{ "id": 1588670, "name": "Ada R. MARCHESE and Diego Peter Marchese, as Co-Personal Representatives of the Estate of Luciano Anthony Marchese, Deceased, Plaintiffs-Appellants, v. WARNER COMMUNICATIONS, INC., Malibu Grand Prix Corporation, a subsidiary of Warner Communications, Inc., Defendants-Appellees", "name_abbreviation": "Marchese v. Warner Communications, Inc.", "decision_date": "1983-06-23", "docket_number": "No. 5806", "first_page": "313", "last_page": "322", "citations": [ { "type": "official", "cite": "100 N.M. 313" }, { "type": "parallel", "cite": "670 P.2d 113" } ], "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": "99 N.M. 335", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584632 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/99/0335-01" ] }, { "cite": "81 N.M. 348", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358503 ], "weight": 2, "year": 1970, "pin_cites": [ { "parenthetical": "Stang II" }, { "parenthetical": "Stang II" } ], "opinion_index": 0, "case_paths": [ "/nm/81/0348-01" ] }, { "cite": "81 N.M. 69", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362374 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0069-01" ] }, { "cite": "81 N.M. 734", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358925 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/81/0734-01" ] }, { "cite": "82 N.M. 352", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335557 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0352-01" ] }, { "cite": "98 N.M. 152", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582523 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/98/0152-01" ] }, { "cite": "78 N.M. 86", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323819 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0086-01" ] }, { "cite": "93 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568711 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/93/0150-01" ] }, { "cite": "92 N.M. 366", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557185 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0366-01" ] }, { "cite": "88 N.M. 355", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837378 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0355-01" ] }, { "cite": "92 N.M. 575", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557044 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0575-01" ] }, { "cite": "90 N.M. 143", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874422 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0143-01" ] }, { "cite": "89 N.M. 98", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868200 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0098-01" ] }, { "cite": "96 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577286 ], "weight": 7, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0682-01" ] }, { "cite": "97 N.M. 272", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555116 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0272-01" ] }, { "cite": "89 N.M. 98", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868200 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/89/0098-01" ] }, { "cite": "96 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577286 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "688" } ], "opinion_index": 1, "case_paths": [ "/nm/96/0682-01" ] } ], "analysis": { "cardinality": 1094, "char_count": 29915, "ocr_confidence": 0.796, "pagerank": { "raw": 9.288276560185081e-08, "percentile": 0.5121163434624953 }, "sha256": "0ffe3c458837321da63f60be95299c21beba4c86a1d7f29e902dca230914b6b9", "simhash": "1:e7e9c9702a577568", "word_count": 4934 }, "last_updated": "2023-07-14T21:45:38.267108+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, J., concurs.", "BIVINS, J., concurs in part; dissents in part." ], "parties": [ "Ada R. MARCHESE and Diego Peter Marchese, as Co-Personal Representatives of the Estate of Luciano Anthony Marchese, Deceased, Plaintiffs-Appellants, v. WARNER COMMUNICATIONS, INC., Malibu Grand Prix Corporation, a subsidiary of Warner Communications, Inc., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nPlaintiff sued to recover damages for the death of their child, Luciano. The jury determined the total amount of plaintiff\u2019s damage was $4,334.76, with fault attributed 47.5% to Luciano; 47.5% to a non-party (Cousin Joanne M\u00e1rchese); and 5% to Malibu Grand Prix. Defendant Bowman\u2019s motion for a directed verdict had been granted at the end of plaintiff\u2019s case. Plaintiff appeals from the judgment and from the order denying the motion for judgment notwithstanding the verdict, or for a new trial.\nFACTS\nLuciano M\u00e1rchese was killed in an accident at Malibu Grand Prix racetrack. His death occurred while he was driving the wrong way on Malibu\u2019s track. He was involved in a head-on collision with defendant Steve Bowman.\nDecedent, age 14, had asked for his mother\u2019s permission to drive on the track, but she refused. Luciano filled out two liability release forms stating that his age was 15. He signed the parental consent portion of one form. Joanne M\u00e1rchese, his twenty-year old cousin, signed the parental consent portion of the other form. She also led an employee of Malibu, over the telephone, to believe that she was Luciano\u2019s mother and that he had her consent to drive on the track. Luciano also presented his motor scooter license which showed he was fourteen years of age.\nWith regard to the accident, there was testimony that Luciano spun off the track onto the dirt; he was pushed back onto the track by an attendant; Luciano started the wrong way; the attendant took the steering wheel and started Luciano in the right direction. During this time, Bowman, who was driving a car behind Luciano and had been stopped when Luciano spun out, was allowed to proceed. Bowman did not start immediately. Shortly thereafter, Bowman saw Luciano traveling in the wrong direction toward him and it appeared Luciano\u2019s car was out of control. Luciano was killed when Bowman\u2019s car went up over his car.\nPlaintiff\u2019s first six issues deal with Instruction No. 2 (theory of the case) which was given by the trial court. It states:\nPlaintiffs claim that their minor son, Lucian [sic] M\u00e1rchese, sustained injuries and was killed while using a Yirage Formula Racecar on a Malibu Grand Prix racetrack.\nPlaintiffs claim that one or more of the following acts or omissions constitutes a failure by the defendants to use the ordinary care required of a supplier of a product and that this failure was a proximate cause of the death of Plaintiffs\u2019 minor son.\n1. The Defendants entrusted their race car to Plaintiffs\u2019 minor son when they knew or should have known that he did not have sufficient skill to operate it safely.\n2. The Defendants rented a race car to Plaintiffs\u2019 minor son without parental consent as required by law.\n3. The Defendants failed to maintain their vehicles and the track in such a manner as to avoid the accident which occurred to Plaintiffs\u2019 minor son.\nPlaintiffs also claim that the Defendants, Warner Communications, Inc., and Grand Prix Corporation are subject to products liability for an unreasonable risk of injury resulting from a condition of the product or a manner in which it was used, and that this risk was a proximate cause of the injuries sustained by Plaintiffs\u2019 minor son. Whereas the claim of failure to use ordinary care is based upon acts or omissions of the suppliers, products liability is based upon the following claimed defects in the product:\n1. The race car supplied to Plaintiffs\u2019 minor son was in a defective condition.\n2. The track did not have adequate warning devices to prevent drivers from traveling in the wrong direction.\n3. The track and/or the race car did not have adequate warning devices to control the race cars on the track in the case of emergency.\n4.The Defendants failed to warn Plaintiffs\u2019 minor son of the risk of injury involved in the use of the race track [sic] and the race car.\nPlaintiffs also claim that a proximate cause of the injuries to their minor son was Defendants\u2019 breach of warranty in that the race car and racetrack supplied by the Defendants to Plaintiffs\u2019 minor son was impliedly warranted to be fit and proper and safe for the purpose for which it was intended, when in fact said vehicle and said racetrack were unsafe for the purpose for which they were intended.\nPlaintiffs have the burden of proving that any one of their claims of failure to use ordinary care, or products liability, or breach of warranty, was a proximate cause of the injuries suffered by their minor son.\nDefendants deny Plaintiffs\u2019 claims and raise the defenses of contributory negligence, assumption of risk and misuse of the product.\nDefendants have the burden of proving the following essential elements of their defenses.\nUpon the defense of contributory negligence, the Defendants must prove (a) that Lucian [sic] M\u00e1rchese was eontributorily [sic] negligent; and (b) that Lucian [sic] Marchese\u2019s contributory negligence was a proximate cause of the injuries sustained by Lucian [sic] M\u00e1rchese. The Defendants contend that Lucian [sic] M\u00e1rchese was contributorily [sic] negligent in one or more of the following ways:\n1. Lucian [sic] M\u00e1rchese made false representations to Malibu Grand Prix employees in order to drive on the Malibu Grand Prix track.\n2. Lucian [sic] M\u00e1rchese drove his car in the wrong direction on the track.\n3. Lucian [sic] M\u00e1rchese failed to maintain control of his vehicle.\n4. Lucian [sic] M\u00e1rchese failed to keep a proper look-out [sic] while driving the vehicle.\nAny one contention, if proved, establishes the contributory negligence of Lucian [sic] M\u00e1rchese.\nDefendants also contend that Lucian [sic] M\u00e1rchese assumed the risk of his injury because he drove the Malibu Grand Prix car on the track when he knew or should have known that he was intentionally or unreasonably exposing himself to a known danger.\nDefendants further contend that the manner in which Lucian [sic] M\u00e1rchese operated the Malibu ear constitutes a misuse of the product as elsewhere defined in these instructions.\nDefendants have the burden of proving the affirmative defenses.\nIf you find that Plaintiffs have sustained damages and they have proven one or more of the claimed acts of negligence, products liability or breach of warranty was the proximate cause thereof and Defendants have failed to prove any of their affirmative defenses, then your verdict should be for Plaintiffs.\nIf you find that Plaintiffs have not proved any of their claims, then your verdict should be for Defendants.\nIf, on the other hand, you find that Plaintiffs have proved one or more of their required claims and Defendants have also proved one or more of their affirmative defenses, you will answer the Special Verdict form submitted to you with these instructions.\nPoint I.\nPlaintiff contends that the making of false representations to gain entry to the track could not be the proximate cause of the accident. We disagree.\nPlaintiff argues that, as a matter of law, the misrepresentations could not have been the proximate cause. There was sufficient evidence to submit this theory of causation to the jury. In light of the evidence, causation could not be decided as a matter of law. See Armstrong v. Indus. Elec. and Equip. Service, 97 N.M. 272, 639 P.2d 81 (Ct.App.1981).\nPoint II.\nPlaintiff contends that Instruction No. 2 is wrong in that it stated that contributory negligence was a defense to products liability claims. Plaintiff relies on Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), for this proposition. However, Scott v. Rizzo, supra, did not state that. It states:\nWith respect to the suggestion that we should also consider the effect of the comparative negligence doctrine upon strict liability claims, we need not decide that point at this time. We do make some observations, however, relying upon the capability of the trial judge to resolve such issues when confronted with a special factual situation requiring adaptation of the rule of comparative negligence: (1) Plaintiff\u2019s \u201cconventional\u201d contributory negligence has been held to be inapplicable as an affirmative defense in strict liability cases. Jasper v. Skyhook Corp., 89 N.M. 98, 547 P.2d 1140 (Ct.App.1976), rev\u2019d on other grounds, 90 N.M. 143, 560 P.2d 934 (1977). Nevertheless, New Mexico does not equate \u201cstrict\u201d liability with \u201cabsolute\u201d liability; plaintiff\u2019s conduct is still a material, although limited, issue. (2) Under the view that the comparative negligence doctrine delineates a comparative causation analysis, some courts logically have extended the application of the rule to strict liability design cases, reasoning that the consideration of the jury, under proper instructions, should be focused upon the part played by plaintiff\u2019s \u201cmisconduct\u201d (rather than his \u201cnegligence\u201d) which contributed to the injury suffered by use of defendant\u2019s defective product. The \u201cmisconduct\u201d phrase would embrace such defenses as assumption of risk, misuse or abnormal use of the product, or the \u201cnegligence\u201d concept of voluntarily and unreasonably proceeding to encounter a known danger. Such an extension does not clash with these defenses previously allowed to be raised in this jurisdiction, see, e.g., Rudisaile v. Hawk Aviation Inc., 92 N.M. 575, 592 P.2d 175 (1979), in strict liability actions. They simply would not be a complete bar to recovery. Bendorf v. Volkswagenwerk Aktiengeselischaft, 88 N.M. 355, 540 P.2d 835 (1975).\nFurther, the phrase \u201ccontributory negligence\u201d does not carry the connotation of a complete bar to recovery, nor was it used in Scott v. Rizzo, supra, to denote a complete bar. To the contrary, as explained in footnote 1 of Scott, supra, it was used in the sense as nothing more than a partial bar to the extent of plaintiff\u2019s negligence.\nIn the instant ease, the jury was not misled into viewing contributory negligence as a total bar to recovery. The special interrogatories answered by the jury show this. Fault was apportioned. The Special Verdict form used and answered is as follows:\nWe, the jury, answer the following questions:\nQuestion No. 1: Did Luciano M\u00e1rchese act negligently, misuse the car or track or assume the risk of the accident? .\nYes X No .\nQuestion No. 2: If your answer to Question No. 1 is \u201cyes,\u201d was that conduct a proximate cause of the accident?\nYes X No_\nQuestion No. 3: Was Joanne M\u00e1rchese, the cousin, negligent?\nYes X No_\nQuestion No. 4: If your answer to Question No. 3 is \u201cyes,\u201d was that conduct a proximate cause of the accident?\nYes X No_\nQuestion No. 5: Was Malibu Grand Prix negligent or did it supply a defective product?\nYes X No_\nQuestion No. 6: If your answer to Question No. 5 is \u201cyes,\u201d was that conduct a proximate cause of the accident?\nYes X No_\nQuestion No. 7: If your answer to Question No. 6 is \u201cyes,\u201d is Warner Communications liable for the conduct of Malibu Grand Prix?\nYes X No_\nQuestion No. 8: Taking the combined conduct that caused the accident as 100%, what percentage is attributable to:\na. Luciano M\u00e1rchese 47,5 %\nb. Joanne M\u00e1rchese 47.5 %\nc. Malibu Grand Prix 5 %\nQuestion No. 9: What is the total amount of damages sustained by plaintiffs as a result of the accident?\n$4.334.76\n/s/ Jane Harrison_\nFOREPERSON\nWe agree with footnote 1 in Scott v. Rizzo, supra; we hold that plaintiff\u2019s negligence is a partial defense to a products liability claim in that the percentage of plaintiff\u2019s fault, due to negligence, reduces the amount of damages that plaintiff may recover. Those cases to the contrary need not be considered since they are pre-Scott v. Rizzo, supra. See generally, C.R. Heft and C.J. Heft, Comparative Negligence Manual, ch. 1 (1978); and V. Schwartz, Comparative Negligence, ch. 12 (1974).\nPoint III.\nPlaintiff argues here that there is no evidence of assumption of the risk and, further, Instruction No. 23 is an incorrect statement of the law and, also, unduly emphasized the conduct of Luciano.\nWhen a user of a product discovers the risk of harm caused by the condition of the product or a manner in which it is used, and when he understands the danger but, nevertheless, intentionally and unreasonably exposes himself to it, the user is said to have assumed the risk.\nPlaintiffs\u2019 minor son had a duty to use ordinary care for his own safety. Ordinary care is that care exercised by the reasonably prudent person and varies with the nature of what is being done. As the danger that should reasonably be foreseen increases, the amount of care required also increases.\nThis instruction is NMSA 1978, UJI Civ. 14.27 (Cum.Supp.1982), without the introductory phrase to the second paragraph, which is included in the approved instruction. Even if we considered the instruction to be an incorrect statement of the law and that it unduly emphasized Luciano\u2019s conduct, we could not hold that the instruction was wrong. Collins v. Michelbach, 92 N.M. 366, 588 P.2d 1041 (1979). Accordingly, we do not consider this part of plaintiff\u2019s point.\nThe evidence bearing on Luciano\u2019s conduct was sufficient to present the issue of assumption of the risk. That evidence is set forth under the FACTS heading. It was properly a question for the jury.\nPlaintiff also contends that the instruction, as given, is incorrect because the second paragraph of the above-quoted instruction was not limited to the negligence claim. See Directions for Use to UJI Civ. 14.27. The answer is that, under our comparative negligence system, the limitation does not apply. See our holding under Point II.\nPoint IV.\nPlaintiff argues there is no evidence to support the defense of misuse of the product. The trial court instructed: \u201cThe supplier has the duty to consider foreseeable risks of injury. This duty is limited to use of the product for a purpose or in a manner which could reasonably be foreseen.\u2019\u2019 (Emphasis added.)\nUnder the facts (misrepresentations to gain admittance; driving the wrong way when the berms were marked showing it was a one-way track), it was proper to submit the issue to the jury as to whether the accident was reasonably foreseeable. See C & H Const. & Paving Co. v. Citizens Bank, 93 N.M. 150, 597 P.2d 1190 (Ct.App.1979).\nPoint V.\nPlaintiff argues that there was no evidence that Luciano failed to keep a proper lookout. Plaintiff had originally requested these instructions as they related to Bowman. After Bowman was granted a directed verdict, plaintiff requested that the instructions be withdrawn.\nThis argument is totally without merit. The evidence was sufficient to support the giving of the instructions. There were photographs of markings which indicated the proper direction of travel on the track. There were other exhibits and testimony indicating the directional markings. The question was properly before the jury. C & H Const. & Paving Co. v. Citizens Bank, supra.\nPoint VI.\nPlaintiff argues that there is a lack of evidence to support a portion of Instruction No. 2 pertaining to contributory negligence. Plaintiff argues that, unless Luciano knew he was traveling the wrong direction, he could not be contributorially negligent on that basis.\nIn stating that Luciano had to know he was driving in the wrong direction in order to show contributory negligence, plaintiff cites no case law, or anything else for that matter, to support this legal conclusion. We agree with defendants that the proper legal theory is that he knew or should have known, as a reasonably prudent 14-year-old, that he was going the wrong direction. See NMSA 1978, UJI Civ. 16.1, 16.2, 16.3 (Repl.Pamp.1980), and Committee Comments thereto.\nPoint VII.\nPlaintiff argues that it was error to allow an apportionment of fault to Joanne M\u00e1rchese, that it was error to admit evidence that she signed a parental consent form for Luciano, and that it was error to admit the consent form into evidence.\nPlaintiff\u2019s subpoint A is that Joanne M\u00e1rchese should not have been included on the Special Verdict form because no other instruction told how to evaluate her conduct. This is incorrect. The Special Verdict form dealt with her negligence and whether it was the proximate cause. Other instructions defined negligence and proximate cause. Reading the instructions together, they were sufficient. Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967). Further, if other instructions were necessary, plaintiff fails to mention what they were.\nPlaintiff\u2019s subpoint B totally ignores Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct.App.1982), as it relates to the absent or ghost defendant. This subpoint is frivolous.\nSince the jury was required under Bartlett, supra, to apportion fault, evidence bearing on Joanne Marchese\u2019s fault was relevant. Subpoint C is also frivolous.\nSubpoint D, regarding Joanne Marchese\u2019s conversation being hearsay, is also frivolous. No reason or citation is given in support of plaintiff\u2019s contention. The trial court expressly relied upon NMSA 1978, Evid.R. 804(b)(6) and 803(24), and we do not disagree.\nPoint VIII.\nPlaintiff contends that Question No. 9 of the Special Verdict form is erroneous and that the verdict was inadequate as a matter of law.\nQuestion No. 9 states: \u201cWhat is the total amount of damages sustained by plaintiffs as a result of the accident?\u201d Plaintiff contends \u201c[t]he jury obviously did not consider the economic value of Lucian [sic] Marchese\u2019s life in determining their verdict,\u201d and the question directed the jurors\u2019 attention away from the economic value of the child\u2019s life. The verdict was for the exact amount of the funeral bill.\nWhen plaintiff submitted its own form of special verdict to the trial court, it acknowledged it was an erroneous statement of the law. Failure to adopt plaintiff\u2019s form of special verdict could not be the foundation upon which to predicate error. Further, plaintiff did not point out the vice, if any, of the trial court\u2019s special verdict. See Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971).\nAs to the adequacy of the jury verdict, the trial court adopted plaintiff\u2019s requested Instruction No. 27, which stated:\nIf you find for the plaintiff on the issue of liability, you must decide the amount of damages which would compensate for:\n1. The reasonable expenses of funeral and burial; and\n2. The monetary worth of the life of decedent had it continued[.]\nIn fixing damages, you should consider:\nA.The monetary loss, or lack of it, to the family[;]\nB. The age, earning capacity, health; habits and probable duration of life of the decedent;\nC. The monetary value of the personal services of the decedent to the family; and\nD. The aggravating or mitigating circumstances attending the conduct which results in death.\nThe weight to be given to the evidence upon such issues is for you to determine. It is your responsibility to award such damages as may be fair and just to both sides under all the circumstances of this case.\nIn fixing damages, deductions must be made from gross earnings or earning capacity, if any, for income taxes, social security taxes, other taxes and personal living expenses of the decedent.\nDamages for future loss of money will be paid in a lump sum, and a reasonable discount should be made for the future earning power of such lump sum.\nYou may not consider:\n1. The loss of decedent\u2019s society to the family;\n2. The grief or sorrow of the family; or\n3. The property or wealth of the survivors or the defendant.\nYour verdict must be based on evidence, not upon speculation, guess or conjecture. You must not permit the amount of damages to be influenced by sympathy or prejudice.\nPlaintiff argues here that \u201c[t]he fact that the jury found damages only in the amount of the funeral bills indicates that the jury did not heed the instructions given in Instruction No. 27. Further, the amount is so insufficient that it indicates passion, prejudice, bias or sympathy on the part of the jury.\u201d\nPlaintiff argues that as a matter of law the verdict was insufficient. Plaintiff basically relies on three cases, Baca v. Baca, 81 N.M. 734, 472 P.2d 997 (Ct.App.1970); Stang v. Hertz Corporation, 81 N.M. 69, 463 P.2d 45 (Ct.App.1969) (Stang I); and, Stang v. Hertz Corporation, 81 N.M. 348, 467 P.2d 14 (1970) (Stang II). Plaintiff contends that these cases stand for the proposition that one cannot find a life valueless in New Mexico. We disagree. Stang I, supra, holds that a jury could find that the life of a nun who had taken an' oath of poverty and who could leave no estate might be worth more than nominal damages. There is nothing in Stang I, supra, nor in the Wrongful Death Act to support plaintiff\u2019s position. NMSA 1978, \u00a7 41-2-3 (Repl.Pamp.1982), states in part: \u201c[T]he jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration * * * \u201d (Emphasis added.)\nIn Stang I, supra, this Court stated, \u201cDamages for the wrongful death may be recovered by proof of the present worth of life of decedent to the decedent\u2019s estate.\u201d (Emphasis added.) In Stang II, supra, the Supreme Court adopted this explanation.\nSimilarly, in Baca, supra, this Court stated:\nIn the absence of pecuniary injury, the jury may still award such damages, compensatory and exemplary, as they shall deem fair and just, having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default which results in the death. (Emphasis added.)\n\u2021 sfc sfc * * sft\n* * * There is no fixed standard for measuring the value of a life, and, as in personal injury cases, wide latitude is allowed for the exercise of the judgment of the jury in fixing the amount of such an award.\nThe wrongful death statute and the cases cited by plaintiff stand for the proposition that the amount of damages is a correct one for the jury to decide. Viewing the evidence and inferences that flow therefrom in the light most favorable to support the verdict, the award was proper. Strickland v. Roosevelt Cty. Rural Elec., 99 N.M. 335, 657 P.2d 1184 (Ct.App.1982).\nPoints IX and X.\nDefendants filed a motion to strike plaintiff\u2019s \u201cStatement of Proceedings and Points VII, VIII, IX, and X\u201d of the brief in chief for the reason that they \u201cfail to comply in any sense with the applicable appellate rules.\u201d This motion was held in abeyance pending submission of the case for decision.\nThroughout the brief in chief, plaintiff has disregarded the cardinal rule for deciding appeals, which states: \u201cOn appeal, all disputed facts are resolved in favor of the successful party, all reasonable inferences indulged in support of the verdict, all evidence and inferences to the contrary disregarded, and the evidence viewed in the aspect most favorable to the verdict.\u201d Tapia v. Panhandle Steel Erectors Company, supra.\nWe deal here solely with Points IX and X, and deny the remainder of defendants\u2019 motion. Point IX A is a laundry list of the evidentiary rulings by the trial court \u201cwhich are challenged by the Marcheses as abuses of discretion.\u201d Point IX B is another list of rulings by the trial court which plaintiff claims show the court\u2019s prejudicial attitude toward plaintiff. Point IX C states the combined effect of A and B \u201cis cumulative prejudice to the Marcheses.\u201d The cumulative error proposition which is claimed is not reversible error.\nBecause of the plaintiff\u2019s failure to set forth all the evidence most favorable to the verdict and because they fail to cite the instances complained of within the context of the proceeding, we will not review Point IX. A further reason is the failure to cite any of the New Mexico cases on the point.\nPoint X is basically the same as Point IX, except that it deals with instructions. Any consideration of this point would have the same problem as in Point IX \u2014 we would have to search the entire record.\nThe motion to strike Points IX and X is granted. The defendants are awarded appellate costs.\nAffirmed.\nIT IS SO ORDERED.\nWOOD, J., concurs.\nBIVINS, J., concurs in part; dissents in part.", "type": "majority", "author": "HENDLEY, Judge." }, { "text": "BIVINS, Judge\n(concurring in part; dissenting in part).\nI concur with the majority except as to Point II.\nAfter correctly identifying the issue under Point II, the majority proceeds to decide that defenses to strict liability claims should no longer bar recovery, but instead should proportionately reduce recovery as in comparative negligence cases. While I agree with that approach, I do not believe we can reach the issue here. Plaintiff\u2019s argument is simple and straight-forward: \u201cThe instruction [No. 2] informs the jury that conventional contributory negligence is a defense to products liability.\u201d While contributory negligence, now applied comparatively, was a proper defense to plaintiff\u2019s claims of negligence, clearly it was not a proper defense to the claim based on strict liability. Jasper v. Skyhook Corporation, 89 N.M. 98, 547 P.2d 1140 (Ct.App.1976). I read Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), as limiting the defense of negligence with respect to strict liability cases to \u201cthe \u2018negligence\u2019 concept of voluntarily and unreasonably proceeding to encounter a known danger.\u201d Id. at 688, 634 P.2d 1234. This type of \u201cnegligence\u201d simply provides a restatement of the assumption of the risk defense. The factual bases for the comparative negligence defense in this case, as set forth in instruction No. 2 do not fall within this concept. The instruction fails to state that the comparative negligence defense could only apply to the plaintiff\u2019s first claim based on negligence; as a result, the instruction is defective. The trial court should have informed the jury that they cannot consider plaintiff\u2019s comparative negligence as a defense to the products liability claim.\nPlaintiff made a proper objection and tendered an instruction which might have cured the problem. It stated: \u201cYou are instructed that the defense of contributory negligence does not apply to the \u2018products liability claim.\u2019 \u201d The trial court refused that tendered instruction.\nNMSA 1978, UJI Civ. 14.1(1) (Repl.Pamp. 1980) provides in part:\nIf you find that the plaintiff has proved what is required of him on any one of his claims [and that none of defendant\u2019s defenses to that claim has been proved], then you will determine plaintiff\u2019s damages and return a verdict for that amount. (Emphasis added).\nContrary to that subparagraph Instruction No. 2 states:\nIf you find that Plaintiffs have sustained damages and they have proven one or more of the claimed acts of negligence, products liability or breach of warranty was the proximate cause thereof and Defendants have failed to prove any of their affirmative defenses, then your verdict should be for Plaintiffs.\nIf you find that Plaintiffs have not proved any of their claims, then your verdict should be for Defendants.\nIf, on the other hand, you find that Plaintiffs have proved one or more of their required claims and Defendants have also proved one or more of their affirmative defenses, you will answer the Special Verdict form submitted to you with these instructions. (Emphasis added).\nComparing the two provisions, it is easy to see that UJI 14.1 was not followed; there is no way to tie any of the defendants\u2019 affirmative defenses to a particular claim. Plaintiffs allege three separate and distinct causes of action: negligence, strict liability and breach of warranty. Defendants asserted three separate and distinct affirmative defenses: comparative negligence, assumption of the risk and misuse of the product. These defenses should have been linked to the respective cause of actions to which they apply. Comparative negligence is a defense only to the negligence claim; assumption of the risk and misuse of the product are defenses only to the strict liability claim.\nThe last paragraph of the instruction refers the jury to the Special Verdict form which provides:\nWe, the jury, answer the following questions:\nQuestion No. 1: Did Luciano M\u00e1rchese act negligently, misuse the car or track or assume the risk of the accident?\nYes X No_\nQuestion No. 2: If your answer to Question No. 1 is \u201cyes,\u201d was that conduct a proximate cause of the accident?\nYes X No _\nFrom the way the instruction is worded, the jury could have found for plaintiff on strict liability but reduced based on conventional comparative negligence. This would be contrary to law. In addition, the instruction would also have made it possible for the jury to find for plaintiff on the claim of breach of warranty but reduce based on conventional comparative negligence.\nThe Directions For Use to UJI 14.1 state that it is to be given in lieu of UJI 3.2; nevertheless the following from UJI 3.2 is equally applicable to UJI 14.1:\nThis is the most important single instruction in the lawsuit and the court and counsel should give particular attention to its finalization.\n* * sfc . :Js \u2021 $\nSince this instruction is the post to which all of the remaining instructions are tied, extreme care and caution must be exercised when any departure is made from it.\nWhile not relevant to any issue presented, it should be noted interstitially that under instruction No. 2, the strict liability claim includes alleged defects with regard to the race track. Strict products liability applies to chattels; not realty. The proper form for plaintiff\u2019s action for these claims is in negligence.\nBecause of the defect in instruction No. 2, I would reverse and remand for new trial.", "type": "concurring-in-part-and-dissenting-in-part", "author": "BIVINS, Judge" } ], "attorneys": [ "Patricia Ortiz, Charles G. Berry, Michael E. Vigil, Marchiondo & Berry, P.A., Albuquerque, for plaintiffs-appellants.", "Ranne B. Miller, Alan Konrad, Miller, Stratvert, Torgerson & Brandt, P.A., Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "670 P.2d 113\nAda R. MARCHESE and Diego Peter Marchese, as Co-Personal Representatives of the Estate of Luciano Anthony Marchese, Deceased, Plaintiffs-Appellants, v. WARNER COMMUNICATIONS, INC., Malibu Grand Prix Corporation, a subsidiary of Warner Communications, Inc., Defendants-Appellees.\nNo. 5806.\nCourt of Appeals of New Mexico.\nJune 23, 1983.\nCertiorari Denied Sept. 15, 1983.\nPatricia Ortiz, Charles G. Berry, Michael E. Vigil, Marchiondo & Berry, P.A., Albuquerque, for plaintiffs-appellants.\nRanne B. Miller, Alan Konrad, Miller, Stratvert, Torgerson & Brandt, P.A., Albuquerque, for defendants-appellees." }, "file_name": "0313-01", "first_page_order": 345, "last_page_order": 354 }