Lujan v. N.M. Dep't of Transp.

• Citation: 341 P.3d 1
• Decision Date: 04 August 2014
• Docket Number: No. 34,910.,31,883.,34,910.
• Parties: Monica LUJAN, as Personal Representative of the Estate of Peggy Lujan–Silva, Decedent, Plaintiff–Appellant, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

341 P.3d 1

Monica LUJAN, as Personal Representative of the Estate of Peggy Lujan–Silva, Decedent, Plaintiff–Appellant

v.NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant–Appellee.

31,883.

No. 34,910.

Court of Appeals of New Mexico.

Aug. 4, 2014.

Certiorari Denied, Nov. 21, 2014,

Maestas & Suggett, P.C., Paul Maestas, Albuquerque, NM, for Appellant.

Basham & Basham, P.C., Katherine A. Basham, Peter J. Gould, Santa Fe, NM, for Appellee.

OPINION

VIGIL, Judge.

{1} Monica Lujan (Plaintiff), as personal representative of Peggy Lujan–Silva (Decedent), sued the New Mexico Department of Transportation (the Department) for wrongful death arising from a single-car accident, alleging that the Department's negligent failure to keep the roadway clear of dangerous debris caused the accident. The district court granted the Department's motion for summary judgment. We reverse.

BACKGROUND

{2} On October 29, 2004, Decedent was driving south on Interstate–25 (I–25) adjacent to the exit ramp for the St. Francis Road exit at approximately 2:00 p.m. when she encountered pieces of semi-truck tire debris on the roadway, and either struck the debris or swerved to avoid it. Decedent lost control of her vehicle, and it went into an uncontrolled slide and flipped four times, ejecting Decedent from the vehicle. Decedent died at the scene. The roadway at the location of the accident is straight and level, and at the time of the accident the weather was clear, the pavement was dry, and the center and the edge lines were clearly marked. There is no evidence of precisely how long the tire debris was on the roadway, and the Department had no actual notice of the tire debris at that location prior to the accident.

{3} The Department moved for summary judgment, asserting that the undisputed material facts demonstrate that the Department had no actual notice or constructive notice of the tire debris. It being undisputed that the Department had no actual notice, the Department contended that it had no constructive notice of the debris because Plaintiff was unable to pinpoint how long the debris was on the road where the accident took place. Plaintiff's response centered on its contention that the Department was negligent in failing to identify debris on the highway in a timely manner and that the Department's inspection protocols are unreasonably lax and not complied with.

{4} The district court granted summary judgment in favor of the Department on the grounds that the Department did not have actual or constructive notice of the tire debris and that Plaintiff's argument that the Department's failure to have a stronger or more consistent policy for the removal of debris was too speculative to prove proximate cause. Plaintiff appeals, asserting that the summary judgment order must be reversed because: (1) there are factual issues about whether the Department breached its duty to locate the tire debris on the roadway, and (2) there are factual issues regarding proximate cause.

STANDARD OF REVIEW

{5} On appeal, our review of an order granting summary judgment is de novo. Summers v. Ardent Health Servs., L.L.C., 2011–NMSC–017, ¶ 10, 150 N.M. 123, 257 P.3d 943. We affirm an order granting summary judgment when there is no evidence raising a reasonable doubt about any genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Self v. United Parcel Serv., Inc., 1998–NMSC–046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Thus, “the movant has the burden of showing a complete absence of any genuine material issue of fact and that such party is entitled to judgment as a matter of law.” Durham v. Sw. Developers Joint Venture, 2000–NMCA–010, ¶ 42, 128 N.M. 648, 996 P.2d 911. “[O]nce the movant makes a prima facie showing that he is entitled to summary judgment, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Cain v. Champion Window Co. of Albuquerque, LLC, 2007–NMCA–085, ¶ 7, 142 N.M. 209, 164 P.3d 90 (internal quotation marks and citation omitted). In our de novo review of the summary judgment record, “[w]e resolve all reasonable inferences in favor of the non-movant and view the pleadings, affidavits, depositions, answers to interrogatories, and admissions in a light most favorable to a trial on the merits.”Id. ¶ 6. We do so because New Mexico courts “view summary judgment with disfavor, preferring a trial on the merits.” Romero v. Philip Morris, Inc., 2010–NMSC–035, ¶ 8, 148 N.M. 713, 242 P.3d 280.

DISCUSSION

{6} Plaintiff's complaint against the Department is for negligence under the roadway maintenance exception of the Tort Claims Act, NMSA 1978, § 41–4–11(A) (1991), which waives sovereign immunity for damages caused by the government's negligent maintenance of highways. Plaintiff's negligence action falls under this exception because “the identification and remediation of roadway hazards constitutes maintenance under Section 41–4–11.” Rutherford v. Chaves Cnty., 2003–NMSC–010, ¶ 25, 133 N.M. 756, 69 P.3d 1199.

{7} NMSA 1978, Section 41–4–2(B) (1976) of the Tort Claims Act provides in part that liability under the Act “shall be based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty.” Thus, liability under the Act is “premised on traditional concepts of negligence.” Brenneman v. Bd. of Regents of Univ. of N.M., 2004–NMCA–003, ¶ 10, 135 N.M. 68, 84 P.3d 685 (quoting Methola v. Cnty. of Eddy, 1980–NMSC–145, ¶ 19, 95 N.M. 329, 622 P.2d 234 ). See Silva v. State, 1987–NMSC–107, ¶ 47, 106 N.M. 472, 745 P.2d 380 (Stowers, J., dissenting) (“The phrase ‘traditional concepts of duty and the reasonably prudent person's standard of care, ... refers to theories of negligence.”), limited on other grounds by Archibeque v. Moya, 1993–NMSC–079, ¶ 14, 116 N.M. 616, 866 P.2d 344. “It is axiomatic that a negligence action requires that there be a duty owed from the defendant to the plaintiff; that based on a standard of reasonable care under the circumstances, the defendant breached that duty; and that the breach was a cause in fact and proximate cause of the plaintiff's damages.” Romero v. Giant Stop–N–Go of N.M., Inc., 2009–NMCA–059, ¶ 5, 146 N.M. 520, 212 P.3d 408. The absence of any of these elements is fatal to a plaintiff's claim. Id. We address each of these elements in turn.

1. Duty

{8} Whether the defendant owes a duty to the plaintiff, is a legal question for the courts to decide. Id. ¶¶ 5–6. In Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014–NMSC–014, 326 P.3d 465 (Nos. 33,896 and 33,949, May 8, 2014), our Supreme Court recently corrected inconsistences in New Mexico case law on how courts are to determine whether a legal duty is owed. The Court held that “[f]oreseeability is not a factor for courts to consider when determining the existence of a duty[.]” Id. ¶ 1. We follow that holding in this case.

{9} In Lerma v. State Highway Department of New Mexico, our Supreme Court stated that “the Department has a duty to exercise ordinary care in the maintenance of its highways.” 1994–NMSC–069, ¶ 11, 117 N.M. 782, 877 P.2d 1085. However, the Lerma Court framed the duty inquiry around protecting the public from “foreseeable harm ” on New Mexico's roadways. Id. ¶ 8. Our appellate courts have continued to use Lerma 's foreseeability of harm language in negligent roadway maintenance cases. See, e.g., Rutherford, 2003–NMSC–010, ¶ 12, 133 N.M. 756, 69 P.3d 1199 (“[The government entity] has the common law duty to exercise ordinary care to protect the general public from foreseeable harm on its roadways.”); accord Ryan v. N.M. State Highway & Transp. Dep't, 1998–NMCA–116, ¶ 12, 125 N.M. 588, 964 P.2d 149.

{10} Furthermore, in cases where the government did not itself create the condition, New Mexico's negligent highway maintenance case law was developed to examine not just whether harm was generally foreseeable, but also whether the government had notice of the particular dangerous condition at issue.See Blackburn v. State, 1982–NMCA–073, ¶ 32, 98 N.M. 34, 644 P.2d 548 (“[W]here the State has not created the dangerous condition, no duty to remedy the dangerous condition arises until actual or constructive notice is present.”). Thus, the inquiry into the government's duty to exercise ordinary care in the maintenance of its roadways has been fact-intensive, focusing on whether the government entity had actual or constructive notice under the specific circumstances of the case. See, e.g., Martinez v. N.M. Dep't of Transp., 2013–NMSC–005, ¶¶ 41–50, 296 P.3d 468 (determining that the Department's duty to erect barriers depended upon whether it had notice that collisions occurred along the stretch of highway where the collision at issue occurred); Ryan, 1998–NMCA–116, ¶ 7, 125 N.M. 588, 964 P.2d 149 (determining that the Department's duty depended upon whether it had actual or constructive notice of wild animal crossings creating a dangerous condition on a particular stretch of highway).

{11} In Rodriguez, our Supreme Court rejected such a fact-intensive inquiry to determine whether a duty exists. See Rodriguez, 2014–NMSC–014, ¶ ¶ 1, 3, 11, 326 P.3d 465 (holding that “[f]oreseeability is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations .... not [to] whether a duty exists” and overruling prior cases insofar as they conflict with the appropriate duty analysis). The Court also warned that foreseeability can mask itself behind other terms. See id. ¶¶ 12–13 (explaining that considering the “remoteness” of a potential harm, by inviting a discussion of the particularized facts in the case, is essentially a foreseeability driven analysis). Thus, we do not consider “actual or constructive notice” of the tire debris Decedent encountered as determinative of the Department's duty to Decedent.

{12} Nevertheless, the Department's duty in this case is settled: the...