Bober v. New Mexico State Fair

• Decision Date: 28 March 1991
• Docket Number: No. 18987,18987
• Citation: 808 P.2d 614,111 N.M. 644,1991 NMSC 31
• Parties: Ingrid BOBER, Plaintiff-Appellant, v. NEW MEXICO STATE FAIR, New Mexico State Fair Commission, and New Mexico State Police, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 614

808 P.2d 614

111 N.M. 644

Ingrid BOBER, Plaintiff-Appellant, v. NEW MEXICO STATE FAIR, New Mexico State Fair Commission, and New Mexico State Police, Defendants-Appellees.

No. 18987.

Supreme Court of New Mexico.

March 28, 1991.

Ortega & Snead, Tanya L. Scott, Lamb, Metzgar & Lines, Gordon S. Sargent, Albuquerque, for plaintiff-appellant.

Frederick Jones, Asst. City Atty., Albuquerque, for defendants-appellees.

OPINION

MONTGOMERY, Justice.

On this appeal we consider again whether a landowner's duty to avoid creating or permitting an unsafe condition or activity on the premises is limited by the physical boundaries of the land. In Mitchell v. C & H Transportation Co., 90 N.M. 471, 565 P.2d 342 (1977), and recently in Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36 (1990), we ruled that the landowner's duty is not so limited and that the owner (or other occupier or possessor) may be held liable for injuries sustained by someone beyond the boundaries of the land if those injuries proximately result from the owner's breach of duty to exercise ordinary care to avoid creating an unreasonable risk of harm to that person. In the present case--an action for personal injuries to Ingrid Bober from an accident occurring in a city street adjoining the New Mexico Fairground--the district court, noting that the accident "occurred on the Albuquerque city streets and not on any property owned by the New Mexico State Fair," granted summary judgment to the State Fair and dismissed Bober's complaint with prejudice. The court also granted summary judgment to another defendant, the New Mexico State Police. On Bober's appeal from these two summary judgments, we affirm as to the State Police and reverse as to the State Fair.

I.

The New Mexico State Fairground, located in a heavily urbanized part of Albuquerque, is bounded on the east by Louisiana Boulevard, which is a busy two-way, multi-lane thoroughfare running north and south. Within the Fairground is a large auditorium, Tingley Coliseum, in which on the evening of October 26, 1985, there was a rock band concert. Many of the more than ten thousand patrons attending the concert parked their cars in the "infield parking lot" near the Coliseum and, after the concert, exited the Fairground via a roadway running from the parking lot and emptying into Louisiana Boulevard. On the evening in question, Ingrid Bober was a passenger in a vehicle being driven south on Louisiana. As the vehicle approached the point at which the road from the infield parking lot emptied into Louisiana, another vehicle, driven by Shawn Granthan, departed the Fairground and attempted to make a left turn onto Louisiana from the parking lot access road. A collision ensued and Bober was seriously injured.

She filed suit against Granthan, the State Fair,¹ the State Police, the City of Albuquerque and the promoter of the concert, Feyline Presents, Inc. (Feyline). Feyline had leased Tingley Coliseum for the concert under a "Facilities Agreement" with the State Fair. The agreement granted Feyline the right to use and occupy the Coliseum on the day and evening of the concert and contained certain other provisions pertinent to the lawsuit.

Bober's complaint alleged negligence² on the part of each defendant and sought compensatory damages. After answering, the State Fair and the State Police moved for summary judgment, contending that they owed no duty to the plaintiff and that they were immune from liability by virtue of the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -29 (Repl.Pamp.1989). As noted, the court granted these defendants' motions, and Bober took this appeal.

The principal issue on appeal is the correctness of the trial court's ruling that, since the accident took place outside the Fairground, and since Bober was a mere passerby (i.e., not an invitee or a licensee or even a trespasser on the State Fair's property), the State Fair owed her no duty and was therefore entitled to judgment as a matter of law. Of course, if the State Fair were entitled to immunity under the Tort Claims Act, we would affirm the summary judgment in its favor on that ground, whether or not relied on by the trial court. See United Nuclear Corp. v. General Atomic Co., 93 N.M. 105, 113, 597 P.2d 290, 298 (1979). Hence an issue of governmental immunity in favor of the State Fair is also presented. As to the State Police, Bober's briefs on appeal make scant reference to this defendant, concentrating instead on the State Fair. We shall likewise be brief in our treatment of whether the State Police may be held liable in this case.

II.

The question whether the State Fair owed a duty to Bober must be resolved in her favor. At the outset, we take note of these statements in Mitchell :

It has been asserted in numerous cases that a reservation of a right to enter to make repairs extends the duty of the landlord to the traveling public, who may be off the premises, to maintain the premises in a safe condition. It follows that a landlord who reserves a privilege which bears directly upon his relation to the passerby has not surrendered or divested himself of the duty of care.

* * * * * *

* * * Aside from any duty imposed by valid rules and regulations of the state, a lessee, who has contracted to maintain property in a safe condition, has a duty to the traveling public to exercise reasonable care in maintaining property adjacent to a public road or street.

90 N.M. at 474, 476, 565 P.2d at 345, 347 (emphasis added; citations omitted).

In Mitchell, a lessee (Plateau) and a sublessee (Duran) of property adjacent to a highway were held potentially liable (summary judgment was reversed) to a passenger in a car traveling on the highway when the car collided with a truck and lowboy trailer which had become stuck in a driveway providing access from the highway to roadside businesses. The collision occurred outside the lessee and sublessee's premises and within the state-owned right of way. An issue in Mitchell, which is also present in this case and which we shall discuss below, was whether Plateau could escape liability because of a delegation in its sublease to Duran of the duty to make repairs. Plateau, however, had reserved the right to enter to make repairs itself, and it was in this context that the Court referred to such a reservation as extending to the traveling public a landlord's duty to maintain the premises in a safe condition. This aspect of the case does not limit its broad holding that an owner or occupier of property has a duty to the traveling public in a street or highway adjacent to the property to maintain the property in a safe condition.

Similarly, the Court in Mitchell framed the duty to the traveling public as arising from or related to the duty of the occupier (in that case a lessee) who had contracted to maintain the property in a safe condition. Although the Court did not say so, permitting a member of the traveling public to have the benefit of the occupier's duty in such a contractual relationship would seem to require acceptance of a third-party beneficiary argument by the injured plaintiff.³ Taking this route to answer the question whether the occupier owes a duty to the traveling public seems unnecessarily circuitous. The occupier's duty does not arise from a contract with a lessee or sublessee but springs instead from simple principles of the duty of an owner or occupier of land to persons who might be harmed by an unsafe condition on the land.

Another aspect of Mitchell that should be noticed here was the existence in that case of a state regulation requiring property owners adjacent to the highway to maintain driveways leading to their premises. No such regulation exists in this case; but, as the Court noted, the owner's duty to maintain the property in a safe condition exists aside from any such rule or regulation.

Thus, we come to the simple proposition that lies at the core of the holding in Mitchell (and many other cases like it): "Every person has a duty to exercise ordinary care for the safety of the person and the property of others." SCRA 1986, 13-1604 (Uniform Jury Instruction (UJI)--Civil 1604). This is all that is necessary to formulate the duty of the State Fair in this case. Whether the State Fair breached that duty--i.e., whether it was negligent--is a question as to whether it exercised ordinary care for the safety of persons in Bober's situation. That is a question for the jury to decide, applying the definition of "ordinary care" in UJI Civil 1603:

"Ordinary care" is that care which a reasonably prudent person would use in the conduct of his own affairs. What constitutes "ordinary care" varies with the nature of what is being done.

As the risk of danger that should reasonably be foreseen increases, the amount of care required also increases. In deciding whether ordinary care has been used, the conduct in question must be considered in the light of all the surrounding circumstances.

SCRA 1986, 13-1603.

Bober contends that the State Fair was negligent in permitting an activity to be conducted on its premises which would result in a concentrated stream of traffic exiting the premises at a single point without adequate traffic controls to guard against the possibility that one of those cars would attempt a left turn onto Louisiana Boulevard. She maintains that the State Fair could and should have taken precautions to prevent this dangerous situation from developing, such as placing traffic-control cones at the exit in such a way as to force drivers to turn right only onto Louisiana, installing one or more "no left turn" signs at the exit, or, possibly, using a traffic-control officer to direct traffic leaving the exit and permit left turns only when it was safe to do so. Bober argues that the State Fair's conduct constituted negligence under UJI Civil 1601:

The term "negligence" may relate either to an act or a failure to act.

An act, to be "negligence", must...