Mitchell v. C & H Transp. Co., Inc.

• Decision Date: 16 June 1977
• Docket Number: No. 11346,11346
• Citation: 1977 NMSC 45,90 N.M. 471,565 P.2d 342
• Parties: Gilbert MITCHELL, Petitioner, v. C & H TRANSPORTATION CO., INC., a corporation, et al., Respondents.
• Court: New Mexico Supreme Court

Page 342

565 P.2d 342

90 N.M. 471

Gilbert MITCHELL, Petitioner, v. C & H TRANSPORTATION CO., INC., a corporation, et al., Respondents.

No. 11346.

Supreme Court of New Mexico.

June 16, 1977.

Matias A. Zamora, Elliot L. Weinreb, Santa Fe, for petitioner

Civerolo, Hansen & Wolf, William P. Gralow, Albuquerque, Montgomery, Federici, Andrews & Hannahs, Thomas W. Olson, Santa Fe, Modrall, Sperling, Roehl, Harris & Sisk, Joseph E. Roehl, Albuquerque, for respondents.

OPINION

EASLEY, Justice.

Plaintiff-Petitioner Gilbert Mitchell (Mitchell) brought a personal injury action against defendants-respondents Plateau, Inc. (Plateau) and Frank Duran and Anita Duran (Duran), along with others who are not parties to this appeal. Summary judgment in favor of Plateau and Duran was granted by the trial court and the decision was sustained by the Court of Appeals. We granted certiorari and now reverse the decisions of the two lower courts.

An accident occurred north of Las Vegas, New Mexico, on U.S. Highway 85 near property owned by Jose Gallegos, west of the highway, when a truck and lowboy trailer became stuck on the driveway over the state right-of-way as the driver was re-entering the highway. A truck stop to the north operated by Duran, and a cafe to the south, operated by Jimmy Gallegos, could both be reached by two driveways which cross the state right-of-way at the north and south ends of the Gallegos property.

Jose Gallegos had leased the entire acreage to McNulty who "assigned" the lease to Plateau, reserving the land on which the cafe was situated, which cafe McNulty was to operate. If McNulty closed the cafe, Plateau had the right under the sublease to operate it. Plateau agreed to keep the premises in good condition. Plateau's sublease to Duran included all the land without mentioning the cafe. Duran was to keep the "driveways in good order and repair and in a . . . safe . . . condition," and was to comply with all state regulations. There was also a clause providing that Duran would indemnify Plateau against any claims for damages arising out of Duran's use of the premises.

Plateau was not obligated under the sublease to make repairs, but reserved the right to go on the premises at any time to examine and inspect the property and to make repairs, additions and alterations "as it (Plateau) may deem desirable."

The State Highway Department had in effect at the time a regulation for the purpose of "traffic control" providing that the "maintenance of driveways shall be the responsibility of the owner of the adjacent property." The same regulation specified that the maximum gradient of a driveway from the edge of the highway shoulder onto commercial property was to be from five to eight percent.

Duran testified in his deposition that he had in fact maintained the "driveways," but later equivocated on this point. On being asked a question about the maintenance, he stated: "I know Plateau is supposed to maintain them," but stated that he, Duran, actually maintained "them."

At about 5:30 on the morning of August 5, 1974, while it was still dark, defendant Gerrald C. Desormeaux (Desormeaux) who was an employee of defendant C & H Transportation Company, Inc. (C & H) was pulling out of the south driveway onto the highway to proceed north, after having stopped at the cafe for coffee and a hamburger. As he turned out of the driveway onto the highway the lowboy trailer which he was pulling with a truck-tractor became securely "hung-up" on the convex surface of the driveway with the tractor stalled in the traveled portion of the highway. Desormeaux put out flares and tried in other ways to warn the persons traveling on the highway but was unsuccessful in warning Mitchell who was riding as a passenger in a vehicle which crashed into the truck. Mitchell suffered injuries as a result of the collision.

The factual questions and the legal issues in this case were thoroughly scrambled in the briefs of the parties on appeal. The two lower courts based their decisions approving summary judgment in favor of Plateau and Duran on the determination that neither of them owned, controlled or occupied the property.

The principal question is whether there is a genuine issue of material fact as to the existence of a duty on the part of one or both of these defendants and, if there is such a duty, as to the negligence of one or both which proximately caused Mitchell's injuries.

Highway Department Driveway Regulation

Mitchell filed a copy of the New Mexico Highway Department's driveway regulation in his efforts to defeat the motion for summary judgment. Although Duran raised a question of the admissability of the regulation based on the document not having been submitted in affidavit form, he did not preserve his record for purposes of appeal on that point and did not raise at all the question of the materiality of the evidence in relation to the application of the regulation to this particular highway. This point is unavailable to Duran since the record was not perfected for appeal. N.M.R. Civ.App. 11 (§ 21-12-11, N.M.S.A.1953 (Supp.1975)).

The regulation deals specifically with driveways that are "on the right-of-way of public highways . . . from the edge of the highway driving surface to the right-of-way line to serve any business."

The pertinent language in the rule reads:

On public highways already constructed, the construction and maintenance of driveways shall be the responsibility of the owner of the adjacent property.

The regulation states that the purpose of controlling the driveways is to "control traffic" for the "safety of the traveling public." It is our duty to construe the regulation to establish the legitimate end sought by the State Highway Commission when it enacted the rule. Burroughs v. Board of Cty. Com'rs, Cty. of Bernalillo, 88 N.M. 303, 540 P.2d 233 (1975); State ex rel. Sanchez v. Reese, 79 N.M. 624, 447 P.2d 504 (1968).

Both Plateau and Duran had a vital interest in the safety of the people using the driveways to reach the premises leased to them and had a sufficient ownership interest to come within the terms of the rule. The lessee who is present on the premises cannot escape the obligation imposed merely by saying that he is not the "owner." The regulation itself recognizes that as to applications for new driveways a lessee would be considered the real party in interest and permitted to file the necessary requests.

The adoption of the regulation by the Highway Commission constituted a legislative act under the doctrine set forth in Wylie Bros. C. C. v. Albuqerque-Bernalillo C.A.C.B., 80 N.M. 633, 459 P.2d 159 (Ct.App.1969). A legislative rule is valid and as binding upon a court as a statute if it is (a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable. 1 K. Davis, Administrative Law Treatise, § 5.03 at 299 (1958); Nat. Broadcasting Co. v. U. S., 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). There being no challenge to any of these required elements, the rule in question here is binding upon this court. Regents of New Mexico v. Albuquerque Broadcasting Co., 158 F.2d 900 (10th Cir. 1947); Goldenberg v. Village of Capitan, 55 N.M. 122, 227 P.2d 630 (1951); Brininstool v. New Mexico State Board of Education, 81 N.M. 319, 466 P.2d 885 (Ct.App.1970).

Plateau and Duran argue that responsibility is placed solely on the "owner" under the terms of the regulation and that, since both of them were lessees rather than owners, the duty to maintain the driveway did not fall upon them. We disagree. Such an interpretation would effectively frustrate the purpose behind the regulation. Both lessees had obligations under the subleases signed by them to keep the premises in good condition. The lessee in possession certainly would be a logical person upon whom the primary liability should fall for failure to carry out the mandate of the regulation.

The duty of Plateau to maintain the premises under the circumstances here is somewhat different from that of Duran.

Although Plateau placed upon Duran the duty to maintain the premises and to indemnify Plateau for any loss because of negligence in doing so, it retained the right to go on the premises to make whatever repairs or changes that it considered necessary. The duty of Duran to maintain the driveway is unquestioned.

The general rule seems well settled that where a landlord fully parts with the possession of the premises and retains no control or right of control over them, and does not thereafter assume control, he is under no duty to inspect their condition while a tenant remains in possession, and is not chargeable with liability for defects not made by him or under his direction or for a failure to make repairs. City of Dalton v. Anderson, 72 Ga.App. 109, 33 S.E.2d 115 (1945). However, there has developed a sound body of law in many jurisdictions where the question has been raised of the landlord's continuing liability after the leasing of the premises, where he has reserved the right to enter to make repairs, even in cases where he has not convenanted to make any repairs. City of Dalton v. Anderson, supra, and authorities cited therein.

A later Georgia case, Levy v. Logan, 99 Ga.App. 253, 108 S.E.2d 307 (1959) held that a landlord who retained a right to enter and inspect the premises for purposes of repair was liable to third parties for injuries resulting from defects which ordinary care in making such an inspection would have revealed, regardless of whether, as between the parties to the lease, the landlord is relieved from obligation of making such inspection or repairs or both. The same situation exists in the case at hand. Plateau, who sought to protect itself by...