{ "id": 15649, "name": "Dulces SEGURA, Plaintiff-Appellee, v. K-MART CORPORATION, Defendant-Appellant", "name_abbreviation": "Segura v. K-Mart Corp.", "decision_date": "2002-06-28", "docket_number": "No. 21,781", "first_page": "192", "last_page": "199", "citations": [ { "type": "official", "cite": "133 N.M. 192" }, { "type": "parallel", "cite": "62 P.3d 283" }, { "type": "parallel", "cite": "2003-NMCA-013" } ], "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": "96 N.M. 558", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577378 ], "weight": 2, "pin_cites": [ { "page": "560" }, { "page": "1198" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0558-01" ] }, { "cite": "120 N.M. 220", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558953 ], "weight": 5, "pin_cites": [ { "page": "222" }, { "page": "971" }, { "page": "223" }, { "page": "972" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0220-01" ] }, { "cite": "105 N.M. 259", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598956 ], "weight": 2, "pin_cites": [ { "page": "261" }, { "page": "957" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0259-01" ] }, { "cite": "121 N.M. 133", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566557 ], "weight": 2, "pin_cites": [ { "page": "141" }, { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0133-01" ] }, { "cite": "1999-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106537 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/128/0084-01" ] }, { "cite": "1997-NMCA-120", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18473 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0296-01" ] }, { "cite": "2001-NMCA-051", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352705 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0595-01" ] }, { "cite": "89 N.M. 734", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2862175 ], "weight": 2, "pin_cites": [ { "page": "734-35" }, { "page": "583-84" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0734-01" ] }, { "cite": "98 N.M. 152", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582523 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0152-01" ] }, { "cite": "781 So.2d 125", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11112292 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/so2d/781/0125-01" ] }, { "cite": "1999-NMCA-101", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257772 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0708-01" ] } ], "analysis": { "cardinality": 999, "char_count": 23557, "ocr_confidence": 0.667, "pagerank": { "raw": 4.408767690195799e-08, "percentile": 0.2762979617730609 }, "sha256": "7304f0726800b3d0ff69c5b3720076aa1bac0e300f720a3604eaf45372eafd42", "simhash": "1:0e67f4a856008cf0", "word_count": 3864 }, "last_updated": "2023-07-14T15:37:22.762722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: RICHARD C. BOSSON, Chief Judge, and JAMES J. WECHSLER, Judge." ], "parties": [ "Dulces SEGURA, Plaintiff-Appellee, v. K-MART CORPORATION, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\n{1} Defendant K-Mart appeals from a jury verdict awarding damages to Plaintiff Dulces Segura as compensation for an accident in which Segura slipped and fell in a K-Mart store. We consider the propriety of the trial court\u2019s sanction for spoliation of evidence and its order precluding K-Mart from asserting as a defense the liability of a third party. We affirm the spoliation sanction and reverse on the issue of third-party liability.\nBACKGROUND\n{2} Segura slipped and fell while shopping in the automotive department of a K-Mart store in Artesia, New Mexico and suffered injuries to his back, shoulder, and knee. Shortly before the accident, another K-Mart customer, Delbert Keck, was shopping in the automotive area. Keck took a plastic container of STP product off a shelf. The container leaked fluid onto the floor. Keck testified that he saw Segura walking toward the puddle of fluid and attempted to steer him around the hazard with hand gestures, but Segura either did not see Keck or ignored him, walked into the fluid, and fell. Segura testified that Keck did not warn him about the spill.\n{3} Segura asked K-Mart to produce the container in question, but K-Mart could not locate it. Segura filed a motion for sanctions, and the trial court ruled that K-Mart knew or should have known that the container should be preserved as evidence. As a sanction for its failure to preserve the container, the court ruled that K-Mart would be deemed negligent and its negligence would be considered a proximate cause of Segura\u2019s injuries.\n{4} Segura also filed a motion for partial summary judgment on the issue of Keck\u2019s potential third-party liability for Segura\u2019s injuries. Segura argued that K-Mart should not be permitted to attribute any liability to Keck because K-Mart had failed in the course of discovery to provide Segura with any facts suggesting that Keck had been negligent. K-Mart responded that Segura and other witnesses testified that Keck did not warn Segura about the fluid that had leaked from the STP bottle Keck had been examining. The trial court granted Segura\u2019s motion and prohibited K-Mart \u201cfrom claiming any [third] party is at fault or a cause of the fall and injuries to ... Segura\u201d.\nDISCUSSION\nThe Spoliation Sanction\n{5} The parties do not dispute that the fluid on which Segura slipped had leaked from a hole or slit in the STP bottle examined by Keck just prior to Segura\u2019s fall. Keck described the plastic container as having a hole or cut in its side. K-Mart\u2019s loss control manager for the Artesia store, who went to the scene of Segura\u2019s fall, testified that she saw the container at the scene and that there was a break in the seam on the side of the container.\n{6} When Segura asked K-Mart to produce the STP container that had leaked the fluid, K-Mart responded that its former store manager had taken possession of the container after the accident, but that K-Mart no longer had the container or knew where it was. Moreover, K-Mart did not know the whereabouts of the former store manager.\n{7} Segura filed a motion for sanctions against K-Mart for losing the STP container. At the conclusion of the motion hearing, the trial court stated that the K-Mart manager must have taken the container either with the intention of hiding it from Segura or to preserve it as evidence, and that \u201ceither way, it\u2019s gone now.\u201d As a sanction, the court ruled it would instruct the jury that K-Mart was negligent and that its negligence was a proximate cause of Segura\u2019s fall.\n{8} K-Mart argues the trial court erred in determining liability against it as a sanction for its loss of the container because, given the relatively minor prejudice to Segura, the court should have imposed a lesser sanction. We review the imposition of sanctions for spoliation \u2014 the loss or destruction of evidence \u2014 for abuse of discretion. See Rest. Mgmt. Co. v. Kidde-Fenwal, Inc., 1999-NMCA-101, \u00b6 8, 127 N.M. 708, 986 P.2d 504.\n{9} In Restaurant Management Co., we held that, in determining whether to impose sanctions for the destruction of evidence, courts should consider the following:\n(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.\u201d\nId. \u00b6 13 (citation and internal quotation marks omitted).\n{10} With respect to degree of fault, K-Mart argues the trial court found that it was merely negligent, and thus, such a severe sanction was improper. While K-Mart is correct that the trial court found it \u201cknew or should have known that it was important to keep the container,\u201d K-Mart\u2019s degree of culpability is only one of the factors the court weighed in evaluating spoliation sanctions. In addition, the negligent care of evidence may have consequences as deleterious as the intentional destruction of evidence. As noted in Thomas v. Isle of Capri Casino, 1999-SA-01476-SCT, \u00b6 40, 781 So.2d 125 (Miss.2001), \u201c[Requiring an innocent litigant to prove fraudulent intent on the part of the spoliator would result in placing too onerous a burden on the aggrieved party.\u201d The Mississippi court explained that \u201c[t]o hold otherwise would encourage parties with weak cases to \u2018inadvertently\u2019 lose particularly damning evidence and then manufacture \u2018innocent\u2019 explanations for the loss.\u201d Id. Thus, in some cases, the prejudice to the victim of spoliation may weigh more heavily than the spoliator\u2019s degree of fault in determining an appropriate sanction.\n{11} K-Mart argues that the second Restaurant Management Co. factor \u2014 the prejudice to Segura \u2014 also militates against the severe sanction imposed by the trial court. Segura claimed below that analysis of the container could have indicated whether the hole or split was attributable to K-Mart or the manufacturer of the container or both. On appeal, K-Mart argues that Segura could have established the manufacturer\u2019s liability through other means and that any inability to attribute fault to the manufacturer prejudiced both Segura and K-Mart. We disagree. Even if Segura sought only to prove K-Mart\u2019s negligence and not the manufacturer\u2019s liability, the absence of the container left Segura bereft of evidence to prove that it was K-Mart\u2019s handling of the container that caused the hole. Without the container, it was equally likely that the hole resulted from a manufacturing defect or from mishandling. Although K-Mart contends the source of the hole could be determined from the testimony of Keck and K-Mart\u2019s loss control manager who both described the hole, this testimony provided no particulars tending to show one source of damage was more likely than the other.\n{12} K-Mart further maintains that Segura had an alternative theory of liability against K-Mart that did not depend on determining the origin of the hole in the container because Segura presented testimony suggesting that K-Mart should have anticipated spills in the automotive department and used non-slip floor mats in that area. We are not persuaded. As the trial court noted, the disappearance of the container \u201chas to some degree limited the liability theories [Segura] can pursue.\u201d Assuming that Segura had two theories against K-Mart\u2014 one based on responsibility for the hole and one based on the failure to use non-slip mats \u2014 the elimination of one theory could reasonably be viewed as substantial prejudice.\n{13} With respect to the third factor in determining spoliation sanctions, K-Mart argues the trial court could have imposed a lesser sanction and achieved the same result. It argues that a more appropriate sanction would have been a \u201cspoliation inference,\u201d which is an instruction to the jury permitting, but not requiring, the jury to infer that the missing evidence would have been unfavorable to the spoliating party. See Rest. Mgmt. Co., 1999-NMCA-101, \u00b6 18, 127 N.M. 708, 986 P.2d 504. We disagree with K-Mart that the trial court\u2019s failure to employ a spoliation inference constitutes an abuse of discretion. A spoliation inference would have permitted K-Mart great latitude in arguing to the jury that the hole in the container was more likely the result of a manufacturing defect, and a jury could decide not to infer that K-Mart was responsible. Because Segura\u2019s only means for rebutting the theory of a manufacturing defect was the container itself, we cannot say that the trial court unreasonably found a stricter sanction to be warranted. Moreover, the sanction imposed was not the most severe available; the most onerous sanction for K-Mart would have been a default judgment of 100% liability. In the context of the sanction actually imposed, K-Mart was free to argue Segura\u2019s comparative fault. Given the prejudice to Segura resulting from the container\u2019s loss, we hold the trial court exercised sound judicial discretion in imposing the spoliation sanction.\nThe Third-Party Liability of Keck\n{14} K-Mart contends the trial court erroneously granted Segura partial summary judgment in ruling that K-Mart could not raise as a defense the comparative fault of Keck. Segura counters that K-Mart did not clearly raise Keck\u2019s potential liability below, that it abandoned the defense at the motion hearings, and that it failed to meet its burden in overcoming Segura\u2019s prima facie showing on the issue of third-party liability. Based on our review of the record, we agree with K-Mart and reverse.\n{15} Before we address the parties\u2019 specific arguments, we note that the trial court held two hearings addressing the third-party liability issue. At the first hearing on April 13, 2000, the court and the parties focused on the spoliation issue. When the third-party issue briefly came up, the court indicated that it wanted K-Mart to provide some authority for the notion that Keck owed a duty to Segura. The court gave K-Mart one week to present its case law. Prior to the second hearing, K-Mart filed its supplemental response in which it fleshed out its theories of liability against Keck and cited New Mexico law on the issue of Keck\u2019s duty. At the second hearing, the trial court immediately presented its view of Keck\u2019s potential liability, engaged in a brief dialogue with counsel, and announced its ruling.\n{16} We are not persuaded by Segura\u2019s argument that K-Mart\u2019s procedural missteps support the trial court\u2019s ruling. Segura argues that K-Mart\u2019s discovery responses failed to provide a factual basis for the assertion that Keck was in some way responsible for Segura\u2019s injuries. As a result, Segura contends he would have been unfairly prejudiced if, at trial, K-Mart had sought to attribute some fault to Keck pursuant to Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct.App.1982). However, the record shows that K-Mart identified Keck as a potentially negligent participant early in the course of discovery. It is true K-Mart\u2019s initial response to the motion for summary judgment mentioned only one theory of Keck\u2019s liability \u2014 that he had caused the automotive fluid to spill on the floor. However, before the second hearing on the issue, K-Mart filed a supplemental response in which it emphasized a second theory of liability against Keck \u2014 that Keck failed to warn Segura of the danger created by the spilled fluid. K-Mart noted that Segura testified at his deposition that no one warned him of the hazard, and Segura\u2019s son and grandson, who were with Segura at the time, both testified that no one warned about the spill. Thus, K-Mart argued, because a person who creates a dangerous condition has a duty to exercise ordinary care with respect to foreseeable plaintiffs, the jury could find Keck liable for some proportion of Segura\u2019s damages if the jury believed Segura\u2019s own testimony.\n{17} In our view, K-Mart\u2019s pleadings clearly raised the issue of Keek\u2019s potential liability, and its supplemental response to Segura\u2019s motion for partial summary judgment squarely presented the issue to be decided by the trial court. In addition, K-Mart\u2019s supplemental response provided a factual basis sufficient to overcome Segura\u2019s prima facie showing that Keck was in no way responsible for the accident or its aftermath. By the time the trial court held its second hearing on the motion, the pleadings had alerted the court that it must decide whether Keck\u2019s failure to warn, as alleged in deposition testimony by three witnesses, could be included in the jury\u2019s assessment of relative fault.\n{18} Segura further contends that at the two hearings K-Mart abandoned its view that Keck was in some way responsible for Segura\u2019s injuries because K-Mart\u2019s attorney repeatedly told the trial court he did not believe Keck did anything wrong. At the first hearing, K-Mart\u2019s attorney, Thomas Perkins, noted that a different attorney would be K-Mart\u2019s counsel at trial, but that if Perkins were to try the case he might not stress Keck\u2019s negligence in any way. However, Perkins also specifically stated that K-Mart had to be able to respond to evidence of Keck\u2019s negligence.\n{19} At the second hearing, before seeking any argument from counsel, the trial court ruminated on the question of Keck\u2019s duty to Segura and stated, \u201cI can\u2019t make a decision without seeing more testimony than I presently have, I don\u2019t think.\u201d The court and Segura\u2019s counsel then engaged in a dialogue regarding whether Segura could join Keck as a defendant. The court observed that Segura\u2019s counsel might have a Rule 1-011 NMRA 2002 problem in joining Keck because Segura\u2019s counsel did not think Keck owed Segura a duty. The court then mentioned the difficulty inherent in the dispute over whether Keck did or did not warn Segura. The court noted that if Segura testified that no one warned him, then K-Mart would want to be able to rebut that testimony with Keck\u2019s testimony. Segura\u2019s counsel stated he had no problem with K-Mart using Keck\u2019s testimony to argue that Segura was negligent in failing to heed Keck\u2019s warning; rather, Segura\u2019s counsel wanted to keep Keck\u2019s name off the jury\u2019s special verdict form. The court concluded that if K-Mart wished to attribute fault to Keck, K-Mart would have to join Keck as a party; if it chose not to join Keck, it could not employ \u201can empty chair Bartlett theory\u201d and argue that some portion of Segura\u2019s damages were the result of Keck\u2019s negligence. At this point, K-Mart\u2019s counsel protested that \u201cthe irony of this is that that\u2019s not our position. Our position is that he did everything that he could do once the fluid spilled. What we don\u2019t want to get into is the situation at trial where we can\u2019t make any kind of argument in closing after they have made the argument, \u2018well, he never warned.\u2019 \u201d The court assured K-Mart\u2019s counsel that it could use Keck in any way to attribute fault to Segura, \u201cbut I don\u2019t want a Bartlett defense.\u201d\n{20} We disagree with Segura\u2019s contention that defense counsel\u2019s comments in the context of the second hearing constituted abandonment of K-Mart\u2019s third-party liability defense. First, the only authority Segura cites in support of its abandonment argument is not persuasive. Snyders v. Hale, 89 N.M. 734, 734-35, 557 P.2d 583, 583-84 (Ct.App.1976), dealt with express stipulations made at trial, a far cry from the give-and-take colloquy that occurred at the second motion hearing in this case. Second, prior to the second hearing, K-Mart made it very clear in its written pleadings that it sought to argue Keck\u2019s liability for failing to warn Segura if he and his two relatives continued to testify at trial that Keck did not warn. There was no need for K-Mart to reiterate that argument at the hearing. See Harbison v. Johnston, 2001-NMCA-051, \u00b6 7, 130 N.M. 595, 28 P.3d 1136 (explaining that preservation requirement serves to alert the trial court to error and to give the opposing party the chance to meet the argument). K-Mart\u2019s counsel\u2019s remarks at the second hearing were made in response to the court\u2019s ruling eliminating K-Mart\u2019s third-party liability theory; counsel was trying to ensure that at least one defense theory \u2014 that Segura negligently ignored Keck\u2019s warning \u2014 remained viable.\n{21} K-Mart argues that the trial court\u2019s elimination of its Bartlett defense rested on its erroneous determination that Keck owed no duty to Segura. It is not at all clear to us that the trial court made such a determination. At the second hearing, the court mentioned various theories under which the law might impose a duty on Keck. The court commented, \u201cI\u2019m not sure what his duty is,\u201d and concluded, \u201cI can\u2019t solve this for you ... until I see and hear what the testimony is.\u201d However, even if the court did base its rejection of K-Mart\u2019s Bartlett defense on a legal determination that Keck owed no duty to Segura, we hold such a determination to be error.\n{22} In determining if a duty is owed, \u201c[t]he ultimate question is whether the law should give recognition and effect to an obligation from one person to another.\u201d Gabaldon v. Erisa Mortgage Co., 1997-NMCA-120, \u00b6 21, 124 N.M. 296, 949 P.2d 1193, rev\u2019d on other grounds, 1999-NMSC-039, 128 N.M. 84, 990 P.2d 197. This legal question is a policy determination guided by \u201cconsideration [of] the relationship of the parties, [Segura\u2019s] injured interests, Defendant\u2019s conduct in light of those interests, and other principles comprising the law.\u201d Madrid v. Lincoln County Med. Ctr., 121 N.M. 133, 141, 909 P.2d 14, 22 (Ct.App.1995).\n{23} One who creates a dangerous condition has a duty reasonably to warn others of that danger. Restatement (Second) of Torts \u00a7 321 (1965) (stating that if an actor does something he realizes \u201chas created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect\u201d). In light of the differing testimony about Keck\u2019s actions anticipated at trial, it was foreseeable that the jury could decide one of at least three ways. The jury might decide that Keck properly warned Segura about the risk posed by the spilled fluid, leading to the possibility that Segura may have been comparatively negligent for not heeding Keek\u2019s warning. Or, the jury might decide that Keck did not spill the fluid and thus had no duty to warn. Or, as a third possibility, the jury could decide that Keck did spill the fluid and acted unreasonably in not warning Segura. In the latter event, the jury could reasonably decide to hold Keck partially at fault for Segura\u2019s injuries. If that occurred, K-Mart would then be entitled to a Bartlett defense and a Bartlett \u201cempty chair\u201d instruction on percentages of comparative fault.\n{24} In light of anticipated testimony that might justify a Bartlett defense and a Bartlett instruction, the court committed error when it rejected that theory before trial and refused to allow K-mart to propose such a theory to the jury in a special verdict. The court also erred when it ordered that K-Mart could not assert Keck\u2019s third-party comparative fault unless it joined Keck as a party. See Wilson v. Gillis, 105 N.M. 259, 261, 731 P.2d 955, 957 (Ct.App.1986) (\u201cThe question implicitly raised by this appeal is whether ... [a] defendant must raise the Bartlett defense by impleading non-parties who may be liable for all or a portion of [the] plaintiffs claim. The answer to this question is no.\u201d). Accordingly, we reverse and remand for a new trial in which K-Mart may pursue its Bartlett defense to its logical conclusion consistent with the evidence.\nAdmission of the Medical Bills\n{25} K-Mart argues that the trial court erroneously allowed the jury to consider hearsay evidence in determining Segura\u2019s medical expenses. Segura first called his treating physician, Dr. Pennington, who testified from a summary of Segura\u2019s medical bills. Over K-Mart\u2019s objection, Dr. Pennington opined that all the bills were necessitated by Segura\u2019s fall and resulting injuries and that the amounts were reasonable. Segura himself then testified that he had received the various medical bills, again over K-Mart\u2019s objection. Most of the medical bills were not identified or admitted by way of the testimony of the treating medical provider.\n{26} It is clear that the amounts billed by the medical treatment providers were offered for their truth and therefore constituted hearsay because Segura relied on them in establishing his damages. See Pa dilla v. Hay, 120 N.M. 220, 222, 900 P.2d 969, 971 (Ct.App.1995) (explaining that medical bills were offered for the truth of the amounts stated in them because the plaintiff complained that damages awarded did not include medical bills excluded from evidence). As we clarified in Padilla, a plaintiff seeking admission of medical bills must not only establish through expert testimony that medical bills are reasonable and related to the claimed injuries; the plaintiff must also lay a foundation establishing an exception to the hearsay rule. Id. This is usually accomplished by laying a foundation for admitting medical bills as records of regularly conducted activity under NMRA 11-803(F). See Padilla, 120 N.M. at 223, 900 P.2d at 972. Here, Segura did not provide this predicate.\nEvidence of Former Store Manager\u2019s Bias\n{27} K-Mart argues that if we order a new trial, it should be allowed to cross-examine its former store manager about the fact that he was terminated on suspicion of theft. When K-Mart sought to question the witness on this subject, the trial court considered this to be in the nature of character evidence governed by Rule 11-608 NMRA 2002. Therefore, the court ruled that K-Mart could ask the witness about his termination but it would be bound by the witness\u2019s answer. K-Mart then asked the witness if he had been given the option of resigning or being terminated from employment, and he said that he had not. The court reiterated its ruling that K-Mart could probe no further.\n{28} We agree with K-Mart that Rule 11-608 would not preclude inquiry into the circumstances of the witness\u2019s termination in order to show the witness\u2019s character for untruthfulness. The rule specifically allows this. See Rule 11-608(B)(1); see also State v. Wyman, 96 N.M. 558, 560, 632 P.2d 1196, 1198 (Ct.App.1981) (explaining that questions concerning acts of dishonesty such as embezzlement or theft are probative of truthfulness and proper subject of cross-examination). However, even though such evidence may be relevant, its admissibility is left to the sound discretion of the trial court. See Rule 11-608(B) (stating that specific instances of a witness\u2019s conduct \u201cmay ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness\u201d). We therefore decline K-Mart\u2019s invitation to instruct the trial court how to rule on this evidence on remand.\nCONCLUSION\n{29} We reverse the trial court\u2019s order precluding K-Mart from arguing third-party comparative fault and remand for a new trial. We affirm the court\u2019s spoliation sanction and hold that the same sanction should apply on remand.\n{30} IT IS SO ORDERED.\nWE CONCUR: RICHARD C. BOSSON, Chief Judge, and JAMES J. WECHSLER, Judge.", "type": "majority", "author": "FRY, Judge." } ], "attorneys": [ "Tandy Hunt, Randy K. Clark, Roswell, NM, for Appellee.", "Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Appellant." ], "corrections": "", "head_matter": "2003-NMCA-013\n62 P.3d 283\nDulces SEGURA, Plaintiff-Appellee, v. K-MART CORPORATION, Defendant-Appellant.\nNo. 21,781.\nCourt of Appeals of New Mexico.\nJune 28, 2002.\nTandy Hunt, Randy K. Clark, Roswell, NM, for Appellee.\nEdward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Appellant." }, "file_name": "0192-01", "first_page_order": 224, "last_page_order": 231 }