Rael v. F & S CO., INC.
94 N.M. 507, 612 P.2d 1318 (1980)
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Rule of Law:
In New Mexico, one tortfeasor may not recover indemnity from another if both were actively negligent (in pari delicto); additionally, damages for future pain and suffering must be proven with reasonable certainty, requiring either an objectively apparent injury or expert medical testimony for subjective complaints.
Facts:
- Everett Rael, a 12-year-old, was injured by a sudden explosion of a firework.
- Everett's father filed an action against Onda Enterprises, Ltd. (the supplier) and F & S Company, Inc. (the seller).
- The firework was manufactured by Gou Chien Fireworks Mfg. Co., Ltd., sold by Gou Chien to Onda, and then by Onda to F & S.
- In 1973, F & S discovered some fireworks to be defective through testing and registered a complaint with Onda.
- Onda agreed to give F & S full credit for the defective batches and requested the remainder be destroyed at Onda's expense.
- F & S received full credit for the complained-about batches.
- In July 1974, after taking some steps to remove defective items from distribution, F & S sold the firework that injured Everett.
- Everett suffered a permanent scar on his eye, powder particles under his cornea, increased risk of future infection, impaired visual acuity (20-50 or 20-60), and periodically experienced headaches after the accident.
Procedural Posture:
- Everett Rael and his father filed an action against Onda Enterprises, Ltd. and F & S Company, Inc. in a trial court.
- Both Onda and F & S filed cross-claims against each other, each seeking indemnity from the other.
- The trial court dismissed the cross-claims for indemnity.
- The jury returned a verdict for $7,000 for Everett and $339 for his father against both defendants jointly and severally.
- F & S appealed the judgment to the New Mexico Court of Appeals.
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Issue:
Did the trial court err by instructing the jury that it could award damages for future pain and suffering when there was no evidence to establish such damages with reasonable certainty?
Opinions:
Majority - Andrews, Judge
No, F & S is not entitled to indemnity from Onda, and yes, the trial court erred in granting an instruction permitting the award of damages for future pain and suffering because there was no evidence for such an award. Regarding indemnity, F & S cannot recover from Onda on a negligence theory because both parties were in pari delicto (active tortfeasors). New Mexico law precludes indemnity between tortfeasors who are equally at fault. F & S's conduct was active, arising mainly from its failure to take sufficient remedial action to prevent defective fireworks from reaching the public, regardless of Onda's own negligence. The same principle applies to products liability claims; the right to indemnity is determined by the parties' conduct (active vs. passive) not their position in the supply chain. Regarding future pain and suffering, such damages must be proven with reasonable certainty, not based on surmise, conjecture, or speculation. New Mexico does not recognize a presumption of future pain and suffering based solely on a permanent injury. For a jury instruction on future pain and suffering to be warranted, either the injury must be objective and plainly apparent to necessitate future pain, or if the injury is subjective, expert medical testimony is required to establish with reasonable certainty the future pain, its cause, severity, and duration. Everett's headaches were a subjective complaint, and without expert testimony linking them to the accident and establishing their reasonable certainty and duration into the future, the instruction was erroneous. The case is reversed and remanded for a new trial on the issue of damages alone, as it is impossible to determine how much of the general verdict was for future pain and suffering.
Concurring-in-part-and-dissenting-in-part - Sutin, Judge
No, F & S is not entitled to indemnification from Onda for all damages F & S is required to pay plaintiff, but no, the trial court did not err in instructing the jury on future pain and suffering. I concur with the majority that F & S is not entitled to indemnity from Onda. However, I dissent on the issue of future pain and suffering, believing the appeal should be affirmed. The trial court's instruction, which included the phrase 'reasonably certain to be experienced in the future,' actually imposed a higher degree of proof than a 'preponderance of the evidence,' making it erroneously unfavorable to the plaintiff. The jury instruction explicitly states that the determination of whether damage elements have been proven is for the jury. Where a general verdict is supported by substantial evidence, it should not be set aside unless actual detriment or excessiveness is shown. The jury's $7,000 award was supported by substantial evidence even if future pain and suffering were not explicitly awarded. Furthermore, damages for future pain and suffering were supported by the evidence. When physical pain and mental suffering continue from the date of injury to the time of trial, a 'reasonable probability' of future pain is implied, and expert medical testimony is not essential in every case where the determination rests with the jury's assessment of witness credibility. In this case, an ophthalmologist testified about permanent scars, an increased risk of future infection, and patients with similar injuries having recurrences of pain and suffering 10 to 15 years later. Everett himself testified about ongoing headaches and worry. This combination of expert and lay testimony was sufficient to support an award for future pain and suffering. The majority's adoption of rigid 'objective/subjective' injury distinctions and absolute requirements for expert testimony creates 'conundrums' and is an overly restrictive approach that should be left to the 'enlightened conscience of impartial jurors'.
Analysis:
This case is highly significant in New Mexico personal injury and products liability law. First, it reinforces that a party in a supply chain cannot automatically seek full indemnity from an upstream supplier if its own actions constitute active negligence, even if the product was defective. Second, and more critically, it establishes a clear two-pronged test for when juries can consider damages for future pain and suffering. This places a substantial evidentiary burden on plaintiffs, requiring either an injury whose future painful effects are patently obvious or compelling expert medical testimony to substantiate subjective future pain claims with reasonable certainty. This ruling likely increased the reliance on expert medical witnesses in personal injury litigation and refined the standards for jury instructions on future damages, impacting how lawyers prepare and present such claims.
