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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

ESTATE OF DANIEL RALPH GUTIERREZ, 7 by and through his personal representative, 8 JANET JARAMILLO, individually, and as 9 Next Friend of SAGE GUTIERREZ, JORDAN 10 GUTIERREZ, and NOAH GUTIERREZ, Minors, 11 Plaintiffs-Appellees, 12

v. NO. 28,799 13 METEOR MONUMENT, LLC 14 d/b/a ALAMEDA METEOR and 15 METEOR STORES, INC., 16 Defendant-Appellant. 17

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 18 Timothy L. Garcia, District Judge 19 Vigil Law Firm, P.A. 20 Jacob G. Vigil 21 Albuquerque, NM 22 for Appellees 23 Domenici Law Firm, P.C. 24 Pete V. Domenici, Jr. 25 Lorraine Hollingsworth 26 Albuquerque, NM 272 for Appellant 1

MEMORANDUM OPINION 2 WECHSLER, Judge. 3 Defendant Meteor Monument, LLC appeal s the district court’s denial of its 4 motion for directed verdict, renewed mo tion for directed verdict, motions for 5 judgment as a matter of law, and motion for a new trial. Defendantargues, as it did 6 at every stage, that no reasonable jury could find that Dean Durand (Durand) was 7 acting within the scope of his employmen t with Conoco Convenience Store (Conoco), 8 owned by Defendant, at the time of the acci dent at issue in this case and that, 9 therefore, no reasonable jury could find against Defendant on a vicarious liability 10 claim. Defendant also claims that a negligent hiring claim was inappropriately 11 presented to the jury because of the fo cus of the trial on scope of employment. 12 Defendant further argues that no reasonable jury could find against Defendant on the 13 liquor license liability claim because th ere was no evidence that any employee of 14 Defendant knew that Durand was intoxicated when it sold or served him alcohol on 15 the day of the accident. Defendant finally argues that the punitive damages cannot 16 stand because there was no established legal theory upon which they can be imposed, 17 and, at the very least, they are exce ssive and violate due process concerns. 183 At oral argument before this Court, Pl aintiffs asserted that the case was a 1 negligent hiring case from beginning to end. However, direct liability and vicarious 2 liability were confused at trial, it was not cl ear which claim was being tried, and at the 3 end of the trial, it was not clear which claim was actually presented to the jury. 4 Therefore, we reverse and remand to the district court for a new trial on the negligent 5 hiring claim. Additionally, we agree withDefendant that no reasonable jury could 6 have found against Defendant on the liquor li cense liability claim, and we therefore 7 reverse that claim. Because we reverse and remand on the empl oyment liability claim, 8 we do not reach the questions pertaining to punitive damages. 9 BACKGROUND 10 In August 2003, Kawaljit (Nena) Br ackeen, the manager of Conoco in 11 Albuquerque, New Mexico, hired Durand on a temporary basis, paying him cash from 12 the register, to help with cleaning the parking lot until Brackeen was able to find 13 someone else that she could formally employ. Durand’s duties were limited to 14 Conoco’s parking lot, including cleaning in the lot and on the exterior premises of 15 Conoco, but not including use of his personal vehicle, a Ford Bronco. Durand had a 16 history of drinking alcoholic beverages while on Conoco premises, of which Brackeen 17 was aware. On August 31, 2003, Durand was at Conoco for much of the day, cleaning 18 his personal truck and doing “prep work” in anticipation of work the next morning. 194 Durand drank seven 12-ounce cans of beerwhile on Defendant ’s property and bought 1 two 24-ounce cans of “high octane” beer at the Conoco store after lunch. Later that 2 evening, around 6:00 p.m., after having cons umed one of the “high octane” beers, 3 Durand exchanged the other for a cold one. 4 Around 7:00 p.m. that evening, Durand le ft Defendant’s property in his Bronco 5 with another individual to give that person a ride home. The individual regularly 6 spent time at Conoco and was known to regularly purchase alcohol there as well. 7 Durand testified that, in taking the indivi dual home, he was not “doing any service or 8 providing any benefit to [Conoco].” Upon dropping off the individual, the individual 9 asked Durand if he would “ like to do about a 15-unit shot” of heroin. Durand agreed 10 and stated that, initially, he felt “normal” and “fine” after injecting the heroin. Durand 11 then informed the individual that he needed to return to Conoco to finish doing his 12 prep work and cleaning the islands. Also, at some point before returning to Conoco, 13 Durand smoked crack cocaine. 14 On Durand’s way back to Conoco, he passed out numerous times while driving 15 and struck five vehicles, including a mo torcycle driven by Daniel Ralph Gutierrez 16 (Gutierrez). Gutierrez died as a result of the accident. A police officer on the scene 17 of the accident testified that Durand’s vehi cle emitted a strong odor of alcohol and that 18 Durand smelled of alcohol, had watery, sli ghtly bloodshot eyes, and exhibited other 195 signs of being intoxicated. Durand was convi cted of vehicular homicide, three counts 1 of great bodily injury due to driving while intoxicated or under the influence of illegal 2 drugs, and abuse of a child and was senten ced to eighteen years of prison, with an 3 actual term of ten years. 4 Plaintiffs, the estate of Gutierrez thr ough its personal representative, Gutierrez’ 5 mother Janet Jaramillo, individually and as next friend to Gutierrez’ three children, 6 filed suit against Durand and Defendant for wrongful d eath and damages arising out 7 of the accident. A jury trial was held. At the close of Plaintiffs’ case, Defendant 8 moved for directed verdict, arguing that Plai ntiffs failed to present sufficient evidence 9 to present the employment liability claim and the liquor license liability claim for both 10 compensatory and punitive damages to the jury . The district court denied the motion 11 as to compensatory damages for all clai ms and granted it as to punitive damages on 12 the liquor license claim. After the trial, but before the jury deliberated, Defendant 13 renewed its motion for directed verdict on both claims, arguing that as a matter of law, 14 no reasonable jury could find that Durand wa s within the scope of his employment at 15 the time of the accident and that Plaintiffs ’ claim that Defendant was responsible for 16 Durand’s actions as an employee could not be raised because it had not been raised 17 before trial. The district court denied Defendant’s motion. The district court found, 18 however, that Durand’s use of crack cocaine and heroin wa s outside the scope of his 196 employment. The jury received instructi ons regarding liquor license liability and 1 employment liability. 2 The jury entered its verdict against Defendant on claims of employer liability 3 and liquor license liability. The jury’s award was for $4,550,000 in compensatory 4 damages, finding Durand 40% liable and De fendant 60% liable. The jury also 5 awarded punitive damages for $10,000,000 ag ainst Defendant and $10,000 against 6 Durand. Notwithstanding the jury verdict, Defendant moved post-trial for judgment 7 as a matter of law and for a new trial, arguing that the negligent hiring of Durand 8 claim was not adequately presented to the jury and that, regardless, the evidence was 9 insufficient under both claims. The district court denied the motions, finding that 10 Defendant permitted Durand to purchase the beer and then leave the property, which 11 was “within the course and scope” of Durand’s employment, thus allowing a 12 reasonable jury to find vicarious liability and negligent hiring. 13 Defendant then argued that the comp ensatory damages and punitive damages 14 should be remitted, that the punitive dama ges could not stand because there was no 15 vicarious liability, that the punitive damages were excessive, that there was no 16 evidence supporting the liquor license liabilityclaim or the employer liability claim, 17 and that it should be granted a new trial a sserting essentially the same arguments as 18 asserted in support of its motion for judgment as a matter of law. The court denied 197 Defendant’s requests. Defendant appeals the district court’s denial of its motion for 1 directed verdict and post-trial motions. 2 EMPLOYER LIABILITY CLAIMS 3 Defendant states that throughout the cas e, “the negligent hiring claim became 4 a vicarious liability claim” and that “[a]lthough the Special Verdict fo rm . . . states that 5 [Defendant] was negligent for hiring, retention and supervis ion of Durand, . . . the jury 6 instructions and the jury questions made it clear that the claim was submitted to the 7 jury on the basis of vicarious liability.” Defendant therefore asserts that the district 8 court erred in denying its motion for directed verdict and motion for judgment as a 9 matter of law. We review a district court’ s rulings on motions for directed verdict and 10 post-trial motions for judgment as a matter of law de novo. See Guest v. Allstate Ins. 11 Co. , 2009-NMCA-037, ¶ 10, 145 N.M. 797, 205 P.3d 844 (directed verdict), certs. 12 granted , 2009-NMCERT-004, 146 N.M. 642, 213 P.3d 792; Niederstadt v. Town of 13 Carrizozo , 2008-NMCA-053, ¶ 9, 143 N.M. 786, 182 P.3d 769 (judgment as a matter 14 of law), cert. denied , 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180. 15 At oral argument before this Court, Plai ntiffs asserted that there was never a 16 vicarious liability claim and that, instead, it was a claim for negligent hiring from the 17 beginning of the case through the end. Plainti ffs also argue in their brief that the jury 18 found Defendant liable under a negligent hiring claim and also on a vicarious liability 198 claim. However, at the post-trial heari ng and at oral argument before this Court, 1 Plaintiffs clearly and repeatedly stated that there was no employer vicarious liability 2 claim, and the special verdict form does not ask the jury to consider whether 3 Defendant was liable under an employer vicarious liability theory. Plaintiffs also 4 stated at oral argument that they were aware that they could not win on a vicarious 5 liability claim because, as th ey conceded, there was no evidence to support a finding 6 that Durand was acting in the scope of hi s employment with Defendant at the time of 7 the accident. We agree with Plaintiffs that employer vicarious liability was not 8 argued. We also agree with Defendantthat a claim for the negligent hiring, 9 supervision, and retention of Durand was not included in the complaint or clearly 10 argued at trial. However, because of the pervasive c onfusion throughout the trial by 11 the parties and the district court, we re mand for a new trial on the negligent hiring 12 claim. 13 An employer may be vicariously liable for the tortious conduct of employees 14 who are acting within the scope of employment at the time the tortious conduct was 15 committed. See Ovecka v. Burlington N. Santa Fe Ry. Co. , 2008-NMCA-140, ¶ 9, 145 16 N.M. 113, 194 P.3d 728, cert. quashed , 2009-NMCERT-005, 146 N.M. 728, 214 P.3d 17 793. Therefore, to impose employer vicari ous liability on Defendant, Plaintiffs would 18 have needed to establish that Durand was acting within the scope of his employment 199 with Defendant at the time of Durand’s tortious conduct—in other words, at the time 1 Durand caused the accident. 2 As we have stated, Plaintiffs assert that there was no employer vicarious 3 liability claim in this case. Moreover, the district court specifically stated that the 4 scope of employment “doesn’t mean when [D urand] is driving.” The district court 5 was clear that the evidence did not support that Durand was providing Defendant any 6 benefit when he left the premises, stating that “[t]he facts, clearly, don’t support that 7 [Durand] was out on the public roads, th at he was supposedly going somewhere and 8 bringing somebody back”—in other words, th e facts did not support that Durand was 9 acting in the course and scope of his employment at the time of the accident. We 10 agree and, because a finding that Durand wa s acting in the scopeof his employment 11 at the time of the accident was required for employer vicarious liability, see id. , we 12 hold that there was no employer vicarious liability claim. 13 As to the negligent hiring, retention, and supervision of Durand claim, an 14 employer may be directly liable for an employee “based on the employer’s negligent 15 acts or omissions in hiring or retaini ng an employee when the employer knows or 16 should know, through the exercise of reasonable care, that the employee is 17 incompetent or unfit.” Lessard v. Coronado Paint & Decorating Ctr., Inc. , 2007- 18 NMCA-122, ¶ 28, 142 N.M. 583, 168 P.3d 155, cert. quashed , 2008-NMCERT-002, 1910 143 N.M. 667, 180 P.3d 674. Even if the employer is not vicariously liable, the 1 employer may still be held liable for negligent hiring or retention. Id. To succeed on 2 a negligent hiring claim, a plaintiff must s how that there was “a breach of a recognized 3 duty to a foreseeable plaintiff.” Ovecka , 2008-NMCA-140, ¶ 26. A duty to third 4 parties for negligent hiring derives from fore seeability of a particular plaintiff and a 5 particular harm and, if that foreseeabilityexists, a determination of public policy to 6 ascertain whether imposing the duty would be supported by law. Id. In this case, 7 therefore, Plaintiffs needed to prove thatPlaintiffs’ injury, arising from the accident 8 that Durand caused, was a foreseeable re sult of Defendant hi ring, retaining, or 9 supervising Durand. 10 As stated above, Defendant argues that a claim for Defendant’s negligent hiring 11 of Durand was not included in the complaint, was not tried, and should not have been 12 presented to the jury. Defendant first made this argument to the district court during 13 the jury instruction phase of the trial. Defendant argued that the complaint alleged 14 that Defendant negligently hired employees w ho sold alcohol to Durand, but that it did 15 not allege that Defendant ne gligently hired Durand himself. Defendant stated that, as 16 a result, Defendant had no notice that there was a negligent hiring of Durand claim 17 against it and that Plaintiffs’ including an instruction regarding Defendant’s negligent 18 hiring of Durand was the firs t time Defendant was aware th at such a claim was being 1911 brought. Defendant thus argu ed that a negligent hiring of Durand claim should not 1 have been permitted and that the district court erred in concluding that Durand could 2 be included as an “other employee[]” as argued in the complaint. Although Defendant 3 did not object that the elements instruction for the negligent hiring claim was wrong, 4 we are satisfied that Defendant’s objection to the direct negligence theory at the 5 beginning of the instruction phase was suffici ent to inform the district court and the 6 other parties that Defendant believed that the elements of negligent hiring had not 7 been presented throughout the trial. See Rule 12-216(A) NMRA (“To preserve a 8 question for review it must appear that a ruling or decision by the district court was 9 fairly invoked.”); Reule Sun Corp. v. Valles , 2010-NMSC-004, ¶ 9, 147 N.M. 512, 10 226 P.3d 611 (filed 2009). 11 We agree with Defendant that a claim for the negligent hiring of Durand was 12 not included in the complaint. Indeed , the complaint asserts that Defendant 13 “negligently hired, trained, supervised, and retained . . . Brackeen, John Brackeen and 14 other employees and agents who sold or otherwise provided alcoholic beverages to 15 . . . Durand .” (Emphasis added.) Durand could not have been included as one of the 16 “other employees” mentioned because he was not hired to sell alc ohol, he did not sell 17 alcohol, and no claim has been made that he sold or served alcohol to himself. 18 Nevertheless, although it was not clear throughout the trial that Plaintiffs were 1912 seeking recovery for Defendant’s negligent hiring of Durand, it was also not clear that 1 Plaintiffs were not. Several times throughout the trial, Plaintiffs and the district court 2 discussed evidence and objections within the context of the negligent hiring and 3 supervision of Durand. For example, the court referenced negligent supervision of 4 Durand in response to Plaintiffs’ argument regarding utter indifference; it mentioned 5 negligent supervision again in response to Defendant’s request to dismiss punitive 6 damages under “some type of . . . employ ee [theory]”; and it discussed Defendant 7 “letting an employee get drunk and work and drive” in the context of punitive 8 damages for employment liability, implying negligent supervision. Although no 9 evidence was presented that Durand was hired to drive or that he was acting for the 10 benefit of Defendant when hedrove the individual home, see Ovecka , 2008-NMCA11 140, ¶¶ 27-29, a claim for the negligent hiri ng of Durand was clearly contemplated by 12 Plaintiffs and the court throughout the courseof the trial. Additionally, the special 13 verdict form, which was not objected to by Defendant, asked the jury to consider 14 whether Defendant was “negligent for the hiri ng, retention, or supervision of . . . 15 Durand” and whether “any negligence” of Defendant was a cause of Plaintiffs’ 16 injuries. As Defendant assert s in its brief, “[j]ury instru ctions not objected to become 17 the law of the case.” McMinn v. MBF Operating Acquisition Corp. , 2007-NMSC-040, 18 ¶ 53, 142 N.M. 160, 164 P.3d 41 (internal quotation marks and citation omitted). 1913 In addition to any confus ion regarding who Defendant negligently hired, both 1 parties focused their arguments throughout the trial on “scope of employment.” As 2 stated above, although scope of employment is required for a finding of vicarious 3 liability, see Ovecka , 2008-NMCA-140, ¶ 9, it is merelya factor thatthe factfinder 4 could consider when determining fores eeability in a direct liability action. See 5 Lessard , 2007-NMCA-122, ¶ 40. Evidence that an employer has negligently hired an 6 unsafe driver combined with that employer benefitting from the employee’s 7 driving—the driving being within the scopeof employment—could allow a factfinder 8 to conclude that the employer’s negligence in hiring caused the injury to the third 9 party. Id. ¶ 39. However, the district court specifically found that the “occurrence” 10 relevant to the scope of employment i nquiry was Defendant’s allowing Durand to 11 drink and then leave the premises, not Du rand’s driving at the time of the accident. 12 The fact that Defendant arguably knew of Durand’s history with alcohol abuse 13 and driving while under the influence whenselling him alcohol and allowing him to 14 drive might be a factor that contributed to a finding of liquor license 15 liability—although, as discussed fully below, all three elements required for such a 16 finding were not met. Unfortunately, howev er, that fact is not relevant to the 17 employment liability question in this case. If Durand had been hired in some capacity 18 to drive or had been found to be acting inthe scope of his employment while he was 1914 driving the individual home or at the time of the accident, De fendant’s knowledge of 1 Durand’s history with alcohol abuse and driving while under the influence might have 2 played a role with a negligent hiring claim. See Ovecka , 2008-NMCA-140, ¶ 25. 3 However, in this case, as stated above, the district court specifically stated that the 4 scope of employment “doesn’t mean when [Durand] is driving.” 5 The district court indicated at the pos t-trial hearing that if Defendant was 6 correct that scope of employment was not n ecessary for a negligent hiring claim, then 7 the instructions were faulty. However, the court ultimately found that the faulty 8 instruction was not fundamental error. We disagree. 9 The parties’ and the district court’s fo cus on “scope of employment”; Plaintiffs’ 10 failure to clearly argue the foreseeability of the accident as a result of Defendant’s 11 hiring of Durand, as required fo r a finding of direct negligence; the faulty instructions; 12 and the jury’s question and court’s answer , stating that scope of employment was 13 required to find Defendant liable under the employment liability claim, created an 14 environment in which the jury would have been unable to fairly determine the actual 15 issues before it. Cf. State v. Stefani , 2006-NMCA-073, ¶ 22, 139 N.M. 719, 137 P.3d 16 659 (stating that we review jury instructi ons to determine whether they would have 17 been confusing or whether they may have misdirected a reasonabl e jury). Given the 18 parties’ and the district court’s focus on “s cope of employment,” as well as the jury’s 1915 clear finding that Durand was acting in th e scope of his employment, we cannot know 1 if the jury might have found against Defendant on the negligent hiring of Durand 2 claim had it been accurately presented. 3 Defendant requests that this Court overturn the damages awards against 4 Defendant or, in the alternative, remand to the district court for a new trial. Because 5 there is too much uncertain ty as to whether the jury would have reasonably found 6 against Defendant on a negligent hiring of Durand claim, we remand for a new trial. 7 Cf. State v. Stampley , 1999-NMSC-027, ¶ 48, 127 N.M . 426, 982 P.2d 477 (reversing 8 and remanding for a new trial in a case where the jury instructions were so vague that 9 they could have confused or misdirected a reasonable jury to suchan extent that our 10 Supreme Court could not know if the de fendant was convictedof a nonexistent 11 crime). 12 LIQUOR LICENSE LIABILITY 13 Defendant additionally argues that the district court erred in denying its motion 14 for directed verdict, thereby submitting the liquor license liability claim to the jury, 15 because the evidence was insufficient to s upport the claim. We review the district 16 court’s denial of a motion for a directed verdict de novo. Guest , 2009-NMCA-037, 17 ¶ 10. To find Defendant liable under the liquor license liability claim, Plaintiffs 18 needed to show that (1) Defendant or its agents or employees sold or served alcohol 1916 to Durand while he was intoxicated and that (2) Defendant or its agents or employees 1 knew from circumstances and from what wa s reasonably apparent that Durand was 2 intoxicated. SeeNMSA 1978, § 41-11-1(A) (1986) (stating that a licensee can be held 3 civilly liable, predicated on a breach of NMSA 1978, Section 60-7A-16 (1993), if it 4 (1) sold or served alcohol to an intoxicated person, (2) it was reasonably apparent to 5 the licensee that the person was intoxicated, and (3) the licensee knew from 6 circumstances that the person was intoxicated). 7 As discussed above, the record establishes that Durand was permitted to 8 regularly purchase and drink alcohol at the store; that he was often intoxicated in the 9 afternoons and was told by employees of Defendant to drive his vehicle off the 10 premises; that on August 31, Durand drank seven 12-ounce cans of beer and at least 11 one 24-ounce can of “high octane” beer during the day; and that around 6:00 p.m. on 12 August 31, Durand exchanged hi s remaining can of “high oc tane” beer for a cold one. 13 The record further shows that approximate ly five hours after the accident, Durand had 14 a blood alcohol level of .09. Initially, therefore, it would appear that a reasonable jury 15 could conclude that (1) De fendant’s employees sold alcohol to Durand and allowed 16 him to exchange a beer whilehe was intoxicated and (2) Defendant’s employees knew 17 from the circumstances and Durand’s history, as well as from what was reasonably 18 apparent, that Durand was intoxicated whenDefendant’s employees sold him the beer 1917 and allowed him to exchange cans. See id. ; see also Carter Farms Co. v. Hoffman1 Laroche, Inc. , 83 N.M. 383, 385, 492 P.2d 1000, 1002 (Ct. App. 1971) (stating that 2 a fact may be proved by circumstantial eviden ce). Indeed, Plaintiffs argue that the 3 evidence could allow a reasonabl e jury to infer, even if from circumstantial evidence, 4 that Durand was drunk when Defendant allo wed Durand to exchange—in other words, 5 when Defendant “sold” Durand—the “high octane” beer. 6 However, although we agree that the ev idence could allow a reasonable jury to 7 infer that Durand was drunk at the time he purchased the alcohol and perhaps even 8 that Defendant knew that Durand was drunk based on the circumstances and Durand’s 9 history, there is no evidence in the record regarding who sold the alcohol to Durand 10 and, therefore, no evidence to support a fi nding that Defendant knew that Durand was 11 drunk based on what was reasonably apparent. See § 41-11-1(A). Durand could not 12 remember who sold him the alcohol and the manager could not remember who was 13 employed at the store that day. The store also has a high turnover, and the employees 14 who were probably working that afternoon worked at Conoco for likely no more than 15 a month and may not have had knowledgeof Durand’s reputation for drinking. 16 Additionally, Durand only worked for the store for two weekends before the incident, 17 and, although the manager of the store knew his reputation for drinking, there is no 18 evidence that short-term employees would have had the requis ite knowledge of the 1918 drinking habits of another short-term employee. As a result, despite the evidence 1 that Durand had been drinking that day and often did drink while on Conoco premises, 2 there is no evidence that it would have b een reasonably appare nt to anyone selling 3 Durand the alcohol, or allowing him to ex change his “high octane” beer, in the 4 evening on August 31 that Durand was intoxicated. Indeed, Durand was the only 5 person testifying at trial who could address whether or not he was intoxicated at the 6 time the liquor was purchased or exchanged, and he testified that he “wasn’t drunk”; 7 that, in general, he “was not intoxicated . . . any time while [he] worked”; that he was 8 not intoxicated during the time that he was at Conoco on August 31 before the 9 accident; and that the reason he had troubl e operating his vehicle was not because of 10 the beer, but because of the heroin that he had injected. In addition, Durand testified 11 that the amount of beer hehad consumed that day was not a lot for him and that, 12 although he had been drinking, the Conoc o employees did not know he was drunk. 13 Generally, it is for the jury to weigh testimony, determine credibility, reconcile 14 inconsistencies or contradictions, and determine where the truth lies. Mascarenas v. 15 Gonzales , 83 N.M. 749, 751, 497 P.2d 751, 753 (Ct. App. 1972). However, in this 16 case, no reasonable jury could find that an unknown employee who had likely been 17 working at the store for a short amount of time knew of Durand’s history, knew 18 whether or how much Durand had been drinki ng that day, or could see that he was 1919 impaired due to alcohol given his contenti on that he was not. In other words, no 1 reasonable jury could find that Defendant or its agents or employees knew from what 2 was reasonably apparent that Durand was intoxicated. See§ 41-11-1(A)(2). 3 Therefore, we reverse the district court’ s denial of Defendant’s motion for directed 4 verdict on the liquor license liability claim. 5 CONCLUSION 6 For the reasons stated in this opini on, we reverse and remand the direct 7 negligence claim to the district court for a new trial. Additionally, we reverse the 8 district court’s denial of Defendant’s motion for a directed verdict on the liquor 9 license liability claim. Because the employer liability claim is being remanded for a 10 new trial, we do not reach Defendant’s arguments regarding punitive damages. 11 IT IS SO ORDERED. 12

_______________________________ 13 JAMES J. WECHSLER, Judge 14 WE CONCUR: 15

_________________________________ 16 MICHAEL D. BUSTAMANTE, Judge 17

_________________________________ 18 CELIA FOY CASTILLO, Judge 19