Romero v. Giant Stop-N-Go of New Mexico, No. 28,063.

• Docket Nº: No. 28,063.
• Citation: 2009 NMCA 059, 212 P.3d 408
• Case Date: April 06, 2009
• Court: Court of Appeals of New Mexico

212 P.3d 408 2009 NMCA 059 Geoffrey R. ROMERO, Esq., as Personal Representative of the Estate of Nathaniel Maestas, deceased Dyvine Martinez, as Mother of Nathaniel Maestas, deceased; Francine and Robert Martinez, as Parents and Next Friends of Cassandra Martinez, a minor; and Rose Valdez, Individually and as Representative of the Estate of Eric Tollardo, deceased; and Frank Tollardo and Dolores Silva, Plaintiffs-Appellants,
v.
GIANT STOP-N-GO OF NEW MEXICO, INC., d/b/a Mustang #7297; Mustang Fuel Corporation, an Oklahoma corporation; Giant Industries, a Delaware corporation, and Jason Perea, Defendants-Appellees. No. 28,063. Court of Appeals of New Mexico. April 6, 2009. Certiorari Denied, No. 31,683, May 22, 2009.

[212 P.3d 409]

Bruce S. McDonald, Law Offices of Bruce S. McDonald, Corbin Hildebrandt Corbin Hildebrandt, P.C., Albuquerque, NM, Zangara Law Office, Kevin A. Zangara, Taos, NM, for Appellants.

Lisa Ortega, Jocelyn Drennan, Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Appellees.

OPINION

VIGIL, Judge.

{1} This case arises out of a shooting that took place at a Mustang convenience store and gas station in which three people were killed and one person was injured. Plaintiffs filed a premises liability case against the owner and operator of the business (Defendant) alleging wrongful death and personal injury. The district court concluded that Defendant had no duty to prevent the episode, and granted summary judgment. We affirm.

BACKGROUND

{2} The fatal incident was the product of an ongoing drug trafficking dispute. The escalating hostilities came to head when Eric Tollardo entered Jason Perea's apartment, put a gun to Perea's head, and then departed, threatening that he was going to return. After a brief period of reflection, Perea armed himself with two loaded Glock pistols and went looking for Tollardo. Perea drove around Taos for two or three hours, searching for Tollardo without success. Perea decided to abandon the search and was heading home when, by chance, he spotted Tollardo's car in Defendant's parking lot. Perea came to a rapid stop, jumping the curb and colliding with a pole. He then climbed out of his vehicle and advanced on Tollardo's car with a loaded gun in each hand. Believing that one of the occupants had fired a shot at him, Perea "just lost it" and opened fire. Perea shot through the open windows of Tollardo's car until he ran out of bullets, killing three of the occupants and injuring a fourth occupant in the process. Perea then fled the scene.

{3} Plaintiffs filed the instant lawsuit in their various capacities as personal representatives of the estates of two of the decedents and as parents and next friends of the surviving occupant. Plaintiffs' claims are grounded on their assertion that Defendant negligently failed to provide security on its premises.

{4} Defendant moved for summary judgment, contending that Plaintiffs could not

212 P.3d 410

establish either that Defendant had a duty to protect the victims from the attack, or that Defendant's conduct was a proximate cause of their injuries. The district court agreed with Defendant's argument on the question of duty, and granted the motion on that basis. This appeal followed.

DISCUSSION

{5} It is axiomatic that a negligence action requires that there be a duty owed from the defendant to the plaintiff; that based on a standard of reasonable care under the circumstances, the defendant breached that duty; and that the breach was a cause in fact and proximate cause of the plaintiff's damages. See Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181. Since the absence of any of these elements is fatal to a negligence claim, we first examine whether Defendant owed a duty to Plaintiffs.

1. Duty

{6} "Whether a duty exists is a question of law for the courts to decide." Id. (internal quotation marks and citation omitted). We therefore apply de novo review. See, e.g., Blake v. Pub. Serv. Co. of N.M., 2004-NMCA-002, ¶ 5, 134 N.M. 789, 82 P.3d 960 (reviewing de novo an award of summary judgment, based on a purely legal determination on the threshold issue of duty).

{7} "As a general rule, a person does not have a duty to protect another from harm caused by the criminal acts of third persons[.]" Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 5, 122 N.M. 537, 928 P.2d 263. One exception to the general rule is that a duty may arise out of a special relationship. Id.; Rummel v. Edgemont Realty Partners, Ltd., 116 N.M. 23, 26, 859 P.2d 491, 494 (Ct.App.1993) (stating that, absent a special relationship, there is no duty to protect others from harm caused by criminal acts of third persons). See generally Restatement (Second) of Torts § 314A (1965). One such special relationship exists between businesses and their patrons. See Reichert v. Atler, 117 N.M. 623, 624, 875 P.2d 379, 380 (1994) (recognizing the duty of business establishments to protect customers against the criminal conduct of third parties); Rummel, 116 N.M. at 26, 859 P.2d at 494 (same). In this case the occupants of Tollardo's car were customers of Defendant, who were hanging out in the parking lot and talking with other customers. Therefore, Defendant had a duty to protect business patrons such as the victims from harm caused by third-party criminal conduct. However, this duty extends only to foreseeable conduct and resultant harm. See UJI 13-1320 NMRA (stating in part that the duty of an owner or operator to protect a visitor "arises from a foreseeable risk that a third person will injure a visitor"); Reichert, 117 N.M. at 626, 875 P.2d at 382 (recognizing that the "duty of the owner or operator of a place of business to prevent the harmful conduct of a third party" extends to foreseeable acts and foreseeable harm).

{8} The New Mexico Supreme Court has observed, "[f]oreseeability is a critical and essential component of New Mexico's duty analysis because no one is bound to guard against or take measures to avert that which he or she would not reasonably anticipate as likely to happen." Herrera, 2003-NMSC-018, ¶ 20 (alteration omitted) (internal quotation marks and citation omitted). Therefore, we assess foreseeability by reference to "what one might objectively and reasonably expect, not merely what might conceivably occur." Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 8, 140 N.M. 596, 145 P.3d 76 (internal quotation marks and citation omitted). In evaluating foreseeability, we consider both the status of the plaintiff and the type of harm involved. See Chavez v. Desert Eagle Distrib. Co., 2007-NMCA-018, ¶ 16, 141 N.M. 116, 151 P.3d 77 ("The initial step in a common law duty analysis is to determine whether a particular plaintiff and a particular harm are foreseeable.").

{9} Although Plaintiffs urge us to approach the foreseeability issue in a more generalized or abstract fashion, we do not proceed without reference to the specific circumstances actually presented. See, e.g., Chavez, 2007-NMCA-018, ¶¶ 17-24 (approaching the foreseeability issue by reference to the specific allegedly negligent conduct of the business proprietor,...