1997 -NMCA- 40, Gallegos v. State Bd. of Educ.

• Court: Court of Appeals of New Mexico
• Writing for the Court: BUSTAMANTE
• Citation: 1997 -NMCA- 40, Gallegos v. State Bd. of Educ., 940 P.2d 468, 123 N.M. 362, 1997 NMCA 40 (N.M. App. 1997)
• Decision Date: 26 March 1997
• Docket Number: No. 16780,16780
• Parties: , 1997 -NMCA- 40, 119 Ed. Law Rep. 1188 Palmyra GALLEGOS, personally and as Mother and Next Friend of Martha Gallegos, a Minor, and Catherine Gallegos, a Minor, and Delfido Gallegos, Plaintiffs-Appellees/Cross-Appellants, v. STATE OF NEW MEXICO BOARD OF EDUCATION, and School Transportation Division of the State of New Mexico Department of Education, Defendants-Appellants/Cross-Appellees.

Page 468

940 P.2d 468

123 N.M. 362, 1997 -NMCA- 40, 119 Ed.

Law Rep. 1188

Palmyra GALLEGOS, personally and as Mother and Next Friend of Martha Gallegos, a Minor, and Catherine Gallegos, a Minor, and Delfido Gallegos Plaintiffs-Appellees/Cross-Appellants, v. STATE OF NEW MEXICO BOARD OF EDUCATION, and School Transportation Division of the State of New Mexico Department of Education Defendants-Appellants/Cross-Appellees.

No. 16780.

Court of Appeals of New Mexico.

March 26, 1997.

Certiorari Denied May 6, 1997.

Elliot L. Weinreb, Steven L. Tucker, Santa Fe, for Plaintiffs-Appellees/Cross-Appellants.

Walz and Associates, Jerry A. Walz, Albuquerque, New Mexico Legal Bureau-Risk Management Division, Paul Ritzma, Santa Fe, for Defendants-Appellants/Cross-Appellees.

OPINION

BUSTAMANTE, Judge.

¶1 The State Transportation Division of the State of New Mexico Board of Education (the Division) appeals from a judgment entered on a jury verdict finding the Division partially liable for injuries suffered by Martha Gallegos when she was struck by a vehicle as she attempted to cross State Road 3 in order to catch the bus to her school. Plaintiffs (Martha and her parents) cross-appeal on the issue of whether the tort claims damages cap under NMSA 1978, Section 41-4-19 (Repl.Pamp.1989) is constitutional.

¶2 On appeal, the Division argues that:

(1) the exclusive remedy provision in NMSA 1978, Section 41-4-17(B) (Repl.Pamp.1996), barred recovery from it because Plaintiffs settled their claims against certain county and local governmental entities;

(2) the Division had no legal duty to establish location of bus stops and thus owed no duty of care to Plaintiffs;

¶3 there was insufficient evidence to show that (a) the bus stop was negligently located, (b) determination of the location of the stop constituted maintenance of a highway, or (c) the location of the bus stop proximately caused the occurrence;

¶4 the Division was entitled to mistrial based on remarks made during Plaintiffs' closing argument;

¶5 the trial court erred in refusing the Division's tendered jury instructions; and ¶6 the trial court erred in denying the Division's motions for new trial or remittitur for damages awarded to Martha's parents. We affirm.

3. With respect to the cross-appeal, the parties have stipulated that, if the cap is held unconstitutional after further hearing in Trujillo v. City of Albuquerque, 119 N.M. 602, 603, 893 P.2d 1006, 1007 (1995), the case may be reopened and the judgment amended. Furthermore, Plaintiffs failed to preserve their argument regarding application of the cap. Therefore, we dismiss the cross-appeal.

4. On January 10, 1989, seven-year-old Martha Gallegos was struck by a vehicle as she attempted to cross State Road 3 in order to reach her school bus stop. The driver of the vehicle, Martha's great-uncle, was driving into a blinding sun without use of sunglasses or his prescription eyeglasses. Palmyra Gallegos, Martha's mother, was watching from inside her home and saw Martha struck by the vehicle. Martha suffered various injuries which can reasonably be characterized as serious.

5. Plaintiffs filed a complaint against the Division, the New Mexico State Police, the New Mexico State Highway Department, the Board of Commissioners of San Miguel County, the County Sheriff's Department, the School District of West Las Vegas, the Las Vegas Schools Transportation Director, and the school bus driver. Plaintiffs settled with those defendants connected with San Miguel County and the School District of West Las Vegas, but proceeded to trial against the Division and the New Mexico State Highway Department. The complaint against the New Mexico State Police was voluntarily dismissed by Plaintiffs.

6. After trial, the jury found no liability with regard to the State Highway Department but assigned 37.5% liability to the Division. The Division filed motions for a new trial, remittitur, and judgment notwithstanding the verdict. All were denied.

DISCUSSION

Application of NMSA 1978, Section 41-4-17(B)

¶7 Prior to trial, the Division sought summary judgment asserting that Section 41-4-17(B) barred Plaintiffs' claims against the Division. Making a plain language argument, the Division asserted that Plaintiffs' settlement with the county defendants and the school district defendants precluded Plaintiffs from pursuing any claims, arising out of the same accident, against any other governmental entity. The trial court denied the Division's motion for summary judgment. The Division reiterates its "plain reading" argument here.

¶8 Before reaching the merits of the argument, however, we must decide whether the denial is reviewable on appeal. Plaintiffs argue that the Division is not entitled to have this Court review the issue because the Division did not raise the argument in a motion for directed verdict or in a post-trial motion. Plaintiffs rely on Green v. General Accident Insurance Co. of America, 106 N.M. 523, 527, 746 P.2d 152, 156 (1987), for the blanket proposition that denial of motions for summary judgment simply are not reviewable after final judgment on the merits. As explained below, we do not believe Green was intended to create as broad and seamless a blanket as Plaintiffs describe.

¶9 A party moving for summary judgment must show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Ciup v. Chevron U.S.A., Inc., 122 N.M. 537, 540, 928 P.2d 263, 266 (1996) (relying on Koenig v. Perez, 104 N.M. 664, 665, 726 P.2d 341, 342 (1986)); Garrity v. Overland Sheepskin Co. of Taos, 121 N.M. 710, 718, 917 P.2d 1382, 1390 (1996) (same); Tabet Lumber Co. v. Romero, 117 N.M. 429, 431, 872 P.2d 847, 849 (1994) (same). At issue in the vast majority of summary judgment cases presented to New Mexico's appellate courts is the first prong; that is, whether there are genuine issues of material fact. See, e.g., Silva v. Town of Springer, 121 N.M. 428, 433, 912 P.2d 304, 309, (Ct.App.) (concluding that a material disputed factual issue existed precluding the grant of summary judgment), cert. denied, 121 N.M. 375, 911 P.2d 883, and cert. denied, 121 N.M. 444, 913 P.2d 251 (1996); Blauwkamp v. University of N.M. Hosp., 114 N.M. 228, 233, 836 P.2d 1249, 1254 (Ct.App.1992) (holding that plaintiff's response to defendant's motion for summary judgment indicated the existence of material issues of fact). In such cases, the rationale behind the general rule stated in Green applies with full force. Trial provides the only opportunity for the parties to make a full presentation of the facts. Full review of the facts provides the fact finder an obviously better basis upon which to make determination about the historical circumstances of the case. It would be unfair to review a denial of a motion for summary judgment based on the factual presentation made to the trial court at the time of the motion, when all the facts have subsequently come forward at trial. After trial, the fact finder knows more and is in a superior position to decide all issues, those purely factual as well as those legal issues dependent to some degree on the historical facts in the case. Whether this proposition is labeled "merger," or is simply accepted as a common sense recognition that decisions made after full airing of the evidence should not be disturbed, is of little analytic consequence. The rule stated in Green is salutary for such cases.

¶10 However, Green did not reach, nor did it need to address whether a different rule of reviewability might be appropriate if the motion only addressed a pure question of law. Where a motion for summary judgment is based solely on a purely legal issue which cannot be submitted to the trier of fact, and the resolution of which is not dependent on evidence submitted to the trier of fact, the policy rationale underlying the rule enunciated in Green is inapplicable and the issue should be reviewable on appeal from the judgment.

¶11 Our appellate courts are not bound by the conclusions of law reached by the trial court, and the applicable standard of review for such issues is de novo. See Harger v. Structural Servs., Inc., 121 N.M. 657, 666, 916 P.2d 1324, 1333 (1996) (Supreme Court stating, on a question of law, that it was "in as good a position to draw its own conclusions" as the lower courts); Western Bank of Las Cruces v. Malooly, 119 N.M. 743, 748, 895 P.2d 265, 270 (Ct.App.1995) (appellate court reviews trial court's ruling on a question of law under a de novo standard). Absent a specific rule, appellate courts do not normally lose their ability to review purely legal questions simply because there has been a trial in the matter. Additionally, our rules of appellate procedure generally support rather than refute review. See NMRA 1997, 12-216(A) ("To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked, but formal exceptions are not required, nor is it necessary to file a motion for a new trial to preserve questions for review.").

¶12 We conclude that as long as (1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law which does not depend to any degree on facts to be addressed at trial, (3) there is a denial of the motion, and (4) there is an entry of a final judgment with an appeal therefrom, then the appellant may include in the appeal the purely legal issues that were argued unsuccessfully in the motion for summary judgment, and the appellant need not have renewed that legal issue during trial to preserve it. See Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 904 n. 11 (Alaska 1991) ("Denials of summary judgment also may be reviewable on appeal when final judgment in a case comes after trial, but only if the facts applicable to the summary judgment ruling were not in dispute and the basis of the ruling is a matter of law."); Bureau of Highways, Ky. v. Leneave, 751...