the injured entrustee that does not depend on gross negligence. The courts in these cases relied on the fact that in a pure comparative fault system, the entrustor\u2019s negligence is balanced against the intoxicated entrustee\u2019s negligence. In Missouri, for example, the Court of Appeals for the Western District followed Section 390 of the Restatement (Second) of Torts to hold that \u201cunder a pure comparative fault system (like Missouri\u2019s), a plaintiff will not be barred from recovery, even if his own negligence greatly outweighed that of the defendant.\u201d Hays v. Royer, 384 S.W.3d 330, 336-37 (Mo. Ct. App. 2012). Similarly, the Florida District Court of Appeal for the First District held that \u201can adult drunken driver who injures himself is entitled to a comparative fault trial predicated on the theory of negligent entrustment.\u201d Gorday v. Faris, 523 So. 2d 1215, 1218 (Fla. Dist. Ct. App. 1988) (agreeing with Section 390 of the Restatement (Second) of Torts and listing states in which a first-party negligent entrustment claim is recognized); accord Herland v. Izatt, 2015 UT 30, \u00b6 33, 345 P.3d 661 (stating that \u201calthough there are competing social policies that favor and disfavor first-party recovery by an intoxicated individual, nothing bars first-party recovery as a matter of law. As a result, [the plaintiff\u2019s] estate may argue for recovery, but the estate must overcome the high hurdle of comparative negligence in order to prevail, as would any plaintiff whose injury occurs while he or she is voluntarily intoxicated.\u201d); King v. Petefish, 541 N.E.2d 847, 852 (Ill. App. Ct. 1989) (stating that \u201ca suit brought by an injured entrustee against his entrustor is a viable cause of action in a comparative negligence jurisdiction\u201d and observing that \u201cthe [s]tates that have adopted comparative negligence seem to uniformly accept such a cause of action\u201d); Blake v. Moore, 208 Cal. Rptr. 703, 707 (Ct. App. 1984) (stating that the injured plaintiff \u201cis entitled to a comparative fault trial. This should result in a weighing of [the] defendant\u2019s fault in entrusting his car to [the] plaintiff with knowledge of the intoxication, and the fault of [the] plaintiff in drinking and then driving.\u201d).\n{18} Other states have refused to recognize a first-party claim for an intoxicated entrustee, reasoning that where contributory or modified comparative negligence principles apply, the fault of the intoxicated driver will bar recovery. See, e.g., Lydia v. Horton, 583 S.E.2d 750, 752 (S.C. 2003) (\u201cWe believe that this state\u2019s modified comparative negligence system also bars an intoxicated adult\u2019s recovery on a first party negligent entrustment cause of action. We cannot imagine how one could be more than fifty percent negligent in loaning his car to an intoxicated adult who subsequently injured himself.\u201d); Bailey v. State Farm Mut. Auto. Ins. Co., 881 N.E.2d 996, 1003 (Ind. Ct. App. 2008) (noting that Indiana follows a modified comparative fault system and stating that \u201cone who drives while intoxicated is generally more at fault than one who permits another to drive while intoxicated\u201d); Meachum v. Faw, 436 S.E.2d 141, 145 (N.C. Ct. App. 1993) (stating that \u201cthe plaintiffs\u2019 claim is barred by decedent\u2019s contributory negligence as alleged in the complaint\u201d). Finally, some states have held that a first-party claim is contrary to the policy of those states because \u201can intoxicated person should not generally be permitted to benefit from his or her own intoxication.\u201d Shultes v. Carr, 512 N.Y.S.2d 276, 277 (1987).\n{19} Clearly the cases premised on contributory or modified comparative fault principles are inapposite to New Mexico. We also do not find the blanket prohibition against first-party claims based on policy concerns as stated in Shultes persuasive because some policy interests weigh in favor of permitting a first-party claim. We agree with the Casebolt court \u201cthat voluntary intoxication is socially undesirable conduct and that individual responsibility to refrain from such conduct should be promoted.\u201d 829 P.2d at 362.\nThese considerations, however, cannot be permitted to obscure the fact that a vehicle owner who has the right and ability to control the use of the vehicle and takes no action to prevent the continued use of the vehicle by a borrower who the owner knows is likely to operate the vehicle while intoxicated is also engaged in morally reprehensible behavior that should be discouraged.\nId. But see Bailey, 881 N.E.2d at 1003 (disagreeing with the rationale in Casebolt and stating, \u201cWe do not believe that allowing drunk drivers to recover from those who allow them to drive drunk significantly furthers the already existing public policy against drunk driving.\u201d). Given that New Mexico adheres to pure comparative negligence principles, we agree with the court in Casebolt that \u201c [comparative negligence provides the appropriate framework for examining any negligence on the part of the individual who drives after consuming alcoholic beverages.\u201d 829 P.2d at 362. Thus, we hold that, provided that the elements of negligent entrustment are proven, an entrustee may state a claim for simple negligent entrustment against the entrustor when the entrustee\u2019s voluntary intoxication causes injury. Such claims need not be founded on a showing of gross negligence and reckless disregard as in Sanchez.\n{20} We now turn back to the facts of the present matter. Plaintiff appeals the grant of summary judgment to Defendant. On appeal, \u201cwe view the facts in the light most favorable to the party opposing summary judgment, drawing all inferences in favor of that party\u201d and examine whether \u201cthere are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.\u201d Gormley v. Coca-Cola Enters., 2005-NMSC-003, \u00b6 8, 137 N.M. 192, 109 P.3d 280 (internal quotation marks and citations omitted). Our review of the latter question is de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, \u00b6 6, 126 N.M. 396, 970 P.2d 582.\n{21} To prevail on a negligent entrustment claim, Plaintiff must show that \u201c[Djefendant [entrusted] the car to [Manuel when it] knew or should have known [Manuel] was an incompetent driver, and [Manuel\u2019s] incompetence caused the injury.\u201d Spencer, 1985-NMCA-033, \u00b6 8. Defendant makes no argument as to whether Manuel\u2019s intoxication caused the accident. The parties\u2019 arguments focus instead on facts related to the first two elements, including Manuel\u2019s status on Defendant\u2019s \u201cdo not drive\u201d list, the supervisor\u2019s knowledge that Manuel drove the Suburban to Springer and to pick up groceries and liquor on the night of the accident, and the supervisor\u2019s knowledge that Manuel was drinking on the night of the accident. Plaintiff argues that \u201c[fjrom these facts, a jury could make the inference that the supervisor showed reckless disregard and utter indifference for [Manuel\u2019s] safety or the safety of others.\u201d We conclude that there is a genuine dispute over whether Defendant entrusted the Suburban to Manuel and therefore conclude that summary judgment on Plaintiffs negligent entrustment claim was inappropriate. We explain.\n{22} As discussed above, permission is an integral part of an entrustment claim. Permission maybe express or implied. Bishop v. Morich, 621 N.E.2d 43, 45 (Ill. App. Ct. 1993). \u201cImplied permission to use a motor vehicle can be inferred from a course of conduct or relationship between the parties, or other facts and circumstances signifying the assent of the owner.\u201d Allstate Ins. Co. v. Jensen, 1990-NMSC-009, \u00b6 8 n.3, 109 N.M. 584, 788 P.2d 340 (discussing implied consent in the context of permissive use of an insured vehicle); see Trujillo v. Rivera, 1953-NMSC-064, \u00b6 7, 57 N.M. 451, 260 P.2d 365 (holding that the evidence supported a finding of implied consent for a minor child to use a family vehicle).\n{23} Based on the undisputed facts, Defendant did not expressly permit Manuel to drive the Suburban after dinner on the evening of the accident. The superintendent told Manuel not to drive the Suburban after work hours except to buy supplies and the supervisor told all the employees at the motel not to drink too much and not to leave the motel on the night of the accident. Thus, Manuel did not have express permission to drive the Suburban after dinner that evening.\n{24} Whether Manuel had implied permission to drive the Suburban that night is a closer question. Plaintiff argues that because Manuel\u2019s superiors knew that he had the keys and had been driving it throughout the week, including that night, and because the supervisor knew that Manuel had been drinking beer that night, they impliedly consented to his use of the vehicle. Plaintiff also maintains that the superintendent and supervisor should have told Manuel that he could not drive the Suburban and, because they did not object to him driving it, their consent was implied. See Gruger v. W. Cas. & Sur. Co., 1976-NMSC-068, \u00b6 5, 89 N.M. 562, 555 P.2d 683 (\u201cImplied permission is found when the insured does not expressly give his consent but consent is implied by his conduct, including lack of objection.\u201d), overruled by United Servs. Auto. Ass\u2019n v. Nat\u2019l Farmers Union Prop. & Cas., 1995-NMSC-014, 119 N.M. 397, 891 P.2d 538.\n{25} Viewing the undisputed facts in the light most favorable to Plaintiff, we conclude that \u201ca reasonable fact[]fmder could draw certain inferences and come to certain conclusions favorable to Plaintiffs claim.\u201d Juneau v. Intel Corp., 2006-NMSC-002, \u00b6 26, 139 N.M. 12, 127 P.3d 548. Hence, summary judgment on this issue was inappropriate. Having concluded that there are genuine issues of fact related to whether Defendant entrusted the vehicle to Manuel, we need not address whether there are questions of fact related to whether Defendant knew or should have known that Manuel was intoxicated or otherwise incompetent to drive. \u201cPlaintiff is not required to show disputed issues of fact for every element of the claim[.]\u201d Id. \u00b6 25.\nCONCLUSION\n{26} For the foregoing reasons, we reverse the grant of summary judgment to Defendant and remand for further proceedings consistent with this Opinion.\n{27} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nCYNTHIA A. FRY, Judge\nM. MONICA ZAMORA, Judge\nWe note that Fernandez, Phelps, and American Safety Razor Co. did not address the course of employment question in the context of the traveling-employee exception, and that the analysis in those cases hinged on whether the employee could carry out his or her duties despite being intoxicated. Here, Manuel was not engaged in carrying out his duties. Consequently the facts in these cases are not directly apposite. Nevertheless, we cite these cases for the general principle that severe intoxication can constitute conduct \u201cso foreign to and removed from the employee\u2019s usual employment as to constitute an abandonment thereof.\u201d Chavez, 2001-NMCA-039, \u00b6 12 (alteration, internal quotation marks, and citation omitted). Citation to these cases cannot be read to limit our general case law concerning the effect of intoxication on compensability under the law.", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Law Office of Mel B. O\u2019Reilly, LLC", "Mel B. O\u2019Reilly", "Albuquerque, NM", "for Appellant", "Johnson Law Firm, L.C.", "Thomas L. Johnson", "Andrew L. Johnson", "Albuquerque, NM", "for Appellee" ], "corrections": "", "head_matter": "Certiorari Granted, August 26, 2015,\nNo. 35,398\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-092\nFiling Date: June 10, 2015\nDocket No. 33,813\nISABEL ARMENTA, Personal Representative for ESTATE OF MANUEL ARMENTA, Deceased, Plaintiff-Appellant, v. A.S. HORNER, INC., a New Mexico corporation, JOHN DOE I and JOHN DOE II, Defendants-Appellees.\nLaw Office of Mel B. O\u2019Reilly, LLC\nMel B. O\u2019Reilly\nAlbuquerque, NM\nfor Appellant\nJohnson Law Firm, L.C.\nThomas L. Johnson\nAndrew L. Johnson\nAlbuquerque, NM\nfor Appellee" }, "file_name": "0467-01", "first_page_order": 483, "last_page_order": 492 }