Chavez v. Torres

• Citation: 128 N.M. 171,991 P.2d 1
• Decision Date: 16 August 1999
• Docket Number: No. 19,818.,19,818.
• Parties: Cynthia CHAVEZ, Plaintiff-Appellant, v. Isabel TORRES, Individually, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

991 P.2d 1

128 N.M. 171

Cynthia CHAVEZ, Plaintiff-Appellant, v. Isabel TORRES, Individually, Defendant-Appellee.

No. 19,818.

Court of Appeals of New Mexico.

August 16, 1999.

Dennis W. Montoya, Albuquerque, for Appellant.

Gregory L. Biehler, Phyllis H. Bowman, Beall & Biehler, P.A., Albuquerque, for Appellee.

OPINION

BOSSON, Judge.

{1} This case involves a homeowner's duty to control foreseeable criminal activity by a third party on her land that causes personal injury to a visitor of that third party. We examine that duty as it is alleged to arise under the common-law doctrine of negligent entrustment and as it occurs under the Restatement (Second) of Torts § 318 (1965). We hold that negligent entrustment does not apply as a matter of law. We assume that the duty of care described in Section 318 of the Restatement applies in New Mexico, but we conclude the injured visitor did not set forth sufficient factual allegations to create a genuine issue of material fact for trial. Thus, we affirm the district court's entry of summary judgment for the homeowner.

BACKGROUND

{2} Michael Anderson is Isabel Torres' adult son. Anderson previously lived with Torres and had his own key to her house. During that time, Torres noticed that her son had an alcohol problem, and there were several incidents of damage to property as a result of Anderson's intemperate and violent behavior. During one such incident, Torres called the police because her son was damaging property in her home.

{3} Cynthia Chavez was Anderson's girlfriend. Anderson and Chavez lived together at Torres' house for a period of four to five months. A couple of months into the relationship, Chavez also realized Anderson had a drinking problem. Chavez and Torres even convinced Anderson to seek help for his drinking problem. After a while, Anderson and Chavez moved out of the Torres house and into Chavez's residence together, but Anderson kept the key to his mother's house.

{4} On May 14, 1996, Anderson and Chavez were visiting a friend, and Anderson began drinking. When he became angry with Chavez and pushed her, she told Anderson to take her to her mother's house and leave her there. Instead, Chavez drove Anderson to Torres' house because Anderson said he had to retrieve something at the house, and then he said he would take Chavez to her mother's house.

{5} The two arrived at Torres' house at approximately noon. Torres was not at home. Anderson told Chavez to get out of the vehicle or he would kill her. He then proceeded to grab Chavez's arm and take her forcibly into the house. While holding her hostage for a period of four to five hours, Anderson repeatedly assaulted Chavez in the Torres house.

{6} During this period of time while she was at work, Torres twice spoke with Anderson and Chavez over the telephone. The first conversation was uneventful. During the second conversation, Chavez claims she tried to alert Torres to what Anderson was doing to her, that she needed help, and that she was afraid. When Chavez had the chance, she told Torres that Anderson had a gun. She asked Torres not to hang up but to remain on the line. Torres replied that she did not want any trouble at her house, that she had to get back to her work, and then she hung up. Although Torres indicated that she would be coming home soon, she did not do so. Torres did call a family member to go by the house; however, the family member did not actually visit the house, but only called and was told by someone at the house that everything was all right. After Torres' second conversation with Chavez, Anderson continued his assaults for another hour and a half until he passed out from intoxication, and Chavez was finally able to escape.

{7} Chavez sued Anderson and Torres for the assaults she suffered at the Torres home. Among other allegations, Chavez claimed Torres was liable for (1) negligently entrusting her house to her son, and (2) failing to exercise reasonable care as a homeowner for Chavez's protection. Torres responded with a motion for summary judgment, arguing as a matter of law that she owed no duty of care to Chavez to control the conduct of a third party on her property. After originally denying Torres' motion, the district court reheard arguments and granted summary judgment for Torres. The claims against Anderson are still pending. We accepted an interlocutory appeal of the court's summary judgment against Chavez to determine whether Chavez can proceed against Torres on these theories along with her other claims.

DISCUSSION

{8} We address two questions: (1) whether negligent entrustment applies to this case, and (2) whether, and under what circumstances, an owner or possessor of land has a duty to exercise reasonable care to control criminal conduct by a third party on her land and thereby protect visitors of the third party to her property.

Negligent Entrustment

{9} Chavez argues that Torres negligently entrusted her house to Anderson by providing him with a key and unlimited, unsupervised access to the home, when she knew or should have known that Anderson was dangerous, given her knowledge of his previous conduct in the home. Torres responds that negligent entrustment does not apply to the facts in this case as a matter of law. We agree with Torres.

{10} New Mexico courts have had few opportunities to address negligent entrustment. With one recent exception, the theory in New Mexico "has only been applied, or even discussed, in the context of chattel entrustments," usually automobiles. Gabaldon v. Erisa Mortgage Co., 1997-NMCA-120, ¶ 30, 124 N.M. 296, 949 P.2d 1193, cert. granted, 124 N.M. 268, 949 P.2d 282; see, e.g., McCarson v. Foreman, 102 N.M. 151, 155-57, 692 P.2d 537, 541-43 (Ct.App.1984)

(applying negligent entrustment of automobile). In Gabaldon, we applied negligent entrustment to real estate for the first time. We recognized a lessor's responsibility to exercise care in selecting a competent tenant to operate a water park which was replete with foreseeable risks to business visitors. See Gabaldon, 1997-NMCA-120, ¶¶ 44-45, 124 N.M. 296, 949 P.2d 1193. However, we limited the circumstances giving rise to a legal claim: "[t]he duty as we have defined it applies when the landlord is in effect requiring, or allowing, another to undertake an activity with known potential hazards for [the] landlord's economic benefit." Id. ¶ 46. The duty in Gabaldon only applied to cases "[w]here . . . the property is designed, intended and required to be used for a particular purpose, and the use `has highly dangerous potentialities involving a substantial risk to the general public, and such danger or risk to the public is such that it may be foreseen by the lessor.'" Id. (quoting Benlehr v. Shell Oil Co., 62 Ohio App.2d 1, 402 N.E.2d 1203, 1209 (1978)).

{11} Unlike the water park in Gabaldon, the Torres home is not alleged to possess such "dangerous potentialities." Torres is not being sued for entrusting high-risk property to an incompetent tenant who then causes injury. Torres is being sued simply for granting her son access to her own home. It would be a far stretch under the facts in this case to say that Anderson's use of the house caused injury to Chavez in the same way that use of a dangerous water park injured the plaintiff in Gabaldon, or use of an automobile by a drunken driver causes injury in traditional negligent entrustment doctrine. Thus, even as recently expanded by this Court, a theory of negligent entrustment does not fit the facts alleged in this case.

{12} Chavez relies heavily on Madsen v. Scott, 1998-NMCA-092, 125 N.M. 475, 963 P.2d 552, cert. granted, 125 N.M. 654, 964 P.2d 818, but this opinion is of no help to Chavez either. In Madsen, a homeowner engaged a housesitter who had an interest in guns. Before leaving on a trip, the homeowner authorized the housesitter to invite guests to the premises but with instructions not to engage in wild parties. See id. ¶¶ 3-4. The housesitter invited friends over, and one such visitor was accidentally shot to death by another while playing with a gun. See id. ¶¶ 5-6. This Court held that the employment relationship made the housesitter's visitors the homeowner's visitors, and therefore, the homeowner owed a duty to the guests of the housesitter under a theory of respondeat superior. See id. ¶ 28. But Madsen was not decided on a theory of negligent entrustment, and we decline to apply it broadly towards that end.

{13} Having cited no applicable legal authority to support a theory of negligent entrustment in this context, Chavez fails to persuade us that she has such a claim against Torres. Accordingly, the district court properly granted summary judgment in Torres' favor with respect to this portion of Chavez's claim.

Torres' Duty to Exercise Reasonable Control Over Anderson's Conduct in Her Home

{14} In addition to a theory of negligent entrustment, Chavez argues that Torres owed a duty as a homeowner to exercise reasonable care for her protection while she was in Torres' house as Anderson's guest. Thus, we must decide whether Torres' general duty to maintain her property in a safe condition included a responsibility to prevent her son's foreseeable criminal activity to protect her son's visitors.

{15} Torres first argues lack of preservation. Although Chavez raised this theory in her complaint, Torres contends that Chavez then merged the theory into negligent entrustment and failed to preserve it for appeal as a discrete legal claim. We do not agree. Chavez briefed the issue below in her memorandum in opposition to summary judgment, and she specifically cited to the district court UJI 13-1320 NMRA 1999, which outlines a landowner's duty to keep a premises safe for a visitor including the protection of visitors from dangers presented by the acts of a third person. Chavez also cited to the court Reichert v. Atler, 117 N.M. 623, 875 P.2d 379 (1994), the leading New Mexico case on point, as well as...