Johnstone v. City of Albuquerque, No. 25,721.

• Docket Nº: No. 25,721.
• Citation: 145 P.3d 76, 2006 NMCA 119
• Case Date: August 10, 2006
• Court: Court of Appeals of New Mexico

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145 P.3d 76 2006 NMCA 119 Peter H. JOHNSTONE, as Personal Representative of the Estate of Rachel Rogers, Plaintiff-Appellant,
v.
The CITY OF ALBUQUERQUE, a body corporate, Christopher Chavez in his official and individual capacities, and State Farm Insurance Company, Defendants-Appellees. No. 25,721. Court of Appeals of New Mexico. August 10, 2006. Revised September 25, 2006.

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Raul A. Lopez, Arnold Padilla, Albuquerque, NM, for Appellant.

Keleher & McLeod, P.A., Charles A. Pharris, Thomas C. Bird, Nikolai N. Frant, Albuquerque, NM, for Appellees.

OPINION

KENNEDY, Judge.

{1} When an individual commits suicide using a gun owned by someone else, the owner of the gun is not liable for the death under settled negligence principles. In the absence of intentional conduct that creates the risk of suicide, or a legally recognized special relationship and knowledge of a specific

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likelihood of harm that gives rise to a duty to avoid harm, suicide operates as an independent intervening cause of death. In this case, we decline Plaintiff's invitation to abrogate this long-standing precedent. Defendant's sixteen year-old stepdaughter used his firearm to commit suicide. Her estate sued him individually, together with his employer the City of Albuquerque, alleging that Defendant was grossly negligent in leaving his firearm unattended. Summary judgment was entered for Defendant in his individual capacity, dismissing Plaintiff's suit. We affirm.

FACTS

{2} The undisputed facts of the case are as follows. Defendant, a police officer, was the stepfather of Rachel Rogers. At the age of sixteen, Rachel used her stepfather's firearm to commit suicide. Defendant had taken off the holster belt containing his firearm and placed it on a table on the porch at the family home when it interfered with his working on the backyard sprinkler system. At the time, no one was present in the enclosed backyard save Defendant and a friend. During this time, Rachel briefly came outside and asked Defendant to go to the store for her. Defendant stated that during this contact she was calm, coherent, and exhibited no signs of agitation, depression, or distress. Upon noticing that his firearm was missing from its holster on the table about thirty to forty-five minutes later, Defendant went looking for it. He found Rachel dead in the shower from an apparent gunshot wound. Her diary, including entries concerning her actions, was found close by. The contents of this diary were unknown to Defendant and his wife prior to its being found after Rachel's death. Rachel's mother had tended to her the night before her death as she was sick, and believed Rachel's vomiting at that time was a symptom of stomach flu. Her diary later revealed that Rachel's condition was caused by pills she had taken, trying to commit suicide.

{3} About a year and a half prior to her death, and prior to Defendant's marrying her mother and taking up residence with the family, Rachel had taken some pills in a possible suicide attempt. She reported this immediately to her mother, who took her to the hospital for treatment. Rachel was released and her mother was assured that the behavior would not be repeated. Rachel received counseling after this incident and Rachel's counselor never reported any additional suicidal tendencies.

{4} Defendant knew of the pill-taking incident prior to his marriage, but believed the problem had been resolved and that Rachel did not appear depressed or suicidal. Rachel had never expressed any suicidal thoughts to Defendant. Defendant asserted that Rachel's behavior and interactions with Defendant gave him no basis to anticipate that she was considering suicide. He conceded that Rachel was facing juvenile court proceedings and had recently lost her job.

DISCUSSION

Standard of Review

{5} Summary judgment is properly granted where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). Upon a prima facie showing that summary judgment is proper, the burden shifts to the party opposing summary judgment to show specific evidentiary facts in the form of admissible evidence that require a trial on the merits. Id. at 334-35, 825 P.2d at 1244-45; Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263. We accept Plaintiff's facts as set forth in the complaint and the affidavit as true. See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 4, 134 N.M. 43, 73 P.3d 181. However,

[m]ere argument or contention of existence of material issue of fact . . . does not make it so. The party opposing a motion for summary judgment cannot defeat the motion . . . by the bare contention that an issue of fact exists, but must show that evidence is available which would justify a trial of the issue.

Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 769, 461 P.2d 415, 418 (1969) (citation omitted). We review de novo the issue of whether the movant was entitled to judgment as a matter of law. Akutagawa v.

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Laflin, Pick & Heer, P.A., 2005-NMCA-132, ¶ 9, 138 N.M. 774, 126 P.3d 1138.

{6} Plaintiff was required to establish that Defendant owed a duty to his stepdaughter to prevent her from accessing his firearm, and that his failure to do so was a proximate cause of her death. Herrera, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (stating a "negligence claim requires the existence of a duty from a defendant 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"). We address duty and proximate cause in turn. In the context of negligence, some issues are questions of fact while others remain questions of law. "Whether a duty exists is a question of law for the courts to decide." Solorzano v. Bristow, 2004-NMCA-136, ¶ 21, 136 N.M. 658, 103 P.3d 582; Herrera, 2003-NMSC-018, ¶¶ 6, 10, 134 N.M. 43, 73 P.3d 181 (holding that foreseeability giving rise to duty is an issue that is determined as a matter of law). Proximate cause may also be an issue of law "if no facts are presented that could allow a reasonable jury to find proximate cause." Herrera, 2003-NMSC-018, ¶ 35, 134 N.M. 43, 73 P.3d 181 (internal quotation marks and citation omitted).

Defendant's Duty

{7} Plaintiff argues that Defendant owed Rachel both common law and statutory duties to safely store his firearm. Conduct that falls below a standard of care does not alone support liability. To impose a duty, a relationship must exist that legally obligates Defendant to protect Plaintiff's interest. See Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990). Absent such a relationship, there exists no general duty to protect others from harm. Grover v. Stechel, 2002-NMCA-049, ¶ 11, 132 N.M. 140, 45 P.3d 80.

{8} Whether one owes a duty to another also involves questions of foreseeability. Foreseeability is what one might objectively and reasonably expect, "not merely what might conceivably occur." Van de Valde v. Volvo of Am. Corp., 106 N.M. 457, 459, 744 P.2d 930, 932 (Ct.App.1987) (internal quotation marks and citation omitted). "[N]o one is bound to guard against or take measures to avert that which he [or she] would not reasonably anticipate as likely to happen." Herrera, 2003-NMSC-018, ¶ 20, 134 N.M. 43, 73 P.3d 181 (internal quotation marks and citation omitted). The risk must be actual and perceptible, not speculative. See Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 99 (1928) ("Proof of negligence in the air, so to speak, will not do." (internal quotation marks and citations omitted)). "If the harm was not willful, [the plaintiff] must show that the act as to [the plaintiff] had possibilities of danger so many and apparent as to entitle [the plaintiff] to be protected against the doing of it though the harm was unintended." Id. at 101; Herrera, 2003-NMSC-018, ¶ 19, 134 N.M. 43, 73 P.3d 181.

{9} Foreseeability of injury is not the sole consideration in establishing a duty, since a person's duty to another is also tempered by policy considerations. In determining the existence of a duty, we look at the relationship of the parties, the nature of the plaintiff's interest and the defendant's conduct, and the public policy in imposing a duty on the defendant. Calkins, 110 N.M. at 63, 792 P.2d at 40. We look at both foreseeability and whether the obligation of the defendant is one to which the law will give recognition and effect. Blake v. Pub. Serv. Co. of N.M., 2004-NMCA-002, ¶ 6, 134 N.M. 789, 82 P.3d 960; Herrera, 2003-NMSC-018, ¶ 9, 134 N.M. 43, 73 P.3d 181. The assessment of foreseeability takes into account "community moral norms and policy views, tempered and enriched by experience, and subject to the requirements of maintaining a reliable, predictable, and consistent body of law." Sanchez v. San Juan Concrete Co., 1997-NMCA-068, ¶ 12, 123 N.M. 537, 943 P.2d 571.

{10} Foreseeability is also intertwined with issues of causation. Herrera, 2003-NMSC-018, ¶ 43, 134 N.M. 43, 73 P.3d 181 (Bosson, J., specially concurring) (commenting that the modern view sees foreseeability through the lens of proximate cause). "An independent intervening cause interrupts

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and turns aside a course of events and produces that which was not foreseeable as a result of an earlier act or omission." UJI 13-306 NMRA. Courts generally decline to impute a duty to the defendant when he "neither caused the decedent's uncontrollable suicidal impulse nor had custody of the decedent and knowledge of her suicidal ideation." Nelson v. Mass. Port Auth., 55 Mass.App.Ct. 433, 771 N.E.2d 209, 212 (2002). Generally, suicide is an independent intervening cause of death that is not foreseeable and absolves a defendant of civil liability "unless, as a matter of law, there is no evidence upon...