Marquez v. Gomez, No. 11049

Decision Date23 May 1991
Docket NumberNo. 11049
Citation866 P.2d 354,1991 NMCA 66,116 N.M. 626
PartiesRamon MARQUEZ and Viola Marquez, Individually and as Personal Representatives of the Estate of Ronald Joseph Marquez, Deceased, Plaintiffs-Appellants, v. Luis GOMEZ and Mrs. Luis Gomez, his wife, Individually and as Next Friends of Felipe Gomez, their son, Felipe Gomez, Rudy Gonzales and Little League Baseball, Inc., Defendants-Appellees.
CourtCourt of Appeals of New Mexico
OPINION

DONNELLY, Judge.

Plaintiffs, Ramon and Viola Marquez, individually and as personal representatives of the estate of their deceased son, Ronald Joseph Marquez (the decedent), appeal from an order granting summary judgment in favor of each of the defendants in a wrongful death case. Two issues are presented on appeal: (1) whether the trial court erred in granting summary judgment; and (2) whether the trial court abused its discretion in refusing to hear oral testimony and to consider late affidavits submitted at the hearing on the motions for summary judgment. We affirm in part and reverse in part.

FACTS

The events giving rise to this lawsuit took place during a practice session of a senior Little League baseball team. Plaintiffs' teenage son, a team member, was fatally injured on June 20, 1985, when he fell from the back of a truck shortly after the players arrived at the practice field. After the coach and team members assembled for practice, city parks officials asked the team to move to another ballpark a short distance away so that the first field could be watered. In order to travel to the other location, the team members rode in two different vehicles. Several team members rode in a Blazer driven by the coach. As the coach and players were preparing to move, Felipe Gomez suggested to the coach that some of the boys ride with him because there was not enough room in the coach's vehicle for all of the team members and the equipment. Felipe and his brother Tommy had driven to baseball practice that day in their parents' Ford pickup containing a camper shell mounted on the back.

Following the death of their son, plaintiffs brought this wrongful death action against the driver of the pickup, Felipe Gomez, a minor; Felipe's parents, Mr. and Mrs. Luis Gomez; Rudy Gonzales (the coach); and Little League Baseball, Inc. (Little League), the organization which sponsored and supervised senior Little League baseball activities. Defendants answered denying liability and thereafter filed motions for summary judgment seeking dismissal of plaintiffs' complaint. The Gomezes based their motion on arguments that the truck was not negligently entrusted to Felipe, denying that Felipe negligently operated the truck, and that the decedent's injury was unforeseeable. Similarly the coach and Little League premised their motions on arguments that the coach had exercised due care in supervising his players and that the accident was unforeseeable.

As related by the affidavits submitted by defendants in support of their motion, Felipe, Tommy, and a third team member, Gabe Arellano, rode in the cab of the Gomez pickup truck on the trip to the new field. Ralph Rodriguez, Paul Montes, and the decedent were to ride in the camper of the Gomez truck. The coach's affidavit stated that he knew Felipe was a licensed driver with a good driving record; that he instructed Ralph Rodriguez, Paul Montes, and the decedent to ride inside the camper of the Gomez pickup; that prior to his driving away he observed one of the boys open the door of the camper; and that had never experienced any discipline problems with his team members nor was he aware of any instance when they had engaged in dangerous behavior. Each of the team members was between thirteen and fifteen years of age. Felipe, a licensed driver, was driving the family vehicle with his parents' permission.

Ralph told Felipe that Paul and the decedent were going to get inside the camper. Both Felipe and Tommy stated that they saw Ralph Rodriguez open the camper door and they heard the door shut after Felipe started the engine. Felipe stated that he looked in the rearview mirror and, although his view was partially obstructed by a large console TV in the truck bed and by the shaded windows of the camper, he thought he saw figures in the back of the truck; that he then looked in his left side-view mirror and saw the coach leaving, and he began driving away following the coach.

Despite the coach's directions that they ride in the back of the camper, Ralph, Paul and the decedent, instead of entering the camper, stood on the rear bumper and held onto the back of the Gomez pickup. There was nothing, however, on the back of the truck or camper shell for the three boys to get a good grip upon. Both Felipe and Tommy Gomez stated that they were unaware that Paul, Ralph, and the decedent had climbed onto the back of the truck and that they thought the boys were inside the camper. Felipe stated that although the windows of the pickup were open he never saw anyone on the bumper or hanging onto the back of the truck.

In affidavits submitted by the Gomezes, Paul Montes and Ralph Rodriguez indicated that when the pickup started moving the decedent was holding onto the back of the camper. The decedent fell off the truck, but managed to run and climb back on while the vehicle was moving. When Felipe turned and shifted into second gear, the decedent fell from the truck a second time, also dislodging Paul. Paul was injured in the fall; the decedent subsequently died from injuries sustained in the second fall.

At the hearing on the summary judgment motions, plaintiffs sought to introduce the oral testimony of Ralph Rodriguez; a copy of a state police accident report; a report of the state risk management department; and unsworn statements taken by the state police of the coach, Gabriel Arellano, Ralph Rodriguez, Felipe Gomez and Tommy Gomez. Plaintiffs also attached to their response, unsworn statements taken by an investigator of the coach, Felipe and Luis Gomez, and Paul Montes. Additionally, plaintiffs proffered on the day of the hearing two affidavits consisting of a statement prepared by the state police following their interview with Ralph Rodriguez, and a written statement by Paul Montes. These statements duplicated in part affidavits of Ralph Rodriguez, the Gomezes and Paul Montes submitted by defendants. The trial judge refused to consider the oral testimony, the unsworn statements and documents, and the affidavits submitted by plaintiffs and, at the conclusion of the hearing, the court granted each of defendants' motions for summary judgment.

DISCUSSION

Plaintiffs contend that the trial judge erred in granting summary judgment for each defendant. We agree that the order granting summary judgment as to the Gomezes should be set aside, but determine that the trial court properly granted summary judgment in favor of the coach and Little League.

An award of summary judgment is appropriate when the affidavits, depositions or other matters submitted by the parties indicate that there are no genuine issues of material disputed facts and that the moving parties are entitled to a judgment as a matter of law based upon clear and undisputed facts. Koenig v. Perez, 104 N.M. 664, 726 P.2d 341 (1986); Tapia v. Springer Transfer Co., 106 N.M. 461, 744 P.2d 1264 (Ct.App.1987). A movant seeking an award of summary judgment need only make a prima facie showing of entitlement to summary judgment and once the prima facie showing is made, the burden shifts to the opposing party to show at least the existence of a reasonable doubt as to whether a genuine issue of material fact does not remain for resolution at trial. Koenig v. Perez; Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).

Only if parties seeking an award of summary judgment meet their initial burden of establishing that no genuine material issues of material fact exist, is the case appropriate for summary judgment. Savinsky v. Bromley Group, Ltd., 106 N.M. 175, 740 P.2d 1159 (Ct.App.1987). If movants fail to satisfy this initial burden, opposing parties may submit opposing affidavits, but are not required to do so. Ratcliff v. Security Nat'l Bank, 670 P.2d 1139 (Alaska 1983); Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978) (en banc); see also Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir.1979). A prima facie showing that there are no disputed genuine issues of material fact requires the movant to come forward with such evidence as is sufficient in law to raise a presumption of fact or to establish the material fact in question unless rebutted. Goodman v. Brock.

An award of summary judgment is inappropriate when the facts before the court are insufficiently developed or where further factual resolution is necessary to determine the legal issues involved. National Excess Ins. Co. v. Bingham, 106 N.M. 325, 742 P.2d 537 (Ct.App.1987); Burgi v. Acid Eng'g, Inc., 104 N.M. 557, 724 P.2d 765 (Ct.App.1986). Questions of negligence are generally issues of fact for the fact-finder, Furgason v. Clausen, 109 N.M. 331, 340, 785 P.2d 242, 251 (Ct.App.1989), and where reasonable minds may differ on the issue of whether a defendant was negligent, summary judgment is not proper. Id.; see also Lujan v. Reed, 78 N.M. 556, 434 P.2d 378 (1967).

In deciding whether summary judgment is appropriate, the trial court must look to the record as a whole and view the matters presented in a light most favorable to uphold a right to a trial on the merits. Cunningham v. Gross, 102 N.M. 723, 699 P.2d 1075 (1985).

A. The Gomezes

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    ...moving for summary judgment must make a prima facie showing that there are no genuine issues of material fact. Marquez v. Gomez, 116 N.M. 626, 630, 866 P.2d 354, 358 (Ct.App.1991), cert. quashed, 116 N.M. 801, 867 P.2d 1183 (1993). A prima facie showing contemplates that the movant will sho......
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    ...it is all too tempting to use ‘foreseeability’ as a surrogate for result-oriented conclusions.”); accord Marquez v. Gomez, 116 N.M. 626, 631, 866 P.2d 354, 359 (Ct.App.1991) (“The existence and scope of duty, as questions of law, should not be scrutinized with such specificity that the fact......
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    ...it is all too tempting to use 'foreseeability' as a surrogate for result-oriented conclusions."); accord Marquez v. Gomez, 116 N.M. 626, 631, 866 P.2d 354, 359 (Ct. App. 1991) ("The existence and scope of duty, as questions of law, should not be scrutinized with such specificity that the fa......
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