This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

ESTATE OF DANIEL RALPH GUTIERREZ, 2 by and through his personal representative, 3 JANET JARAMILLO, individually, and as 4 Next Friend of SAGE GUTIERREZ, 5 JORDAN GUTIERREZ, and 6 NOAH GUTIERREZ, minors, 7 Plaintiffs-Appellees, 8

v. NO. 28,799 9 METEOR MONUMENT, LLC 10 d/b/a ALAMEDA METEOR, 11 Defendant-Appellant. 12

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 13 Timothy L. Garcia, District Judge 14 Vigil Law Firm, P.A. 15 Jacob G. Vigil 16 Albuquerque, NM 17 for Appellees 18 Domenici Law Firm, P.C. 19 Pete V. Domenici, Jr. 20 Lorraine Hollingsworth 212 Albuquerque, NM 1 for Appellant 2

MEMORANDUM OPINION 3 WECHSLER, Judge. 4 This appeal concerns the jury verdict against Defendant Meteor Monument, 5 L.L.C. (Meteor) resulting from an automobile accident involving Defendant Dean 6 Durand and Daniel Gutierrez that resulted in Gutierrez’s death. Estate of Gutierrez 7 ex rel. Jaramillo v. Meteor Monument, L.L.C. , 2012-NMSC-004, ¶ 1, 274 P.3d 97. 8 The district court proceeding concluded in a jury verdict for Plaintiffs Estate of Daniel 9 Ralph Gutierrez and Janet Jaramillo, individuallyand as next frie nd of Sage Gutierrez, 10 Jordan Gutierrez, and NoahGutierrez (Plaintiffs). Id. ¶ 2. This Court reversed the 11 verdict with respect to Meteor’s dram shop liability and remanded to the district court 12 to conduct a new trial with respect to Plai ntiffs’ negligent hiring, retention, and 13 supervision claim (negligen t supervision claim). Id. ¶ 4. We concluded that 14 Plaintiffs’ vicarious liability claim was not argued to the jury, and we did not address 15 Plaintiffs’ punitive damages claim because of our holding on the negligent hiring 16 claim. Id. 17 We now consider this appeal on re mand from our Supreme Court, which 18 reversed our opinion and instructed that we address the issues concerning punitive 193 damages. Id. ¶ 5. In this regard, Meteor argues that the district court erred in (1) 1 refusing to dismiss the punitive damages cl aim against it because the award was not 2 supported by an established cause of ac tion; (2) refusing to disallow the punitive 3 damages award because there was no eviden ce of ratification or reckless or wanton 4 conduct by Meteor; and (3) refusing to disallow or remit the punitive damages. The 5 opinions of this Court and our Supreme Court discuss the facts of this appeal, and we 6 only discuss the facts underlying this opinion as necessary. We affirm. 7 ESTABLISHED CAUSE OF ACTION 8 After the jury verdict, Me teor moved the district court to dismiss the punitive 9 damage award because Plaintiff Estate of Daniel Ralph Gutierrez failed to establish 10 a claim for employer liability. On appeal, Meteor argues that “there was no evidence 11 to support a finding that [Defendant Dean ] Durand was within the scope of his 12 employment [with Meteor] at th e time of the accident,” and, therefore, “there was no 13 basis for punitive damages.” 14 The only claim before us concerning the punitive damages award is that for 15 negligent hiring, retention, and supervisi on; Plaintiff did not challenge our holding 16 concerning the vicarious liability claim in its appeal to our Supreme Court. Id. ¶ 4. 17 A negligent supervision claim is different from a claim based on vicarious liability. 18 Negligent supervision requires an “employer’s negligent acts or omissions in hiring 194 or retaining an employee when the employer knows or should know, through the 1 exercise of reasonable care, that th e employee is incompetent or unfit.” Lessard v. 2 Coronado Paint & Decorating Ctr., Inc. , 2007-NMCA-122, ¶ 28, 142 N.M. 583, 168 3 P.3d 155. A negligent supervision claim does not depend on the employer’s vicarious 4 responsibility “for the employee’s neg ligent acts under a theory of respondeat 5 superior.” Id. 6 In the district court, the parties reque sted a jury instruction concerning scope 7 of employment. Estate of Gutierrez , 2012-NMSC-004, ¶ 26. Th e district court gave 8 the instruction as modified by Meteor. Id. ¶ 27. In response to two separate jury 9 questions during deliberations, the district court, with the consent of the parties, stated 10 that it was necessary for the jury to find that Durand was acting within the scope of 11 his employment for the jury to (1) find Me teor liable and (2) assess punitive damages. 12 Id. ¶ 28. 13 Although the answers to these jury que stions may not have been accurate, see 14 Lessard, 2007-NMCA-122, ¶ 28, we do not believe that they materially impacted the 15 jury’s verdict. As our Supreme Court noted in discussing Plaintiffs’ negligent 16 supervision claim, “scope of employment may . . . be a factor” in a negligent 17 supervision claim. Estate of Gutierrez , 2012-NMSC-004, ¶ 25. Indeed, the answers 18 may have added an element for the jury tofind before it could find liability or award 195 punitive damages. Its verdict indicates that it made such additional findings. 1

METEOR’S CONDUCT 2 Meteor further argues that the districtcourt should have disallowed the punitive 3 damages award because there was no eviden ce that Meteor either ratified Durand’s 4 action or that it engaged in reckless or wanton conduct. We address each argument 5 in turn. 6 Scope of Employment and Ratification 7 Meteor first argues that the punitive damages award against it for the tortious 8 conduct of Durand as its employee is improper because there was no showing that 9 Durand acted within the scope of his empl oyment and that Meteor participated in, 10 authorized, or ratified Durand’s tortious conduct. Meteor again emphasizes the 11 district court’s response to the jury that it could award punitive damages only if it 12 found that Durand was acting within the scopeof his employment at the time of the 13 accident. 14 However, we do not agree that scope of employment or participation, 15 authorization, or ratification pertain toa claim based on Durand’s tortious conduct. 16 Plaintiffs’ claim of negligent hiring was for direct, not vicarious, liability. As we have 17 discussed, although Durand’s ac ting within the “scope of [his] employment may . . . 186 be a factor” in a negligent supervision clai m, it is not an element of the claim. Estate 1 of Gutierrez , 2012-NMSC-004, ¶ 25. Plaintiffs’ negligent supervision claim did not 2 depend on whether Durand acted within th e scope of his employment or whether 3 Meteor participated in, authorized, or ratif ied Durand’s tortious conduct. It required 4 only that, during Durand’s employment with Meteor, Meteor became aware or should 5 have become aware of problems with Durand “that indicated his unfitness,” that 6 Meteor failed “to take further action such as investigating, discharge or 7 reassignment[,]” and that Pl aintiffs’ damages were cau sed by Meteor’s negligent 8 hiring, retention, or supervision of Durand. The punitive damages award is not 9 deficient because of lack of evidence c oncerning scope of employment or Meteor’s 10 participation, authorization, or ratification. 11 Reckless or Wanton Conduct of Meteor 12 On the other hand, the punitive damages award did require evidence of reckless 13 of wanton conduct on the part of Meteor. See Peters Corp. v. N.M. Banquest 14 Investors Corp. , 2008-NMSC-039, ¶ 44, 144 N.M. 434, 188 P.3d 1185 15 (acknowledging that proof of “evil motive or culpable mental state” is required for 16 punitive damages (internal quotation mark s and citation omitted)). The jury 17 instructions defined “reckless conduct” as “the intentional doing of an act with utter 18 indifference to the conseque nces[,]” and “wanton conduct” as “the doing of an act 197 with utter indifference to or conscious di sregard for a person’s rights and/or safety.” 1 There was evidence that Meteor empl oyed Durand at its convenience store to 2 maintain the premises. Durand regularly consumed alcoholic beverages at the 3 premises and purchased alcoholic beverages atthe store. He “was usually intoxicated 4 by 3:00 or 4:00 p.m.” On the day of th e accident, Durand consumed seven 12-ounce 5 cans of beer at the premises. He additionally purchased two 24-ounce cans of malt 6 liquor early that afternoon. He drank one and exchanged the other for a cold can at 7 around 6:00 p.m. The accident occurred thereafter when Durand was returning to the 8 convenience store after driving a customer home. Meteor knew of Durand’s drinking 9 habits and intoxication. The evidence wa s sufficient for a jury to conclude that 10 Meteor acted recklessly or wantonly withrespect to its hiring, retention, or 11 supervision of Durand. 12 EXCESSIVE PUNITIVE DAMAGES 13 Meteor lastly argues that the district c ourt erred in refusing to remit or disallow 14 the punitive damages award because it was ex cessive and a result of jury passion and 15 prejudice. According to Meteor, the award violated the requirements of due process. 16 We address the issue under de novo revie w, independently assessing the record. See 17 Aken v. Plains Electric Generation & Transmission Coop., Inc. , 2002-NMSC-021, ¶ 18 17, 132 N.M. 401, 49 P.3d 662. 198 The jury awarded Plaintiffs $4,550,000 in compensatory damages. It 1 apportioned fault sixty percent to Meteor and forty percent to Durand. It awarded 2 punitive damages of $10,000,000 against Meteor and $10,000 against Durand. 3 With regard to Meteor’s dueprocess concern, it is our obligation to ensure that 4 “the measure of punishment is both reasonable and proportionate to the amount of 5 harm to the plaintiff and to th e general damages recovered.” State Farm Mut. Auto. 6 Ins. Co. v. Campbell ( State Farm ), 538 U.S. 408, 426 (2003). To do so, we analyze 7 the factors discussed in BMW of North America, Inc. v. Gore , 517 U.S. 559, 574 8 (1996). Aken , 2002-NMSC-021, ¶ 19. As relevant to this case, they are: (1) the 9 degree of reprehensibility of the defendant’s conduct; and (2) the disparity between 10 the harm (or potential harm) suffered by the plaintiff and the punitive damages award. 11 Id. ¶ 20. 12 As to the first factor, the eviden ce establishes a significant degree of 13 reprehensibility. There was evidence that Meteor hired Durand with knowledge of his 14 propensity to drink and driv e and allowed him to work and remain on the convenience 15 store premises while he regularly cons umed liquor and became intoxicated, knowing 16 that he would drive when leaving the premises. Moreover, Meteor sold Durand beer 17 on the day of the accident. The dangers of drinking and driving are well known. 18 Mendoza v. Tamaya Enters., Inc. , 2011-NMSC-030, ¶ 35, 150 N.M. 258, 258 P.3d 199 1050 (recognizing the “senseless havoc and destruction caused by intoxicated 1 drivers” (internal quotation marks and citation omitted)). Meteor’s actions 2 demonstrated an indifference to and a reck less disregard for the health and safety of 3 others—drivers and passengers whom Durand would encounter when leaving the 4 convenience store premises. See Jolley v. Energen Res. Corp. , 2008-NMCA-164, ¶ 5 32, 145 N.M. 350, 198 P.3d 376 (analyzing the types of conduct that determine 6 reprehensibility). 7 As to the second factor, Plaintiffs suffere d extraordinary injury and death as the 8 result of the accident at issu e in this case. The jury awarded compensatory damages 9 in the amount of $4,550,000 and allocated si xty percent, $2,730,000, to Meteor. As 10 in Jolley , we do not determine whether it is appropriate to consider the entire 11 compensatory damages award or only Mete or’s portion in reviewing Meteor’s due 12 process argument. Jolley , 2008-NMCA-164, ¶ 36. Rather, we consider whether the 13 amount of the punitive damages award reflects the limited purposes of punishment 14 and deterrence and whether the amount of an award is “so unrelated to the injury and 15 actual damages proven as to plainly manife st passion and prejudice rather than reason 16 or justice.” Id. (internal quotation marks and citation omitted.) 17 Analysis of the evidence inthis case does not indicate that the punitive damages 18 award was excessive in relation to the injury and compensatory damage award. 1910 Plaintiffs’ decedent, age 32, was struck and injured in a head-on crash while his 1 motorcycle was stopped at an intersection. He later died. The jury attributed sixty 2 percent comparative fault to Meteor. Evenif it is appropriate for this Court to 3 consider only the compensatory damages attributed to Meteor, the ratio of punitive 4 damages to the harm suffered as quantified by the jury is 3.67 to 1. The amount was 5 not excessive in the circumstances. 6 Nor must we reverse because the jury did not award a le sser ratio in view of the 7 amount of its compensatory damage awar d. Meteor cites to the language of State 8 Farm , 538 U.S. at 425. In that case, the Un ited States Supreme Court addressed the 9 lack of rigid benchmarks or ratios whenexamining the due process requirements of 10 a punitive damage award. Id. It had noted the 4 to 1 ratio in Gore , 517 U.S. at 581, 11 and noted the likelihood that single digit multipliers would comport with due process. 12 State Farm , 538 U.S. at 425. In this context, the Court observed that when economic 13 damages were small, a higher ratio may beappropriate, and, conversely, “[w]hen 14 compensatory damages are substantial, then a lesser ratio, perhaps only equal to 15 compensatory damages, can reach the outermost limit of the due process guarantee.” 16 Id. This latter language re lied on by Meteor does not es tablish any requirement on 17 which this Court can rely. Rather, it states only broad guidelines for a due process 18 analysis. 1911 Meteor also argues that the punitiv e damages award was excessive by 1 contrasting it to the $10,000 punitive damage s award against Durand. According to 2 Meteor, “[t]here is no reas onable basis for the discrepancy in the amount of punitive 3 damages, particularly given the fact that the actions of Durand were the direct cause 4 of . . . Plaintiffs’ damages.” Regardless of whether Durand was the direct cause of the 5 accident, the jury determined that Mete or’s conduct contributed sixty percent to 6 Plaintiffs’ damages. As to the discrepancy between the punitive damages awarded 7 against Meteor and Durand, a jury is entitle d to consider the fi nancial condition of a 8 defendant in reaching a punitive damages award. Cf. Gonzales v. Sansoy , 103 N.M. 9 127, 131, 703 P.2d 904, 908 (C t. App. 1984) (holding that the introduction of 10 defendant’s financial statement was relevant and admissible to the issue of punitive 11 damages). Moreover, the issue for us on appeal does not address the award against 12 Durand. The jury was entitled to decide th at the larger award against Meteor better 13 served the purposes of punishment and deterre nce. As we have discussed, the award 14 against Meteor does not violate due process guidelines. 15 CONCLUSION 16 We affirm the punitive damages award against Meteor. 17 IT IS SO ORDERED. 1812 ____________ ___________ _________ 1 JAMES J. WECHSLER, Judge 2

WE CONCUR: 3

__________________________________ 4 CELIA FOY CASTILLO, Chief Judge 5

__________________________________ 6 MICHAEL D. BUSTAMANTE, Judge 7