Silva v. City of Albuquerque

• Decision Date: 01 April 1980
• Docket Number: No. 4231,4231
• Citation: 1980 NMCA 49,610 P.2d 219,94 N.M. 332
• Parties: Mary Agnes SILVA, Personal Representative of David Gurule, Deceased, Plaintiff- Appellant, v. CITY OF ALBUQUERQUE, Albuquerque Police Department, John Kraenzel and Francis Ford, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 219

610 P.2d 219

94 N.M. 332

Mary Agnes SILVA, Personal Representative of David Gurule Deceased, Plaintiff- Appellant, v. CITY OF ALBUQUERQUE, Albuquerque Police Department, John Kraenzel and Francis Ford, Defendants-Appellees.

No. 4231.

Court of Appeals of New Mexico.

April 1, 1980.

[94 NM 332] Stephen M. Simone, Farlow & Bradley, P. A., Albuquerque, for plaintiff-appellant.

Robert K. Patten, Asst. City Atty., Albuquerque, for City of albuquerque

J. E. Casados, Gallagher, Casados & Martin, P. C., Albuquerque, for Albuquerque Police Dept., John Kraenzel and Francis Ford.

OPINION

WALTERS, Judge.

Plaintiff's decedent ran a red light within the City of Albuquerque. An officer who stopped in a police car at the intersection saw the violation and he proceeded after the deceased. When he caught up with him, he turned on his vehicle's red lights. Instead of slowing or stopping, plaintiff's decedent accelerated and tried to outrun the police car. Several miles later, decedent lost control of his vehicle, crashed into a tree and a house, and suffered fatal injuries. His personal representative appeals a summary judgment granted to the police officers, the police department, and the City of Albuquerque. We affirm.

Analogizing the summary judgment in this case to the directed verdict entered in Strickland v. Roosevelt Co. Rural Elec. Coop., 19 N.M.St.B.Bull. 205, 94 N.M. 459, 612 P.2d 689 (Ct.App.), N.M., cert. granted, Feb. 26, 1980, plaintiff argues that the acts of negligence alleged against the officers, and vicariously against the City and the Police Department, should have been presented to the jury.

The opinion in Strickland said:

Limited to contributory negligence cases (which appears to have been the basis for the entry of summary judgment in the instant case and for the directed verdict in Strickland ), we hold that where a defendant leads a plaintiff to a place of danger in which plaintiff's lips are sealed by reason of death, and defendant is the sole eyewitness of decedent's conduct, defendant's testimony, though uncontradicted and undisputed, is not conclusive on the issue of decedent's contributory negligence; that the credibility of defendant's testimony, no matter how plausible is a question of fact for the jury. The trial court shall assume that decedent was in the exercise of ordinary care at the time of his death; that an issue of fact exists on the question of his contributory negligence to avoid a directed verdict and get plaintiff to the jury. (Our emphasis.)

Id. at 211.

Strickland, an opinion with which one judge of this court concurred in the result and another judge dissented, constitutes a "judgment" according to Art. VI, § 28 of the New Mexico Constitution, and a "decision" under § 34-5-11, N.M.S.A.1978. But it is not an opinion expressing the views of a majority of this court as now constituted; and, because one of the participating judges concurred only in the result reached, we may reasonably conclude that the rationale of the opinion does not even express the view of a majority of the panel which considered that case.

Regardless of its precedential value, however, the Strickland rule cannot be applied to summary judgment procedures. Unlike a motion for directed verdict, defendant does not admit negligence when he presents facts outside the pleading and argues for summary judgment on the theory that plaintiff was contributorily negligent as a matter of law. Thus, if the sole eyewitness version is not to be believed, unless there are physical facts which point unerringly to a true version of the incident, cf. Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 (1951), or circumstantial evidence from which a reasonable contrary inference may be drawn, see State v. Jones, 39 N.M. 395, 48 P.2d 403 (1935), then there remains no evidence from which a judge or jury could infer either plaintiff's or defendant's negligence. In such a case, plaintiff fails to make out a case against defendant, and summary judgment should be granted because no material issue of fact on defendant's negligence exists. See N.M.R.Civ.P. 56(c), 1978.

That was the posture of this case when the trial judge granted summary judgment. The two pursuing police officers had given deposition testimony describing decedent's conduct and loss of control. Plaintiff has argued in this court that the police officers were negligent in continuing pursuit of the decedent when it became clear he was not going to stop; that the decedent should have been boxed in between police vehicles and forced to slow down; that the police should have used a public address system to talk to the fleeing driver, or that a traffic blockade should have been set up to compel decedent to stop. The police having failed to take any of the suggested actions, plaintiff says the chase should have been terminated, and if it had, the accident probably would not have occurred.

Somehow, appellant takes no note of the incongruity inherent in this argument, since it is firmly bottomed on the admission that decedent, throughout the pursuit by police, was refusing to stop or to obey the statute requiring him to stop. See § 66-7-332, N.M.S.A.1978. Even if the police officers were required to undertake any of the other actions appellant urges (and we can imagine instances when injury to innocent third parties might occur because pursuit of a traffic offender had become dangerous to others), the availability of the options suggested in no way excuses decedent's own negligent and reckless conduct. An alternative which appellant has ignored in her argument is the simple and more expedient termination of the chase by decedent's obedience to the police officer's signals to stop.

Consequently, the trial court was faced with only two possible analyses of...