Ciup v. Chevron U.S.A., Inc., No. 23371

• Docket Nº: No. 23371
• Citation: 928 P.2d 263, 122 N.M. 537, 1996 NMSC 62
• Case Date: September 30, 1996
• Court: Supreme Court of New Mexico

Page 263

928 P.2d 263 122 N.M. 537 Maria CIUP, in her own capacity, Maria Ciup and Mihai Ciup
as personal representatives of Mihai Ciup,
deceased, and Marion Ionita, Plaintiffs-Appellants,
v.
CHEVRON U.S.A., INC., Defendant-Appellee. No. 23371. Supreme Court of New Mexico. Sept. 30, 1996.
Rehearing Denied Nov. 26, 1996.

Page 264

[122 N.M. 538] Randi McGinn & Associates, P.A., Randi McGinn, William B. Towle, Albuquerque, for Plaintiffs-Appellants.

Sager, Curran, Sturges & Tepper, P.C., Paul E. Houston, Sarah Curry Smith, Albuquerque, for Defendant-Appellee.

OPINION

MINZNER, Justice.

1. Plaintiffs appeal the trial court's grant of summary judgment in favor of Chevron U.S.A., Inc. They contend that the trial court erred in determining that Chevron was not liable for assault resulting from the robbery of an independently-owned and independently-operated service station dispensing Chevron gasoline. They also contend that the trial court erred in proceeding with a motion for summary judgment before disposition of a pending motion to compel discovery. We conclude that the trial court properly granted summary judgment to Chevron, because Plaintiff failed to rebut Chevron's showing that it had no right to control the day-to-day operation of the gas station. We also conclude that Plaintiffs failed to preserve the second issue. Accordingly, we affirm.

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[122 N.M. 539] FACTS

2. This case arose out of the attempted robbery of a Chevron gas station. In 1993, Reis Lopez shot and seriously injured the gas station attendant, Marion Ionita, and shot and killed a visitor to the station, Mihai Ciup. See generally State v. Lopez, 122 N.M. 63, 920 P.2d 1017 (1996) (affirming Lopez's convictions for felony murder and aggravated battery arising out of incident). Maria Ciup, in her own capacity and as personal representative of Mihai Ciup, and Marion Ionita (collectively Plaintiffs) sued for personal injury and wrongful death arising from the robbery attempt. Plaintiffs sued Nicolae Spilca, operator and lessee of the gas station, and Rio Grande Oil Co., Inc., the owner-lessor of the gas station and distributor of Chevron gasoline in New Mexico. Additionally, they sued Chevron, which manufactured the gasoline sold at the Chevron-branded station.

3. Both Chevron and Rio Grande moved for summary judgment, asserting that Spilca operated the gas station as an independent contractor, and that neither Chevron nor Rio Grande exerted sufficient control over the gas station's operation to support vicarious liability on theories of respondeat superior or agency or to support recovery on the basis of premises liability. The record indicates that the trial court stayed the first hearing for summary judgment to allow Plaintiffs an additional sixty days to pursue discovery. During the subsequent summary judgment hearing, the court noted that an entire year had passed since the filing of the original complaint. The court proceeded with a full hearing on the merits, and subsequently granted Chevron's motion for summary judgment, but denied it as to Rio Grande.

4. Ciup appealed. The Court of Appeals certified the following question to this Court: What is the proper scope of liability of a national corporation, which allows a local service station to use its logo and products without a franchise agreement, for an assault occurring on the service station premises?

DISCUSSION

A. Evidence of Control

5. As a general rule, a person does not have a duty to protect another from harm caused by the criminal acts of third persons unless the person has a special relationship with the other giving rise to a duty. Rummel v. Edgemont Realty Partners, Ltd., 116 N.M. 23, 26, 859 P.2d 491, 494 (Ct.App.), cert. denied, 115 N.M. 709, 858 P.2d 85 (1993). A duty flowing from actual or apparent agency arises with the existence of some degree of control by the principal over the conduct and activities of the agent. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 70, at 508 (5th ed. 1984). The degree of control giving rise to liability depends on the particular facts of each case. Chevron Oil Co. v. Sutton, 85 N.M. 679, 681-82, 515 P.2d 1283, 1285-86 (1973), relying on Shaver v. Bell, 74 N.M. 700, 705, 397 P.2d 723, 727 (1964) ("every case must ultimately be decided on its unique facts"). In the context of tort liability on gas station premises, a court must closely examine the oil company's control or right to control the actual day-to-day operation of the service station. Shaver, 74 N.M. at 704, 397 P.2d at 727.

6. Plaintiffs argue that by virtue of the nature of the franchise relationship and the integrated business enterprise within which that relationship exists, Chevron retained sufficient control to give rise to a duty to ensure that the Spilca gas station was operated in a safe manner. Plaintiffs argue, in effect, that Chevron had a special relationship within the exception to the general rule. On the other hand, Chevron argues that the extent of its involvement with the Spilca station was limited. Chevron contends it was protecting its trademark, and that protecting a trademark does not constitute sufficient control to give rise to a duty to protect the premises. See Shaver, 74 N.M. at 705, 397 P.2d at 727 (stating that evidence of a right to control cannot be proved merely in the display of the oil company's trademark and signs); Cislaw v. Southland Corp., 4 Cal.App.4th 1284, 6 Cal.Rptr.2d 386, 393 (1992) (explaining that a "franchisor must be permitted to retain such control as is necessary to protect and maintain its trademark, trade name and good will, without the risk of creating an agency relationship with its franchisees").

Page 266

[122 N.M. 540] 7. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Koenig v. Perez, 104 N.M. 664, 726 P.2d 341 (1986). A movant for summary judgment need only make a prima facie showing that there is no genuine issue of material fact, and that on the undisputed material facts, judgment is appropriate as a matter of law; the burden then shifts to the opponent to show at least a reasonable doubt, rather than a slight doubt, as to the existence of a genuine issue of fact. Id. at 666, 726 P.2d at 343. Where the movant has made a prima facie showing, the opponent cannot rely on the allegations contained in its complaint or upon the argument or contention of counsel to defeat it. Oschwald v. Christie, 95 N.M. 251, 253, 620 P.2d 1276, 1278 (1980). Rather, the opponent must come forward and establish with admissible evidence that a genuine issue of fact exists. Tinley v. Davis, 94 N.M. 296, 297, 609 P.2d 1252, 1253 (Ct.App.1980).

8. As part of its burden in moving for summary judgment, Chevron submitted written contracts entered between the various parties to demonstrate that it did not exert any control over the day-to-day operation of the gas station and argued it was not subject to vicarious liability under any theory. See, e.g., Chevron Oil Co., 85 N.M. at 681-82, 515 P.2d at 1285-86; Shaver, 74 N.M. at 704, 397 P.2d at 726. We agree with Chevron that the trial court did not err in granting summary judgment on these facts. We are not persuaded that Plaintiffs have established a genuine issue of fact regarding control nor that Chevron's particular status as a franchisor precludes summary judgment.

9. While not necessarily dispositive, it is...