Sandoval v. Board of Regents of New Mexico State University
| Decision Date | 28 June 1965 |
| Docket Number | No. 7627,7627 |
| Citation | 403 P.2d 699,1965 NMSC 69,75 N.M. 261 |
| Parties | Elfie SANDOVAL, Plaintiff-Appellant, v. The BOARD OF REGENTS OF NEW MEXICO STATE UNIVERSITY, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
W. C. Whatley, R. E. Riordan, Las Cruces, for plaintiff-appellant.
La Fel E. Oman, Garnett R. Burks, Jr., Las Cruces, for defendant-appellee.
The trial court having sustained a motion for summary judgment, the plaintiff appeals.
The plaintiff, in connection with her work as a case worker for the Department of Public Welfare, went to the campus of the defendant university to visit with a blind student concerning his welfare assistance. The walk leading to the dormitory in which the student lived was a ramp-type walk, in that it was, in part, sloping. The plaintiff entered the building by this walkway, visited the student, and upon leaving the residence hall, slipped and fell at a point on the walkway where it sloped into a downgrade.
The record is not clear as to the cause of the fall, but, actually, the case must turn upon whether or not there was a controverted question of fact as to the construction and maintenance of the walk; whether or not the walk was hazardous to pedestrian traffic; and the resolution of the question of notice and knowledge of the dangerous condition if it existed. However, the status of the plaintiff must first be determined, i. e., whether she was a business visitor (often termed invitee), or a licensee, because, depending upon the character of her relationship rests the degree of care and legal liability of the defendant university.
We believe that, under the facts now before us, there can be no question but that the plaintiff was a business visitor or an invitee. 2 Restatement of the Law, Torts, Sec. 332, defines a business visitor as follows:
'A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.'
The student occupied the position of a lessee of the university, and certainly the plaintiff's business was in furtherance of a benefit to the student, thereby coming within that class of persons discussed under Comment h of Sec. 332. Compare City of Madisonville v. Poole, (Ky.Ct.App.1952), 249 S.W.2d 133. However, our determination that the plaintiff was a business visitor does not solve the problem--it merely determines, from a legal standpoint, the degree of care resting upon the defendant.
In Crenshaw v. Firestone Tire & Rubber Co., 1963, 72 N.M. 84, 380 P.2d 828, we quoted with approval the duty of a possessor of land to business visitors as set out in 2 Restatement of the Law of Torts, Sec. 343, and the same definition is applicable here. Nevertheless, each case must rest upon its own peculiar facts, and the facts here require a different result than that announced in Crenshaw.
The trial court had before it evidence, which was, in some respects, directly contradictory. There was the affidavit and deposition of the director of the university's physical plant, who testified that the ramp-type walk was not a smooth-troweled surface, but, contrariwise, was rough. This witness testified that the walk was in substantially the same condition on the day of the accident as it had been at the time it was built some eleven years earlier. He stated that it was not slippery and that his office had no record of anyone else having fallen upon the walk, even though, by his estimate, it had been utilized by perhaps a hundred thousand people. Contrary to this testimony was the affidavit of a civil engineer, with a degree in traffic engineering, to the effect that he had examined the walk and that, in his opinion, it was smoothly...
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