This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 SHARLA BRADLEY, 7 Plaintiff-Appellant, 8

v. NO. 27,936 9 LOVELACE SANDIA HEALTH SYSTEM, 10 a foreign corporation doing business in 11 New Mexico, 12 Defendant-Appellee. 13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Ted Baca, District Judge 15 Gilpin & Keefe, P.C. 16 Donald G. Gilpin 17 Albuquerque, NM 18 for Appellant 19 Rodey, Dickason, Sloan, Akin & Robb, P.A. 20 R. Nelson Franse 21 Albuquerque, NM 22 Epstein Becker & Green, P.C. 23 Patrick F. Clark 24 Amelia M. Willis 25 Atlanta, GA 26 for Appellee 272 MEMORANDUM OPINION 1 KENNEDY, Judge. 2 During 2004, Appellant Sharla Bradley wo rked as a billing clerk in the central 3 billing office of Appellee Lovelace Sandia HealthSystem. In September of that year, 4 she experienced a bout of severe depressi on that culminated in a failed overdose 5 attempt. Bradley sought treatment at th e Lovelace emergency room, was discharged 6 the same evening, and was ordered by her doctor to take some time off. While 7 recuperating, she determin ed that her Lovelace coworkers had accessed her medical 8 records in the computer billing system and knew of her overdose. Embarrassed, she 9 did not return to work and chose instead to file suit against Lovelace for prima facie 10 tort, intentional infliction of emotional distress, and invasion of privacy. The district 11 court dismissed her claim for prima facie to rt prior to trial and later dismissed her 12 other claims pursuant to a judgment as a matter of law. The court also refused to 13 allow her amended complaint for punitive damages and excluded hearsay testimony 14 at trial. Bradley appeals. For the reasonsset out below, we affirm the district court 15 on all issues. 16 BACKGROUND 173 Bradley began working at Lovelace as a temporary employee in July 2003. She 1 then transitioned to a permanent billing cl erk position in the central billing office in 2 January 2004. On September 6, 2004, she overdosed and was admitted to Lovelace’s 3 emergency room. Her superv isor permitted her to convale sce at home, and during that 4 time, Bradley spoke with coworker and friend, Eleanor Madrid, on the telephone. 5 Madrid asked Bradley how she was feeling, and when Bradley indicated that she felt 6 fine, Madrid asked, “Are you sure? . . . Because I heard that you were in the 7 emergency room because you had taken a lot of pills.” Bradley then asked Madrid 8 how she knew about the overdose. Madridreplied, “You know how people whisper 9 around here. . . . You know how the girls are.” Bradley unders tood “the girls” to refer 10 to her coworkers, Dolly Aragon and Grace Baca. Aragon had a reputation for 11 discussing the personal lives of other Lovelace employees, and based on a later 12 conversation with Madrid, Br adley began to suspect that Aragon and Baca had learned 13 of her overdose by improperl y accessing her medical information in the Lovelace 14 computerized billing system. 15 That her coworkers knew of her overdose embarrassed Bradley, and she quit 16 her job as a result. She reported the in cident to Becky Falance, Lovelace’s Human 17 Resources Director, and to Ann Greenberg , Lovelace’s Director of Privacy and 18 HIPAA Compliance. Falance and Greenberg then began an internal investigation. 194 They first identified each employee who had information rele vant to Bradley’s 1 complaint: Madrid, Dennis Lovato, SelenaRomero, Aragon, and Baca. They then 2 interviewed each person, and at the conclusi on of their investigation, Falance and 3 Greenberg published a report. In the report, they stated that the investigation was 4 unable to establish whether Bradley’s patient records were improperly accessed in 5 September 2004. Despite this fact, they f ound that Bradley had a habit of discussing 6 her personal health condition with coworkers and that, on other occasions, Bradley 7 and her coworkers together accessed her reco rds in order to confirm that she was 8 correctly billed for medical services . Employee Baca admitted to once accessing 9 Bradley’s file in order to obtain Bradley’s mobile phone number. The report 10 concluded that the accesses prior to September 2004 constituted violations of 11 Lovelace policies and practice and recommende d: (1) disciplinary measures against 12 all offending employees, and (2) privacy refre sher training for all employees in the 13 central billing office 14 All employees who either accessed Bradley’s record or knew of an access and 15 did not report it were disciplined by Love lace. Baca was counseled in writing for 16 accessing Bradley’s phone number, and Lovato, Romero, Madrid, and Aragon were 17 counseled orally for not reporting the violation. Lovelace conducted these 18 counselings with the aim of making “sure [the employees] understood the seriousness 195 of the allegation and what their responsibilities were as far as HIPAA.” In an October 1 2004 letter, Lovelace formally notified Bradley of the investigation’s results and 2 generally described the disc iplinary and remedial measures it took as a consequence. 3 Bradley filed suit against Lovelace on March 23, 2005. Her complaint 4 demanded compensatory damages against L ovelace for prima facie tort, intentional 5 infliction of emotional distress, and inva sion of privacy. The parties engaged in 6 discovery, and on June 2, 2006, Lovelace filed a motion for summary judgment, 7 which was granted in part when the districtcourt dismissed Bradley’s claim for prima 8 facie tort. 9 In her complaint, Bradley originally sought only compensatory damages. She 10 asked to be compensated for past and future “earnings she would have received” and 11 “mental anguish and humiliation.” After th e parties completed discovery, Bradley 12 filed a pre-trial motion in limine dated D ecember 1, 2006. In it, Bradley made clear 13 that she was seeking “lost wages, lost benefits, emo tional distress damages and 14 punitive damages .” Lovelace responded by filing a motion to dismiss Bradley’s 15 punitive damages claim as untimely. The court granted Lovelace’s motion. 16 On June 18 and 19, 2007, the district court held a jury trial. During Bradley’s 17 case in chief, she sought to admit the tes timony of Lovato. He would have testified 18 that Romero told Aragon about an improper access of Bradley’s medical records in 196 September 2004. The district court sust ained Lovelace’s objection to the testimony 1 on the basis that it was hearsay within hearsay. At the close of Bradley’s case in chief, 2 Lovelace made a motion for a judgment as a matter of law on the issue of intentional 3 infliction of emotional distress, which the district court granted. Later, at the close of 4 its own case in chief, Lovelace moved for another judgment as a matter of law on the 5 issue of whether it could be held vicarious ly liable for the intentional torts of its 6 employees and on Bradley’s claim for invasion of privacy. The district court granted 7 Lovelace’s motion on the issue of vicarious liability, and as a result, likewise granted 8 Lovelace a judgment as a matter of law on the issue of invasion of privacy. 9 Bradley appeals and argues that the district court erred in a number of ways. 10 She contends that it improperly granted Lovelace’s motion for summary judgment on 11 the issue of her prima facie to rt claim. Likewise, she clai ms that she should have been 12 given leave to amend her complaint to include a claim for punitive damages. She 13 argues that the district court improperly ex cluded the testimony of Lovato and that it 14 improperly dismissed her claim for intentional infliction of emotional distress. 15 Finally, Bradley urges us to reverse the district court’s finding that Lovelace’s 16 employees were not acting within the courseand scope of their employment, and she 17 argues that the court should not have dismi ssed her claim for invasion of privacy. We 18 analyze each argument below and affirm the district court. 197 DISCUSSION 1 1. Prima Facie Tort 2 Bradley first asserts that the district court improperly granted summary 3 judgment to Lovelace on her claim of prima facie tort. We review a district court’s 4 grant of summary judgment de novo. Self v. United Parcel Serv., Inc. , 5 1998-NMSC-046, ¶ 6, 126 N.M . 396, 970 P.2d 582. Summary judgment constitutes 6 an appropriate remedy “where there are no ge nuine issues of material fact and the 7 movant is entitled to judgment as a matter of law.” Id. When reviewing summary 8 judgments, we entertain all reasonable infere nces and view “the facts in a light most 9 favorable to the party opposing the motion.” Gushwa v. Hunt , 2008-NMSC-064, ¶ 9, 10 145 N.M. 286, 197 P.3d 1 (internal quotation marks and citation omitted). 11 The doctrine of prima facie to rt allows tort claims to proceed against defendants 12 whose tortious acts do not fit neatlywithin common law categories. Bogle v. Summit 13 Inv. Co. , 2005-NMCA-024, ¶ 22, 137 N.M. 80, 107 P.3d 520. As our Supreme Court 14 has held, prima facie tort “provides a reme dy for plaintiffs who have been harmed by 15 a defendant’s intentional and malicious act s,” even where those acts fall outside the 16 elements of traditional common law torts. Schmitz v. Smentowski , 109 N.M. 386, 394, 17 785 P.2d 726, 734 (1990). 188 Prima facie tort may be pl ed in the alternative, but if the district court 1 determines that the facts of the case would be more properly submitted under an 2 established tort, it must dismiss the claim. Id. at 396, 785 P.2d at 736. Prima facie 3 tort must “not be used to evade stringent requirements of other established doctrines 4 of law.” Bogle , 2005-NMCA-024, ¶ 22 (internal quotation marks and citation 5 omitted); Healthsource, Inc. v. X-Ray Assoc. of N.M. , 2005-NMCA-097, ¶ 35, 138 6 N.M. 70, 116 P.3d 861; Stock v. Grantham , 1998-NMCA-081, ¶ 38, 125 N.M. 564, 7 964 P.2d 125. A plaintiff’s prima facie tort claim must be dismissed if it is 8 “duplicative of . . . other claims” or used to evade “proof of esse ntial, and appropriate, 9 elements” of such claims. Stock , 1998-NMCA-081, ¶ 39. A prima facie tort will “not 10 lie when the pleaded factual basis is wi thin the scope of an established tort.” 11 Healthsource, Inc. , 2005-NMCA-097, ¶ 35. 12 Assuming the claim adequately crosses th is threshold, plaintiffs who assert 13 prima facie tort must prove the following elements: (1) the defendant committed an 14 intentional, lawful act; (2) th e act was intended to injure th e plaintiff; (3) the act did, 15 in fact, injure the plainti ff; and (4) the defendant committed the act without sufficient 16 justification. Bogle , 2005-NMCA-024, ¶ 22. In addition to these elements, courts 17 considering prima facie tort must also balance the claimed tortious conduct “against 18 its justification and the severity of the injury, weighing: (1) the injury; (2) the 199 culpable character of the conduct; and (3 ) whether the conduct is unjustifiable under 1 the circumstances.” Schmitz , 109 N.M. at 394, 785 P.2d at 734. The alleged tortious 2 conduct must also be wrongful or generallyimproper and unjustifiable in nature. Id. 3 at 394-95, 785 P.2d at 734-35. In addition to balancing these factors, New Mexico 4 courts must also consider “( 1) the nature and seriousness of the harm to the injured 5 party, (2) the nature and significance of th e interests promoted by the actor’s conduct, 6 (3) the character of the means used by the actor and (4) the actor’s motive.” Id. at 7 395, 785 P.2d at 735 (internal quotation marks and citation omitted). 8 Our examination of the record reveals no separate factual basis for Bradley’s 9 claim of prima facie tort. I ndeed, it would appear that Bradley’s prima facie tort claim 10 relies upon the exact same factual basis as her claims for intentional infliction of 11 emotional distress and invasion of privacy. In establishing all three, she cites the 12 actions of her coworkers, the alleged inac tion of Lovelace, the doctrine of respondeat 13 superior, and the harm these events caused to her. Her response to Lovelace’s motion 14 for summary judgment is illustrative. She st ated, “Therefore, if the [c]ourt determines 15 that the actions of [Lovelace] are not in violation of Ne w Mexico law for [i]nvasion 16 of [p]rivacy and [i]ntentional [i]nfliction of [e]motional [d]istress, then Plaintiff would 17 have the ability to pursue her [p]rima [f]acie [t]ort [c]laim.” 1810 Our case law firmly establishes the impropriety of such pleading. In Stock , the 1 plaintiff asserted a variety of claims, in cluding both prima facie tort and intentional 2 infliction of emotional distress. 1998-NMCA- 081, ¶ 36. As in the present case, both 3 claims were based upon identical facts, so th at the plaintiff was using prima facie tort, 4 essentially, as a fall-back claim. Id. ¶ 38. We stated that we will “not recognize a 5 claim of intentional infliction of emotional distress in the absence of the outrageous 6 conduct required for that tort, even if the plaintiff relabeled the cause of action as 7 prima facie tort.” Id. (internal quotation marks omitted) . “The only function of the 8 claim of prima facie tort in[her] complaint is to escap e possible restrictions imposed 9 on the tort[] of intentional infliction of emotional distress.” Id. 10 Bradley argues that she plead ed her claim for prima faci e tort in the alternative, 11 and as such, the district court improperly dismissed it. The issue should have gone to 12 the jury, she contends, because her coworkers’ conduct fits within the elements of 13 prima facie tort. We hold th at the district court correc tly granted Lovelace’s motion 14 for summary judgment on this issue. Foremo st, based on the facts before the district 15 court at the time it considered Lovelace’s motion, neither the conduct of Lovelace nor 16 the conduct of Bradley’s coworkers fit the elements of prima facie tort. Where 17 Bradley asserted that Lovelace improperly maintained its computersystem or failed 18 to provide HIPPA training to its employ ees, she fails to establish Defendant’s intent 1911 to injure her. See Bogle , 2005-NMCA-024, ¶ 22. Where, on the other hand, she 1 asserted her coworkers’ improper access of her records, she fails to establish a lawful 2

act

. Id. In either case, Bradley fails to establish at least one element of prima facie 3 tort, and dismissal was required by the district court as a matter of law. See Silverman 4 v. Progressive Broad., Inc. , 1998-NMCA-107, ¶ 36, 125 N.M. 500, 964 P.2d 61 5 (where we held that a distri ct court properly dismissed the plaintiff’s prima facie tort 6 claim at the summary judgment stage because the facts in th e record failed to establish 7 one element). 8 2. Punitive Damages 9 Bradley next argues that the district court erred when it refused her leave to 10 amend her pleadings with a claim for pun itive damages. She relies on Rule 1-015(A) 11 NMRA, noting that a party may amend its complaint until such time as the jury 12 receives the case. We agree in sofar as Bradley’s statement is factually correct, but her 13 reliance on Rule 1-015(A) fails to acknowledge that such amendments are granted 14 “only by leave of the court or by written c onsent of the adverse party.” Rule 1- 15 015(A). As our Supreme Court held in Constructors, Ltd. v. Garcia , the decision of 16 whether to grant a party leave to amend rest s in the sound “discretion of the [district] 17 court.” 86 N.M. 117, 118, 520 P.2d 273, 274 (1974). A district court abuses this 18 discretion when its actions exceed “the bounds of reason, all the circumstances before 1912 it being considered.” Martinez v. Ponderosa Prods., Inc. , 108 N.M. 385, 386, 772 1 P.2d 1308, 1309 (Ct. App. 1988) (emphasis omitted) (internal quotation marks and 2 citations omitted). And we will not reverse a district court’s ruling under this standard 3 unless its “decision is clearly untenable, or wh en it is clearly contrary to the logic and 4 effect of the facts and ci rcumstances of the case.” Id. (internal quotation marks and 5 citation omitted). When analyzing for abus e of discretion, we examine the entire 6 record, not only those facts that favor the plaintiff. Minor v. Homestake-Sapin 7 Partners Mine , 69 N.M. 72, 73-74, 364 P.2d 134, 135 (1961). 8 The district court did not abuse its discretion by disallowing Bradley’s punitive 9 damages claim. In her original comp laint, dated March 23, 2005, Bradley sought 10 relief for prima facie tort, intentional inf liction of emotional di stress, and invasion of 11 privacy. As compensation, she asked the court to award compensatory damages for 12 past and future “earnings she would havereceived” and for “mental anguish and 13 humiliation.” 14 Bradley never formally moved for leave to amend her complaint. She waited 15 until discovery was complete and then in cluded a claim for punitive damages in her 16 motion in limine. Neither did she demons trate any intent to seek punitive damages 17 during the discovery phase of the case, nor have we locatedany facts in the record to 18 suggest that any new evidence prompted her claim. Lovelace’s interrogatory No. 6, 1913 asked Bradley to “[i]dentify with specific ity and particularity each and every element 1 and item of damage . . . that you contend you are entitled to recover.” In her response, 2 Bradley stated her intent was to seek “L ost Wages, Benefits, Emotional Distress, and 3 Costs.” She made no mention of punitive damages. Likewise, during her deposition, 4 Bradley never mentioned punitive damages. 5 A year and a half after her original complaint, after the conclusion of discovery, 6 Bradley raised the issue of punitive damage s in passing, in her pre-trial motion in 7 limine filed on December 1, 2006. In that document, which purported to state the 8 “factual basis of plaintiff’s claims,” Bradley made clear that she was seeking “lost 9 wages, lost benefits, emotional distress damages and punitive damages.” Naturally, 10 Lovelace was somewhat caught off-guard by this new development, and on December 11 27, 2006, it filed a motion to dismiss Brad ley’s punitive damages claim as untimely. 12 Prior to trial, the court denied Brad ley’s request to seek punitive damages. 13 Thus, in this case, the district court refused to consider a claim for punitive 14 damages—raised months after the conclu sion of discovery—where no new evidence 15 had arisen to implicate such damages. Br adley never filed a formal motion to amend 16 under Rule 1-015(A). Not having pled a cl aim for punitive damages, and having only 17 implied such a claim’s existence, the district court was well within its discretion when 18 it barred her tardy attempt toassert one. We cannot say that such a refusal 191 Lovelace denies that its employees acce ssed Bradley’s records in September 17 of 2004 and points to its intern al investigation for support. The district court never 18 reached the issue, assuming as it did, thateven if Bradley’s coworkers did access her 19 records in September 2004, they were acting outside of the courseand scope of their 20 employment. 21 14 contravenes the bounds of reason and logic, su ch as to create an abuse of discretion. 1 We affirm. 2 3. Vicarious Liability 3 We consider now the issue of vicarious liability because it constitutes the 4 dispositive basis upon which all remaining issues depend. Bradley argues that 5 Lovelace should be held vicariously liable for the actions of its employees and 6 contends that the district court ruled im properly that Lovelace was not liable as a 7 matter of law. She puts forward a twofold argument. First, she asserts that her 8 coworkers acted within the course and sc ope of their employment when they viewed 9 her private medical information. Second, she argues that even if her coworkers were 10 acting outside the course and scope of their employment, Lovelace ratified or 11 condoned their conduct by not taking more decisive disciplinary, preventative, and 12 remedial actions. 13 At the close of Lovelace’s case in chief, the district court entered a directed 14 verdict that Bradley’s coworkers were not ac ting within the courseand scope of their 15 employment and that Lovelace did not ratify their conduct. 1 Such verdicts are granted 1615 when “there is no legally sufficient eviden tiary basis for a reasonable jury to find in 1 favor of a party.” Hedicke v. Gunville , 2003-NMCA-032, ¶ 9, 133 N.M. 335, 62 P.3d 2 1217 (filed 2002). We review a district court’s entry of a directed verdict de novo. 3 Id. 4 A. Course and Scope of Employment 5 Bradley argues that her coworkers actedin the course and scope of their 6 employment with Lovelace wh en they improperly accessed her medical information. 7 She contends that, at the ve ry least, reasonable minds could differ, and therefore the 8 issue should have been submitted to the jury. Generally, an employer bears no 9 liability for the intentional torts of an employee. Ocana v. Am. Furniture Co. , 2004- 10 NMSC-018, ¶ 29, 135 N.M. 539, 91 P.3d 58. However, an employer may be held 11 liable when its employees commit intentional torts in the course and scope of their 12 employment. Los Ranchitos v. Tierra Grande, Inc. , 116 N.M. 222, 226, 861 P.2d 263, 13 267 (Ct. App. 1993). Employees commit intentional torts within the course and scope 14 of their employment when their acts are “naturally incident to the business” for which 15 they were employed and are done“with a view to further the [employer’s] interests.” 16 Id. (internal quotation marks and citation omitted). An employee’s intentional torts 17 are not within the course and scope of employment when they “arise wholly from 18 some external, independent, and pers onal motive” done “upon his own account.” Id. 1916 (emphasis omitted) (internal quotation marks and citation omitted). Committing an 1 intentional tort on company time, from one’s seat on company premises, does not 2 necessarily mean the tort was committed w ithin the course and scope of employment. 3 The question of whether an employee acted w ithin the course and scope of his duties 4 is usually a question of fact, but when no reasonable trier of fact could differ on the 5 issue, a district court may grant judgment as a matter of law. Rivera v. N.M. Highway 6 & Transp. Dep’t , 115 N.M. 562, 564, 855 P.2d 136, 138 (Ct. App. 1993). 7 In Rivera , the plaintiff sought to impose vicarious liability on his employer, the 8 New Mexico Highway and Tr ansportation Department. Id. at 563, 855 P.2d at 137. 9 While working on a highway project, the plaintiff and his coworkers took a break 10 while awaiting more materials to finish the job. During this lull in the work, one of 11 the plaintiff’s coworkers threw a container of water at the plaintiff and prompted him 12 to jump out of the way. In so doing, th e plaintiff entered the roadway and was struck 13 by a vehicle. Id. The defendant had pub lished rules, prior to the incident, prohibiting 14 such conduct. Id. The district court held that th e defendant was not liable because its 15 employee was not acting within the course and scope of his du ties; and although the 16 issue at trial was whether the defendant had waived sovereign immunity under the 17 New Mexico Tort Claims Act, we re viewed the case under the more stringent 18 requirements of respondeat superior. Id. at 563-64, 855 P.2d at 137-38. We held that 1917 the employee tortfeasor was not acting withinthe course and scope of his employment 1 because “the act of throwing water on [the p]laintiff . . . was not done with a view of 2 furthering the employer’s interest” and arose “from purely personal motives.” Id. at 3 564, 855 P.2d at 138; Los Ranchitos , 116 N.M. at 226, 861 P.2d at 267; Benham v. All 4 Seasons Child Care, Inc. , 101 N.M. 636, 638, 686 P.2d 978, 980 (Ct. App. 1984). 5 Bradley introduced no evidence at trial to indicate that her coworkers accessed 6 her records with the purpose of furthering the interests of Lovelace. Her case in chief 7 included only evidence that her coworkers accessed her records. Because she 8 presented no evidence at trial that her coworkers were furthering Lovelace’s interests 9 at the time of the access, no reasonable factfinder could conclude that they were 10 acting within the boundaries of their employmen t. Accordingly, we affirm the result 11 reached by the district court on the issue of course and scope. 12 B. Employer Ratification or Assent 13 Bradley contends that even if we hold against her on the issue of course and 14 scope, we should neverthele ss hold Lovelace liable becau se it ratified and condoned 15 the tortious conduct of its employees. Even where an empl oyee acts outside the 16 course and scope of his employment, the employer may still be heldliable if it assents 17 to or ratifies the conduct. See Los Ranchitos , 116 N.M. at 226, 861 P.2d at 267. As 18 with course and scope, ratifi cation is generally a matter of factual determination for 1918 the jury except where reasonable minds could not differ. N. v. Pub. Serv. Co. of N.M. , 1 97 N.M. 406, 409, 640 P.2d 512, 515 (Ct. App. 1982). 2 Bradley argues that Lovelace ratifie d its employees conduct by failing to 3 conduct proper employee training prior to the event, by failing to maintain a more 4 secure computer system, and by failing to adequately discipline the guilty employees 5 after the event. She introduced evidence, that although Lovelace employees received 6 training on the impropriety of accessing patient files, Lovelace’s training program was 7 somewhat less intensive than programs o ffered by other hospitals. The court also 8 heard evidence concerning the Lovelace co mputer system, which was incapable of 9 automatically detecting whether an im proper access had occurred. And although 10 Bradley asserts that Lovelace failed to disc ipline the employees for their conduct, the 11 record clearly indicates that Baca receive d a written reprimand for accessing Bradley’s 12 file on another occasion and that all other employees who faile d to report improper 13

accesses were orally reprimanded. 14 Lovelace argues that it did not ratify the conduct of its employees, and at trial 15 it offered evidence that it had preventative measures in place prior to the event, that 16 its computer system was password protected, that remedial measures were taken after 17 the incident, and that all offending employ ees were disciplined. All new employees 18 at Lovelace were familiarized with privacy procedures at the time of hiring and were 1919 required to sign a statement that they had read the code of c onduct, which prohibited 1 improper access of patient records. Acce ss to the Lovelace computer system was 2 password protected, and all employees were re quired to log off when they left their 3 desk. Also, employees were only given acce ss to those areas of the computer system 4 required by their individual positions. Upon being notified of Bradley’s complaint, 5 Lovelace conducted an internal investigation into the matter, and although it was 6 unable to determine if an improper acce ss occurred in September 2004 it determined 7 that other improper accesses had otherwise occurred and disciplined those employees 8 accordingly. After Bradley’s complaint, Lovelace also conducted mandatory privacy 9 training for all 300 employees in its central billing office. 10 Bradley cites no case law to support her position that Lovelace’s acts or failures 11 to act constituted a ratification. We th erefore assess only the evidence before the 12 district court and hold that reasonable minds could not differ on whether Lovelace 13 ratified the conduct of its employees. In f act, the evidence presen ted at trial indicates 14 just the opposite. Both before and after the events which gave rise to this appeal, 15 Lovelace took measures to prevent improper access of patient files, and we hold that 16 the district court properly granted a directed verdict on this issue. 17 4. Hearsay Testimony 1820 We now consider Bradley’s argument th at certain testimony of Lovato was 1 erroneously excluded as hearsay. Bradley offered Lovato’s testimony to prove that 2 her medical information was improperly accessed. Lovato would have testified that 3 Romero told Aragon about Bradley’s filebeing accessed. Lovelace objected on the 4 basis that the evidence was hearsay withinhearsay], and after an extended exchange 5 outside the hearing of the jury, the court sustained on that basis. Both Aragon and 6 Romero denied that theymade the statements. 7 We review the exclusion of evidence at trial for abuse of discretion. Coates v. 8 Wal-Mart Stores, Inc. , 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P.2d 999. The party 9 against whom the district court ruled mu st prove on appeal that the “exclusion of 10 evidence was prejudicial in order to obtain a reversal.” Cumming v. Nielson's, Inc. , 11 108 N.M. 198, 204, 769 P.2d 732, 738 (Ct. App. 1988). We will not hold that a 12 district court abused its discretion “unless we can characterize [its ruling] as clearly 13 untenable or not justified by reason.” State v. Rojo , 1999-NMSC-001, ¶ 41, 126 N.M. 14 438, 971 P.2d 829 (filed 1998) (internal quot ation marks and citation omitted). 15 Bradley argues that the district court in correctly classified Lovato’s testimony 16 as hearsay within hearsay. The hearsay rule does not apply, Bradley contends, 17 because the statements of both Aragon and Romero were those of party opponents and 18 were therefore not hearsay. In support of her argument, she cites Rule 11- 1921 801(D)(2)(d) NMRA and Rule 11-805 NMRA. Rule 11-805 provides that “[h]earsay 1 included within hearsay is not excluded under the hearsay rule if each part of the 2 combined statements conforms with an exception to the hearsay rule provided in these 3 rules.” Rule 11-801(D)(2)(d) provides that statements made by a “party’s agent or 4 servant concerning a matter within the sc ope of the agency or employment, made 5 during the existence of the relationship” qualify as statements by a party opponent, 6 and therefore, are not hearsay. 7 The district court found Lovato’s testimony to be hearsay within hearsay, and 8 we agree. Bradley’s argument would be persuasive if Aragon and Romero had been 9 speaking of “a matter within th e scope” of their employment. Id . But they were not 10 discussing such a matter. They were di scussing the fact that Bradley’s personal 11 medical information had been improperly accessed. And as weheld above in our 12 analysis of respondeat superior, Bradley’s information—assuming it was 13 accessed—was accessed by her coworkers outsi de the course and scope of their 14 employment. Any discussion of it was likewise outside the course and scope of 15 employment. Thus, we cannot hold that the district court abused its discretion when 16 it excluded the testimony. We affirm. 17

5. Intentional Infliction of Emotional Distress 1822 At the conclusion of Bradley’s case inchief, Lovelace moved for a directed 1 verdict on her claim for intentional infliction of emotional distress. The district court 2 granted the motion on the basis that Love lace’s actions were not “extreme and 3 outrageous” and therefore failed the elements of the tort. Bradley argues that the 4 district court’s ruling was improper and that she presented sufficient evidence to 5 support her claim. We agree with Bradley, insofar as the basis upon which the district 6 court granted Lovelace’s motion was faulty. Nevertheless, we affirm because the 7 district court was “right for the wrong reason.” Capco Acquisub, Inc. v. Greka Energy 8 Corp. , 2008-NMCA-153, ¶ 35, 145 N.M. 328, 198 P.3d 354. We review a district 9 court’s entry of a directed verdict do novo. Hedicke , 2003-NMCA-032, ¶ 9. 10 In order to state a cl aim for intentional infliction of emotional distress, a 11 plaintiff must establish: (1) the extreme and outrageous natureof the defendant’s 12 conduct, (2) that the defendant acted intentionally or withreckless disregard for the 13 plaintiff, (3) that the plaintiff’s mental distress was extreme and severe, and (4) that 14 the plaintiff’s emotional distress wa s caused by the defendant’s conduct. Trujillo v. 15 N. Rio Arriba Elec. Coop. , 2002-NMSC-004, ¶ 25, 131 N.M. 607, 41 P.3d 333 (filed 16 2001). Our caselaw defines extreme and outrageous conduct as conduct that “is so 17 outrageous in character, and so extreme in degree, as to go beyond all possible bounds 18 of decency, and to be regarded as atroci ous, and utterly intolerable in a civilized 1923 community.” Id. (internal quotation marks and citation omitted). When deciding 1 whether a claim may go forward under the tort of intentional infliction of emotional 2 distress, the district “court should determine as a matter of law whether the conduct 3 at issue reasonably may be regarded as soextreme and outrageous that it will permit 4 recovery.” Id. ¶ 26 (internal quotation marks and citation omitted). If reasonable 5 minds could differ on whether the facts meet this standard, the district court should 6 allow the case to proceed. Id. 7 In her case in chief, Bradley attempted to establish that the actions of her 8 coworkers were extreme and outrageous. Sh e then sought to prove that those actions 9 were either done in the cour se and scope of employment or were ratified by Lovelace. 10 The district court was therefore required to determine, first, whether the employees’ 11 conduct was extreme and outrageous, and second, whether Lovelace ratified or 12 condoned it. But at the time it announced its ruling, the district court had done 13 neither. It considered the employees’ alleged outrageous c onduct to be of no 14 consequence. The court stated, “looking . . . up [someone’s private medical records] 15 might be [extreme and outrageous], but you didn’t sue the people who looked them 16 up. The question is whether what Love lace did, if anything, was extreme and 17 outrageous.” The court then went on to analyze Lovelace’s conduct, finding that it 18 was neither extreme nor outrageous. But the c ourt confused its analysis of intentional 1924 infliction of emotional distress with the doctrine of respondeat superior, as the 1 following statement by the court illustrates: 2 “Well, the intentional infliction of emotional distress, to tell you the 3 truth, I am inclined to grant [L ovelace’s] motion. The only way you 4 think that they may have condoned [the behavior of their employees] is 5 because they didn’t have a tracking sy stem, and I am not prepared to say 6 that not having a tracking system is extreme and outrageous conduct.” 7 The record indicates that the district court erroneously analyzed this issue. The 8 court should have first determined whether Bradley’s evidence was sufficient to 9 support the claim that her coworkers acted outrageously. Next, the court should have 10 turned to the issue of respondeat superior, orfailing that, left the issue to be decided 11 later in the trial. Instead, the court refu sed to consider whether Lovelace’s employees 12 acted outrageously and focused on the actions of Lovelace. The actions of Lovelace, 13 however, were only relevant to the extent they tended to prove Lovelace’s ratification 14 of its employees’ allegedly outrageous acts. It was therefore improper to analyze them 15 under the extreme and outrageous standard. 16 Though the district court analyzed this issue improperly, it’s faulty analysis was 17 cured later when it found that as a matter of law Lovelace was not vicariously liable 18 for the actions of its employees. We may affirm a district court where it is right for 19 the wrong reason, and we do so here. Capco Acquisub, Inc., 2008-NMCA-153, ¶ 35; 20 see Romero v. Prince , 85 N.M. 474, 476, 513 P.2d 717, 719 (Ct. App. 1973). 2125 6. Invasion of Privacy 1 Finally, we review Bradley’s argument that the district court improperly 2 dismissed her claim for invasion of privacy as a matter of law. She contends that the 3 actions of her coworkers constituted a publication of private facts, and as such, the 4 issue should have been submitted to the jury. We review a district court’s entry of a 5 directed verdict do novo. Hedicke , 2003-NMCA-032, ¶ 9. 6 Bradley offered no evidence at trial that Lovelace, itself, published her private 7 facts. Her theory instead focused on proving the culpability of her coworkers and 8 imputing it to Lovelace through the doctrine of vicarious liability. Above, we held 9 that the district court correctly found that as a matter of law Lovelace neither ratified 10 nor condoned the conduct of its employees in th is case. Likewise, we held that the 11 district court properly found that those empl oyees were not acting in the course and 12 scope of their employment at the time th ey accessed Bradley’s private information. 13 Based on the evidence presente d at trial, vicarious liability would be the only way to 14 sound a valid claim against Lovelace for i nvasion of privacy. Accordingly, because 15 we hold that Lovelace is not vicariously liable, we affirm the distri ct court’s dismissal 16 of Bradley’s invasion of privacy claim. 1726 CONCLUSION 1 We affirm on all issues and hold that th e district court: (1) properly granted 2 summary judgment to Lovelace on Bradley’s claim of prima facie tort; (2) did not 3 abuse its discretion when it denied Bradley leave to amend her complaint with a claim 4 for punitive damages; (3) properly held th at, as a matter of law, Lovelace was not 5 vicariously liable for the intentional torts of its employees; (4) did not abuse its 6 discretion when it refused to allow hearsay within hearsay evidence at trial; (5) 7 properly dismissed Bradley’s intentional in fliction of emotional distress claim; and 8 (6) properly dismissed Bradley’s invasion of privacy claim. 9 IT IS SO ORDERED. 10

11 RODERICK T. KENNEDY, Judge 12 WE CONCUR: 13

14 JAMES J. WECHSLER, Judge 15

16 MICHAEL E. VIGIL, Judge 17