Nelson v. Albuquerque Bernalillo Cnty. Water Util. Auth.

• Decision Date: 11 March 2020
• Docket Number: No. A-1-CA-36496,No. A-1-CA-36495,A-1-CA-36495,A-1-CA-36496
• Parties: CAROL NELSON and STEVE NELSON, personally and on behalf of LINDSEY NELSON, a minor child, Plaintiffs-Appellants, v. ALBUQUERQUE BERNALILLO COUNTY WATER UTILITY AUTHORITY; TLC PLUMBING, INC.; and ADVANTAGE BARRICADE AND ROADMARKS, LLC, Defendants-Appellees, and BERNALILLO COUNTY and ANTONIO VARGAS, in his individual capacity, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

CAROL NELSON and STEVE NELSON, personally and on behalf of LINDSEY NELSON, a minor child, Plaintiffs-Appellants, v. ALBUQUERQUE BERNALILLO COUNTY WATER UTILITY AUTHORITY; TLC PLUMBING, INC.;and ADVANTAGE BARRICADE AND ROADMARKS, LLC, Defendants-Appellees,andBERNALILLO COUNTY and ANTONIO VARGAS, in his individual capacity, Defendants-Appellees.

No. A-1-CA-36495

No. A-1-CA-36496

COURT OF APPEALS OF THE STATE OF NEW MEXICO

March 11, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

(consolidated for purpose of opinion)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Carl J. Butkus, District Judge

Rabern Law

Trace Rabern

Santa Fe, NM

for Appellants

SaucedoChavez, P.C.

Christopher T. Saucedo

Brian Griesmeyer

Albuquerque, NM

for Appellee Albuquerque Bernalillo County Water Utility Authority

Cuddy & McCarthy, LLP

K. Stephen Royce

Albuquerque, NM

for Appellees Advantage Barricade and Roadmarks, LLC

Doughty Alcaraz, P.A.

Robert M. Doughty, III

Jeffrey M. Mitchell

Albuquerque, NM

Lewis Brisbois Bisgaard & Smith LLP

Laura Ackermann

Ryan M. Walters

Albuquerque, NM

for Appellee TLC Plumbing, Inc.

MEMORANDUM OPINION

MEDINA, Judge.

{1} This appeal arises out of a car accident that occurred in a construction zone. Plaintiffs Carol Nelson and Steve Nelson sued the entities involved in the construction project, Albuquerque Bernalillo County Water Utility Authority (ABCWUA), TLC Plumbing, Inc. (TLC Plumbing), and Advantage Barricade and Roadmarks, LLC (Advantage Barricade) (collectively, the Construction Defendants). Plaintiffs also sued the individual who hit Mrs. Nelson, Antonio Vargas, and his employer, the County of Bernalillo (collectively, the Accident Defendants). Plaintiffs separately appeal the district court's decision granting summary judgment in favor of the Construction Defendants, as well as the district court's exclusion of Mrs. Nelson's medical bills at trial on Plaintiffs' claims against the Accident Defendants. We consolidate Plaintiffs' appeals. Concluding there was no error in the district court's grant of summary judgment or exclusion of Mrs. Nelson's medical bills, we affirm.

BACKGROUND

{2} The undisputed material facts are as follows. ABCWUA contracted with TLC Plumbing to complete valve work on an underground waterline near the intersection of Eubank Blvd., N.E. and Constitution Ave., N.E., Albuquerque, New Mexico, whichrequired several lane closures on Eubank. TLC Plumbing, in turn, contracted with Advantage Barricade to provide temporary traffic-control signage for the construction site. One of the temporary traffic-control signs installed by Advantage was a "No Left Turn" sign placed on the left hand side of the only open southbound lane of Eubank, prohibiting southbound traffic from turning left onto Constitution.

{3} One night during the construction period, Mrs. Nelson attempted to make a left-hand turn onto Constitution from the southbound Eubank lane. As she turned left into the intersection, Vargas—travelling northbound on Eubank—collided with Mrs. Nelson's vehicle. Following the accident, Plaintiffs filed this suit, claiming that the Construction Defendants negligently failed to: (1) "maintain a traffic control sign stating no left turn from Eubank NE to Constitution NE in a construction zone and placing it so that [it] is visible from the intersection"; (2) "place a large or different sign indicating no left turn from Eubank NE to Constitution NE in a construction zone area"; (3) "implement standards to maintain or position [the 'No Left Turn'] sign"; (4) "implement and use readily available resources to post the ['No Left Turn'] sign appropriately for individuals turning left into a construction zone"; (5) "provide alternative methods of traffic control in a construction zone where [the 'No Left Turn'] sign is not readily visible"; and (6) "use care in the maintenance of traffic control devices at or near the intersection[.]"

{4} After extensive discovery, the Construction Defendants moved for summary judgment on all of Plaintiffs' claims, arguing that Plaintiffs failed to adduce evidence that the Construction Defendants breached any duty to Plaintiffs. Specifically, the Construction Defendants argued that there was no evidence that they failed to use reasonable care in installing or maintaining the "No Left Turn" sign, using a "No Left Turn" sign that was visible to drivers, or otherwise designing, installing, and maintaining the traffic-control devices near the intersection.

{5} In support of this argument, the Construction Defendants attached excerpts from the 2009 American Association of State Highway Officials Manual on Uniform Traffic Control Devices (MUTCD), relating to the placement of temporary traffic-control signs, as well as three photos taken by the Bernalillo County Sheriff's Office during the course of its investigation of the accident showing the "No Left Turn" sign at the intersection visible from the point of view of southbound Eubank traffic. The Construction Defendants also attached a declaration signed and dated by one of Advantage Barricade's members in which the member affirmed "under penalty of perjury"¹ that the following statements "are true and correct": (1) Advantage Barricade's traffic control plan was approved and inspected by the City of Albuquerque; (2) all of the temporarytraffic control signs were installed by trained and accredited traffic control technicians; (3) all of the temporary traffic-control signs complied with the MUTCD; (4) the "No Left Turn" sign, met or exceeded minimum reflective intensity requirements set by the City of Albuquerque; (5) the construction project was inspected periodically by Advantage Barricade, with the last inspection occurring the day of the accident; and (6) Advantage Barricade never received a report of a fallen sign on the construction project.

{6} In response, Plaintiffs argued that genuine issues of material fact existed as to whether the "No Left Turn" sign was "adequate and positioned so as to warn motorists of the danger presented by the construction project and to safely direct traffic." Plaintiffs attached Mrs. Nelson's affidavit stating that the "No Left Turn" sign "was tilted or angled so that it was not visible to [her] and would not have been visible to other southbound drivers." Attached to Mrs. Nelson's affidavit were two photos of the "No Left Turn" sign taken the night of the accident, which Mrs. Nelson claimed "show that the sign . . . was angled or tilted away from southbound traffic such that it was not visible to . . . southbound traffic[.]"²

{7} After a hearing on the motion, the district court granted summary judgment in favor of the Construction Defendants, stating, "I think the problem we've got in this case is that we're faced with, essentially, an evidentiary vacuum, and I think in that vacuum, the motion should be granted[.]"³ The court subsequently entered an order finding that there were no genuine issues of material fact and concluding that the Construction Defendants were entitled to judgment as a matter of law.

{8} Following the district court's grant of summary judgment in favor of the Construction Defendants, the case proceeded to trial on Plaintiffs' claim against the Accident Defendants. Prior to trial, the Accident Defendants filed a motion in limine seeking to exclude evidence concerning Mrs. Nelson's medical treatment for an ankle injury she allegedly sustained in the accident. Specifically, the Accident Defendants argued that Mrs. Nelson had not disclosed an expert that would opine that any treatment—which included a surgery—she received from Dr. Seth Launer, was related to her accident and was reasonable and necessary. Further, they asserted that Mrs. Nelson's ankle injury was caused by heavy lifting associated with her spa business following the accident, and there was nothing in Dr. Launer's medical records to indicate that he formed an opinion in this regard. Plaintiffs filed a response arguing that they did not need to identify an expert because Dr. Launer could testify as Mrs. Nelson's treatingphysician regarding causation, treatment, and whether the treatment was reasonable and necessary.

{9} On the afternoon of the first day of trial, the district court addressed the motion in limine and told Plaintiffs to make an offer of proof that Dr. Launer would "testify as a matter of reasonable probability that the surgery and everything that is associated with that is a proximate cause of the accident[.]" Following extensive direct and cross-examination of Dr. Launer, the district court expressed concern as to whether Dr. Launer could opine as a matter of reasonable probability that Mrs. Nelson's ankle injury was due to the accident. The court ultimately—and reluctantly—ruled that Dr. Launer could testify, subject to rigorous cross-examination.

{10} As the trial proceeded, Plaintiffs attempted to introduce evidence of Mrs. Nelson's medical records and bills through Mr. Nelson. The district court sustained the Accident Defendants' objection to the admission of the medical bills, explaining,

[T]he dollar amounts that were charged for the services can't be gone into with this witness, although we would probably go into it with [Dr.] Launer when we are going to get to him, as far as his treatment is concerned. If he is willing to say that they were reasonable and necessary, he can certainly do that. But most of them have been kept out at this point.

Plaintiffs again sought to introduce the medical records and bills following Mrs. Nelson's testimony. The Accident Defendants objected, arguing that there had been "no testimony in the trial that the surgery was reasonable and necessary and related to this car accident." The district...