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

• Decision Date: 05 August 2011
• Docket Number: No. 28,661.,28,661.
• Parties: Estella MARTINEZ and Lila Salazar, individually and as Co–Personal Representatives of the Estate of Natalie Martinez Espinoza; Isaac Martinez and Estella Martinez, individually and as Co–Personal Representatives of the Estate of Amelia D. Martinez; Lila Salazar and Donna Salazar, as Co–Personal Representatives of the Estate of Donald D. Espinoza; Tony Espinoza and Edna Espinoza; and Anthony Mark Espinoza, individually, Plaintiffs–Appellants,v.NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

150 N.M. 204

258 P.3d 483

2011 -NMCA- 082

Estella MARTINEZ and Lila Salazar, individually and as Co–Personal Representatives of the Estate of Natalie Martinez Espinoza; Isaac Martinez and Estella Martinez, individually and as Co–Personal Representatives of the Estate of Amelia D. Martinez; Lila Salazar and Donna Salazar, as Co–Personal Representatives of the Estate of Donald D. Espinoza; Tony Espinoza and Edna Espinoza; and Anthony Mark Espinoza, individually, Plaintiffs–Appellants,

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

No. 28,661.

Court of Appeals of New Mexico.

June 1, 2011.Certiorari Granted, Aug. 5, 2011, Docket No. 33,083.

Hemphill & Grace, P.C., Linda G. Hemphill, Paul W. Grace, The Okon Law Firm, Christa M. Okon, Santa Fe, NM, for Appellants.Cuddy & McCarthy, LLP, M. Karen Kilgore, Evelyn A. Peyton, Santa Fe, NM, for Appellee.

OPINION

KENNEDY, Judge.

{1} This case stems from a head-on collision between a vehicle driven by Amelia Martinez, in which Donald Espinoza was a passenger, and another vehicle driven by Anthony Griego. All involved died. Plaintiffs, representatives of Martinez's and Espinoza's estates, pursue wrongful death and loss of consortium claims against the New Mexico Department of Transportation (DOT) for negligent failure to maintain the road. The district court granted DOT partial summary judgment on the grounds that DOT's alleged failure to install a concrete barrier separating traffic constituted a design issue, which insulates DOT from liability under the New Mexico Tort Claims Act (Act), NMSA 1978, Sections 41–4–1 to –30 (1976, as amended through 2010). At trial, the jury found for DOT on the remaining claims, and Plaintiffs now appeal. Plaintiffs argue the district court erred by (1) granting partial summary judgment to DOT on the issue of design immunity, (2) excluding evidence relating to DOT's duty to sweep gravel, (3) admitting Espinoza's toxicology report and drug paraphernalia, (4) admitting testimony of DOT's expert witness, and (5) providing inaccurate jury instructions. Additionally, Plaintiffs request that this Court should provide guidance on whether the grandparents are permitted to bring a loss of consortium claim for an unborn grandchild. We affirm all of the district court's decisions on these issues and decline to advise whether the grandparents are permitted to bring a loss of consortium claim for an unborn grandchild.

I. BACKGROUND AND PROCEDURAL HISTORY

{2} On December 9, 2004, Griego drove eastbound on NM 502 in Santa Fe County, using the center turn lane to pass another driver. Around mile marker nine, Griego lost control and collided with the vehicle occupied by Martinez and Espinoza. Griego was intoxicated and driving above the speed limit. Griego, Martinez, and Espinoza died. Martinez's and Espinoza's approximately eight-month-old fetus also died. Sheriff's deputies determined that Martinez was not at fault for the accident. Plaintiffs and DOT do not dispute this fact.

{3} Plaintiffs are the parents of Martinez and Espinoza and paternal grandparents of their unborn grandchild. As representatives of Martinez's and Espinoza's estates, Plaintiffs pursue wrongful death and loss of consortium claims against DOT. Plaintiffs also bring a loss of consortium claim for their unborn grandchild.

{4} At trial, Plaintiffs argued that DOT's negligent failure to sweep away crushed red cinder from the center turn lane in part caused Griego to skid into oncoming traffic and collide into Martinez and Espinoza's vehicle. Plaintiffs also argued that DOT had a duty to erect a concrete barrier separating eastbound and westbound traffic. Plaintiffs asserted that DOT's duty arose from notice of NM 502's dangerous condition. Plaintiffs contended that DOT had notice of (1) previous fatal accidents occurring on NM 502, (2) newspaper articles discussing the dangerousness of the road, and (3) two citizens' complaints made to DOT regarding the dangers of NM 502. Plaintiffs argued that if DOT had heeded these notices of problems with the road's design and exercised its duty to erect concrete barriers, Griego would not have crossed the center turn lane and struck and killed Martinez and Espinoza.

{5} The court granted partial summary judgment to DOT on this issue prior to trial and explained its decision on the record. The district court held that the erection of barriers in this case was a matter of road design and within the scope of preserved state immunity under the Act. Section 41–4–11(B)(1)–(2). In reaching its conclusion, the district court acknowledged that defects in the road design, if known to DOT as a cause of accidents, could give rise to a duty on the part of DOT to change the design to make the road safer. The district court stated that it had considered the prior accidents cited by Plaintiffs on that road, and they did not sufficiently demonstrate that road conditions resulting from the road's design, absent other factors involved in those previous incidents, were similar to decedents' accident. The district court stated that absent an ability to make such a showing, Plaintiffs could not demonstrate that DOT was on notice of the danger of such accidents occurring as a result of the road's design. Plaintiffs could not show that DOT had notice of an ongoing defect of design in that part of the road, so as to give rise to a duty on DOT's part to correct it. To the extent that Plaintiffs failed to establish that there was a hazardous road design that gave rise to a duty to correct it, the district court concluded that it would not be proper to waive sovereign immunity for Plaintiffs' allegation that the design of the road contributed to the conditions causing the accident in this case. On appeal, Plaintiffs contend that the district court improperly granted partial summary judgment on the issue of DOT's duty to erect concrete barriers.

{6} After granting partial summary judgment to DOT on the issue of road design, the district court excluded other evidence that Plaintiffs argue demonstrated DOT's liability for failure to sweep away gravel in the center turn lane. Plaintiffs' evidence included facts relating to prior fatal accidents that occurred in the vicinity of the decedents' accident: (1) newspaper articles describing these prior accidents and the dangerousness of NM 502, (2) testimony by two citizens who expressed concern to DOT regarding the alleged unsafe conditions of NM 502, (3) testimony by Plaintiffs' expert that center turn lane barriers could have prevented the deaths of Espinoza and Martinez, and (4) other information pertaining to the configuration of NM 502. Apart from testimony by one citizen that related to an observation of gravel build-up, the district court excluded all of the evidence on the basis that it was unrelated to DOT's duty to sweep away gravel. Left to decide whether DOT negligently failed to sweep away crushed cinders in the center turn lane, the jury found for DOT. On appeal, Plaintiffs argue that the district court abused its discretion in excluding this evidence.

{7} Plaintiffs also contest the district court's admission of a bag belonging to Espinoza, containing cash, a gun, a crack pipe, and various prescription and non-prescription drugs discovered in Martinez's vehicle, as well as the results from an autopsy report indicating that Espinoza tested positive for drugs. The district court admitted the contents of the bag and toxicology report on the basis that it went to the issue of damages. Plaintiffs argue that the admission of this evidence was extremely prejudicial, and the district court abused its discretion in admitting it.

{8} Next, Plaintiffs appeal the district court's decision to permit the testimony of DOT's expert witness, Dr. Stephen Pike, who testified to Griego's degree of intoxication. Plaintiffs allege that DOT's untimely identification of Dr. Pike as a witness should have precluded his testimony, and the district court abused its discretion in admitting it.

{9} Plaintiffs also appeal the district court's jury instructions. Plaintiffs argue that the district court improperly denied them the right to submit two additional jury instructions. Lastly, Plaintiffs assert that this Court should give guidance regarding a grandparent's ability to bring a loss of consortium claim for an unborn grandchild. We first address DOT's immunity under the Act and then concern ourselves with the remaining issues that arose at trial.

II. DISCUSSIONA. Immunity

{10} Plaintiffs argue that DOT negligently failed to maintain NM 502 and is not immune from liability under Section 41–4–11(B)(1) and (2). Whether immunity bars Plaintiffs' suit for DOT's alleged failure to erect concrete barriers is a question of law, which we review de novo. Rutherford v. Chaves Cnty., 2003–NMSC–010, ¶ 8, 133 N.M. 756, 69 P.3d 1199. Summary judgment is proper if material facts are undisputed, and the movant is entitled to judgment as a matter of law. See Rule 1–056(C) NMRA; Bierner v. City of Truth or Consequences, 2004–NMCA–093, ¶ 8, 136 N.M. 197, 96 P.3d 322. In interpreting the meaning of a statute, we seek to effectuate legislative intent. Rutherford, 2003–NMSC–010, ¶ 11, 133 N.M. 756, 69 P.3d 1199; California First Bank v. State Dep't of Alcohol Beverage Control, 111 N.M. 64, 68, 801 P.2d 646, 650 (1990). Statutory provisions that waive governmental immunity are strictly construed. Rutherford, 2003–NMSC–010, ¶ 11, 133 N.M. 756, 69 P.3d 1199; Armijo v. Dep't of Health & Env't, 108 N.M. 616, 618, 775 P.2d 1333, 1335 (Ct.App.1989).

{11} Section 41–4–11(B)(1) and (2) preserves state immunity against suits for injuries caused by “a defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area” or by the state's “failure to construct or reconstruct any bridge, culvert, [or] roadway [.]” Section 41–4–11(A) waives state immunity against suit for injuries caused by “the negligence of...