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New Mexico's uniform jury instruction, N. M. Unif. Jury Instructions-Civ. 13-407 (1968), that defines scope of employment and is the legal standard, provides that an act of an employee is within the scope of employment if: (1) it was something fairly and naturally incidental to the employer's business assigned to the employee, and (2) it was done while the employee was engaged in the employer's business with the view of furthering the employer's interest and did not arise entirely from some external, independent and personal motive on the part of the employee.
Cathi Richardson’s claims arose from defendants' advise to settle a personal injury suit against Daniel Castillo who caused injuries to Richardson in an automobile accident during his lunch break. On Richardson’s behalf, defendants negotiated a settlement with Castillo, which required Richardson to sign a general release of liability in favor of Castillo. Subsequently, a suit filed by Richardson against Castillo's employer, alleging respondeat superior, was dismissed with prejudice upon the district court's determination that the general release barred any claims against the employer as a matter of law. Richardson then sued defendants alleging that but for their erroneous advice she could have been made whole in her first lawsuit in that she could have recovered from Castillo's employer the damages not paid by Castillo. Defendants answered that Castillo was not in the scope of his employment at the time of the accident and, therefore, even if counselling Richardson to sign the release was in error, Richardson was not harmed because her underlying claim against the employer was without merit. Defendants' motion for summary judgment on this issue was granted by the trial court. This appeal followed.
Did Richardson produce "substantial competent evidence" to contradict defendants' contention that Castillo was outside the scope of his employment at the time of the accident, and, therefore, the issue should have been decided by the fact finder and not by the court as a matter of law?
The court affirmed the judgment of the trial court. The court held that Richardson had failed in her burden to oppose the motion for summary judgment because her response and supporting memorandum did not controvert any facts in the manner mandated by N.M. R. Civ. P. Dist. Ct. 1-056(D)(2). The rule established that material facts set forth by the moving party should be deemed admitted unless specifically controverted. The court held that if the material facts were taken as true, then the conclusion had to be that the company employee was not acting in the scope of his employment at the time of the accident.