Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P.

Decision Date28 January 2013
Docket Number30,578.,Nos. 30,421,s. 30,421
Citation297 P.3d 334
PartiesJames RODRIGUEZ, Individually and as Representative of the Estates of Janell L. Rodriguez and David Rodriguez, Deceased, Leann Aguilar, Domenic A. Rodriguez, Juan M. Terrazas, Individually and as Representative of the Estate of Viviana E. Terrazas, Deceased, Ludivina Terrazas Enriquez, and Billy J. Trujillo, as Next Friend of Isaiah Trujillo, Plaintiffs–Appellants, v. DEL SOL SHOPPING CENTER ASSOCIATES, L.P., a/k/a Del Sol Shopping Center, BGK Properties, Inc., BGK Realty, Inc., BGK Property Management, L.L.C., and BGK Equities III, Inc., Defendants–Appellees. and Maria C. Bustamante, as Representative of the Estate of Michael Solchenberger, and his wife Lydia Solchenberger, Deceased, Plaintiff–Appellant, v. BGK Properties, Inc., Del Sol Shopping Center Associates, L.P., and Concentra Health Services, Inc., Defendants–Appellees.
CourtCourt of Appeals of New Mexico


Law Offices of Beatrice Lockhart, Beatrice Castellano Lockhart, Joe Cruz Castellano, Attorney at Law, Joe Cruz Castellano, Santa Fe, NM, Watts Guerra Craft L.L.P., John G. Escamilla, Edinburg, TX, Gaddy Jaramillo Lawyers, David Jaramillo, Albuquerque, NM, Attorneys for Appellants.

Madison, Harbour & Mroz, P.A., Ada B. Priest, M. Eliza Stewart, Albuquerque, NM, Attorneys for Appellees, BGK Properties, Inc. and Del Sol Shopping Center Associates, L.P., BGK Realty, Inc. and BGK Equities III, LLC.

Civerolo, Gralow, Hill & Curtis, P.A., Lisa Entress Pullen, M. Clea Gutterson, Albuquerque, NM, Attorneys for Appellees, BGK Property Management, LLC.

Rammelkamp, Muehlenweg & Cordova, P.A., Lara White Davis, Albuquerque, NM, Attorney for Appellee, Concentra Health Services, Inc.

Brown & Gay, P.C., Remo E. Gay, Jr., Melissa A. Brown, Albuquerque, NM, Attorneys for Appellee, Concentra Health Services, Inc.



{1} On March 17, 2006, a pick-up truck in the parking lot of Del Sol Shopping Center (Del Sol) in Santa Fe suddenly accelerated—due to a combination of driver and vehicle failure—and hurtled through one of Del Sol's side-by-side business-front glass walls and into the Concentra Medical Clinic (Concentra). Tragically, a mother and her son were struck and killed inside, along with a medical receptionist assisting them at the time. Six other Concentra patients were also seriously injured by the runaway truck. The legal aftermath of the calamity included separate premises liability actions filed by the decedents' estates, the surviving victims and their families (collectively, Plaintiffs). Each lawsuit alleged that the owners and operators of Del Sol (collectively, Defendants) negligently contributed to the occurrence by, among other things, failing to adequately post traffic signage and erect additional physical barriers between the parking lot and shopping center. Two district courts granted Defendants' motions for summary judgment, each declaring that Defendants had no duty to protect Plaintiffs inside the building from criminally reckless drivers because the sequence of events was unforeseeable as a matter of law. We previously consolidated Plaintiffs' appeals from the separate orders of summary judgment and now affirm. We do so, however, not based on the foreseeability-driven duty analysis employed by the district courts, but based on the policy-driven duty analysis advanced by the Restatement (Third) of Torts and Plaintiffs, and recently embraced by our New Mexico Supreme Court in Edward C. v. City of Albuquerque, 2010–NMSC–043, ¶ 15, 148 N.M. 646, 241 P.3d 1086.

Standard of Review

{2} At the outset, we acknowledge that under New Mexico law summary judgment is “to be used with great caution,” and is proper in only two circumstances: (1) “when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law,” or (2) “when the material facts are not in dispute and the only question to be resolved is the legal effect of the facts.” Monett v. Doña Ana Cnty. Sheriff's Posse, 114 N.M. 452, 454, 840 P.2d 599, 601 (Ct.App.1992) (internal quotation marks and citations omitted). The issue presented here is of the latter type, which compels our resolution of the legal question of duty in the context of the established material facts. Accordingly, we apply de novo review. See Cable v. Wells Fargo Bank N.M., N.A. (In re Cable Family Trust), 2010–NMSC–017, ¶ 9, 148 N.M. 127, 231 P.3d 108 (“An appeal from the grant of a motion for summary judgment presents a question of law and is reviewed de novo.” (internal quotation marks and citation omitted)); see also Herrera v. Quality Pontiac, 2003–NMSC–018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (stating that [w]hether a duty exists is a question of law” to be reviewed de novo).


{3} Undisputed evidence demonstrates that Rachel Ruiz—who had been advised not to operate motor vehicles by physicians treating her seizure disorder—was nonetheless driving the pick-up truck that crashed into Del Sol and Concentra. Ms. Ruiz was also aware that the truck had previously experienced mechanical failure, including both sudden acceleration and loss of brake controls. While driving the truck and simultaneously disregarding her own and its pre-known conditions, Ms. Ruiz steered into Del Sol's parking lot from St. Michael's Drive. She reportedly intended to make an in-person dental appointment at “Perfect Teeth,” one of the many adjacent tenant businesses located within Del Sol.

{4} As Ms. Ruiz drove along a 600–foot entrance straightaway within the Del Sol parking lot, the truck's accelerator apparently became stuck while depressed and its brakes failed to engage. Ms. Ruiz maintained she then experienced a “baby seizure,” causing her to abruptly lose consciousness. The unbridled truck continued accelerating, veered slightly to the left, and vaulted the perpendicular six-inch curb at the end of the straightaway. Its leftward drift caused the truck to narrowly miss a concrete overhang support pillar centered directly at the end of the straightaway. It then sped across a ten-foot wide pedestrian sidewalk, snapped a metal handrail, and crashed through Concentra's floor-to-ceiling glass wall. It finally came to rest—after striking Plaintiffs—more than twelve feet into Concentra's reception area.

{5} The legal aftermath of the tragedy resulted in these current lawsuits and separate criminal proceedings, during which Ms. Ruiz pleaded no contest to three counts of vehicular homicide and six counts of great bodily injury by vehicle, and was imprisoned. These appeals follow the issuance of separate written orders of summary judgment by district court judges who first held hearings and considered pleadings, exhibits, and arguments of counsel. We review the propriety of those determinations below.

Current State of New Mexico's Legal Duty Analysis

{6} The core question presented in this appeal is what, if any, duty is owed by Defendants in the context of the facts recited above. Before answering, we briefly summarize the evolution of New Mexico's legal duty analysis, and state what we consider to be the current test. The Solchenberger Plaintiffs assert in their brief-in-chief that New Mexico law has been “inconsistent regarding the role of foreseeability in duty determinations.” To this end, they cite with chronologic specificity our jurisprudence following the seminal case on this topic, Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). Our own review of these cases has likewise discerned vacillation between the different constructions by which duty can be recognized and measured. The Palsgraf debate, written by Chief Judge Cardozo on behalf of the majority and with Judge Andrews penning the dissent, specifically addressed the application of foreseeability within the legal question of duty, and underscored the tension between the differing roles of judges and juries in resolving negligence-based lawsuits. In short, Judge Cardozo prevailed in his effort to incorporate foreseeability within the strictly legal determination of duty. See Palsgraf, 162 N.E. at 100 ([T]he orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.”). He did so despite the separate application of foreseeability within the element of causation—a quintessential question of fact resolved by juries. See Johnstone v. City of Albuquerque, 2006–NMCA–119, ¶ 20, 140 N.M. 596, 145 P.3d 76 ([A]ny consideration of foreseeability of injury is intertwined with the concept of proximate causation of that injury.”); Baker v. Fryar, 77 N.M. 257, 262, 421 P.2d 784, 787 (1966) (We recognize that proximate cause is a question of fact to be determined by the factfinder.”). Judge Andrews advocated the divergent viewpoint in his dissent, maintaining that [d]ue care is a duty imposed on each one of us to protect society from unnecessary danger,” and that any limitation of duty should be derived from matters of effective policy rather than the more nebulous legal notion of foreseeability. See Palsgraf, 162 N.E. at 102, 103 ([B]ecause of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.”).

{7} Our New Mexico Supreme Court first asserted its adoption of the Palsgraf majority's “foreseeable plaintiff test for determining duty in Ramirez v. Armstrong. 100 N.M. 538, 541, 673 P.2d 822, 825 (1983) (“If it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the defendant.”), overruled in part by Folz v. State, 110 N.M. 457, 797 P.2d 246 (1990). But Ramirez's imprecise phrasing of the express Palsgraf holding was later criticized by New Mexico Supreme Court Chief Justice Ransom in a particularly enduring special concurrence. See Solon v....

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    • July 8, 2014 summary judgment.12 One of the cases cited by defendant has since been overruled. Defendant cites Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., 297 P.3d 334 (N.M.Ct.App.2012) as a “perfect example” of a case where a court refused to impose a duty on a business owner to protect patron......
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    ...duty analysis advanced by the Restatement (Third) of Torts[.]" Rodriguez v. Del Sol Shopping Ctr. Assoc., L.P. , 2013-NMCA-020, ¶ 1, 297 P.3d 334, rev'd on other grounds , 2014-NMSC-014, 326 P.3d 465. We noted that New Mexico courts had moved away from the foreseeability rule embraced by Ch......
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    ...protect Plaintiffs inside the building from criminally reckless drivers.” Rodriguez v. Del Sol Shopping Ctr. Assocs., 2013–NMCA–020, ¶ 1, 297 P.3d 334, cert. granted,2013–NMCERT–001, 299 P.3d 863. After an exhaustive analysis of New Mexico precedent, the Court of Appeals correctly rejected ......

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