## Facts

- A motorist driving west on a county road in San Juan County, New Mexico, collided at night with two dark-colored thoroughbred horses that suddenly entered the roadway.
- The driver had insufficient time to brake, suffered serious injuries, and recalled no details of the collision.
- The horses were kept on land adjacent to the road owned by Robert W. Lake.
- Edgar L. Lake kept several horses on the property, including one horse involved in the collision.
- Roland Hohenberg, an associate and horse trainer for Edgar, owned the other horse involved and also kept it on the property.
- The horses were ordinarily confined in a gated area; after the incident, the gate was found open and damaged, and testimony indicated the gate had been latched earlier.

## Issues

1. Whether substantial evidence supported liability against Edgar and Roland under negligence per se (based on livestock-control statutes and a county ordinance) or, alternatively, under res ipsa loquitur.
2. Whether the evidence supported a finding that Edgar and Roland were engaged in a joint venture justifying joint and several liability, and whether the trial court erred by failing to apportion fault between them.

## Decision

- The court held substantial evidence supported liability against both Edgar and Roland for negligence per se based on violation of the applicable statute and county ordinance governing livestock at large.
- Because negligence per se supported liability, the court declined to address res ipsa loquitur.
- The court held the evidence was insufficient to support the trial court’s finding of a joint venture between Edgar and Roland.
- The court set aside the judgment imposing joint and several liability and remanded for apportionment of negligence between Edgar and Roland.
- The court held that, where the record did not permit determining which defendant was more at fault, the burden to prove apportionment rested on the defendants, not the plaintiff.

## Legal Principles

- Violation of a safety statute or ordinance intended to protect a defined class (motorists) from a defined risk (livestock on public roads) can constitute negligence per se, establishing duty and breach when the harm suffered is the type the enactment was designed to prevent.
- When negligence per se is established under a controlling statute or ordinance, an appellate court may affirm liability without reaching alternative theories such as res ipsa loquitur.
- A joint venture requires proof of legally recognized elements (including mutual right of control and a shared enterprise); cooperative dealings concerning animals on shared premises, without more, do not establish a joint venture.
- When multiple defendants are negligent but the evidence does not allow a reliable comparison of their relative fault, the defendants bear the burden of proving a basis for apportionment; absent adequate proof, remand for apportionment is appropriate rather than imposing joint and several liability on an unsupported joint-venture theory.

## Conclusion

The court affirmed that both horse custodians were liable for negligence per se for allowing livestock to be at large on a public road, rejected joint-venture-based joint and several liability for lack of proof, and remanded for allocation of fault between the defendants with the burden of apportionment placed on them.


Roderick v. Lake, 778 P.2d 443 (N.M. Ct. App. 1989)