987 P.2d 386 (1999) 127 N.M. 729 1999-NMSC-029

Francisco J. TORRES and Sonia A. Torres, his wife, Plaintiffs-Appellants,
v.
EL PASO ELECTRIC COMPANY, Defendant-Appellee.

No. 24,300.

Supreme Court of New Mexico.

June 30, 1999.

*389 T.O. Gilstrap, Jr., El Paso, TX, Pickett & Associates, Lawrence M. Pickett, Las Cruces, for appellants.

Law Office of T.A. Sandenaw, Leonard J. Piazza, Thomas A. Sandenaw, Jr., Las Cruces, Small, Craig & Werkenthin, P.C., Aldean E. Kainz, Jeffrey T. Knebel, Austin, TX, for appellees.

OPINION

SERNA, Justice.

{1} Plaintiffs-Appellants Francisco Torres and Sonia Torres filed a personal injury action against Defendant-Appellee El Paso Electric Company (EPEC) in the district court. The Torreses appeal from a directed verdict in favor of EPEC on a claim of intentional spoliation of evidence, from a directed verdict in favor of EPEC on a claim for punitive damages, and from a jury verdict and judgment in favor of EPEC on claims of negligence and loss of consortium.

{2} Upon certification of the matter to this Court from the Court of Appeals, we hold that the affirmative defense of independent intervening cause does not apply to the negligent actions of a plaintiff. In addition, we conclude that, because the jury instruction on independent intervening cause creates the possibility of jury confusion and is significantly duplicative of the jury instruction on proximate cause, it is no longer an appropriate instruction for cases involving multiple acts of negligence. We also conclude that the doctrine of independent intervening cause is inapplicable to the present matter. As a result, we hold that the jury instruction on this affirmative defense constituted reversible error, and we vacate the judgment in favor of EPEC on the negligence claim.

{3} With respect to the directed verdicts in favor of EPEC, we reverse the district court's directed verdict on the claim for punitive damages due to cumulative actions by EPEC employees giving rise to a reasonable inference of recklessness in the management of an inherently dangerous activity. Finally, we affirm the directed verdict on the claim of spoliation of evidence because, although we hold that tortious spoliation may occur prior to the filing of a complaint, we conclude that Torres failed to demonstrate a malicious intent to disrupt his lawsuit. We remand for a new trial on the negligence claim and on punitive damages.

I. Facts

{4} On July 31, 1992, Francisco Torres's employer, Aldershot of New Mexico, Inc., was in the process of replacing a roof over its greenhouse in Las Cruces, New Mexico. Torres assisted in the installation of the new roof as one of his job duties. While standing in a gutter on the edge of the greenhouse roof and being handed a long metal rod from another Aldershot employee, Torres contacted a high voltage conductor, which was above and behind him, with the metal rod. His contact with the power line caused Torres to fall to the ground outside of the greenhouse. Torres suffered serious injuries, including severe electrical burns and an amputated left foot. At trial, EPEC and Torres stipulated the amount of Torres's medical expenses as $196,808.42.

{5} Torres alleged that EPEC negligently installed and maintained a high voltage power pole adjacent to the greenhouse and that EPEC's negligence proximately caused Torres's contact with the power conductor. EPEC installed the pole in 1981. Torres alleged that the pole was bent and that EPEC, at the time of installation, leaned the pole toward the greenhouse to offset the weight of the conductor. After installation, the pole shifted several feet towards the greenhouse, and the cross-arm of the pole tilted down toward the greenhouse. Additionally, the pole had several cracks, running *390 both horizontally and vertically, and appeared to be twisted. Torres alleged that several individuals warned EPEC about the condition of the pole and the line's proximity to the greenhouse but that EPEC took no action to alleviate the problem.

{6} Torres also alleged that EPEC's investigation of the accident was suspect. According to Torres, an EPEC representative, after conferring with counsel, had the pole removed, cut into sections, and discarded. EPEC had a policy to preserve evidence in cases of serious electrical contact and, in fact, saved and labeled the transformers that had been on the pole. While EPEC provided measurements of the distance between the conductor and both the ground and the pole, Torres alleged that EPEC's removal of the pole prevented an accurate measurement of the distance from the conductor to the greenhouse, a measurement that EPEC did not provide. Although a former EPEC employee testified that he saw an EPEC representative take a measurement from the power conductor to the building prior to the pole's removal, EPEC's records did not reflect that measurement and EPEC employees denied that such a measurement had been taken. Additionally, even though an EPEC employee measured the distance between the conductor and the greenhouse prior to the accident due to the warnings EPEC had received, EPEC was unable to produce that measurement at trial. Finally, Torres alleged that an EPEC employee changed another employee's measurements of the point of electrical contact on the metal rod that Torres had been holding, which had the result of making the conductor appear to be more distant from Torres and the greenhouse at the time of the accident.

{7} At the close of Torres's case-in-chief, EPEC moved for a directed verdict. See Rule 1-050(A) NMRA 1999. The trial court determined that EPEC did not have "any intention to harm anybody" and did not act in a sufficiently willful or wanton manner to form the basis for punitive damages. Additionally, the trial court determined that Torres failed to show that EPEC had knowledge of a lawsuit at the time that it discarded the power pole. The trial court also determined that EPEC did not intend to deprive Torres of evidence. As a result, the trial court granted EPEC's motion for a directed verdict with respect to Torres's claim for punitive damages and his claim of intentional spoliation of evidence.

{8} Following the presentation of evidence on Torres's negligence claim, the trial court instructed the jury on the affirmative defense of independent intervening causes. EPEC claimed that, if it had been negligent, the negligence of Torres, Aldershot, and Aldershot's contractors, L.E. Electric, Inc. and Beukel Greenhouse Services (Beukel), superseded EPEC's negligence and, therefore, constituted independent intervening causes which relieved EPEC of liability. The jury returned a special verdict finding that EPEC had been negligent but that EPEC's negligence had not proximately caused Torres's injuries.

{9} On appeal to the Court of Appeals, Torres argued that the trial court erred in weighing the evidence by granting EPEC's motion for directed verdict on the claim for punitive damages and the claim of intentional spoliation of evidence. In addition, Torres argued that the trial court erred in instructing the jury on the affirmative defense of independent intervening causes. Finally, Torres argued that the trial court's jury instructions, particularly instruction number four concerning affirmative defenses, impermissibly commented on the evidence. The Court of Appeals, recognizing a potential conflict between the defense of independent intervening cause and New Mexico's adoption of comparative negligence, certified the issue "of the continuing viability of the independent intervening cause [jury] instructions and, if viable, the circumstances in which they should be given," as a matter of substantial public importance. See NMSA 1978, § 34-5-14(C)(2) (1972) (stating this Court's appellate jurisdiction over certified matters from the Court of Appeals). We accepted certification and now address each of Torres's claims. See Collins ex rel. Collins v. Tabet, 111 N.M. 391, 404 n. 10, 806 P.2d 40, 53 n. 10 (1991) (construing Section 34-5-14(C) as vesting in this Court appellate jurisdiction over "the entire case in which the *391 appeal is taken" upon certification from the Court of Appeals).

II. Independent Intervening Cause

{10} In the trial court, EPEC argued to the jury that the actions of Torres, his employer, Aldershot, and Aldershot's contractors proximately caused Torres's injuries. Specifically, EPEC claimed that Torres was aware of the location of the wire and its potential danger and that he failed to exercise ordinary care in replacing the greenhouse roof. EPEC also claimed that Aldershot negligently placed Torres in a dangerous position without adequate training and that Aldershot violated regulations of the Occupational Safety and Health Administration by: (1) failing to inform Torres of the location of the power lines; (2) failing to tell him to stay out of the lines; (3) failing to tell him the consequences of contact with the lines; (4) failing to erect appropriate warning signs; (5) failing to take steps to prevent Torres from falling off the roof; and (6) failing to have the lines de-energized. Allen Clapp, EPEC's engineering expert, testified that the accident would not have occurred if Aldershot had complied with OSHA regulations. Finally, EPEC claimed that Beukel, an expert glass installer hired by Aldershot to assist in the roofing project, and L.E. Electric, Aldershot's electrical contractor, proximately caused Torres's injuries by not advising Aldershot to take precautions such as de-energizing the lines.

{11} Based on these contentions, EPEC requested that the trial court give the uniform jury instruction dealing with independent intervening causes, UJI 13-306 NMRA 1999. Although Torres objected to the instruction, contending that there was "no evidence to support any independent intervening cause in this case," the trial court included UJI 13-306 in its instructions to the jury.^[1]

{12} An independent intervening cause is "a cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result, that could not have been reasonably foreseen." Thompson v. Anderman, 59 N.M. 400, 411-12, 285 P.2d 507, 514 (1955); accord UJI 13-306 (defining independent intervening cause as a cause that "interrupts and turns aside a course of events and produces that which was not foreseeable as a result of an earlier act or omission"); see W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44, at 301 (5th ed. 1984) ("An intervening cause is one which comes into active operation in producing the result after the negligence of the defendant."). On appeal, Torres contends that the trial court erred in giving UJI 13-306 because the acts of Torres, Aldershot, Beukel, and L.E. Electric fail to satisfy the definition of an independent intervening cause. In reviewing this contention, the Court of Appeals noted a possible inconsistency between the doctrine of independent intervening cause and New Mexico's scheme of apportioning fault in negligence actions and questioned whether the doctrine of independent intervening cause "unduly emphasize[s] one portion of the case."

{13} In Scott v. Rizzo, 96 N.M. 682, 683, 634 P.2d 1234, 1235 (1981), this Court, adopting an opinion by the Court of Appeals, eliminated the harsh common-law rule barring recovery by plaintiffs for their contributory negligence and substituted comparative negligence in its place. Specifically, we adopted a form of pure comparative negligence in which the jury apportions fault, regardless of degrees of fault, between the plaintiff and the defendant. Id. at 689-90, 634 P.2d at 1241-42. As a natural corollary to the adoption of comparative negligence in Rizzo, the Court of Appeals subsequently abolished joint and several liability, under which, among multiple defendants, each defendant, *392 regardless of proportion of fault, had been liable for one hundred percent of a plaintiff's damages. Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 158-59, 646 P.2d 579, 585-86 (Ct.App.1982); see NMSA 1978, § 41-3A-1 (1987) (adopting several liability with a limited number of exceptions). In doing so, the Court of Appeals concluded that a jury is able to apportion both fault and causation among multiple negligent acts or omissions resulting in a single injury. Bartlett, 98 N.M. at 158, 646 P.2d at 585 ("We are unwilling ... to say that although fault may be apportioned, causation cannot. If the jury can do one, it can do the other."). Additionally, the rise of comparative negligence and the demise of contributory negligence has had an effect on associated doctrines. See Dunleavy v. Miller, 116 N.M. 353, 359, 862 P.2d 1212, 1218 (1993) (holding that "the instruction on sudden emergency is unnecessary and potentially confusing and serves to overemphasize one portion of the case" and noting the abolition of unavoidable accident, last clear chance, and open and obvious danger). See generally Scott, 96 N.M. at 687, 634 P.2d at 1239 ("Under comparative negligence, rules designed to ameliorate the harshness of the contributory negligence rule are no longer needed."). Prior to this case, however, we have not resolved the effect of comparative negligence on the doctrine of independent intervening cause. See Govich v. North Am. Sys., Inc., 112 N.M. 226, 232-33, 814 P.2d 94, 100-01 (1991) (discussing independent intervening cause generally but focusing on the effects of comparative negligence on the common law rescue doctrine); Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 701, 763 P.2d 1153, 1166 (1988) (mentioning Scott in the context of a discussion on independent intervening cause, namely, a criminal act, but not resolving the issue).

{14} The doctrine of independent intervening cause did not originate in response to contributory negligence; rather, the doctrine reflects traditional notions of proximate causation and the need to limit potentially limitless liability arising from mere cause in fact. See generally Keeton et al., supra, § 44, at 302 ("In the effort to hold the defendant's liability within some reasonable bounds, the courts have been compelled, out of sheer necessity and in default of anything better, to fall back upon the scope of original foreseeable risk which the defendant has created."). Independent intervening cause is a question of policy, foreseeability, and remoteness. See id. at 301-02; 4 Fowler V. Harper et al., The Law of Torts § 20.5, at 147-50 (2d ed.1986). Importantly, the doctrine is thus not limited to the negligent acts of multiple tortfeasors or the negligence of the plaintiff but also may include intentional tortious or criminal acts of third parties as well as forces of nature. As with the sudden emergency doctrine, then, the doctrine of independent intervening cause is not "as clearly incompatible with comparative negligence" as the defenses of last clear chance and open and obvious danger. Dunleavy, 116 N.M. at 358, 862 P.2d at 1217.

{15} Nonetheless, to a certain extent, courts have shaped the doctrine of independent intervening cause in response to the harshness of contributory negligence and the potential unfairness of joint and several liability.^[2] In this regard, "[t]he doctrine of intervening cause is not so strong as it seems to have been at one time." O'Brien v. B.L.C. Ins. Co., 768 S.W.2d 64, 68 (Mo.1989) (en banc). With respect to contributory negligence, courts have sometimes labeled a defendant's negligent act an independent intervening cause when a plaintiff's negligence would have been a complete bar to recovery, even though both acts could be characterized as proximate causes of the injury. See Terry *393 Christlieb, Note, Why Superseding Cause Analysis Should Be Abandoned, 72 Tex. L.Rev. 161, 165-66 (1993). Courts have also relied on the doctrine of independent intervening cause to relieve a defendant of complete liability in situations in which a third party's negligence is grossly disproportionate in causing the plaintiff's injury, even though, again, both acts of negligence may be characterized as a proximate cause of the plaintiff's injury. See Holden v. Balko, 949 F.Supp. 704, 708-09 (S.D.Ind.1996) (discussing the relationship of the intervening cause doctrine and the "all-or-nothing" approach of the common-law rule of joint and several liability); Christlieb, supra, at 165 (classifying superseding causes under three general types, defining an "absorbing cause" as one "that, for one reason or another, is judged to be much more at fault than the other proximate cause," and stating that this type of superseding cause "has no logical use under comparative [negligence] systems"); see also Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069, 1075 (11th Cir.1985) (stating that the doctrine of intervening cause "operated in maritime collision cases to ameliorate the harsh effects of the so-called `divided damages' rule, under which damages were divided evenly between negligent parties"). We believe that such an expansive application of the doctrine of independent intervening cause to negligent acts is inconsistent with New Mexico's system of pure comparative fault.

{16} In negligence actions, plaintiffs must prove to the jury that a defendant's breach of duty proximately caused their injuries. See UJI 13-302B NMRA 1999. Regardless of the issue of independent intervening cause, trial courts must give the following jury instruction on proximate cause:

A proximate cause of an injury is that which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred. It need not be the only cause, nor the last nor nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury.

UJI 13-305 NMRA 1999 (brackets in original). If the jury determines that the defendant's act proximately caused the plaintiff's injuries in combination with the negligence of another, including the plaintiff, then it must apportion fault between the concurrent tortfeasors. See UJI 13-2218 NMRA 1999 (discussing comparative negligence by the plaintiff); UJI 13-2219 NMRA 1999 (discussing a jury finding that the "plaintiff's injury was proximately caused by a combination of negligence of more than one person").

{17} The independent intervening cause instruction, UJI 13-306, and the bracketed language in UJI 13-305 referring to an independent intervening cause do not change the meaning of proximate cause. Rather, they are intended to clarify the meaning of proximate cause in cases in which there is evidence from which reasonable minds could differ in deciding whether an unforeseeable cause has broken the chain of causation. A finding of an independent intervening cause represents a finding against the plaintiff on proximate cause or, in other words, a finding that the defendant's act or omission did not, in a natural and continuous sequence, produce the injury. Independent intervening cause, in contrast to comparative negligence, constitutes a complete defense.

{18} Given the jury's consideration of proximate cause, on which the plaintiff bears the burden of proof, and the jury's comparison of the defendant's negligence with the comparative negligence of a plaintiff, we conclude that, in cases in which a defendant alleges that a plaintiff's negligence proximately caused his or her injury, UJI 13-306 and the reference to independent intervening cause in UJI 13-305 unduly emphasize a defendant's attempt to shift fault to a plaintiff. See State ex rel. State Highway Comm'n v. Atchison, Topeka & Santa Fe Ry., 76 N.M. 587, 590, 417 P.2d 68, 70 (1966) ("Instructions which are repetitious or which unduly emphasize certain portions of the case should not be given."). We believe that this undue emphasis creates an unacceptable risk that the jury will inadvertently apply the common law rule of contributory negligence *394 abolished in Scott. As a result, we conclude that the jury shall not be instructed on independent intervening cause for a plaintiff's alleged comparative negligence. Cf. Klopp v. Wackenhut Corp., 113 N.M. 153, 157, 824 P.2d 293, 297 (1992) ("If we were to accept that no duty is owed to invitees foreseeably injured only through contributory negligence, we would vitiate the ameliorating effect of comparative fault."). "[L]iability concepts based on or related to negligence of either plaintiff, defendant, or both, are subject to the comparative negligence rule." Scott, 96 N.M. at 687, 634 P.2d at 1239. We therefore hold that in New Mexico the doctrine of independent intervening cause does not apply to a plaintiff's negligence. Cf. Brooks v. Logan, 127 Idaho 484, 903 P.2d 73, 80-81 (1995) (requiring "an act by a third person or other force in order to establish an intervening, superseding cause" and stating that, for plaintiffs' acts, "we believe the question is more appropriately one of comparative negligence"); Von der Heide v. Commonwealth Dep't of Transp., 553 Pa. 120, 718 A.2d 286, 289 (1998) (stating that an instruction on superseding cause based on a plaintiff's negligence would be "a palpable error of law" because the concept is more "properly considered in determining the degree ... [of] fault under comparative negligence principles").

{19} Similarly, it is the jury's duty under UJI 13-305 and UJI 13-2219 to apportion fault and causation between concurrent tortfeasors other than the plaintiff. Thus, with respect to cases in which independent intervening cause is used to shift fault based solely on disproportionate fault among tortfeasors, we conclude that UJI 13-306 would unduly emphasize the conduct of one tortfeasor over another and would potentially conflict with the jury's duty to apportion fault. At the very least, then, it is clear that the doctrine of independent intervening cause should be carefully applied to avoid conflict with New Mexico's use of several liability. See L.K.I. Holdings, Inc. v. Tyner, 658 N.E.2d 111, 119 (Ind.Ct.App.1995) ("The adoption of comparative negligence, with its apportionment of fault, renders the protection of a remote actor unnecessary.").

{20} Unlike cases involving a plaintiff's comparative negligence, however, the application of independent intervening cause to the intervening negligence of third parties does not necessarily always conflict with several liability. But see Hercules, Inc., 765 F.2d at 1075 ("Under a `proportional fault' system, no justification exists for applying the doctrines of intervening negligence and last clear chance."). There are many cases in which the unforeseeable negligence of a third party can reasonably be said to break the chain of causation such that the defendant's act or omission is not a proximate cause of the plaintiff's injury. See, e.g., Straley v. Kimberly, 687 N.E.2d 360, 366 n. 4 (Ind.Ct.App.1997) ("Although we agree with the holding in Tyner to the extent that when two negligent actors contribute to a resulting injury, they should both be held responsible we, nevertheless, find that in certain situations, such as the case at bar, the original negligent actor may be so removed from the resulting injury that we, as a society, cannot hold him responsible. As a result, we do not find the holding in Tyner applicable to the instant case."), transfer denied, 706 N.E.2d 177 (1998). Thus, some of the principles underlying the doctrine of independent intervening cause remain important in our current tort system.

The virtually unanimous agreement that the liability must be limited to cover only those intervening causes which lie within the scope of the foreseeable risk, or have at least some reasonable connection with it, is based upon a recognition of the fact that the independent causes which may intervene to change the situation created by the defendant are infinite, and that as a practical matter responsibility simply cannot be carried to such lengths.

Keeton et al., supra, § 44, at 312.

{21} Nevertheless, our prior cases indicate a trend in New Mexico toward simplifying the complex task of the jury in deciding issues of causation. See Dunleavy, 116 N.M. at 359, 862 P.2d at 1218 ("How can we expect the average juror to understand and correctly apply this instruction when it is confusing even to the judiciary of this state?"); Alexander v. Delgado, 84 N.M. 717, *395 719-20, 507 P.2d 778, 780-81 (1973) ("Rules concerning [the elements of negligence and proximate cause] are sufficiently complicated without engrafting upon them the unnecessary concept of unavoidability."). The issue of independent intervening cause adds a complex layer of analysis to the jury's determination of proximate cause. See, e.g., House v. Kellerman, 519 S.W.2d 380, 382 (Ky.1975) (making the issue a matter of law and removing it from the jury's consideration because of "the complexity and abstract nature of the various criteria for intervening and superceding causation"). Therefore, consistent with our prior cases discussing the effect of comparative negligence on traditional negligence principles, we believe that the instruction on independent intervening cause is sufficiently repetitive of the instruction on proximate cause and the task of apportioning fault that any potential for jury confusion and misdirection outweighs its usefulness. Cf. Dunleavy, 116 N.M. at 359, 862 P.2d at 1218 ("It is not necessary for the judge to charge the jury a second time that the law requires it to consider the circumstances surrounding the actor's conduct in determining whether the actor breached his or her duty to another person."); Delgado, 84 N.M. at 719, 507 P.2d at 780 ("Since the ordinary instructions on negligence and proximate cause sufficiently show that the plaintiff must sustain his burden of proof on these issues in order to recover, the instruction on unavoidable accident serves no useful purpose."); Buckley v. Bell, 703 P.2d 1089, 1096 (Wyo.1985) (Cardine, J., dissenting) (advocating the abolition of the defense of intervening cause and stating that absolute defenses based on a plaintiff's negligence "merely serve to confuse and make what ought to be simple, extremely difficult, even incomprehensible"). "The defendant is not entitled to have [the] defense [of not proximately causing the injury] over-emphasized." Delgado, 84 N.M. at 719, 507 P.2d at 780. We believe the instruction on proximate cause will adequately ensure a proper verdict. Therefore, trial courts should not give UJI 13-306, or include a reference to independent intervening cause in UJI 13-305, in cases involving multiple acts of negligence.

{22} Having determined that it was error for the trial court to give UJI 13-306, we must address whether the error requires reversal. See Rule 1-061 NMRA 1999 (requiring prejudice to substantial rights of a party in order to constitute reversible error); cf. Jewell v. Seidenberg, 82 N.M. 120, 124, 477 P.2d 296, 300 (1970) ("[T]he appellant has the burden of showing that he is prejudiced by an erroneous instruction."). As a general matter, however, we need not address whether the use of UJI 13-306 in pending cases is sufficiently prejudicial to require reversal when the doctrine of independent intervening cause would otherwise be applicable. In the present case, the doctrine of independent intervening cause is not otherwise applicable, and therefore, the instructions on this doctrine constitute reversible error due to "the interjection of a false issue" into the trial. See Archibeque v. Homrich, 88 N.M. 527, 531, 543 P.2d 820, 824 (1975).

{23} First, we believe that the doctrine of independent intervening cause does not apply to Torres's negligence due to our determination that the doctrine uniformly does not apply to a plaintiff's negligence. Second, we believe that the doctrine of independent intervening cause is inapplicable with respect to the alleged negligence of Aldershot and its contractors in this case. The instruction on independent intervening cause is to be given if "the evidence presents an issue with regard to an independent intervening cause." UJI 13-306 (directions for use); see Enriquez v. Cochran, 1998-NMCA-157, ¶ 71, 126 N.M. 196, 967 P.2d 1136 ("[A] party is entitled to an instruction on his theory of the case if there is evidence to support it."), cert. denied, 126 N.M. 532, 972 P.2d 351 (1998). In this case, Torres alleged that EPEC's negligent acts increased the risk of electrocution from contact with its conductors and that his electrocution was a result. Our review of the record reveals that EPEC failed to introduce evidence of any cause that prevented the natural and probable result of its own negligence, thereby producing a different result. See Thompson, 59 N.M. at 411-12, 285 P.2d at 514.

[A]ny harm which is in itself foreseeable, as to which the actor has created or increased *396 the recognizable risk, is always "proximate," no matter how it is brought about, except where there is such intentionally tortious or criminal intervention, and it is not within the scope of the risk created by the original negligent conduct.

Restatement (Second) of Torts § 442B comment b (1965); accord Thompson, 59 N.M. at 412, 285 P.2d at 515.

{24} EPEC had a duty to exercise reasonable care in the installation and maintenance of the power pole and conductors in this case and to take reasonable measures to reduce their potential danger. In the first instance, as a part of this duty, "some degree of negligence on the part of all persons is foreseeable...." Klopp, 113 N.M. at 157, 824 P.2d at 297; accord Keeton et al., supra, § 44, at 304 ("The risk created by the defendant may include the intervention of the foreseeable negligence of others."). Thus, Torres's contact with EPEC's wires, regardless of whether another party's negligence contributed to its occurrence, was within the scope of EPEC's duty. See Keeton et al., supra, § 44, at 303 ("Obviously, the defendant cannot be relieved from liability by the fact that the risk, or a substantial and important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant's negligence."). See generally GCM, Inc. v. Kentucky Cent. Life Ins. Co., 1997-NMSC-052, ¶ 23, 124 N.M. 186, 947 P.2d 143 ("[T]he scope of a tort duty is a matter of law."). Here, absent intentional tortious or criminal conduct or extraordinary negligence,^[3] none of which EPEC alleged, the negligence of others resulting in Torres's electrical contact is not susceptible to the complete defense of independent intervening cause. See Keeton et al., supra, § 44, at 303 ("One who leaves uninsulated electric wires where people may come in contact with them may anticipate that they will do so as a result of their own acts."); cf. Osborne v. Russell, 669 P.2d 550, 557 (Alaska 1983) ("The risk that an intervening force would cause the exposed wires to become deadly is the very risk which rendered [defendant's] failure to insulate negligence."). As alleged by EPEC, the negligence of Aldershot and its contractors was "closely and reasonably associated with the immediate consequences of the defendant's act, and form a normal part of its aftermath; and to that extent [it was] not foreign to the scope of the risk created by the original negligence." Keeton et al., supra, § 44, at 307.^[4] Thus, the doctrine of independent intervening cause does not apply to the facts of this case.

{25} This case presents a paradigmatic instance of comparative negligence and serves to illustrate why juries should be allowed to resolve the questions involved on the basis of the jury instructions on proximate cause and apportionment of fault. We conclude that the trial court erred in instructing the jury on independent intervening cause and that this instruction interjected a false issue into the trial. Based on the jury's special verdict finding EPEC negligent and negligent per se but not the proximate cause of Torres's injury, we conclude that the trial court's error prejudiced Torres's substantial rights, and we must therefore remand for a new trial.

*397 III. Directed Verdicts in Favor of EPEC

{26} A directed verdict is a drastic measure that is generally disfavored inasmuch as it may interfere with the jury function and intrude on a litigant's right to a trial by jury. Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 729, 749 P.2d 1105, 1108 (1988). As a result, "[a] directed verdict is appropriate only when there are no true issues of fact to be presented to a jury." Sunwest Bank, N.A. v. Garrett, 113 N.M. 112, 115, 823 P.2d 912, 915 (1992). A trial court should not grant a motion for directed verdict unless it is clear that "the facts and inferences are so strongly and overwhelmingly in favor of the moving party that the judge believes that reasonable people could not arrive at a contrary result." Melnick, 106 N.M. at 729, 749 P.2d at 1108. In reviewing the propriety of a directed verdict, we "must consider all evidence, insofar as the properly admitted evidence is uncontroverted, and all reasonable inferences deducible therefrom in a light most favorable to the party resisting the motion." Id. at 728,