Herrera v. Quality Pontiac, 26,946.

• Docket Nº: No. 26,946.
• Citation: 2003 NMSC 18, 134 N.M. 43, 73 P.3d 181
• Case Date: May 16, 2003
• Court: Supreme Court of New Mexico

73 P.3d 181
134 N.M. 43
2003 NMSC 18

Kenneth HERRERA, as personal representative of the Estate of Octavio Ruiz, deceased, and Jose Encinias, Plaintiffs-Appellants,
v.
QUALITY PONTIAC, Defendant-Appellee,
Alma Rosa de Ruiz, Plaintiff-Appellant,
v.
Quality Pontiac, Defendant-Appellee

No. 26,946.

Supreme Court of New Mexico.

May 16, 2003.

Rehearing Denied, July 16, 2003.

73 P.3d 184

Duhigg, Cronin, Spring & Berlin, P.A., David M. Berlin, Helena Gorochow, Albuquerque, NM, for Appellants

Yenson, Lynn, Allen & Wosick, P.A., Joseph B. Wosick, Albuquerque, NM, for Appellee.

OPINION

SERNA, Justice.

{1} Plaintiffs-Appellants Kenneth Herrera, personal representative of Octavio Ruiz, and Jose Encinias filed a complaint for wrongful death and personal injury against Defendant-Appellee Quality Pontiac, a corporation doing business in Albuquerque, New Mexico, following a traffic accident caused by

73 P.3d 185

a thief who stole a car from Defendant's lot. The district court dismissed the case with prejudice for failure to state a claim for which relief can be granted. See Rule 1-012(B)(6) NMRA 2003. The Court of Appeals certified the matter to this Court. See NMSA 1978, § 34-5-14(C) (1972); Rule 12-606 NMRA 2003. We reverse the district court

I. Facts and Background

{2} "A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint, not the factual allegations of the pleadings which, for purposes of ruling on the motion, the court must accept as true." Coleman v. Eddy Potash, Inc., 120 N.M. 645, 650, 905 P.2d 185, 190 (1995), overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 23 & n. 3, 131 N.M. 272, 34 P.3d 1148. Plaintiffs alleged the following facts in their complaint. On May 27, 1996, an individual took his car to Defendant for repairs. At Defendant's direction, the owner left the keys in the car and the doors unlocked. The lot was fenced, and the gate was unlocked. After 9:00 p.m., Billy Garcia entered the lot, apparently looking inside the cars for something to steal. Garcia stole the vehicle in question. The following day, at approximately 11:00 a.m., a Bernalillo County deputy sheriff observed Garcia driving quickly through a school zone and pursued him, engaging his emergency lights and sirens. Garcia drove at a speed of up to ninety miles per hour and collided head on with Plaintiffs' car, which had pulled over onto the shoulder after hearing the sirens. One occupant was killed and the other seriously injured.

{3} Plaintiffs presented an affidavit of a sociologist to the district court that asserted that "[t]he Albuquerque metropolitan area's motor vehicle theft rate of 1,345.5 per 100,000 residents was the second highest rate in the nation in 1997."¹ The expert estimated that between forty-five and eighty percent of stolen cars had been left unlocked and that between nineteen and forty-seven percent of stolen cars had the ignition keys left inside. The expert claimed that a high proportion of thefts were for the purpose of joyriding and short term transportation. The expert estimated that there is a high probability that a stolen car will be involved in traffic accidents, relying on a study which "found that nearly [seventeen percent] of all stolen cars are involved in accidents in a matter of hours or days after their theft," and another study which found "the accident rate for stolen cars [to be] approximately 200 times the accident rate for cars that have not been stolen." The expert relied on a study which found that "police pursuit was involved in [thirty-seven] percent of the motor vehicle theft cases examined [in a] national sample."

{4} As a result of Plaintiffs' inclusion of this affidavit, we treat the motion to dismiss as a motion for summary judgment. See Rule 1-012(B) ("If ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment."). However, the standard of review effectively remains the same; this Court accepts as true the facts as alleged by Plaintiffs in their complaint as well as those in their affidavit to determine whether, as a matter of law, Defendant is entitled to judgment. See GCM, Inc. v. Ky. Cent. Life Ins. Co., 1997-NMSC-052, ¶ 13, 124 N.M. 186, 947 P.2d 143.

{5} Defendant, relying on a series of New Mexico cases, argued that there is no liability on its part in this situation. New Mexico precedent clearly supports Defendant's position in this case. Plaintiffs ask this Court to overrule our prior cases and follow the minority position of other jurisdictions. For the reasons that follow, we agree with Plaintiffs' position.

II. Discussion

A. Duty

1. Introduction

{6} Generally, a negligence claim requires the existence of a duty from a defendant

73 P.3d 186

to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiff's damages. "In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person." Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983), overruled on other grounds by Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990); accord Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990). "Negligence is generally a question of fact for the jury. A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant. Whether a duty exists is a question of law for the courts to decide." Schear v. Bd. of County Comm'rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984) (citations omitted); accord Solon v. WEK Drilling Co., 113 N.M. 566, 571, 829 P.2d 645, 650 (1992) ("It is thoroughly settled in New Mexico, of course, that whether the defendant owes a duty to the plaintiff is a question of law."); Calkins, 110 N.M. at 61, 792 P.2d at 38 (stating that the question of duty "must be decided as a matter of law by the judge, using established legal policy")

{7} Thus, we analyze whether one in possession of a vehicle owes a duty to an individual injured as the result of an accident caused by the negligent or criminal acts of a third party who stole the car as a threshold question of law. See Lester ex rel. Mavrogenis v. Hall, 1998-NMSC-047, ¶ 9, 126 N.M. 404, 970 P.2d 590; Leyba v. Whitley, 120 N.M. 768, 771, 907 P.2d 172, 175 (1995) ("Whether [defendant attorneys] owed a duty to [a plaintiff] is a question of law and is based upon policy considerations.") (citations omitted). "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." Ramirez, 100 N.M. at 541, 673 P.2d at 825. Foreseeability of a plaintiff alone, however, does "not end the inquiry for the imposition of a duty." Lester, 1998-NMSC-047, ¶ 9, 126 N.M. 404, 970 P.2d 590; see also Leyba, 120 N.M. at 771, 907 P.2d at 175. "Policy determines duty." Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995). "The existence of a tort duty is a policy question that is answered by reference to legal precedent, statutes, and other principles of law." Ruiz v. Garcia, 115 N.M. 269, 272, 850 P.2d 972, 975 (1993); accord Leyba, 120 N.M. at 771, 907 P.2d at 175; Calkins, 110 N.M. at 62, 792 P.2d at 39.

{8} On the other hand, proximate cause is generally a question of fact for the jury. Calkins, 110 N.M. at 61, 792 P.2d at 38 (noting that proximate cause is a question of fact). As this Court has frequently noted, questions of both proximate cause and duty are related to the concept of foreseeability. "Integral to both [duty and proximate cause] is a question of foreseeability." Id. "Both questions of foreseeability are distinct; the first must be decided as a matter of law by the judge, using established legal policy in determining whether a duty was owed petitioner, and the second, proximate cause, is a question of fact." Calkins, 110 N.M. at 61, 792 P.2d at 38. "Duty and foreseeability have been closely integrated concepts in tort law since the court in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928) stated the issue of foreseeability in terms of duty." Ramirez, 100 N.M. at 541, 673 P.2d at 825.

The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader "zone of risk" that poses a general threat of harm to others. The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred. In other words, the former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open.

McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992) (citation and footnote omitted); see Calkins, 110 N.M. at 61, 792 P.2d at 38.

{9} We have expressed that "there is nothing sacred about `duty,' which is nothing more than a word, and a very indefinite one, with which we state our conclusion."

73 P.3d 187

Ramirez, 100 N.M. at 541, 673 P.2d at 825 (quoted authority and quotation marks omitted). Ultimately, a duty exists only if "the obligation of the defendant [is] one to which the law will give recognition and effect." Id. In other words, a duty "establishes the legally recognized obligation of the defendant to the plaintiff." Id. The Court of Appeals has similarly recognized that duty requires analysis of both foreseeability and policy.

Our Supreme Court has long recognized, however, that the question of duty is not merely a matter of determining whether a particular plaintiff, a particular event, and a particular injury are foreseeable. In Ramirez, for example, the Supreme Court focused on foreseeability and whether the

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