{ "id": 1558998, "name": "D'on MOTT, Executor and Heir to the Estate of Michael Hagen, deceased, and D'on Mott, as Mother and Next Friend of Jonathan Hagen, a minor, Plaintiff-Appellee, v. SUN COUNTRY GARDEN PRODUCTS, INC., a New Mexico corporation, Defendant-Appellant", "name_abbreviation": "Mott v. Sun Country Garden Products, Inc.", "decision_date": "1995-05-26", "docket_number": "No. 15548", "first_page": "261", "last_page": "270", "citations": [ { "type": "official", "cite": "120 N.M. 261" }, { "type": "parallel", "cite": "901 P.2d 192" } ], "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": "84 N.M. 760", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771364 ], "weight": 2, "pin_cites": [ { "page": "761" }, { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0760-01" ] }, { "cite": "99 N.M. 490", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584657 ], "weight": 2, "pin_cites": [ { "page": "492" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0490-01" ] }, { "cite": "90 N.M. 496", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868812 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "497", "parenthetical": "pretrial order controls case" }, { "page": "1014", "parenthetical": "pretrial order controls case" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0496-01" ] }, { "cite": "82 N.M. 271", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331919 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "272", "parenthetical": "proper tender of proof is essential to the preservation of error when a party alleges evidence has been improperly excluded at trial" }, { "page": "162", "parenthetical": "proper tender of proof is essential to the preservation of error when a party alleges evidence has been improperly excluded at trial" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0271-01" ] }, { "cite": "116 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727672 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "166" }, { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0156-01" ] }, { "cite": "103 N.M. 207", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711289 ], "weight": 2, "pin_cites": [ { "page": "210" }, { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0207-01" ] }, { "cite": "3 F.3d 17", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10506970 ], "pin_cites": [ { "page": "21-22" } ], "opinion_index": 0, "case_paths": [ "/f3d/3/0017-01" ] }, { "cite": "114 N.M. 659", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731625 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "663" }, { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0659-01" ] }, { "cite": "87 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831672, 2836753, 2836018 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0450-02", "/nm/87/0450-03", "/nm/87/0450-01" ] }, { "cite": "87 N.M. 437", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831423 ], "weight": 2, "pin_cites": [ { "page": "441-42" }, { "page": "648-49" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0437-01" ] }, { "cite": "78 N.M. 797", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5319932 ], "weight": 2, "pin_cites": [ { "page": "801" }, { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0797-01" ] }, { "cite": "81 N.M. 92", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365264 ], "weight": 2, "pin_cites": [ { "page": "96" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nm/81/0092-01" ] }, { "cite": "872 P.2d 868", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "868" } ], "opinion_index": 0 }, { "cite": "117 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552538 ], "year": 1994, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0445-01" ] }, { "cite": "704 P.2d 431", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1985, "opinion_index": 0 }, { "cite": "103 N.M. 177", "category": "reporters:state", "reporter": "N.M.", "year": 1985, "opinion_index": 0 }, { "cite": "103 N.M. 243", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711387 ], "weight": 2, "pin_cites": [ { "page": "251" }, { "page": "1127" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0243-01" ] }, { "cite": "532 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 10, "year": 1987, "pin_cites": [ { "page": "179-80" }, { "page": "181" }, { "page": "180" }, { "page": "184" }, { "page": "181" }, { "page": "181-82" }, { "page": "182" } ], "opinion_index": 0 }, { "cite": "40 Ohio App.3d 149", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 6710641 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ohio-app-3d/40/0149-01" ] }, { "cite": "Ohio Rev. 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App.", "case_ids": [ 1861027 ], "opinion_index": 0, "case_paths": [ "/mich-app/199/0005-01" ] }, { "cite": "263 Ga. 108", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1236796 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "798-99" } ], "opinion_index": 0, "case_paths": [ "/ga/263/0108-01" ] }, { "cite": "765 P.2d 758", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1988, "opinion_index": 0 }, { "cite": "107 N.M. 785", "category": "reporters:state", "reporter": "N.M.", "year": 1988, "opinion_index": 0 }, { "cite": "108 N.M. 116", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592805 ], "weight": 2, "pin_cites": [ { "page": "119" }, { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0116-01" ] }, { "cite": "109 N.M. 205", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590352 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "209" }, { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0205-01" ] }, { "cite": "843 P.2d 375", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1992, "opinion_index": 0 }, { "cite": "114 N.M. 532", "category": "reporters:state", "reporter": "N.M.", "year": 1992, "opinion_index": 0 }, { "cite": "114 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731665 ], "weight": 2, "pin_cites": [ { "page": "540" }, { "page": "842" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0537-01" ] }, { "cite": "107 N.M. 688", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597121 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "693" }, { "page": "1158" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0688-01" ] }, { "cite": "107 N.M. 196", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597062 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0196-01" ] }, { "cite": "102 N.M. 170", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580082 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "171-172" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0170-01" ] }, { "cite": "116 N.M. 793", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727643 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "796", "parenthetical": "this Court is bound by direct Supreme Court precedent" }, { "page": "1178", "parenthetical": "this Court is bound by direct Supreme Court precedent" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0793-01" ] }, { "cite": "27 F.3d 481", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10527174 ], "opinion_index": 0, "case_paths": [ "/f3d/27/0481-01" ] }, { "cite": "19 F.3d 547", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10508676 ], "opinion_index": 0, "case_paths": [ "/f3d/19/0547-01" ] }, { "cite": "754 F.Supp. 1526", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7390847 ], "weight": 7, "pin_cites": [ { "page": "1535" }, { "page": "1534-35" }, { "page": "1534" }, { "page": "1534-35" }, { "page": "1534-35" } ], "opinion_index": 0, "case_paths": [ "/f-supp/754/1526-01" ] }, { "cite": "96 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577286 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0682-01" ] }, { "cite": "88 N.M. 640", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839373 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "642", "parenthetical": "party attacking legislation must show the invalidity thereof" }, { "page": "1020", "parenthetical": "party attacking legislation must show the invalidity thereof" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0640-01" ] }, { "cite": "102 N.M. 326", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580042 ], "weight": 14, "year": 1985, "pin_cites": [ { "page": "422-23" }, { "page": "327" }, { "page": "477" }, { "page": "477" }, { "page": "477" }, { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0326-01" ] }, { "cite": "102 N.M. 417", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580154 ], "weight": 8, "pin_cites": [ { "page": "420" }, { "page": "1013" }, { "page": "1015-16" }, { "page": "1017" }, { "page": "1017" }, { "page": "1019" }, { "page": "425" }, { "page": "1018" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0417-01" ] } ], "analysis": { "cardinality": 1376, "char_count": 30366, "ocr_confidence": 0.69, "pagerank": { "raw": 9.203091579393532e-08, "percentile": 0.5097353166149842 }, "sha256": "bb0789756a3273e2edb39a46518bfb405f4a513da7335d1c0d5e20461e9a80fa", "simhash": "1:173fe83833831642", "word_count": 4949 }, "last_updated": "2023-07-14T17:50:53.788074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BOSSON and BUSTAMANTE, JJ., concur." ], "parties": [ "D\u2019on MOTT, Executor and Heir to the Estate of Michael Hagen, deceased, and D\u2019on Mott, as Mother and Next Friend of Jonathan Hagen, a minor, PlaintiffAppellee, v. SUN COUNTRY GARDEN PRODUCTS, INC., a New Mexico corporation, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBLACK, Judge.\nThis case involves the use of the so-called \u201cseat belt defense\u201d in an automobile accident where the driver died after being thrown from his vehicle. A lawsuit by the decedent\u2019s estate resulted in a jury award of $1,780,200, holding the driver 30% liable for his own injuries and Defendant 70% liable. On appeal, Defendant argues that the district court committed error in three areas: (1) excluding evidence that neither the driver nor his passenger were wearing seat belts at the time of the accident; (2) refusing jury instructions tendered by Defendant; and (3) refusing to admit relevant evidence. We affirm.\nFACTS\nOn the morning of April 15, 1989, Michael Hagen, accompanied by his seven-year-old son, Jonathan, drove from their home to Sun Country Garden Products, Inc. Michael was driving a 1988 Ford Bronco II, to which he had attached his five-by-twelve-foot utility trailer. He ordered and paid for less than two cubic yards of fine black mulch and drove around to the mulch pile to have it loaded into his trailer. A Sun Country employee loaded the mulch using a front-end loader.\nWith some assistance from Jonathan, Michael covered the load with a tarpaulin. Approximately five miles from Sun Country, the Bronco hit a bump while travelling between forty-five and sixty miles per hour. When the Bronco hit the bump, Jonathan dropped some plastic pipes on the floor and jumped off the seat to retrieve them. From the floor, he saw his father briefly look down at him.\nWhen the trailer hit the bump it began to fishtail. Michael apparently attempted to correct the fishtailing trailer, but the Bronco and trailer swerved onto the unpaved shoulder. The trailer then broke free and came to a stop some distance down the road. The Bronco rolled over at least once. Michael was ejected through the driver\u2019s side window, struck his head on the pavement, and died instantly. Jonathan had become lodged under the dashboard when the Bronco rolled, thus escaping serious injury.\nAdditional facts will be considered as relevant to Defendant\u2019s specific arguments.\nI. THE DISTRICT COURT DID NOT ERR IN EXCLUDING EVIDENCE OF FAILURE TO USE SEAT BELTS.\nA. Application of NMSA 1978, Section 66-7-878 (Repl.Pamp.1987), Did Not Violate New Mexico Constitution Article IV, Section 8L\nIn 1984, this Court held that the fact finder should be allowed to consider the use of available seat belts on the issue of a plaintiffs comparative fault. Thomas v. Henson, 102 N.M. 417, 420, 696 P.2d 1010, 1013 (Ct.App.1984), rev\u2019d in relevant part, 102 N.M. 326, 695 P.2d 476 (1985). This Court stated that a seat belt defense, employed to reduce a plaintiffs damages by the amount that could have been avoided through the use of a seat belt, was a proper use of apportionment and not an improper return to the doctrine of contributory negligence. Id. at 422-23, 696 P.2d at 1015-16.\nThe New Mexico Supreme Court, on its own motion, entered a writ of certiorari to review our Thomas decision. Thomas v. Henson, 102 N.M. 326, 695 P.2d 476 (1985). The Supreme Court concluded its four-paragraph opinion by saying:\n[W]e believe that the creation of a \u201cseat belt defense\u201d is a matter for the Legislature, not for the judiciary. We therefore affirm that part of the Court of Appeals\u2019 opinion that upholds the award in favor of plaintiffs and reverse that part that creates a \u201cseat belt defense.\u201d\nId. at 327, 695 P.2d at 477.\nIn response to the Supreme Court\u2019s holding that the seat belt defense was \u201ca matter for the Legislature,\u201d the 1985 New Mexico Legislature took up the issue and specifically addressed the admissibility of the failure to wear seat belts in tort actions. One bill proposed in the Senate expressly provided that such evidence \u201cshall be admissible concerning mitigation of damages, apportionment of damages or comparative fault.\u201d S.111, 37th Legis., 1st Sess. \u00a7 4(B) (1985). The 1985 Legislature did not pass that bill, but instead enacted the Safety Belt Use Act, 1985 N.M. Laws, ch. 131 (codified at NMSA 1978, Sections 66-7-370 to -373 (Repl. Pamp.1987)). Although the Safety Belt Use Act required front seat occupants of passenger cars to wear seat belts and provided fines for the failure to do so, id., Subsection B provided that the failure to be secured by a seat belt or child restraint device \u201cshall not in any instance constitute fault or negligence and shall not limit or apportion damages.\u201d Section 66-7-373(B).\nIn 1991, the Legislature amended Section 66-7-373 by deleting Subsection B. 1991 N.M. Laws, ch. 192, \u00a7 8. Two years later, the Legislature again amended Section 66-7-373, 1993 N.M. Laws, ch. 349, and again reinserted the provision that \u201c[fjailure to be secured by a child passenger restraint device or by a safety belt as required by the Safety Belt Use Act ... shall not in any instance constitute fault or negligence and shall not limit or apportion damages.\u201d Id. at \u00a7 1(A) (codified at NMSA 1978, \u00a7 66-7-373(A) (Repl.Pamp.1994)).\nBased on this legislative history, Defendant argues that the seat belt defense was not prohibited by statute when Plaintiff brought this action on April 8, 1992. Defendant contends that the district eourt therefore violated Article IV, Section 34 of the New Mexico Constitution by prohibiting the introduction of seat belt evidence in this case. Plaintiff responds that the seat belt defense is substantive and \u201c[i]t is axiomatic that substantive law (as opposed to a procedural or remedial law) is the law applicable at the time of injury.\u201d\nArticle IV, Section 34 of the New Mexico Constitution provides: \u201cNo act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.\u201d Id. In order to sustain a challenge based on Article IV, Section 34, then, it is Defendant\u2019s burden to prove that application of Section 66-7-373 would affect its preexisting rights or remedies. Health & Social Servs. Dep\u2019t v. Garcia, 88 N.M. 640, 642, 545 P.2d 1018, 1020 (1976) (party attacking legislation must show the invalidity thereof).\nIn Thomas, this Court implicitly recognized that the existing New Mexico common law did not recognize a seat belt defense. Thomas, 102 N.M. at 424, 696 P.2d at 1017. Rather, our opinion attempted to extend the common law to encompass that defense:\nIn an area of the law peculiarly appropriate for judicial development, we have no hesitation in extending a common law duty when deemed needed. Tort law is such an area. Therefore, we recognize, as part of the continuing duty to exercise reasonable care for his or her own safety, an occupant of an automobile has a duty to fasten an available seat belt or similar safety restraint device unless the circumstances dictate otherwise____\nFurther, we believe the adoption of the seat belt defense as part of the apportionment of damages fits within the developing law of comparative fault as contemplated in Scott v. Rizzo[, 96 N.M. 682, 634 P.2d 1234 (1981) ].\nThomas, 102 N.M. at 424, 696 P.2d at 1017.\nAs noted above, however, the Supreme Court promptly rejected this Court\u2019s attempt to expand the common law to embrace the seat belt defense and held that the admission of seat belt evidence would have to await legislative authorization. Thomas, 102 N.M. at 327, 695 P.2d at 477. No such authorization has been forthcoming from the New Mexico Legislature. Thus, Defendant misses the mark in arguing that the 1991 amendment of Section 66-7-373 to delete the prohibition against evidence of seat belt non-use somehow restored a preexisting common law seat belt defense. Because Defendant did not possess the right to limit Plaintiff\u2019s recovery for seat belt non-use at common law, Section 66-7-373 does not limit Defendant\u2019s rights or remedies.\nIn Armijo v. Atchison, Topeka & Santa Fe Ry., 754 F.Supp. 1526 (D.N.M.1990), rev\u2019d in part on other grounds, 19 F.3d 547 (10th Cir.), and rev\u2019d in part cm other grounds, 27 F.3d 481 (10th Cir.1994), Judge Campos specifically rejected an argument based on the premise that Section 66-7-373 somehow altered a defendant\u2019s common law right to introduce seat belt evidence. Id. at 1535. The plaintiff\u2019s decedent in Armijo died in a collision between the car he was driving and the defendant\u2019s train. Id. at 1528. The plaintiff moved to exclude any evidence of \u201cthe alleged failure by the Plaintiffs Decedent to use a seat belt, and the consequences flowing therefrom.\u201d Id. at 1534. In response, the defendant argued, in part, that Section 66-7-373 denied the defendant equal protection \u201cby making [it] pay for damages caused entirely by the plaintiffs failure to exercise due care for his safety by failing to use an available seat belt.\u201d Armijo, 754 F.Supp. at 1535. Judge Campos rejected this argument, using language that is equally applicable to Defendant\u2019s argument in the present case:\nThe problem with this argument is that a common law duty to wear a seat belt did not exist prior to the enactment of this statute and with the enactment of this statute the legislature specifically declined to make failure to wear a seat belt the basis for negligence or fault. Therefore, the statute does not affect the substantive rights of defendants or plaintiffs. In New Mexico, there never was a' \u201cseat belt defense\u201d and there still is not a \u201cseat belt defense.\u201d\nId. Because Defendant had no right or remedy with regard to seat belts prior to the adoption of Section 66-7-373, that section does not unconstitutionally interfere with Defendant\u2019s rights or remedies.\nB. Section 66-7-373(B) Does Not Violate the Separation of Powers Doctrine.\nDefendant argues that New Mexico courts \u201chave often set aside legislation that encroaches upon the judicial power.\u201d Initially, we respond to this argument by simply noting that' the New Mexico Supreme Court undercut Defendant\u2019s position in its Thomas opinion. In Thomas, the Supreme Court specifically held that \u201cthe creation of a \u2018seat belt defense\u2019 is a matter for the Legislature.\u201d Thomas, 102 N.M. at 327, 695 P.2d at 477. Since the Supreme Court\u2019s Thomas decision is both relatively recent and definitive on this issue, we are not inclined to question its validity. See State v. Wilson, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994) (this Court is bound by direct Supreme Court precedent).\nThe separation of powers argument advanced by the present Defendant was also rejected by Judge Campos in Armijo, 754 F.Supp. at 1534-35. In Armijo, the defendant argued that Section 66-7-373 did not prohibit a jury from apportioning fault and damages as a consequence of the plaintiff\u2019s failure to use a seat belt, but that even if it did, the statute violated the separation of powers doctrine. Id. at 1534. Judge Campos rejected this interpretation and elaborated on the proper roles of the legislature and judiciary on this issue:\nWith regard to Defendant\u2019s separation of powers argument, the Court finds that \u00a7 66-7-373B. is not, as the Defendant contends, a legislative enactment of a rule of evidence, but rather is the enactment of a substantive state policy. It is true as Defendant states that the New Mexico Constitution reposes the inherent power to regulate all pleading, practice and procedure affecting the judicial branch exclusively in the Supreme Court. Miller & Associates, Ltd. v. Rainwater, 102 N.M. 170, 171-172, 692 P.2d 1319[, 1320-21] (1985). However, it is also true that the Courts should not invalidate substantive policy choices made by the legislature under the constitutional exercise of its police powers. Southwest Community Health Services v. Smith, 107 N.M. 196, 199, 755 P.2d 40[, 43] (1988). The Court finds it is clearly within the power of the legislature to determine whether or not to impose as a matter of State policy an obligation on its citizens to wear a seat belt and to establish the sanctions for non-conformity with that obligation.\nArmijo, 754 F.Supp. at 1534-35.\nWhile Defendant is correct in stating that, as a federal court decision, Armijo \u201cis without binding authority in state courts,\u201d we find the reasoning of Judge Campos, himself a former state judge, persuasive. His decision is also consistent with our Supreme Court\u2019s opinion in Thomas. We therefore hold Section 66-7-373 to be within the legitimate ambit of legislative authority.\nC. Limiting Defendant\u2019s Use of Seat Belt Evidence Does Not Violate Due Process.\nDefendant next contends that \u201cNew Mexico\u2019s prohibition of a seat belt defense arbitrarily and unreasonably interferes with the adjudication of rights in a comparative negligence system. Thus, the prohibition denies substantive due process.\u201d We disagree.\nLegislative acts are presumed to be valid and cannot be declared invalid \u201cunless the court is clearly satisfied that the legislature went outside the constitution in enacting them.\u201d Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 693, 763 P.2d 1153, 1158 (1988). It is the duty of an appellate court to uphold such legislation unless the court is satisfied beyond all reasonable doubt that the statute is unconstitutional. City of Farmington v. Fawcett, 114 N.M. 537, 540, 843 P.2d 839, 842 (Ct.App.), cert. quashed, 114 N.M. 532, 843 P.2d 375 (1992): It is therefore \u201cnot the province of this Court to invalidate substantive policy choices made by the legislature.\u201d Eturriaga v. Valdez, 109 N.M. 205, 209, 784 P.2d 24, 28 (1989).\nTo withstand substantive due process scrutiny, a statute need only bear some rational relationship to a legitimate legislative goal or purpose. Garcia v. Village of Tijeras, 108 N.M. 116, 119, 767 P.2d 355, 358 (Ct.App.), cert. denied, 107 N.M. 785, 765 P.2d 758 (1988). Section 66-7-373(B) has a reasonable relation to a proper legislative purpose. Judge Campos recognized this relationship in Armijo, 754 F.Supp. at 1534-35. Other jurisdictions have also specifically rejected due process challenges to statutes similar to Section 66-7-373(B). See, e.g, C.W. Matthews Contracting Co. v. Gover, 263 Ga. 108, 428 S.E.2d 796, 798-99 (1993); Thompson v. Fitzpatrick, 199 Mich.App. 5, 501 N.W.2d 172, 173 (Mich.Ct.App.1991) (per curiam), appeal denied, 442 Mich. 937, 503 N.W.2d 911 (1993).\nLike our Legislature, the Ohio Legislature adopted a statute that made the use of seat belts mandatory and established fines as punishment for their non-use. Ohio Rev. Code Ann. \u00a7 4513.263 (Baldwin 1994). The Ohio statute also provides that the failure to use a seat belt \u201cshall not be considered or used as evidence of negligence or contributory negligence [and] shall not diminish recovery for damages in any civil action.\u201d Ohio Rev.Code Ann. \u00a7 4513.263(F)(1). In Bendner v. Carr, 40 Ohio App.3d 149, 532 N.E.2d 178 (1987), an automobile passenger, who was not wearing a seat belt, sued for injuries suffered in an accident. Id., 532 N.E.2d at 179-80. Defense counsel challenged the Ohio statute as a violation of due process. Id. at 181. The trial court ruled that the statute was unconstitutional and permitted the introduction of seat belt evidence. Id. at 180. The jury returned a verdict in favor of the defendant. Id. The Ohio Court of Appeals reversed the trial court\u2019s decision. Id. at 184. The appellate court first recognized that the measuring rod for due process is \u201cwhether the statute has a reasonable relationship to a proper legislative purpose, without being arbitrary or discriminatory.\u201d Id. at 181. The appellate court then applied this standard to the seat belt defense statute, saying:\nThe legislature undoubtedly concluded that seat-belt use was desirable, and that although the enactment of a law providing for small fines would encourage people to \u201cbuckle up,\u201d an injured plaintiff should nevertheless not be denied recovery when involved in a collision with a negligent tortfeasor. This case is a perfect example of the harsh results possible under [the defendant\u2019s] view of R.C. 4513.263(G)(1) [substantively identical to current Ohio Rev.Code Ann. Section 4513.263(F)(1) ]____ Given all of [the circumstances in this case], we cannot say that R.C. 4513.263(G)(1) does not bear a reasonable relationship to the legislative purpose of the statute as a whole.\nBendner, 532 N.E.2d at 181-82. Nor can we say that our Section 66-7-373(B) \u201cdoes not bear a reasonable relationship to the legislat\u00edve purpose of the statute as a whole.\u201d Bendner, 532 N.E.2d at 182.\nD. Section 66-7-873 Prohibits Consideration of the Use of Seat Belts for Causation.\nDefendant\u2019s final challenge to the district court\u2019s refusal to admit evidence that Michael was not wearing a seat belt turns on the purpose for which such evidence was offered. Defendant argues that, even if Section 66-7-373 may legitimately prohibit the use of the seat belt evidence to prove fault or apportion damage, \u201c[t]here is no prohibition on the introduction of such evidence to prove causation.\u201d\nWhatever appeal this contention might have as an abstract proposition, at least two countervailing factors argue against it. Initially, we note that the Supreme Court refused our implicit invitation to adopt this theory in Thomas. In this Court\u2019s Thomas opinion, we recognized the critical importance of proof that the failure to wear seat belts actually caused the injury. Thomas, 102 N.M. at 426, 696 P.2d at 1019. We expressly said, \u201cOur holding applies when a plaintiff has failed to exercise due care for his own safety by failing to use an available seat belt, and injury is caused by that failure.\u201d Id. at 425, 696 P.2d at 1018. That opinion was, of course, reversed. Thomas, 102 N.M. at 327, 695 P.2d at 477.\nNor does the language used by the New Mexico Legislature in Section 66-7-373 indicate any intent to allow the introduction of evidence of failure to use seat belts for any purpose in a negligence action. Defendant does not argue that the non-use of seat belts actually caused the Bronco to hit the bump and begin to fishtail. Rather, Defendant\u2019s argument is that Michael would have suffered less severe injuries had he used his seat belt. Indeed, Defendant contends that its \u201cexpert established, and intended to testify, that Plaintiff\u2019s decedent in the captioned case was ejected from his car and died because he was not restrained by a seat belt.\u201d Section 66-7-373(B) specifically provides, however, that evidence of the failure to use seat belts \u201cshall not limit or apportion damages.\u201d Id. It is impossible to conceive how the district court could permit the introduction of evidence that the non-use of seat belts \u201ccaused\u201d increased damages, but then not allow the jury to \u201climit or apportion damages.\u201d The district court therefore did not err in excluding such evidence.\nII. THE DISTRICT COURT PROPERLY REFUSED DEFENDANT\u2019S PROFFERED JURY INSTRUCTIONS.\nA. The District Court Did Not Err in Excluding Defendant\u2019s Strict Liability Instruction.\nFord Motor Company, which was originally a party to this lawsuit, settled with Plaintiff. At trial, however, Defendant offered the opinion testimony of expert witnesses concerning the roll-over hazard inherent in the design and construction of the Ford Bronco II Michael was driving at the time of the accident. Defendant tendered a requested jury instruction \u201cthat would have informed the jury that Ford Motor Co. was strictly liable for any injuries proximately caused by defects in the Bronco II.\u201d Defendant argues that the district court erred in refusing this instruction and not instructing the jury on its strict liability theory.\n\u201cAn instruction on a theory is properly given only if the theory is plead [sic] or is tried by express or implied consent of the parties.\u201d Davila v. Bodelson, 103 N.M. 243, 251, 704 P.2d 1119, 1127 (Ct.App.), cert. denied, 103 N.M. 177, 704 P.2d 431 (1985). Defendant failed to plead strict liability in its answer and affirmative defenses. Although some evidence was presented criticizing the Bronco II, there was no direct evidence submitted that the Bronco II was defective, defectively designed, or unreasonably dangerous. The district court therefore instructed the jury at length on Defendant\u2019s negligence theory against Ford Motor Company but did not give the tendered instructions on strict liability. Because the theory of strict liability was neither pleaded nor tried by express or implied consent, the failure to instruct the jury on strict liability was not error.\nB. The District Court Properly Refused Defendant\u2019s Requested Jury Instruction Regarding the Distribution of the Mulch.\nDefendant delivered the mulch to Michael by pouring the mulch into his trailer from a front-end loader. The operator of the loader testified at trial that when a load is first placed in a trailer, it creates a mound higher in the center that tapers off at the edges.\nDefendant also elicited testimony that Michael and Jonathan covered the load with a tarpaulin. Evidence was also presented regarding the condition of the load before and after the accident. Defendant contends that \u201c[t]he clear implication of this evidence is that Decedent arranged the load of mulch to his own satisfaction, and created the hazard of load instability.\u201d Defendant therefore argues the district court erred in not giving the jury Defendant\u2019s tendered instruction that Michael \u201cknew or should have known the load was improperly placed on his trailer.\u201d The tendered instruction read as follows:\n1. If the mulch was improperly loaded on Michael Hagen\u2019s trailer, Michael Hagen observed the loading of the mulch, arranged or adjusted the load, covered it and removed it from Sun Country without adjusting the load or making complaint, though he knew or should have known the load was improperly placed on his trailer.\nAs can be seen by reading the entire requested instruction, the wording is nonsensical. The instruction states that Michael \u201carranged or adjusted the load, covered it and removed it from Sun Country without adjusting the load or making complaint.\u201d (Emphasis added). \u201c[A] requested instruction that is erroneously or inaccurately drafted need not be given by the trial court.\u201d Mireles v. Broderick, 117 N.M. 445, 450, 872 P.2d 868, 868 (1994). Here, the district court struck the initial \u201carranged or adjusted\u201d phrase, and gave the standard Uniform Jury Instruction on circumstantial evidence, SCRA 1986, 13-308 (Repl.1991). We find no error in the instruction given.\nC. The District Court Did Not Err in Refusing the Negligence Per Se Instruction.\nDefendant\u2019s final challenge to the jury instructions deals with the issue of negligence per se. Defendant maintains that it introduced evidence that Michael was towing a twelve-foot trailer with a 3,000-pound load without trailer brakes or load levelers, and that this evidence was sufficient to prove a violation of NMSA 1978, Section 66-3-801 (Repl.Pamp.1989). That section prohibits any person from operating a vehicle on the highway unless the equipment is in good working order and safe mechanical condition. Id. The district court properly refused to submit Defendant\u2019s requested instruction because there was no evidence that either the Bronco II or the trailer was not in good working order or was not mechanically safe. See Garcia v. Barber\u2019s Super Mkts., Inc., 81 N.M. 92, 96, 463 P.2d 516, 520 (Ct.App.1969) (an instruction may not be given without substantial evidence to support it).\nDefendant further argues there was evidence that Michael looked at Jonathan just before the accident and was therefore not giving his full attention to the operation of the vehicle in violation of NMSA 1978, Section 66-8-114 (Repl.Pamp.1994). Defendant bases this argument on Jonathan\u2019s testimony that, when the Bronco hit the bump, his father looked down at him \u201cfor a second and then looked back up.\u201d It seems unlikely that the legislature contemplated that glancing away from the road for a period of \u201ca second\u201d would constitute a violation of the statute. In any event, the district court instructed the jury that it is the duty of the driver of every motor vehicle to keep a proper lookout at all times and to maintain proper control of his vehicle. Thus, the instruction given, SCRA 1986, 13-1202 (Repl.1991), adequately covered Defendant\u2019s concern. \u201cDenial of a requested instruction is not error where the instructions given adequately cover the issue.\u201d Flanary v. Transport Trucking Stop, 78 N.M. 797, 801, 438 P.2d 637, 641 (Ct.App.1968).\nIII. THE DISTRICT COURT\u2019S EVIDEN-TIARY RULINGS WERE WITHIN ITS PROPER DISCRETION.\nThe admission of evidence rests within the sound discretion of the district court. State v. Richerson, 87 N.M. 437, 441-42, 535 P.2d 644, 648-49 (Ct.App.), cert. denied, 87 N.M. 450, 535 P.2d 657 (1975). An abuse of discretion will be found only when the district court\u2019s decision is clearly untenable or contrary to logic and reason. City of Santa Fe v. Komis, 114 N.M. 659, 663, 845 P.2d 753, 757 (1992).\nA.The District Court Properly Excluded Expert Opinion that Driver Inattention Caused the Accident.\nDefendant attempted to introduce testimony from an expert witness, Ronald Henson, that the previously described period of eye contact between Michael and his son after the Bronco hit the bump caused the accident. The district court did not abuse its discretion in excluding this testimony.\nThe applicable evidentiary rule, SCRA 1986, 11-702 (Repl.1994), provides that \u201c[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion.\u201d Id. The corollary to this rule is that if the fact in issue is within the ken of the average lay juror, expert opinion testimony is not necessary. See United States v. Weiner, 3 F.3d 17, 21-22 (1st Cir.1993) (it is error to allow an expert to testify on a routine inference that jurors could draw for themselves); cf. State v. Hall, 103 N.M. 207, 210, 704 P.2d 461, 464 (Ct.App.1985) (expert testimony admissible in cases where \u201caverage juror would have no basis for evaluating the evidence without the assistance of an expert\u201d).\nThe determinative question in considering whether expert testimony will assist the fact finder is: \u201cOn this subject can a jury receive from this person appreciable help?\u201d 7 John Henry Wigmore, Wigmore on Evidence \u00a7 1923, at 29 (Chadboum rev. 1978). Our Supreme Court has accepted Professor Wig-more\u2019s question as \u201cthe relevant inquiry.\u201d State v. Alberico, 116 N.M. 156, 166, 861 P.2d 192, 202 (1993). We cannot say the district court abused its discretion in determining that Henson\u2019s testimony would not offer the jury \u201cappreciable help\u201d on whether the \u201csecond\u201d of eye contact between Michael and Jonathan after the Bronco hit the bump caused the accident.\nB. The District Court Properly Refused to Admit Testimony Comparing the Owner\u2019s Manuals for the Ford Bronco and a General Motors\u2019 Vehicle.\nDefendant argued that Ford Motor Company was liable for failing to warn Michael of the roll-over potential of the Ford Bronco II. In support of this theory, Defendant sought to elicit testimony from its expert that the owner\u2019s manual for the Chevrolet S-10 Blazer was superior to the Bronco II owner\u2019s manual.\nIn sustaining Plaintiffs objection to such testimony, the district court invited defense counsel to lay a proper foundation, but defense counsel made no attempt to do so. Rather, defense counsel simply asked for the witness\u2019 opinion regarding the warnings in the Bronco II manual, without reference to the Blazer manual. Furthermore, defense counsel made no attempt to show how the Bronco II and the Blazer were comparable vehicles. In short, because Defendant failed to lay a proper foundation for a comparison between the two vehicles and also failed to make a proffer of the excluded testimony, Defendant cannot now claim error on appeal. Wood v. Citizens Standard Life Ins. Co., 82 N.M. 271, 272, 480 P.2d 161, 162 (1971) (proper tender of proof is essential to the preservation of error when a party alleges evidence has been improperly excluded at trial).\nC. The District Court Did Not Err in Refusing to Allow the Jury to View the Trailer.\nDefendant arranged to park the trailer at the courthouse and asked the district court to allow the jury to view the trailer. According to Defendant, the purpose of this request was to give the jury a better understanding of the trailer\u2019s configuration and how loads could be distributed on the trailer. Defendant argues that the district court \u201cerred in refusing to permit the jury to view this clearly relevant demonstrative evidence, because all relevant evidence is admissible.\u201d See SCRA 1986, 11-402 (Repl.1994).\nWe hold that the district court was properly within its discretion in refusing to allow a jury view of the trailer for several reasons. First, Defendant did not list the trailer on its exhibit list, as required by the district court\u2019s pretrial and scheduling orders. See SCRA 1986, 1-016 (Repl.1992); State ex rel. State Highway Dep\u2019t v. Branchau, 90 N.M. 496, 497, 565 P.2d 1013, 1014 (1977) (pretrial order controls case). Second, several photographs of the trailer had already been admitted into evidence. See State v. Maddox, 99 N.M. 490, 492, 660 P.2d 132, 134 (Ct.App.1983) (nothing jury could have observed at accident scene would have materially affected other evidence already admitted). Third, and most importantly, Defendant was unable to prove that the trailer was in the same or substantially the same condition at the time of trial as it had been five years earlier when the accident occurred. See State v. Chavez, 84 N.M. 760, 761, 508 P.2d 30, 31 (Ct.App.1973).\nCONCLUSION\nHaving found no reversible error, we affirm.\nIT IS SO ORDERED.\nBOSSON and BUSTAMANTE, JJ., concur.", "type": "majority", "author": "BLACK, Judge." } ], "attorneys": [ "Jeffrey E. Jones, Miller, Stratvert, Torgerson & Sehlenker, P.A., Santa Fe, William H. Sutton, C. Tab Turner, Scott H. Tucker, Friday, Eldredge & Clark, Little Rock, AR, Marcy F. Branham, Phoenix, AZ, for plaintiff-appellee.", "Penni Adrian, Robert L. Hlady, Gallagher, Casados & Mann, P.C., Albuquerque, for defendant-appellant." ], "corrections": "", "head_matter": "901 P.2d 192\nD\u2019on MOTT, Executor and Heir to the Estate of Michael Hagen, deceased, and D\u2019on Mott, as Mother and Next Friend of Jonathan Hagen, a minor, PlaintiffAppellee, v. SUN COUNTRY GARDEN PRODUCTS, INC., a New Mexico corporation, Defendant-Appellant.\nNo. 15548.\nCourt of Appeals of New Mexico.\nMay 26, 1995.\nCertiorari Denied July 12, 1995.\nJeffrey E. Jones, Miller, Stratvert, Torgerson & Sehlenker, P.A., Santa Fe, William H. Sutton, C. Tab Turner, Scott H. Tucker, Friday, Eldredge & Clark, Little Rock, AR, Marcy F. Branham, Phoenix, AZ, for plaintiff-appellee.\nPenni Adrian, Robert L. Hlady, Gallagher, Casados & Mann, P.C., Albuquerque, for defendant-appellant." }, "file_name": "0261-01", "first_page_order": 299, "last_page_order": 308 }