This section contains the nature of the case and procedural background.

P was involved in an auto accident. P was following an unidentified vehicle that signaled a right-hand turn. The unidentified vehicle pulled into and then out of a service station. P slammed on her brakes, and a truck owned by D rear-ended her. P sued D. D defended on the ground that it was the unknown driver who caused or was mostly at fault. The trial court instructed the jury: D is liable only for D's percentage of fault in causing the accident and any resulting damages and the total amount of damages to which P would otherwise be entitled shall be reduced in proportion to the percentage of P's negligence and/or the negligence of the unknown third party. The jury determined P's damages to be $100,000.00, that P was not negligent, that D was negligent, that D's negligence contributed to the accident and plaintiffs' damages to the extent of 30%, that the unknown driver was negligent and this negligence contributed to the accident and plaintiffs' damages to the extent of 70%. A motion to enter the judgment of $100,000 was not granted, and a new trial was ordered. The trial court thought its jury instruction should not have been given and that a different result would have occurred had the jury known that D would have been responsible for the total damages under joint and several liability. D was granted an interlocutory appeal. New Mexico is a pure comparative negligence state.

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