Gillin v. Carrows Restaurants, Inc.
| Decision Date | 30 June 1994 |
| Docket Number | No. 15067,15067 |
| Citation | 879 P.2d 121,1994 NMCA 89,118 N.M. 120 |
| Parties | Wayne GILLIN, Plaintiff-Appellant, v. CARROWS RESTAURANTS, INC., Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Plaintiff, Wayne Gillin, appeals from the trial court's order granting summary judgment in favor of Defendant, Carrows Restaurants, Inc. (Carrows), and dismissing his personal injury claim. In challenging the award of summary judgment, Plaintiff argues that the trial court erred in determining that Carrows had no duty to Plaintiff to safely maintain and illuminate the area of the parking lot where he allegedly fell. For the reasons discussed herein, we reverse.
On August 11, 1992, Plaintiff filed a complaint for personal injuries against Carrows. Plaintiff alleged that after he exited Carrows at approximately 2:30 a.m., on August 10, 1989, he stepped off the sidewalk and was injured when he tripped and fell over a parking barrier in the parking lot adjacent to the restaurant. Plaintiff alleged that Carrows was negligent in failing to properly light the parking lot and in permitting the parking barriers to be placed in the parking area without proper marking. The trial court granted summary judgment based upon its determination that Plaintiff "tripped over a parking block in the common parking lot of the St. Michael's Village Shopping Center," and that Carrows owed no duty to Plaintiff.
Carrows' restaurant is located within the parking lot of the St. Michael's Village Shopping Center in Santa Fe. The restaurant building, and a portion of the parking area surrounding the structure, is leased to Carrows from "Coronado # 1" (the Landowner). Although part of the parking lot immediately adjacent to the restaurant building was included in the description of the premises leased by Carrows, customers of other businesses in the shopping center also were permitted to park there. Plaintiff's complaint did not join the Landowner as a named defendant.
Summary judgment is appropriate where the record reveals no triable issues of material fact and the movant is entitled to judgment as a matter of law. Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992); Sarracino v. Martinez, 117 N.M. 193, 194, 870 P.2d 155, 156 (Ct.App.1994); Trujillo v. Treat, 107 N.M. 58, 59, 752 P.2d 250, 251 (Ct.App.1988). In reviewing an award of summary judgment, we engage in the same inquiry as the trial court, and consider the matters presented for and against such motion in a light most favorable to the nonmoving party. Gardner-Zemke Co. v. State, 109 N.M. 729, 732, 790 P.2d 1010, 1013 (1990); see also Sarracino, 117 N.M. at 194, 870 P.2d at 156. In reviewing an order awarding summary judgment, we take note of any evidence in the record which puts a material fact in issue. Pharmaseal Lab., Inc. v. Goffe, 90 N.M. 753, 758, 568 P.2d 589, 594 (1977). Summary judgment is foreclosed where the record discloses the existence of a substantial dispute concerning a material factual issue. Id. at 756, 568 P.2d at 592.
The trial court granted Carrows' motion for summary judgment based upon its determination that Carrows owed no duty to Plaintiff because it lacked control over the portion of the parking lot where the accident occurred. In reaching its conclusion, the trial court stated in its memorandum opinion that "the lease agreement between Carrows and the [Landowner] clearly places responsibility for the parking lot [with the Landowner]," and that Carrows' actions in maintaining the pertinent portion of the parking area were not sufficient to establish "the assumption of that responsibility by Carrows" toward Plaintiff.
Because the trial court determined that there was an absence of any duty owing by Carrows toward Plaintiff to maintain or keep safe the area where Plaintiff was alleged to have fallen, our first inquiry focuses upon the correctness of this conclusion. Under New Mexico law an owner or occupant of a business "owes a business visitor the duty to use ordinary care to keep the premises safe for use by the business visitor [or invitee]." SCRA 1986, 13-1309 (Repl.1991); see also Bober v. New Mexico State Fair, 111 N.M. 644, 648, 808 P.2d 614, 618 (1991).
Determination of whether a party owes a duty to another generally constitutes a question of law. See Saiz v. Belen Sch. Dist., 113 N.M. 387, 398, 827 P.2d 102, 113 (1992); Klopp v. Wackenhut Corp., 113 N.M. 153, 159, 824 P.2d 293, 299 (1992); Sarracino, 117 N.M. at 194, 870 P.2d at 156; see also Lopez v. Ski Apache Resort, 114 N.M. 202, 209, 836 P.2d 648, 655 (Ct.App.), cert. denied, 113 N.M. 815, 833 P.2d 1181 (1992). "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." Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990). An injured party's interests, a defendant's conduct, and an analysis of the relationship of the parties, are all factors to be considered in making the policy determination concerning whether a duty exists. Id. at 63, 792 P.2d at 40. Whether a duty has been violated, however, is a factual issue to be resolved by the fact finder. Lopez, 114 N.M. at 209, 836 P.2d at 655.
Plaintiff argues the trial court erred in finding that Carrows owed no duty to him to maintain the area of the parking lot where the accident occurred. Before addressing the merits of this contention, we first consider Carrows' threshold argument that this Court should decline to address this issue on appeal, because Plaintiff allegedly failed to properly preserve this issue for appellate review. Plaintiff challenges the trial court's determination that the lease absolved Carrows of any duty to safely maintain the area where his accident occurred and the trial court's conclusion that the lease imposed complete responsibility for maintaining or keeping safe the area in question upon the Landowner. Carrows argues that Plaintiff has conceded this point because he failed to properly raise this contention in his docketing statement or in the proceedings below. We disagree.
In the section of the docketing statement in which Plaintiff states the points sought to be asserted on appeal, Plaintiff lists the following: "Whether [Carrows] owed a duty to its customers to maintain the lighting surrounding its building, and to provide safe ingress and egress from its premises." We believe this language in the docketing statement adequately preserved the issue of whether the trial court correctly determined the question of the duty owed by Carrows to Plaintiff. Moreover, once an appeal has been placed on our general calendar, an appellant is not restricted to issues expressly set forth in the docketing statement. State v. Salgado, 112 N.M. 537, 538, 817 P.2d 730, 731 (Ct.App.1991).
Carrows also argues that Plaintiff failed to preserve the issue concerning Carrows' duty when he responded to Carrows' motion for summary judgment. Specifically, Carrows directs our attention to a statement which Plaintiff included in his response to the motion for summary judgment. Plaintiff stated that "[n]otwithstanding any provision in the lease, Carrows took it upon itself through practice, habit and custom and assumed responsibility for the maintenance of the parking lot which surrounds it." We do not interpret this language as constituting an abandonment of the argument regarding whether Carrows owed a duty under the lease to safely maintain the parking area adjacent to its restaurant. Instead, we think the statement merely asserts that regardless of whether a duty exists under the lease to maintain the area of the parking lot where he allegedly fell, Plaintiff contends that by its actions and activities in the area in question, Carrows also assumed a responsibility for safely maintaining the area.
Plaintiff's complaint alleged that Carrows permitted the parking barriers which he allegedly fell over to be placed "at a distance from [the] sidewalk without proper marking so as to warn pedestrians of their hazardous and dangerous placement." Carrows pled, as an affirmative defense to Plaintiff's negligence claim, that under the terms of the lease it had no duty to Plaintiff. The affirmative defense stated that "[p]ursuant to [its] lease, [Carrows] is not responsible for the parking area and has no duty to maintain it, therefore, [Carrows] owed the [P]laintiff no duty."
The trial court's written decision granting the motion for summary judgment states that "the lease agreement between Carrows and the [Landowner] clearly places responsibility for the parking lot [with the Landowner]." After reviewing the record of the proceedings below, Plaintiff's response to the motion for summary judgment, and Plaintiff's docketing statement, we reject Carrows' claim that Plaintiff failed to preserve the issue of whether it owed a duty to maintain under the lease the area where Plaintiff allegedly fell. See Pharmaseal Lab., Inc., 90 N.M. at 758, 568 P.2d at 594 (). An issue is raised when there is some evidence in the record in dispute. Id. at 759, 568 P.2d at 595.
We turn next to an examination of whether Plaintiff...
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