Buffett v. Jaramillo , 121 N.M. 514 ( 1993 )

OPINION

ALARID, Judge.

Plaintiff appeals the trial court’s judgment notwithstanding the verdict (judgment N.O.V.) following a jury trial which denied all recovery in a wrongful death action. Plaintiff argues several issues on appeal, contending the trial court erred in (1) failing to exclude jurors where voir dire revealed them to be prejudiced; (2) failing to order a new trial where the jury verdict apportioning fault equally among one of the Defendants, Decedent, and the non-party driver was not supported by evidence; (3) failing to order a new trial where the jury determined Decedent’s life to have no worth; (4) admitting evidence of the blood alcohol levels of Decedent and the non-party driver of the car in which Decedent was riding when killed; and (5) failing to order a new trial where Defendants violated the trial court’s order on Plaintiff’s motion in limine.

Because we find errors in the presentation of evidence to the jury regarding intoxication and in the trial court’s use of a special verdict jury instruction regarding assignment of liability, we remand for a new trial.

FACTS and BACKGROUND

This appeal concerns the all too frequent and tragic problem of automobile accidents and alcohol. In the morning hours of October 19, 1985, Plaintiffs son, Boyd Buffett (Decedent), 24, was a passenger in a car travelling south on N.M. Highway 3. The car he was riding in was driven by Peri Ann Denena (Denena). Witness testimony established that a northbound vehicle, driven by Defendant Frank Jaramillo, swerved suddenly into Denena’s lane and struck her car nearly head-on. The impact injured Denena and killed Decedent. Denena is not a party to this action.¹

A jury trial was held in Taos County District Court. In a motion in limine, motion for directed verdict at the close of all evidence, and again in a motion for a new trial following the jury verdict, Plaintiff asserted substantial evidence did not support the submission of a special verdict form permitting the jury to apportion fault between Defendants and the occupants of the Denena vehicle. The jury returned the special verdict form apportioning fault equally between Jaramillo, Denena, and Decedent, and awarded zero damages. The jury found no liability on the part of any other Defendants. The trial judge corrected the amount of damages to $1037.73 in a judgment N.O.V., the amount of Decedent’s funeral costs. Plaintiff moved for a new trial notwithstanding the verdict, which the trial court denied.

DISCUSSION

Approximately eight hours after the accident, the state police obtained a search warrant to perform a blood alcohol test on Denena. Denena’s blood samples and Decedent’s autopsy report both indicated consumption of alcohol in the hours preceding the accident. In addition, Decedent’s autopsy report indicated the presence of THC, the active ingredient in marijuana.

Before trial, Plaintiff filed a motion in limine requesting, inter alia, that all evidence regarding the intoxication of both Denena and Decedent, and the level of THC present in Decedent be excluded at trial. Plaintiff argued that the introduction of intoxication of Denena and Decedent would be irrelevant and would “essentially be prejudicial to the ease and divert the true issues, being Frank Jaramillo’s intoxication, Fabian Mascarenas’ duty to take reasonable steps to prevent him from driving, the sale of alcohol to Frank Jaramillo when he was intoxicated by Martin Vargas at Los Compadres____”

Plaintiff stressed that admission of the test results, in the absence of other evidence of proximate causation, would only serve to unfairly prejudice the jury under SCRA 1986, 11-403 (Recomp.1985). Plaintiff predicated his assertion of irrelevance on the failure of the factual record developed for trial to establish direct or circumstantial evidence demonstrating that either Denena’s or Decedent’s alleged intoxication was a proximate cause of the fatal accident.

Defendants argued that Denena could have swerved onto the right road shoulder and avoided Jaramillo’s “slow moving automobile” had she not been intoxicated. In addition, Defendants’ response to the motion in limine asserted that, based on the circumstances of this case, “had either driver been sober, the accident was avoidable.”

During the hearing on the motion in limine, the trial court concluded, “I’m going to deny the motion [in limine]. I feel that the evidence of [Peri Ann] Denena’s intoxication is an immaterial [sic] issue of fact that the jury should be able to consider.” When considering the motion as it applied to Decedent’s alleged intoxication, the trial court added, “I’m going to go ahead and allow evidence concerning the intoxication of the deceased. I think that is as important as the intoxication of Ms. Denena and Mr. Jaramillo.” However, the trial court granted Plaintiffs motion to exclude evidence of the level or presence of marijuana in Decedent’s blood.

I. Introduction of Evidence of Intoxication

As an initial matter, we note that New Mexico’s Supreme Court recently considered the issue of introducing evidence of intoxication in automobile accident situations. Romero v. State, 112 N.M. 332, 815 P.2d 628 (1991). In Romero, the Supreme Court upheld a trial court decision excluding evidence of intoxication of passengers killed in a single car accident. The Supreme Court explained, “[t]hat decision was the trial court’s to make considering all the surrounding circumstances.” Id. at 333, 815 P.2d at 629. The Court stated, “[w]hile the jury might have been served in evaluating this evidence by considering the effect of the passengers’ intoxication on the passengers’ decision to ride in an overcrowded vehicle, we cannot say ... that the jury should have considered this effect.” Id.

Accordingly, our beginning premise is that evidence of intoxication is not automatically admitted, but is fact sensitive and largely depends upon the circumstances of each case. Two recent decisions by this Court are illustrative. In Plummer v. Devore, 114 N.M. 243, 836 P.2d 1264 (Ct.App.), cert. denied, 114 N.M. 82, 835 P.2d 80 (1992), we held that evidence of a driver’s intoxication, admitted at trial through breathalyzer test results and expert testimony, was error and required reversal. We noted, “[t]here was no showing whatsoever that the machine [an Intoxilyzer 5000] was properly calibrated or that it was functioning properly at the time of the test.” Id. at 246, 836 P.2d at 1267. Moreover, we explained that except for the erroneously admitted test results and expert testimony on the effects of alcohol, “[t]here was little, if any, other evidence of ... intoxication.” Id. As discussed below, we believe this is important because here, as in Plummer v. Devore, there is no evidence of intoxication or negligence on the part of the non-party driver of the ear in which Decedent was riding when killed — except for the breathalyzer test results and expert testimony on the effects of alcohol.

Moreover, in Estate of Mitchum v. Triple S Trucking, 113 N.M. 85, 823 P.2d 327 (Ct. App.), cert. denied, 113 N.M. 16, 820 P.2d 1330 (1991), we considered the affirmative defense of intoxication in workers’ compensation cases. We held that evidence of intoxication was properly considered in that case. Most important for our consideration in the present appeal is the discussion of causation in that decision. We stated, “in order to establish the affirmative defense of intoxication, an employer must present evidence satisfying a dual requirement indicating (1) that the worker was intoxicated at the time of his or her accident, and (2) that such intoxication was a proximate cause of the resulting injury.” Id. at 89-90, 823 P.2d at 331-32. Using these two recent decisions as guides, we think it appropriate to require the same showing of proximate causation in the present case. See Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981) (thrust of comparative negligence is to apportion fault between or among negligent parties whose negligence proximately causes any part of a loss or injury). Accordingly, our concern and the dispositive issue before us is whether the intoxication of either Decedent or the non-party driver was a proximate cause of the damages involved in this case. The evidence bearing on the issue of proximate causation was principally established by an eyewitness, the investigating state police officer, a traffic reconstruction report prepared at the request of the district attorney, and the testimony of the district attorney’s investigator. Plaintiffs expert on the effects of alcohol testified regarding possible negligence, but not proximate cause. Defendants’ witnesses testified that the road in the vicinity of the accident is straight, flat and has wide shoulders.

The eyewitness, Rose Ortiz, testified:

A Well, we were just being real cautions [sic] and we were driving— well, the blue car [Denena vehicle] and I were driving approximately 45 or 50 miles an hour, and I saw a car coming northbound and everything seemed fine, really. Everybody was going in their lane and everything seemed normal. And just as we got right by the Colmex gas station, the car that was going northbound just in an instant made like a left-hand turn and went head-on into the blue car.

Q Did you observe the driver of the blue ear taking any evasive action?

A No, sir. It happened so fast it just didn’t seem possible.

On cross-examination she was asked again about the evasive action of the Denena vehicle and denying seeing any such action said, “It happened too suddenly.”

State Police Officer Randy Wright was also called by Plaintiff. After discussing his experience, which included over one hundred accident investigations, and six hundred DWI arrests, he was asked:

Q Officer, in your opinion, what did Frank Jaramillo do to cause the collision?

A Well, he turned in front of the vehicle that was going south-bound and pulled into the south-bound lane.

Q Did you form any opinion at that time as to what [Peri Ann] Denena may have done to cause the collision?

A She went off into the south-bound shoulder to the right which would have been taking evasive action.

Q So your opinion was that at the time of the collision she was taking some kind of evasive action?

A She went over to the right-hand shoulder which would be the only evasive action she could have taken.

Q Now, Officer, as part of your investigation, did you look at any contributing factors that Boyd Buffett might have made to the collision?

A Yes, I did.

Q Were you able to determine whether Boyd Buffett contributed at all to the collision in this case?

A As far as I could tell he didn’t, no.

Later Officer Wright was asked to assume Denena was double the legal presumption for intoxication and whether he could identify “any contribution that she had to the collision,” to which he replied, “Not contributing to the collision, no.”

The testimony of Joe Ortiz, an investigator with the district attorney’s office and a deputy medical investigator for the State of New Mexico was offered by Plaintiff. Ortiz assisted Officer Wright in an investigation of the site of the accident. Ortiz authenticated Jaramillo’s blood alcohol test results and several photographs taken approximately eight hours after the accident. Plaintiff introduced, through Ortiz, a letter to the district attorney written by a traffic reconstruction expert retained by the district attorney to determine whether a sufficient factual basis existed for charging Jaramillo with vehicular homicide. The letter provided in pertinent part:

The analysis of the collision shows that the area of impact was entirely in the south-bound lane [Denena’s lane] such that the right side [the passenger side] of Vehicle No. 1 [the Jaramillo vehicle] was approximately 2 and-a-half feet on the wrong side of the center stripe.

Later Ortiz was asked:

Q As part of your investigation into the matter and as part of your duties, have you formed any opinion as to the cause of the accident, the collision between the Denena vehicle and the Jaramillo vehicle?

A Basically, it was that the Jaramillo vehicle went into the south-bound lane and struck the Denena vehicle.

On cross-examination Ortiz was asked:

Q In your opinion, was there enough room for the Denena car to have gotten around the Jaramillo car and still stayed on level, paved road?

A According to witness statements, she didn’t have a chance. The vehicle turned directly into her lane.

Finally, in response to questions regarding whether the Denena vehicle took evasive action, Ortiz testified, “It appeared that she was — according to the statement of the eyewitness and what we saw, she was going toward the side. There wasn’t a lot of time where she was able to avoid it because it happened so quickly.”

Defendants produced eight witnesses. Several testified about alcohol. Two testified about the road condition at the site of the accident. For instance, Roger Romo testified about the road shoulders: “They’re pretty wide right there. Pretty flat.” Jim Fambro testified: “It’s a wide road, especially compared to the other roads around here. It’s got a good paved shoulder.”

The above review of the testimony and record indicates that Defendants produced no direct evidence of proximate causation by the occupants of the Denena vehicle. They produced no witnesses on the issue of proximate causation; their witnesses merely established that at the time of the accident, the road was “flat” and had “wide shoulders.” They produced no expert witnesses nor any accident reconstructionists. They used Plaintiffs expert on the effects of alcohol to establish that human psychomotor skills are increasingly impaired as blood alcohol levels increase. In other words, the conclusions of the state police officer, the district attorney’s investigator, and the accident reconstructionist material brought in through the investigator indicating that the non-party driver, nor Decedent, were a proximate cause of the accident in question all went unchallenged.² While we agree that circumstantial evidence may be used to prove facts, SCRA 1986, 13-308 (Repl.1991), it is limited by the rule that inferences drawn therefrom must be reasonable. See Andrus v. Gas Co. of N.M., 110 N.M. 593, 596, 798 P.2d 194, 197 (Ct.App.), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990). But see Cantrell v. W & C Contracting Co., 112 N.M. 609, 817 P.2d 1251 (Ct. App.) (substantial evidence based on admissions of the worker, circumstances surrounding the accident, the investigating officer’s investigation, and evidence found at scene of accident existed supporting finding of workers’ compensation judge that the worker was intoxicated at the time of accident and that his intoxication was the proximate cause of his injuries), cert. denied, 112 N.M. 440, 816 P.2d 509 (1991).

Thus, our review of the record establishes that Defendants actually rely on a single inference: that Denena’s intoxication caused a delayed psychomotor reaction to the threat of the oncoming vehicle of Jaramillo and that, in the absence of intoxication, Denena could have suddenly swerved out of the way, onto the shoulder of the road and perhaps into a nearby paved area to avoid the accident. We disagree, however, with this hypothesis. Our review of the record reflects that Denena could not have avoided the collision. Therefore, the evidence of Denena’s and Decedent’s intoxication was irrelevant to any issue in this case and, under the circumstances of this appeal, should have been excluded because of its highly prejudicial effect on the jury. See NMSA 1978, 11-403 (Re-comp.1986) (although relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”); Roselli v. Rio Communities Serv. Station, Inc., 109 N.M. 509, 512, 787 P.2d 428, 431 (1990) (trial court abuses its discretion when its decision is contrary to logic and reason).

II. Submission of Special Verdict to Jury Permitting Apportionment of Fault to Denena and Decedent

We first note that, “the issue of whether evidence is sufficient to create a fact issue for jury determination is a question of law for the court.” Gerety v. Demers, 86 N.M. 141, 142, 520 P.2d 869, 870 (1974). Accordingly,

This Court must ascertain for itself what the applicable law is, whether the instructions were excepted to or not. A proper motion for a directed verdict and its denial will always preserve for review the question whether under the law truly applicable to the case there was an adequate evidentiary basis for the submission of the case to the jury.

Id. at 143, 520 P.2d at 871. Plaintiffs motion in limine, motion for directed verdict, and motion for new trial were principally directed at Defendants’ failure of proof on the issue of proximate causation, and therefore, comparative negligence. While Plaintiff did not specifieally object to the special verdict instruction permitting apportionment of liability, this was unnecessary. The written motions below, combined with the argument in the brief, are treated on appeal as a substantial evidence challenge to the submission of the special verdict instruction. See First Nat’l Bank in Albuquerque v. Sanchez, 112 N.M. 317, 320, 815 P.2d 613, 616 (1991); Romero v. Mervyn’s, 109 N.M. 249, 253, 784 P.2d 992, 996 (1989) (to preserve for appeal a challenge to a jury instruction, challenge below must call trial court’s attention to the lack of substantial evidence on a material issue); Andrus, 110 N.M. at 598, 798 P.2d at 199; see also 5 Am.Jur.2d Appeal and Error §§ 623, 632 (1962). By arguing comparative fault on behalf of the occupants of the Denena vehicle, Defendants presented an affirmative defense and, therefore, the burden of proof rests completely on them. See Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981); Marchese v. Warner Communications, Inc., 100 N.M. 313, 670 P.2d 113 (Ct.App.), cert. denied, 100 N.M. 259, 669 P.2d 735 (1983); Armstrong v. Industrial Elec. & Equip. Serv., 97 N.M. 272, 639 P.2d 81 (Ct.App.1981); see also Restatement (Second) of Torts § 433B(2) (1965); 57B Am.Jur.2d Negligence § 1129 (1989). “Generally, the tests which are applied in determining whether the conduct of a defendant was the proximate cause of the injury are applied in determining whether the conduct of the plaintiff contributed proximately to the injury.” 57A Am.Jur.2d Negligence § 995 (1989) (footnote omitted); see also May v. Baklini, 85 N.M. 150, 509 P.2d 1345 (Ct.App.) (contributory negligence embraces two concepts: negligence and proximate cause), cert. denied, 85 N.M. 144, 509 P.2d 1339 (1973); 75A Am. Jur.2d Trial §§ 983, 984 (1991).

It is well settled that a jury may be instructed on a party’s theory of the case only when substantial evidence supports the requested instruction and a failure to establish proof on each element of the defense of comparative negligence should result in no instruction on that particular theory. See Archibeque v. Homrich, 88 N.M. 527, 531, 543 P.2d 820, 824 (1975); see also Paddock v. Schuelke, 81 N.M. 759, 473 P.2d 373 (Ct.App.1970); 75A Am.Jur.2d Trial § 987 (prima facie entitlement to jury instruction arises out of presentation of competent evidence on every element of the defense).

Under comparative negligence, fault may be allocated between defendant and a tortfeasor not joined as a party to the action, so long as evidence is presented to establish that the absent party was negligent and fault can be fairly distributed in proportion to the injury caused by the act of each joint tortfeasor.

Martinez v. First Nat’l Bank of Santa Fe, 107 N.M. 268, 270, 755 P.2d 606, 608 (Ct.App.1987) (emphasis added); Archuleta v. Johnston, 83 N.M. 380, 492 P.2d 997 (Ct.App.) (negligence per se does not answer fact question of proximate causation), cert. denied, 83 N.M. 379, 492 P.2d 996 (1971); see also 75A Am.Jur.2d Trial § 726 (1991) (scintilla of evidence insufficient to support submission to jury on issue); but see State v. Romero, 69 N.M. 187, 189, 365 P.2d 58, 59 (1961) (eyewitness testimony consistent with evidence of intoxication sufficient proof of proximate cause in vehicular homicide case).

As noted above, Defendants’ showing on the issue of proximate causation was insufficient to establish a foundation for the introduction of evidence of intoxication. Therefore, we hold the same deficiency controls the issue of Defendants’ entitlement to a jury instruction on the affirmative defense of comparative fault of Denena and Decedent. See Ronald A. v. State Human Servs. Dep’t, 110 N.M. 228, 232, 794 P.2d 371, 375 (Ct.App.) (argument of counsel is not evidence and cannot establish facts), rev’d on other grounds, 110 N.M. 454, 797 P.2d 243 (1990). “To base a jury instruction on speculation or conjecture is not proper, and the interjection of a false issue and the giving of instructions not warranted by the evidence require a reversal.” Archibeque, 88 N.M. at 531, 543 P.2d at 824; see also Paddock, 81 N.M. at 764-65, 473 P.2d at 378-79. Accordingly, we find it was error to include the occupants of the Denena vehicle on the special jury verdict form. See Fierro v. Murphy, 85 N.M. 179, 180-81, 510 P.2d 112, 113-14 (Ct.App.1973) (evidence that accident happened so quickly as to preclude the plaintiff from taking evasive action supports finding of proximate causation by the defendant); Gray v. E.J. Longyear Co., 78 N.M. 161, 429 P.2d 359 (1967) (the plaintiffs showing that fire hazard existed but failure to show how fire started, held insufficient to create fact issue for jury as to proximate cause of fire); see also Restatement (Second) of Torts § 434 cmt. d (1965); 75A Am.Jur.2d Trial § 728 (1991).

III. Jury Bias or Prejudice

The jury apportioned sixty-six and two-thirds percent of the fault of the cause of this accident to Denena and the Decedent. However, as we have discussed above, the jury made this finding in spite of a complete lack of showing by Defendants of causation on the part of either of these individuals. Accordingly, we believe the jury based this conclusion on the evidence of intoxication. Our review of the record reveals that the focal point of the Defendants’ trial defense was Denena’s intoxication. The jury was offered the opportunity to compare the fault of three intoxicated individuals and it equally apportioned the fault accordingly. However, this evinces a clear misunderstanding in the minds of the jury of the law and of the concept of proximate cause. Further, the jury’s misunderstanding of this critical element of Defendant’s affirmative defense of comparative negligence is prejudicial error requiring remand. See Maxwell v. Santa Fe Public Schools, 87 N.M. 383, 386, 534 P.2d 307, 310 (Ct.App.1975) (discussion of harmless versus prejudicial error).

In future automobile accident cases involving intoxication evidence, we approve a trial court demanding a link between the prejudicial evidence of intoxication and the cause of the accident prior to admission of the intoxication evidence. A proffer that lays a foundation for admission under SCRA 1986, 11-104(B) (conditional relevancy) and demonstrates intent to connect conditionally admitted evidence of intoxication will greatly assist our trial courts. Where it is discernible, prior to the introduction of evidence of intoxication, that a party’s intoxication is not a proximate cause of the accident out of which the damages arose, then the prejudicial evidence of intoxication is generally inadmissible. See Simonson v. White, 220 Mont. 14, 713 P.2d 983, 988-89 (1986).

IV. New Trial

Our final area of consideration determines whether the cause must be remanded as to all Defendants. As an initial matter, we note that because we find the jury was erroneously instructed on the issue of comparative negligence and because the jury erroneously received evidence of intoxication, the percentages of negligence do not, as required by SCRA 1986, 13-2219, total 100% after we subtract the proportion of fault attributed to Decedent and Denena. Although this appellate issue has presented itself in other New Mexico appeals, we can find no New Mexico cases within which this issue has been resolved. See Stetz v. Skaggs Drug Centers, Inc., 114 N.M. 465, 471, 840 P.2d 612, 618 (Ct.App.1992); Plummer v. Devore, 114 N.M. 243, 836 P.2d 1264 (Ct.App.1992) (because only one of two defendants against whom liability had been assessed was a party to the appeal, the appeals court did not address what would happen to the amount of fault assigned to the non-appealing party). Two possible alternatives are suggested by the few cases we have found which have dealt with this type of problem in other jurisdictions: a trial de novo, or a partial new trial addressing only those issues affected by the errors which occurred during trial.

New Mexico civil procedure clearly permits a partial new trial:

A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted.

SCRA 1986, 1-059CA) (Cum.Supp.1992). This rule allows the court to limit any new trial to issues incorrectly decided or not decided at all. See Sanchez v. Dale Bellamah Homes of N.M., Inc., 76 N.M. 526, 417 P.2d 25 (1966) (where the issue of damages is separable and distinct from the issues of negligence and proximate cause, and reversal is required because of errors in the amount of damages awarded, and where no error appears as to the other issues, a new trial may be limited to the issue in which the error is present). However, we do not believe that a partial new trial is appropriate under the present circumstances even though some jurisdictions hold that a defendant who has been exculpated from any negligence should not be subject to another trial. See Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90 (1978). We explain.

While New Mexico ease law provides some guidance as to when issues may be separable under contributory negligence, see Sanchez v. J. Barron Rice, Inc., 77 N.M. 717, 725, 427 P.2d 240, 246 (1967); Cherry v. Stockton, 75 N.M. 488, 491-92, 406 P.2d 358, 360 (1965), we have not directly addressed when it is appropriate under comparative negligence to order a new trial for all co-parties following the determination on appeal of prejudicial errors. A number of other jurisdictions have, however, addressed granting new trials and have held that, under some circumstances, an exonerated codefendant will be required to stand trial again.

For example, in Williams v. Slade, 431 F.2d 605 (5th Cir.1970), the injured passenger in an automobile accident sued both the host driver and the driver of the other car. On the finding that the trial court improperly directed a verdict in favor of the host driver, the appeals court ordered the exonerated codefendant to stand trial again with the host. The Williams court stated, while rejecting the possibility of ordering only a partial new trial:

[A] court may properly award a partial new trial only when the issue affected by the error could have in no way influenced the verdict on those issues which will not be included in the new trial. If the decision on the other issues could in any way have been infected by the error then a new trial must be had on all issues.

Id. at 608.

In Blake v. Delhotel, 39 Ill.App.3d 725, 350 N.E.2d 880 (1976), and its companion case, Blake v. Mahaffey, 39 Ill.App.3d 724, 350 N.E.2d 883 (1976), the appellate court of Illinois determined that where it is’ impossible to separate multiple defendants as to the prejudice engendered in the minds of the jury, justice requires a retrial as to ah. The plaintiff in these two related cases brought a negligence action to recover for injuries resulting from a three-ear automobile collision. Following the verdict in favor of the plaintiff and against one of the defendants, the trial court granted a new trial for aU the parties. On appeal, the court held that where “it is not possible to separate the defendants as to the harm that might have been done in the minds of the jury, we believe justice required that the case be retried as to both defendants.” Id. 350 N.E.2d at 884.

The particular errors which the appellate court discovered were the plaintiffs, and the defendant’s against whom the verdict was returned, failure to foUow through with proof after laying a foundation for impeachment of a witness by a prior inconsistent statement. The appellate court determined that both parties’ failure to introduce proof of prior inconsistent statements, after laying the foundation for impeachment, was material to the issue of fault. With respect to the exonerated defendant, the court granted a new trial as to this party, “not because of any errors asserted by plaintiff, but because the impeachment errors affected the jury’s judgment as to both defendants.” Id.

We believe Defendant’s failure to prove that intoxication of either Denena or Decedent was a proximate cause of damages is similar to the situation in the two Blake cases. In the present case, Defendants introduced the affirmative defense of comparative fault, yet failed to establish that the actions of the non-party or Decedent proximately caused any of the damages involved in this case. In the two Blake cases, the foundation for impeachment was introduced, but then no evidence was provided to prove inconsistent statements of the witness in question. Just as the Blake court determined that the impeachment errors affected the jury’s judgment, we believe the comparative negligence error and the introduction of evidence of intoxication affected the jury’s evaluation of the evidence of fault of the other defendants.

In Turnbull v. Byram, 235 Kan. 891, 684 P.2d 429 (1984), a new trial was required after the court concluded that it could not assume that the jury would have assigned the same relative negligence if they had originally been presented with the remaining parties. As in the present case, the Turn-bull court determined as a matter of law that one of the parties in that action was not negligent and therefore should not have been included in the pool of parties against whom some percentage of fault could be found. The court stated that the “35% negligence assigned to the City cannot be left dangling; it must be reassigned by the factfinders to the remaining parties.” Turnbull, 684 P.2d at 434. Accordingly, the Turnbull court dismissed the party and granted a new trial to the remaining parties.

In Kuhnke v. Fisher, 210 Mont. 114, 683 P.2d 916, 922 (1984), the Supreme Court of Montana determined, in a wrongful death action against physicians and a hospital, that “[w]hen a party’s right to a fair trial has been materially impaired by improper jury argument, the fact of the imperfect trial transcends the substantial but conflicting evidence that supports the jury verdict.” Like the present case, the Kuhnke case was before the Supreme Court of Montana on a denial of the motion for a new trial. Counsel for one of the defendants made improper argument throughout the course of the trial. On appeal, the court stated that “[t]he only way to be sure which, if any, of the defendants should be exonerated or whether plaintiff should recover at all is to grant a new trial.” Id.

In the instant ease, we believe this to be the circumstance. Because the jury erroneously received evidence of intoxication and a special verdict instruction on the comparative negligence of Denena and Decedent, we believe that the jury’s judgment was “infected,” as described by the Williams court. Evidence of this infection is, as noted above, the jury’s allocation of over sixty-six percent of the cause of this accident to Denena and Decedent. Although we are unable to determine how the jury might have apportioned fault in this case if they had been properly instructed, and had not received evidence of intoxication, we believe that since they were able to erroneously assign such a large percentage of fault to Denena and Decedent, then the jury’s finding of no fault as against the bar owners and the police officer could also be in error. Regardless, we find the facts of this case present us with issues that are not separable and in the interest of justice require remand as to all Defendants.

Finally, with respect to Defendant Fabian Mascarenas’ claim of immunity, we find no error and affirm the trial court’s order addressing that issue.

CONCLUSION

.Where the evidence overwhelmingly establishes that the only action that could have been taken by the non-party driver was to take instantaneous evasive action, Defendants have failed to establish adequate proof on the proximate causation element of the defense to entitle them to a jury instruction on comparative negligence. Therefore, it was error to give the jury the special verdict instruction permitting apportionment of fault to the occupants of the Denena vehicle and it was error to introduce evidence of intoxication into the trial in the first place. Therefore, we reverse the trial court and remand for a new trial as to all Defendants.

IT IS SO ORDERED.

FLORES, J., concurs. BLARTZ, J., dissents.

1 . Plaintiff, Bruce Buffett, for himself and as personal representative of the estate of his son, Boyd, instituted a lawsuit to recover damages for wrongful death, negligent infliction of emotional distress, and loss of companionship and services. Frank Jaramillo was named as a defendant in the action, as well as Fabian Mascarenas, an off-duty sheriffs deputy. Mascarenas1 alleged liability was predicated on testimony establishing that he told an investigator that he was with Jaramillo immediately before the fatality and that Jaramillo was intoxicated but Mascarenas did not stop Jaramillo from driving. The investigator also discovered that, while intoxicated, Jaramillo had apparently purchased liquor at the Los Compadres liquor store prior to the accident. The owners of the Los Compadres, Martin Vargas and Albino Chacon, were named as defendants under the dram shop act. See NMSA 1978, § 41-11-1 (Repl.Pamp.1989).

2 . Defendants principally contented themselves with attacking the credibility of the only eyewitness by obtaining testimony to the effect that the passenger door that Ms. Ortiz claimed she opened immediately after the accident had to be opened by the rescue personnel with a hydraulic tool. Assuming the credibility attack was one hundred percent successful, and the probative value of the testimony of the eyewitness is considered eliminated, such does not establish direct evidence upon which a reasonable inference as to proximate cause may be founded.