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

• Decision Date: 31 January 2013
• Docket Number: No. 33,083.,33,083.
• Citation: 296 P.3d 468
• Parties: Estela MARTINEZ and Lila Salazar, individually and as co-personal representatives of the Estate of Natalie Martinez Espinoza, Isaac Martinez, and Estela 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 Estates of Donald D. Espinoza, Tony Espinoza, and Edna Espinoza, and Anthony Mark Espinoza, individually, Plaintiffs–Petitioners, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant–Respondent.
• Court: New Mexico Supreme Court

296 P.3d 468

Estela MARTINEZ and Lila Salazar, individually and as co-personal representatives of the Estate of Natalie Martinez Espinoza, Isaac Martinez, and Estela 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 Estates of Donald D. Espinoza, Tony Espinoza, and Edna Espinoza, and Anthony Mark Espinoza, individually, Plaintiffs–Petitioners,

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

No. 33,083.

Supreme Court of New Mexico.

Jan. 31, 2013.

Hemphill & Grace, P.C., Linda G. Hemphill, Paul W. Grace, The Okon Law Firm, Christa M. Okon, Santa Fe, NM, for Petitioners.

Cuddy & McCarthy, L.L.P., Mary Karen Kilgore, Evelyn Anne Peyton, Santa Fe, NM, for Respondent.

Michael B. Browde, Albuquerque, NM, for Amicus Curiae New Mexico Trial Lawyers Association.

Gary K. King, Attorney General, Matthew Eric Jackson, Assistant Attorney General, Santa Fe, NM, for Amicus Curiae New Mexico Attorney General Gary K. King.

OPINION

BOSSON, Justice.

{1} New Mexico State Road 502 (NM 502), a winding mountainous roadway leading to and from Los Alamos, New Mexico, was designed partially with and partially without center lane barriers to prevent cross-over collisions. Barriers were not installed at the site of the cross-over collision in this case. The New Mexico Department of Transportation (DOT), which has legal responsibility to maintain NM 502, was sued for negligently failing to remedy a dangerous condition when it chose not to replace the open center lane with cross-over barriers, after it was allegedly put on notice of that risk by post-construction accidents and other events. Our Court of Appeals held as a matter of law that DOT was immune from suit for such negligence, a decision which we reverse as being at odds with our jurisprudence. We also hold that the district court unduly restricted the evidence offered to show that DOT had received notice of the danger at this location and the need for remedial action. Accordingly, we reverse and remand for a new trial.

BACKGROUND

{2} On December 9, 2004, Amelia Martinez and Donald Espinoza were driving west on NM 502 toward Los Alamos to buy a car. Amelia, eight and a half months pregnant at the time, was driving and Donald was in the passenger seat. Tragically, they did not make their destination.

{3} At the same time, Anthony Griego was driving east on NM 502 away from Los Alamos. Griego was weaving in and out of traffic, passing cars in both the left- and right-hand lanes. In an attempt to pass another car, Griego entered the center turn lane, a two-way, turn-only lane near mile marker 9. Griego lost control of his vehicle in the center turn lane, which was covered in red crushed cinder commonly used in New Mexico during snow-clearing operations. He skidded into oncoming traffic, colliding head-on with Amelia's vehicle. No one from either vehicle survived the crash. A toxicology report later showed that Griego had both drugs and alcohol in his system at the time of the collision.

{4} The parents of both Amelia and Donald, as well as Donald's grandparents, (Plaintiffs) filed the present suit against DOT, claiming wrongful death and loss of consortium. Plaintiffs alleged that the failure to construct a center barrier on this section of NM 502 “created or permitted a dangerous condition to exist, [and] constitutes a failure to maintain a road in a reasonably safe condition for which immunity has been waived under the Tort Claims Act.” In addition, DOT “permitted a dangerous condition by allowing sand or gravel to remain in the [center lane].”

{5} DOT had redesigned NM 502 in the late 1980s. The redesign was necessary to accommodate increased traffic flow and to make the road safer “due to the sensitive materials which may be taken to and from the Los Alamos National Laboratory,” presumably a reference to transporting nuclear waste. As part of the redesign, an additional lane of travel was added in each direction. The redesign included a center turn lane between mile markers 8 and 10 where the cross-over collision occurred, although with the exception of a gas station, there are no developed roadways upon which to turn. West of mile marker 8, the eastbound and westbound lanes of traffic are divided by a concrete median barrier known as a “Jersey barrier.” Between mile markers 8 and 10, including the collision site, there is no Jersey barrier.

{6} Before trial, DOT filed a motion for partial summary judgment regarding waiver of immunity under the New Mexico Tort Claims Act (the Act). As will be discussed in more detail, the Act permits suits against DOT for negligent “maintenance” of a roadway, but not for negligent “design.” NMSA 1978, § 41–4–11 (1991). The summary-judgment motion asked the district court to rule as a matter of law that DOT's decision not to install a center barrier in the area where this collision occurred was one of design, not maintenance. The district court granted the motion and, as such, prevented Plaintiffs from going to trial under their theory that a failure to install a center barrier on this particular stretch of roadway constituted negligent maintenance. The ruling thus limited Plaintiffs' claim at trial to proving that DOT was negligent for failing to remove the red cinder left from snow-clearing operations that had accumulated in the center turn lane, a proximate cause of the collision.

{7} At trial, Plaintiffs sought to introduce evidence of other cross-median, fatal collisions that had occurred between mile markers 8 and 10, the stretch of road with the center turn lane at issue in this case. Between 1998 and the time of this collision, five other motorists had died in four separate incidents involving cross-median collisions between mile markers 8 and 10. The district court excluded evidence of these fatalities.

{8} In addition to evidence of other collisions, Plaintiffs attempted unsuccessfully to introduce two types of evidence: one, that citizens had previously filed complaints with DOT regarding the lack of a center barrier, and two, that DOT had installed a center barrier on other sections of the road. The court limited the evidence at trial to the scene of the collision and evidence regarding red cinder in the center turn lane.

{9} So restricted, Plaintiffs proceeded to trial where the jury returned a verdict for DOT. The Court of Appeals affirmed the district court in total. Martinez v. N.M. Dep't of Transp., 2011–NMCA–082, 150 N.M. 204, 258 P.3d 483. The Court of Appeals focused on the permanent nature of Jersey barriers, describing them as “concrete, dense structures, the placement of which is not simple or uncomplicated.” Id. ¶ 18. According to the Court of Appeals, New Mexico jurisprudence “hinged on the difference between guiding traffic and designing permanent attributes of a road itself.” Id. ¶ 17. Ultimately, the Court of Appeals held “that erection of permanent barriers as part of a road constitutes a matter of road design” and not maintenance. Id. We granted certiorari to consider important legal issues—both for the motoring public and for DOT in discharging its responsibility to ensure the safety of New Mexico's highways—that arise from a proper interpretation and application of the Tort Claims Act.

DISCUSSIONStandard of Review

{10} As we interpret the Act, we are reminded that statutory construction is a matter of law which is our responsibility to review de novo. See Rutherford v. Chaves Cnty., 2003–NMSC–010, ¶ 8, 133 N.M. 756, 69 P.3d 1199 (“The standard of review for determining whether governmental immunity under the [Act] bars a tort claim is a question of law which we review de novo.”).

Tort Claims Act

{11} The Tort Claims Act, passed by the Legislature in 1976, affirmed the sovereign immunity of the State from tort claims generally, subject to certain frequently discussed exceptions. NMSA 1978, § 41–4–2 (1976). The Act was intended to balance “the inherentlyunfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity” with the observation that “the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done.” Section 41–4–2(A). Accordingly, the Legislature declared it “to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act.” Id.

{12} Of the exceptions explicitly enumerated in the Act, Section 41–4–11 waives immunity for certain actions regarding highways. The statute reads as follows:

A. The immunity granted pursuant to Subsection A of Section 41–4–4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.

B. The liability for which immunity has been waived pursuant to Subsection A of this section shall not include liability for damages caused by:

(1) a defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area;

(2) the failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area....

Id. (emphasis added). The central issue in this case is whether DOT's decision not to install a post-construction center barrier at mile marker 9 on NM 502, after being alerted of a potentially dangerous condition at that general location, is a matter envisioned by the Act as highway “maintenance,” for which sovereign immunity is waived, or highway “design,” for which it is not.

The Court of...