Blake v. Public Service Co. of New Mexico, 23,671.

• Decision Date: 30 October 2003
• Docket Number: No. 23,671.,23,671.
• Citation: 82 P.3d 960,134 N.M. 789
• Parties: John C. BLAKE, Plaintiff-Appellant, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant-Appellee, and The City of Albuquerque, Defendant.
• Court: Court of Appeals of New Mexico

82 P.3d 960

134 N.M. 789

John C. BLAKE, Plaintiff-Appellant, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant-Appellee, and The City of Albuquerque, Defendant.

No. 23,671.

Court of Appeals of New Mexico.

October 30, 2003.

Certiorari Granted December 19, 2003.

John G. Travers, Albuquerque, NM, for Appellant.

Robert C. Conklin, Thomas C. Bird, Mary R. Jenke, John K. Ziegler, Keleher & McLeod, P.A., Albuquerque, NM, for Appellee.

Certiorari Granted, No. 28,383, December 19, 2003.

OPINION

PICKARD, Judge.

{1} Plaintiff appeals the order of the trial court granting summary judgment in favor of Defendant Public Service Company of New Mexico (PNM). At issue is whether PNM has a duty to the public to maintain streetlights. We hold that PNM has no duty to the public to maintain streetlights under the circumstances of this case, and therefore we affirm the trial court.

FACTS

{2} Plaintiff was struck by a car and injured while crossing the Ortiz SE intersection as he was walking westbound on Zuni SE in Albuquerque at approximately 9:38 in the evening. Though a streetlight was installed at that intersection in 1977, it had been removed, possibly as many as seventeen years before the accident. Plaintiff alleged in his complaint that PNM had a duty to reasonably maintain, operate, install, reinstall, and inspect the street lighting at that corner, and that PNM breached that duty, which proximately caused his injuries.

{3} The City of Albuquerque has a contract with PNM to supply streetlights for the City (the contract). PNM owns the streetlight at issue in this case, but is in dispute with the City about whether it has a duty to inspect and maintain its streetlights. PNM has contracted to maintain service for all lighting facilities, and the City has contracted to refrain from maintaining or repairing PNM-owned lights. However, PNM and the City are also bound by the tariffs that accompany the contract. In Schedule 19, the City assumes a duty to report the failure of any lamp to PNM. PNM argues that PNM's only duty under the contract is to restore light service after the City has notified PNM of any failure, but that it has no duty to inspect for deficiencies. Notably, the contract only obligates PNM to "perform normal operation and maintenance of the lighting system ... sufficient to maintain an overall lighting efficiency of approximately 70 percent[.]"

{4} PNM moved for summary judgment, arguing that it owed no legal duty to Plaintiff to maintain the streetlight at issue, that there was no legal relationship between it and Plaintiff, and that there was no evidence that PNM breached any duty owed to Plaintiff. The trial court granted summary judgment to PNM, finding:

1. A public utility company owes no duty to the general public based on the lack of street lighting as contracted for with a municipality.

2. Plaintiff John Blake's complaint fails to state a cause of action against Defendant Public Service Company of New Mexico as Defendant Public Service Company of New Mexico as a public utility owed no duty to John Blake for the lack of street lighting.

Plaintiff appeals this order, arguing that PNM is charged with a common law duty to use ordinary care to keep its property safe, making it responsible for reasonable inspection and maintenance of its streetlights.

DISCUSSION

Standard of Review

{5} Summary judgment is properly granted when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Though the trial court determined that there were genuine issues of material fact concerning the contract and the removal of the streetlight, summary judgment was granted on the threshold issue of duty. The only issue in this appeal is whether or not PNM owed a duty to Plaintiff, which is a legal question that we review de novo. See id.

Duty in General

{6} Though the elements of negligence are generally facts for the jury to determine, "[n]egligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right." Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 99 (1928) "Proof of negligence in the air, so to speak, will not do." Id. (internal quotation marks and citation omitted). Thus, the ultimate question of duty is whether the law should give recognition and effect to an obligation from one party to another, which in this case is PNM's obligation to maintain streetlights for the public who may cross a street without benefit of a working streetlight. See Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990) ("[Plaintiff] must show that a relationship existed by which defendant was legally obliged to protect the interest of plaintiff.").

{7} Determination of duty is based in part on whether the injury to the plaintiff was foreseeable. See Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983)

("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."), rejected on other grounds by Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990). In New Mexico, policy also determines duty. Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995). In determining issues of policy, we look to "community moral norms and policy views, tempered and enriched by experience, and subject to the requirements of maintaining a reliable, predictable, and consistent body of law." Sanchez v. San Juan Concrete Co., 1997-NMCA-068, ¶ 12, 123 N.M. 537, 943 P.2d 571. Our determination involves an analysis of the relationship of the parties, the plaintiff's injured interests, and the defendant's conduct. Calkins, 110 N.M. at 63,

792 P.2d at 40. We look principally to legal precedent, both common law and statutory. Sanchez, 1997-NMCA-068, ¶¶ 13-15, 123 N.M. 537, 943 P.2d 571. "[T]here 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." Calkins, 110 N.M. at 63,

792 P.2d at 40.

Parties' Positions

{8} There is no reported New Mexico case that addresses whether a public utility that contracts with a city to provide streetlights owes a duty to the public to maintain the streetlights. Plaintiff argues that PNM has a duty to use ordinary care, which includes reasonable inspection of its property and correction of known defects. He cites as authority New Mexico Electric Service Co. v. Montanez, which states, "[a] public utility has a duty to exercise due care in the erection, maintenance and operation of its line [sic] to those likely to come into contact with them." 89 N.M. 278, 280, 551 P.2d 634, 636 (1976).

{9} PNM argues that New Mexico courts have not recognized a duty on the part of a public utility to provide or maintain streetlights and that there are sound policy reasons for this Court to determine that PNM does not have a duty in this case. We agree with PNM.

PNM Has No Duty Pursuant to Contract and Tort Law

{10} We believe that there is a distinct difference between a utility's maintenance of its electrical lines, as was the case in Montanez, and the maintenance of one out of hundreds, if not thousands, of streetlights in the City of Albuquerque. See Montanez, 89 N.M. at 279, 551 P.2d at 635 (concerning an electrician's helper who came into contact with a live wire while climbing an electric pole to remove some lines); see also Koenig v. Perez, 104 N.M. 664, 665-67, 726 P.2d 341, 342-44 (1986)

(concerning a plaintiff who knowingly walked through live electrical wires after an electric pole had been knocked down in an accident, and determining that utility had a duty to inspect its operation for defects and a duty to use "due care in the erection, maintenance, and operation of its lines for the benefit of those likely to come into contact with them."). Streetlights can burn out or can be knocked down, but an unlit or unmaintained streetlight does not represent the danger that a high voltage electric wire does. Streetlights are a benefit provided to illuminate the night.

{11} A utility is not an insurer of the general public. Id. at 667, 726 P.2d at 344. Nor does a utility have a duty to provide lighting, so an interruption of service or failure to provide service is generally not actionable. 39 Am.Jur.2d, Highways, Streets, and Bridges § 434 (1999) ("[A] municipality is generally under no duty to light its streets even though it is given the power to do so, and, thus, its failure to light them is not actionable negligence, and will not render it liable in damages to a traveler who is injured solely by reason thereof."); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 93, at 671 (5th ed.1984) (hereinafter Keeton) (stating that tort liability for interruptions of service would be ruinous for utilities who must provide continuous service to all who apply for it under all kinds of circumstances, and that expense of litigation and settling claims could be a greater burden to the rate payer than is socially justified).

{12} The leading case, written many years ago by then Chief Judge Cardozo of the New York Court of Appeals, involved allegations that the utility that contracted with the city to provide water failed to provide sufficient pressure in the fire hydrants, resulting in the destruction of a warehouse by fire. H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 896-97 (1928). The court in that case stated that the action was not maintainable as one for breach of contract because "a contract between a city and a water company to furnish water at the city hydrants has in view a benefit to the public that is incidental rather than immediate, an assumption of duty to the city and not to its inhabitants." Id. at 897. The action was not maintainable as one for a common law tort because...