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

• Decision Date: 08 May 2014
• Docket Number: 33,949.,Nos. 33,896,s. 33,896
• Citation: 326 P.3d 465
• Parties: James 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–Petitioners, 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–Respondents, and Maria C. Bustamante, as representative of the Estate of Michael Solchenberger, and his wife Lydia Solchenberger, deceased, Plaintiffs–Petitioners, v. BGK Properties, Inc., Del Sol Shopping Center Associates, L.P., and Concentra Health Services, Inc., Defendants–Respondents. and James 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–Petitioners, 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–Respondents, and Maria C. Bustamante, as representative of the Estate of Michael Solchenberger, and his wife Lydia Solchenberger, deceased, Plaintiffs–Petitioners, v. BGK Properties, Inc., Del Sol Shopping Center Associates, L.P., and Concentra Health Services, Inc., Defendants–Respondents.
• Court: New Mexico Supreme Court

326 P.3d 465

James 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–Petitioners,

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–Respondents,andMaria C. Bustamante, as representative of the Estate of Michael Solchenberger, and his wife Lydia Solchenberger, deceased, Plaintiffs–Petitioners,

v.BGK Properties, Inc., Del Sol Shopping Center Associates, L.P., and Concentra Health Services, Inc., Defendants–Respondents.andJames 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–Petitioners,

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–Respondents,andMaria C. Bustamante, as representative of the Estate of Michael Solchenberger, and his wife Lydia Solchenberger, deceased, Plaintiffs–Petitioners,

v.BGK Properties, Inc., Del Sol Shopping Center Associates, L.P., and Concentra Health Services, Inc., Defendants–Respondents.

Nos. 33,896, 33,949.

Supreme Court of New Mexico.

May 8, 2014.

O'Friel & Levy, P.C., Daniel J. O'Friel, Aimee S. Bevan, Santa Fe, NM, for Petitioner, Maria C. Bustamante.

Jaramillo Touchet, L.L.C., David Joseph Jaramillo, Ryan McKelvey, Albuquerque, NM, Joe Cruz Castellano, Jr., Law Office of Bea Lockhart, Bea Castellano–Lockhart, Santa Fe, NM, Escamilla Law Firm, P.L.L.C, John G. Escamilla, McAllen, TX, for Petitioners, James Rodriguez, Leann Aguilar, Domenic A. Rodriguez, Juan M. Terrazas, Ludivina Terrazas Enriquez, and Billy J. Trujillo.

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

Civerolo, Gralow, Hill & Curtis, P.A., Lisa Entress Pullen, M. Clea Gutterson, Albuquerque, NM, for Respondent, BGK Property Management, L.L.C.

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

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

A. Blair Dunn, Albuquerque, NM, Pacific Legal Foundation, Deborah J. La Fetra, Jennifer M. Fry, Sacramento, CA, for Amicus Curiae, Pacific Legal Foundation.

OPINION

CHÁVEZ, Justice.

{1} In this opinion we clarify and expressly hold that foreseeability is not a factor for courts to consider when determining the existence of a duty, or when deciding to limit or eliminate an existing duty in a particular class of cases. We reaffirm our adoption of Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 comment j (2010), see Edward C. v. City of Albuquerque, 2010–NMSC–043, ¶¶ 15, 18, 148 N.M. 646, 241 P.3d 1086, and require courts to articulate specific policy reasons, unrelated to foreseeability considerations, if deciding that a defendant does not have a duty or that an existing duty should be limited. Foreseeability is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations. What may not be foreseeable under one set of facts may be foreseeable under a slightly different set of facts. Therefore, foreseeability cannot be a policy argument because foreseeability is not susceptible to a categorical analysis. We do not hold that courts may never consider foreseeability; however, when a court does so, it is to analyze no-breach-of-duty or no-legal-cause as a matter of law, not whether a duty exists.

BACKGROUND

{2} In these consolidated cases, a truck crashed through the front glass of the Concentra Medical Clinic (Concentra) in the Del Sol Shopping Center (Del Sol) (collectively Defendants) in Santa Fe, killing three people and seriously injuring several others. Both groups of Plaintiffs (collectively Plaintiffs) sued Del Sol's owners and operators, alleging that Del Sol negligently contributed to the accident by, among other things, failing to adequately post signage; failing to install speed bumps; failing to erect barriers that would have protected buildings, employees, and visitors from errant vehicles; or failing to use other traffic control methods in the parking lot. Relying on Romero v. Giant Stop–N–Go of N.M., Inc., 2009–NMCA–059, ¶¶ 8–9, 146 N.M. 520, 212 P.3d 408, both district courts granted summary judgment and found that this accident “was not foreseeable” as a matter of law, and therefore found that no duty existed.

{3} On appeal, the Court of Appeals consolidated the two cases and affirmed the district courts' common ruling on summary judgment that Defendants “had no duty to 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 the foreseeability-driven duty analysis relied upon by the district courts, stating that it was affirming both cases based on a “policy-driven duty analysis advanced by the Restatement (Third) of Torts ... and recently embraced by our New Mexico Supreme Court in Edward C., 2010–NMSC–043, ¶ 15 [148 N.M. 646, 241 P.3d 1086].” Del Sol, 2013–NMCA–020, ¶ 1, 297 P.3d 334. We agree with the Court of Appeals that New Mexico case law has created confusion regarding the extent to which foreseeability considerations are relevant to the legal determination of duty. Id. ¶¶ 6–11. We will not belabor the discussion of the cases that have caused the confusion, including Edward C., which noted that foreseeability plays some role, although it is limited, in the determination of duty. Instead, we take this opportunity to explain why foreseeability should not be considered when determining duty, both generally and when considering the analysis of the Court of Appeals in these cases. We overrule prior cases insofar as they conflict with this opinion's clarification of the appropriate duty analysis in New Mexico. And because we conclude that the Court of Appeals analysis is a no-breach-of-duty analysis more than a policy-driven duty analysis, we reverse the Court of Appeals.

DISCUSSION

{4} Foreseeability and breach are questions that a jury considers when it decides whether a defendant acted reasonably under the circumstances of a case or legally caused injury to a particular plaintiff. Torres v. State, 1995–NMSC–025, ¶ 15, 119 N.M. 609, 894 P.2d 386. Juries are instructed that “[a]s the risk of danger that should reasonably be foreseen increases, the amount of care required also increases.” UJI 13–1603 NMRA. Foreseeability as it relates to breach of duty is a general analysis and does not require that the particular harm to the plaintiff have been anticipated. See Spencer v. Health Force, Inc., 2005–NMSC–002, ¶ 23, 137 N.M. 64, 107 P.3d 504 (“Foreseeability does not require that the particular consequence should have been anticipated, but rather that some general harm or consequence be foreseeable.” (internal quotation marks and citation omitted)). The argument before the jury when it is determining whether breach occurred is whether the foreseeable likelihood and severity of injuries that might have occurred due to the defendant's conduct warranted the additional precautions argued by the plaintiff. See Ford v. Bd. of Cnty. Comm'rs, 1994–NMSC–077, ¶ 12, 118 N.M. 134, 879 P.2d 766 (holding that “the ordinary principles of negligence ... govern a landowner's conduct as to a licensee and invitee. A landowner or occupier of premises must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.”). These ordinary arguments relate to breach of duty and legal cause, and are not policy arguments that would justify a no-duty determination or modification of an existing duty.

{5} In these cases, the Court of Appeals framed the issue as “[w]hat duty should owner/occupants of a shopping center in New Mexico have to protect business invitees within its buildings from vehicles that depart the confines of designated parking areas?” Del Sol, 2013–NMCA–020, ¶ 12, 297 P.3d 334. The Court of Appeals then correctly summarized the law in paragraphs 13 and 14 of its opinion. Id. The owner/occupier owes a duty of ordinary care under the circumstances, Ford, 1994–NMSC–077, ¶ 12, 118 N.M. 134, 879 P.2d 766, including the duty to exercise ordinary care to prevent harmful conduct from a third person, even if the third person's conduct is intentional, Reichert v. Atler, 1994–NMSC–056, ¶ 11, 117 N.M. 623, 875 P.2d 379. The duty of ordinary care applies unless the owner/occupier can establish a policy reason, unrelated to foreseeability considerations, that compels a limitation on the duty or an exemption from the duty to exercise ordinary care. There are a number of cases that illustrate how policy considerations limit the duty of ordinary care.

{6} In Edward C., we found a policy reason to modify, albeit minimally, the duty of ordinary care for owners/occupiers of commercial baseball stadiums. 2010–NMSC–043, ¶ 40, 148 N.M. 646, 241 P.3d 1086. The owners/occupiers asked this...