{ "id": 1599059, "name": "Matias ARMIJO, Plaintiff-Appellant, v. ED BLACK'S CHEVROLET CENTER, INC., Defendant and Third-Party Plaintiff-Appellee, v. STUART TRUCK EQUIPMENT, INC., Third-Party Defendant-Appellee", "name_abbreviation": "Armijo v. Ed Black's Chevrolet Center, Inc.", "decision_date": "1987-01-27", "docket_number": "No. 8365", "first_page": "422", "last_page": "425", "citations": [ { "type": "official", "cite": "105 N.M. 422" }, { "type": "parallel", "cite": "733 P.2d 870" } ], "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": "268 Or. 470", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2128629 ], "weight": 2, "year": 1974, "pin_cites": [ { "parenthetical": "no claim of recovery under a theory of strict liability where complaint failed to allege manner in which product was unreasonably dangerous" }, { "parenthetical": "no claim of recovery under a theory of strict liability where complaint failed to allege manner in which product was unreasonably dangerous" } ], "opinion_index": 0, "case_paths": [ "/or/268/0470-01" ] }, { "cite": "41 Cal.Rptr. 514", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1964, "pin_cites": [ { "parenthetical": "strict tort liability may be pleaded in complaint alleging only negligence and breach of warranty" } ], "opinion_index": 0 }, { "cite": "230 Cal.App.2d 987", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2142569 ], "year": 1964, "pin_cites": [ { "parenthetical": "strict tort liability may be pleaded in complaint alleging only negligence and breach of warranty" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/230/0987-01" ] }, { "cite": "70 Cal.Rptr. 454", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1968, "pin_cites": [ { "parenthetical": "it was an abuse of the court's discretion to deny plaintiff's motion to amend complaint to include negligence when complaint was sufficient to state a cause of action in strict liability" } ], "opinion_index": 0 }, { "cite": "264 Cal.App.2d 404", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2183053 ], "year": 1968, "pin_cites": [ { "parenthetical": "it was an abuse of the court's discretion to deny plaintiff's motion to amend complaint to include negligence when complaint was sufficient to state a cause of action in strict liability" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/264/0404-01" ] }, { "cite": "391 N.Y.S.2d 24", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1977, "pin_cites": [ { "parenthetical": "pleadings are sufficient if they sufficiently notify the court and parties of the transactions, occurrences and material elements of each cause of action intended to be proved" } ], "opinion_index": 0 }, { "cite": "55 A.D.2d 486", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3033246 ], "year": 1977, "pin_cites": [ { "parenthetical": "pleadings are sufficient if they sufficiently notify the court and parties of the transactions, occurrences and material elements of each cause of action intended to be proved" } ], "opinion_index": 0, "case_paths": [ "/ad2d/55/0486-01" ] }, { "cite": "94 Nev. 597", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 8558494 ], "weight": 2, "year": 1978, "pin_cites": [ { "parenthetical": "pleadings should be liberally construed to place in issue matter which is fairly noticed to adverse party" }, { "parenthetical": "pleadings should be liberally construed to place in issue matter which is fairly noticed to adverse party" } ], "opinion_index": 0, "case_paths": [ "/nev/94/0597-01" ] }, { "cite": "86 N.M. 184", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822285 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0184-01" ] }, { "cite": "92 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557182 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0297-01" ] }, { "cite": "97 N.M. 51", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555126 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0051-01" ] }, { "cite": "355 U.S. 41", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6161830 ], "weight": 3, "year": 1957, "pin_cites": [ { "page": "48" }, { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/us/355/0041-01" ] }, { "cite": "75 N.M. 144", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5373021 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "153" }, { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0144-01" ] }, { "cite": "100 A.L. R.3d 743", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1980, "pin_cites": [ { "page": "\u00a7 5" } ], "opinion_index": 0 }, { "cite": "534 P.2d 1306", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10478179 ], "opinion_index": 0, "case_paths": [ "/p2d/534/1306-01" ] }, { "cite": "511 F.Supp. 1235", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5579616 ], "opinion_index": 0, "case_paths": [ "/f-supp/511/1235-01" ] }, { "cite": "529 F.Supp. 337", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5644058 ], "opinion_index": 0, "case_paths": [ "/f-supp/529/0337-01" ] }, { "cite": "536 F.Supp. 84", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3440116 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/f-supp/536/0084-01" ] }, { "cite": "472 F.2d 576", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1354 ], "opinion_index": 0, "case_paths": [ "/f2d/472/0576-01" ] }, { "cite": "625 F.2d 714", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1283186 ], "opinion_index": 0, "case_paths": [ "/f2d/625/0714-01" ] }, { "cite": "552 F.Supp. 685", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7860009 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f-supp/552/0685-01" ] }, { "cite": "99 N.M. 645", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584627 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/99/0645-01" ] }, { "cite": "95 N.M. 251", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575513 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/95/0251-01" ] } ], "analysis": { "cardinality": 697, "char_count": 11387, "ocr_confidence": 0.75, "pagerank": { "raw": 5.21852685845386e-08, "percentile": 0.32947075292806643 }, "sha256": "e8c8479186e09d05950a3ca30357c2977564f7607d0260deb9cf09fb9265473e", "simhash": "1:bddbd03515295ffa", "word_count": 1797 }, "last_updated": "2023-07-14T20:20:30.820213+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVINS and FRUMAN, JJ., concur." ], "parties": [ "Matias ARMIJO, Plaintiff-Appellant, v. ED BLACK\u2019S CHEVROLET CENTER, INC., Defendant and Third-Party Plaintiff-Appellee, v. STUART TRUCK EQUIPMENT, INC., Third-Party Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\nPlaintiff brought suit to recover damages for personal injuries suffered when a weld broke on a dump truck. The trial court granted summary judgment and judgment on the pleadings dismissing plaintiff\u2019s complaint; the district court denied plaintiff\u2019s motion for leave to amend the complaint. Plaintiff appeals and we reverse.\nThe issues raised are: (1) whether summary judgment in favor of defendant, Ed Black\u2019s Chevrolet Center, Inc., was proper on plaintiff's claim of negligence against it; (2) whether judgment on the pleadings in favor of defendant was proper on plaintiff\u2019s claim of breach of warranties; (3) whether plaintiff\u2019s claim was sufficient to raise the theory of strict liability and, if so, whether plaintiff\u2019s complaint should have been dismissed; and (4) whether the court erred in refusing to allow plaintiff to amend the complaint to expressly add a count stating a claim for strict liability. We hold that the trial court was correct in granting summary judgment on plaintiff\u2019s claims of negligence and breach of warranties, but that the court erred in dismissing the complaint because the complaint stated a claim for relief for strict liability. Accordingly, it follows that the court should have allowed plaintiff to amend to expressly state what was implicit in the original complaint.\nFACTS\nThe complaint alleged that defendant sold a defective dump truck to plaintiffs employer. While plaintiff was operating the truck, the bed came off, causing the cab, in which plaintiff was sitting, to jerk violently. The cause of the incident was that the welds that attached the dump bed to the truck were negligently performed. Plaintiff suffered damages. For his first claim of relief, plaintiff claimed that defendant or its agents negligently performed the welding. For his second claim of relief, plaintiff claimed that defendant warranted that the truck was fit for dumping gravel and was safe, whereas it was neither fit nor safe due to the defective weld. The complaint was quite clear that plaintiff\u2019s first claim was negligence and his second claim was breach of warranty. He did not plead a theory of strict liability.\nDefendant filed a third-party complaint against third-party defendant, Stuart Truck Equipment, Inc. (Stuart). When Stuart\u2019s answers to interrogatories revealed that it had performed the welding, defendant moved for summary judgment on plaintiff\u2019s first claim and for judgment on the pleadings on plaintiff\u2019s second claim. The court granted defendant\u2019s motion, despite plaintiff\u2019s argument that the complaint could be read to state a claim for strict liability. Twenty days thereafter, plaintiff sought to amend his complaint to add a third claim for relief, expressly containing the strict liability theory. Six days later, the court denied plaintiff\u2019s motion to amend and plaintiff took an immediate appeal.\nNEGLIGENCE CLAIM\nPlaintiff\u2019s complaint alleged that defendant or its agents performed the welding. Defendant\u2019s answer admitted that it sold the truck but denied that it or its agents had performed the welding. Defendant\u2019s motion for summary judgment on this claim was grounded on the fact that Stuart\u2019s answers to interrogatories admitted that it did the welding. Therefore, defendant maintained that there was no genuine issue of material fact as to its alleged negligence in performing the welding. Plaintiff did not submit any material whatsoever in opposition to defendant\u2019s motion. See NMSA 1978, Civ.P.R. 56(e) (Repl.Pamp.1980). Accordingly, defendant was entitled to judgment on this claim. Oschwald v. Christie, 95 N.M. 251, 620 P.2d 1276 (1980).\nWARRANTY CLAIM\nNMSA 1978, Section 55-2-318 states:\nA seller\u2019s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty.\nAlthough plaintiff concedes that he is not a person in the family or household of his employer, who bought the truck, or a guest in his employer\u2019s home, plaintiff claims that the privity concept of Section 55-2-318 was abolished in Perfetti v. McGhan Medical, 99 N.M. 645, 662 P.2d 646 (Ct.App.1983).\nPlaintiff reads too much into the Perfetti case. The case dealt with vertical privity, as distinguished from horizontal privity. The distinction between the\u00ae two types of privity is explained in J. White and R. Summers, Uniform Commercial Code, \u00a7 11-2 at 399 (2d ed. 1980):\nThere are two basic kinds of \u201cnon-privity\u201d plaintiffs. The \u201cvertical\u201d non-privity plaintiff is a buyer within the distributive chain who did not buy directly from the defendant. For example, a man who buys a lathe from a local hardware store and then later sues the manufacturer is a \u201cvertical\u201d non-privity plaintiff. The \u201chorizontal\u201d nonprivity plaintiff is not a buyer within the distributive chain but one who consumes or uses or is affected by the goods. For example, a woman poisoned by a bottle of beer that her husband purchased from a local grocer is a horizontal non-privity plaintiff. So, too, is a son who is injured by the new lawnmower his father bought, and the employee hurt by equipment purchased by her employer, and so on.\nSection 55-2-318 only addresses horizontal privity, leaving vertical privity to judicial decision. Comment 3 to \u00a7 55-2-318; Hemphill v. Sayers, 552 F.Supp. 685 (S.D.Ill.1982). Thus, Perfetti, dealing with vertical privity, while a proper judicial determination, does not aid plaintiff in this case.\nWhen the legislature adopted the Uniform Commercial Code, it had three alternatives from which to choose. Our legislature chose the most restrictive alternative. See id. We are persuaded by the reasoning of other courts that have discussed the Uniform Commercial Code implied warranty theory that employees of a purchaser are excluded from the manufacturer\u2019s warranty protections offered by provisions comparable to Section 55-2-318. Hemphill; Watkins v. Barber-Colman Co., 625 F.2d 714 (5th Cir.1980); Anderson v. Watling Ladder Co., 472 F.2d 576 (6th Cir.1973); Bailey v. ITT Grinnell Corp., 536 F.Supp. 84 (N.D.Ohio 1982); Teel v. American Steel Foundries, 529 F.Supp. 337 (E.D.Mo.1981); In re Johns-Manville Asbestosis Cases, 511 F.Supp. 1235 (N.D.Ill.1981); Hester v. Purex Corp., 534 P.2d 1306 (Okla.1975). See also Annot., 100 A.L. R.3d 743, \u00a7 5[b] (1980). Any other ruling by this court would be an unwarranted nullification of the legislature\u2019s prerogatives. See e.g., Hemphill; Hester. Accordingly, the court was correct in dismissing plaintiff's warranty claims.\nSTRICT LIABILITY CLAIM\nPlaintiff\u2019s original complaint did not mention the words \u201cstrict liability\u201d or seek to raise a third claim for relief apart from negligence and breach of warranty. After the trial court dismissed the complaint, and after the statute of limitations had run, plaintiff filed his motion to amend to add a theory of strict liability. Because we find that plaintiff\u2019s complaint was sufficient to state a claim for relief, defendant\u2019s arguments seeking to uphold the trial court\u2019s denial of plaintiff\u2019s motion to amend need not be reached.\nNMSA 1978, Civ.P. Rule 8(a)(2) (Repl. Pamp.1980), requires the complaint only to contain \u201ca short and plain statement of the claim showing that the pleader is entitled to relief.\u201d Our rules \u201creject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.\u201d Hambaugh v. Peoples, 75 N.M. 144, 153, 401 P.2d 777, 782 (1965), quoting Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Our established policy requires that the rights of litigants be determined by adjudication on the merits rather than upon the technicalities of procedure and form. Transamerica Insurance Co. v. Sydow, 97 N.M. 51, 636 P.2d 322 (Ct.App.1981). A motion to dismiss is properly granted only if plaintiff cannot recover under any state of facts provable. Id.; Las Luminarias of the New Mexico Council of the Blind v. Isengard, 92 N.M. 297, 587 P.2d 444 (Ct.App.1978). Magic language is not required. See Ciesielski v. Waterman, 86 N.M. 184, 521 P.2d 649 (Ct.App.1974) (res ipsa loquitur need not be specifically pleaded when complaint alleges negligence and defendant\u2019s control).\nIn this case, plaintiff\u2019s complaint alleged that defendant sold a truck that plaintiff was using, that the truck had defective welds, and that plaintiff was injured because of those defective welds. Under similar situations, these allegations have been sufficient to state a claim in strict liability. See Chavez v. Robberson Steel Co., 94 Nev. 597, 584 P.2d 159 (1978) (pleadings should be liberally construed to place in issue matter which is fairly noticed to adverse party); Murphy v. General Motors Corp., 55 A.D.2d 486, 391 N.Y.S.2d 24 (1977) (pleadings are sufficient if they sufficiently notify the court and parties of the transactions, occurrences and material elements of each cause of action intended to be proved); Read v. Safeway Stores, Inc., 264 Cal.App.2d 404, 70 Cal.Rptr. 454 (1968) (it was an abuse of the court\u2019s discretion to deny plaintiff\u2019s motion to amend complaint to include negligence when complaint was sufficient to state a cause of action in strict liability); Alvarez v. Felker Mfg. Co., 230 Cal.App.2d 987, 41 Cal.Rptr. 514 (1964) (strict tort liability may be pleaded in complaint alleging only negligence and breach of warranty). Compare with Hemphill v. Sayers (product liability claim dismissed where complaint failed to properly describe condition rendering product unreasonably dangerous), and Brown v. Western Farmers Association, 268 Or. 470, 521 P.2d 537 (1974) (no claim of recovery under a theory of strict liability where complaint failed to allege manner in which product was unreasonably dangerous).\nDefendant\u2019s argument assumes that pleaders in New Mexico must categorize their theories or claims of relief and, if they pick the wrong category, they are out of court. This assumption is incorrect. 5 C. Wright and A. Miller, Federal Practice and Procedure: Civil, \u00a7 1219 (1969); 2A J. Moore & J. Lucas, Moore\u2019s Federal Practice, \u00b6 8.14 (1986).\nPlaintiff\u2019s complaint was sufficient to state a claim for relief and the court erred in dismissing it. The order dismissing the complaint is reversed. The matter is remanded to the trial court with instructions to reinstate it on its docket and to allow plaintiff to amend his complaint to state the correct legal theory. Costs to appellant.\nIT IS SO ORDERED.\nBIVINS and FRUMAN, JJ., concur.", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "James E. Thomson, Jere C. Corlett, Santa Fe, for plaintiff-appellant.", "David C. Davenport, Jr., W. Mark Mowery, Rodey, Dickason, Sloan, Akin & Robb, P.A., Santa Fe, for defendant and third-party plaintiff-appellee Ed Black\u2019s Chevrolet Center, Inc.", "Howard R. Thomas, Sager, Curran, Sturges & Tepper, P.C., Albuquerque, for third-party defendant-appellee Stuart Truck Equipment, Inc." ], "corrections": "", "head_matter": "733 P.2d 870\nMatias ARMIJO, Plaintiff-Appellant, v. ED BLACK\u2019S CHEVROLET CENTER, INC., Defendant and Third-Party Plaintiff-Appellee, v. STUART TRUCK EQUIPMENT, INC., Third-Party Defendant-Appellee.\nNo. 8365.\nCourt of Appeals of New Mexico.\nJan. 27, 1987.\nJames E. Thomson, Jere C. Corlett, Santa Fe, for plaintiff-appellant.\nDavid C. Davenport, Jr., W. Mark Mowery, Rodey, Dickason, Sloan, Akin & Robb, P.A., Santa Fe, for defendant and third-party plaintiff-appellee Ed Black\u2019s Chevrolet Center, Inc.\nHoward R. Thomas, Sager, Curran, Sturges & Tepper, P.C., Albuquerque, for third-party defendant-appellee Stuart Truck Equipment, Inc." }, "file_name": "0422-01", "first_page_order": 462, "last_page_order": 465 }