Calkins v. Cox Estates

• Decision Date: 02 May 1990
• Docket Number: No. 18157,18157
• Citation: 1990 NMSC 44,792 P.2d 36,110 N.M. 59
• Parties: Fred M. CALKINS, Jr., Personal Representative of the Estate of Daniel Enriquez, Deceased, Petitioner, v. The COX ESTATES, Respondent.
• Court: New Mexico Supreme Court

Page 36

792 P.2d 36

110 N.M. 59

Fred M. CALKINS, Jr., Personal Representative of the Estate

of Daniel Enriquez, Deceased, Petitioner, v. The COX ESTATES, Respondent.

No. 18157.

Supreme Court of New Mexico.

May 2, 1990.

[110 N.M. 61] Stephen Durkovich, David A. Archuleta, Albuquerque, for petitioner.

Butt, Thornton & Baehr, P.C., John A. Klecan, Albuquerque, for respondent.

OPINION

BACA, Justice.

Petitioner, personal representative of the estate of Daniel Enriquez, brought a wrongful death suit against respondent, the decedent's landlord, alleging negligence. The decedent, an eight-year old boy, was killed when he was struck by an automobile on a frontage road in the vicinity of the apartment complex where he lived. Petitioner appeals the trial court's grant of respondent's motion for summary judgment, which was affirmed by the court of appeals. The motion was based on the contention that the lessor had no duty to maintain a fence located on his property. The court of appeals affirmed on the ground that the lessor did not owe a duty to the child.

This court granted certiorari, and we address the following issue: whether a lessor owes a duty of care to his tenants to maintain the common areas of the leased premises--in this case a playground adjacent to an area leading to a highway--in a reasonably safe condition. We agree with petitioner that a duty was owed by respondent to decedent to maintain the common area, and we reverse and remand for trial in a manner consistent with this opinion.

Because this case is before this court on a grant of summary judgment, we must consider the affidavit evidence submitted by petitioner in a light most favorable to him, resolving all inferences and disputes of evidence in his favor, for the purposes of this appeal. See, e.g., Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 12, 738 P.2d 129, 130 (Ct.App.1987).

Daniel Enriquez, the decedent, lived with his grandparents in an apartment complex owned by respondent. Behind the complex, on land owned and maintained by respondent, was a playground built by respondent for the use of the children residing in the complex. Enriquez was playing in this area with a friend on the day in question. Located behind the play area was an arroyo, which led to the Metropolitan Flood Control ditch, and subsequently to an unfenced road adjoining Interstate 25, approximately 945 feet away. The playground was separated from the arroyo by a fence built by the landlord, but the fence had fallen into disrepair. Children habitually crossed through the fence to play in the outer environs. Young Enriquez, too, took advantage of the opportunity to escape through a hole in the fence into the world beyond, ultimately giving his life to the traffic on the frontage road.

This case raises issues of duty and proximate cause. Integral to both elements is a question of foreseeability. In determining duty, it must be determined that the injured party was a foreseeable plaintiff--that he was within the zone of danger created by respondent's actions; in other words, to whom was the duty owed? In determining proximate cause, an element of foreseeability is also present--the question then is whether the injury to petitioner was a foreseeable result of respondent's breach, i.e. what manner of harm is foreseeable? Both questions of foreseeability are distinct; the first must be decided as a matter of law by the judge, using established legal policy in determining whether a duty was owed petitioner, and the second, proximate cause, is a question of fact.

As defined by New Mexico law, "negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person." Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983). A duty to an individual is closely intertwined with the foreseeability of injury to that individual resulting from an activity conducted with less than reasonable care by the alleged tort-feasor. See id.; Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). "If it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the defendant." Ramirez, 100 N.M. at 541, 673 P.2d at 825.

A plaintiff must show that defendant's actions constituted a wrong against him, not merely that defendant acted beneath a required standard of care and that plaintiff was injured thereby. He must show that a relationship existed by which defendant was legally obliged to protect the interest of plaintiff. This concept limits liability for negligent conduct--a potential plaintiff must be reasonably foreseeable to the defendant because of defendant's actions. See Palsgraf, 248 N.Y. at 342, 162 N.E. at 100.

The court must determine as a matter of law whether a particular defendant owes a duty to a particular plaintiff. Schear v. Board of County Comm'rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984). The existence of a duty is a question of policy to be determined with reference to legal precedent, statutes, and other principles comprising the law. W.P. Keeton, D.B. Dobbs, R.E. Keeton & D.G. Owen, Prosser and Keeton on the Law of Torts Sec. 37 (5th ed. 1984) (hereinafter cited as Prosser & Keeton ); ¹ see Ramirez, 100 N.M. at 541, 673 P.2d at 825.

This difficult question, whether respondent had a duty toward the young child, can be answered with reference to our statutes and well-established common law traditions. The issue presented involves the duty of a landowner to maintain a common area. Specifically, the question is whether respondent, who undertook to provide a playground for children in a potentially hazardous area, was under a legal obligation to maintain the playground in a reasonably safe condition, so that children playing on the playground would be unable to escape from the playground and potentially be injured beyond its confines.

Petitioner has asked us to define respondent's duty in terms of the general negligence standard of care--the landlord owes his tenants a duty to protect them from foreseeable harm caused by unsafe conditions on the landlord's property. He requests that the duty be framed as requiring the landlord to take reasonable steps, commensurate with foreseeable harm, to protect the safety of his tenants. In terms of the present case, he contends that the jury should be allowed to balance the reasonableness and costs of respondent maintaining, or even erecting, a fence against the foreseeability of resulting harm.

Petitioner correctly states the law as it concerns the general negligence standard of care and determination of duty. New Mexico law recognizes that there exists a duty assigned to all individuals requiring them to act reasonably under the circumstances according to the standard of conduct imposed upon them by the circumstances. See, e.g., Huntsman v. Smith, 62 N.M. 457, 463, 312 P.2d 103, 107 (1957) (duty to repair wall if a reasonably prudent person would anticipate a risk to safety); Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900 (1940) (bus driver assumed duty to use reasonable care to protect children in her charge). The determination of duty in any given situation involves an analysis of the relationship of the parties, the plaintiff's injured interests and the defendant's conduct; it is essentially a policy decision based on these factors that the plaintiff's interests are entitled to protection. Prosser & Keeton, supra, Sec. 53. Our courts have answered the questions of whether, under certain circumstances, a duty of care is owed, making further analysis unnecessary. See, e.g., Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982) (establishing that a tavern owner owes a duty to third parties that may be harmed by his inebriated patrons); Srader v. Pecos Constr. Co., 71 N.M. 320, 378 P.2d 364 (1963) (duty owed to wife of worker on construction site based on ordinance requiring floor openings be covered). Our precedent in these areas has established that there is a policy in our law to protect certain interests, and thus the balancing implicit in the legal determination of a duty has been established by our legal tradition.

In the case presented to us today, it is not necessary for us to balance the policy interests to determine whether defendant owed plaintiff a duty. Reference to our statutes and common law establishes that plaintiff was owed a duty based on the landlord-tenant relationship. Thus, we find that the present case does not require us to frame respondent's duty as broadly as requested by petitioner. ²

It is well established in New Mexico jurisprudence that, although a landlord is under no affirmative obligation to inspect or maintain areas over which control has been relinquished, a landowner is responsible for maintaining, in a reasonably safe condition, areas that expressly or impliedly are reserved for the common use of some or all of his tenants. NMSA 1978, Sec. 47-8-20(A)(3) (Cum.Supp.1989) (obliging an owner to "keep common areas of the premises in a safe condition"); Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540 (1936); Torres v. Piggly Wiggly Shop Rite Foods, Inc., 93 N.M. 408, 410, 600 P.2d 1198, 1200 (Ct.App.), cert. denied, 93 N.M. 683, 604 P.2d 821 (1979); SCRA 1986, 13-1314, 1315; see Restatement (Second) of Torts, Sec. 360 (1965).

On the facts as presented for this appeal, it is apparent that the play area in the apartment complex in which Enriquez lived, which was owned by respondent, was an area reserved for the common use of the tenants. As such, respondent was obligated to maintain and repair it. Respondent chose to erect a fence and he reaped the economic benefits from providing a fenced play area at the complex. Undoubtedly at least one purpose of the fence was to keep children playing behind the complex in the area and out of the arroyo. Every landlord is not required, as a matter of law, to fence in his property or to insure the safety of his tenants' children. ...