Solorzano v. Bristow, 23,776.

• Decision Date: 16 September 2004
• Docket Number: No. 23,776.,23,776.
• Parties: Frances SOLORZANO, acting as Personal Representative of the Estate of Nelda Sue Garrett and as Guardian and Conservator of Christopher West Reed and Amanda Sue Reed, Minors, Plaintiff-Appellant, v. Frankie BRISTOW, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

103 P.3d 582

136 N.M. 658

Frances SOLORZANO, acting as Personal Representative of the Estate of Nelda Sue Garrett and as Guardian and Conservator of Christopher West Reed and Amanda Sue Reed, Minors, Plaintiff-Appellant, v. Frankie BRISTOW, Defendant-Appellee.

No. 23,776.

Court of Appeals of New Mexico.

September 16, 2004.

Certiorari Granted December 6, 2004.

Steven K. Sanders, Steven K. Sanders & Associates, L.L.C., Albuquerque, NM, Mark A. Reeves, Reeves & Associates Alamogordo, NM, for Appellant.

Stephen M. Williams, Ruth Fuess Miller Stratvert, P.A., Albuquerque, NM, for Appellee.

Certiorari Granted, No. 28,916, December 6, 2004.

OPINION

BUSTAMANTE, Judge.

{1} Plaintiff appeals the order of the district court granting summary judgment in favor of Defendant. For the reasons that follow, we reverse.

BACKGROUND

{2} Plaintiff in this wrongful death action is Frances Solorzano, personal representative of Nelda Sue Garrett's estate (Garrett) and guardian of Garrett's minor children. Garrett was Defendant Frankie Bristow's daughter. Plaintiff's claims arise from a sad incident where Garrett either fell or jumped from a van being driven by Defendant.

{3} Defendant was the only witness to the events leading to Garrett's death. The facts in the record come from Defendant's depositions and statements. Defendant gave Garrett a ride to Las Cruces, New Mexico from Alamogordo, New Mexico for a dentist appointment where Garrett had several teeth extracted. Garrett was "normal" on the trip to Las Cruces. After the dental procedure, Garrett was confused and disoriented and had a blank look on her face. Garrett did not respond to the receptionist about a follow-up appointment. Garrett was able to get into the van by herself. Part of the time, Garrett did not recognize Defendant. As Defendant drove back to Alamogordo, she became concerned that her daughter "might have had too much medication" or "was having a reaction to the medication." Because of her concerns, Defendant decided to stop at a park — the Aguirre Springs area located about two miles off the road — to give Garrett a chance "to walk off whatever it was that the dentist had given her." They stopped and walked around for about half an hour. While they were in the park, Garrett was "logical" or "coherent" twice, but, by the time they started back to the van, Garrett reverted to the prior state and did not appear to recognize her mother. Garrett walked "real fast" down the path back to the van, walking by her mother as if she were "a stranger in Hawaii." Defendant was concerned. When Garrett reached the bottom of the path, it appeared that she did not recognize the van. Defendant recalled that when she unlocked the door and held it open, Garrett "didn't know who [Defendant was]." After Garrett got into the van, Defendant had to fasten her seat belt for her. It appeared to Defendant that Garrett did not know what she was doing.

{4} Defendant then got back on the highway heading toward Alamogordo. She set the cruise control for 60 miles per hour and left it there until Garrett fell out of the van. Garrett was initially quiet and unresponsive to conversation. At some unspecified time after getting underway, Garrett made a loud "growling" sound and at the same time made a wide sweeping motion with her right hand. The sound and motion startled Defendant. Defendant asked "What's the matter?" but Garrett did not respond. Within a short time after the sound and motion, Garrett unfastened her seat belt and started toward the back of the van and then sat back down. After sitting back down, Garrett opened the door and leaned out while sitting in the seat. Defendant started yelling, but Garrett did not respond. The van was too wide to allow Defendant to reach Garrett.

{5} It is unclear from the record what Defendant said or how long this first door-opening lasted. Defendant testified that the door did not shut after Garrett sat back down. After sitting back down, Garrett turned to the door again and this time stood on the step in the van and started "wiggling back and forth trying to get to the back of the door where she would fall out." Garrett kept bumping against the door until she fell out. Defendant thought throughout that Garrett was getting sick and was trying to vomit outside. Defendant never applied the brakes or otherwise tried to slow the van. When asked why she did not slow down, Defendant stated that she was using the force of the wind to hold the door shut and was concerned that if she hit the brake, the door would open. The road at this point was straight and there was no other traffic.

{6} Defendant moved for summary judgment, arguing that Garrett had committed suicide and that she had no duty to prevent a suicide. Defendant presented Garrett's death certificate and the report of the Office of the Medical Investigator as evidence of the suicide. The trial court granted summary judgment finding:

1. There is no genuine issue as to whether Nelda Sue Garrett committed suicide when she stepped out of the van being driven by Defendant.

2. There is no duty in law to prevent a suicide outside of a limited number of exceptions that do not apply to this case.

STANDARD OF REVIEW

{7} Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We consider the facts in the light most "favorable to support a trial on the issues because the purpose of summary judgment is not to preclude a trial on the merits if a triable issue of fact exists." Madsen v. Scott, 1999-NMSC-042, ¶ 7, 128 N.M. 255, 992 P.2d 268 (internal quotation marks and citation omitted). "[S]ummary judgment is not appropriate when the facts before the court are insufficiently developed or where further factual resolution is essential for determination of the central legal issues involved." Brown v. Taylor, 120 N.M. 302, 307, 901 P.2d 720, 725 (1995) (internal quotation marks and citation omitted). We review a grant of summary judgment de novo. Self, 1998-NMSC-046, ¶ 6.

DISCUSSION

{8} This case raises several issues: (1) What is the legal standard for determining when a death is a suicide in New Mexico? (2) Is there a question of material fact as to whether Garrett committed suicide? (3) Did Defendant owe a duty of reasonable care to her passenger, under these circumstances? (4) And, if so, are there genuine issues of fact as to whether she breached that duty?

I. Suicide

{9} The district court determined there was no question of fact that Garrett committed suicide. It is not possible to tell from the record what definition or standard the court applied. Defendant's briefing in this Court and below does not attempt to devise a definition for suicide. Rather, Defendant simply assumes that Garrett's death constituted suicide. If the district court adopted Defendant's approach, it erred as we shall explain. In any event, we hold that there are questions of fact precluding summary judgment on the issue.

{10} New Mexico has not had occasion in the civil personal injury arena to articulate a standard for determining when a death may be labeled a suicide. We have no statutory definition, and the cases that do mention suicide come from different legal settings. For example, in the workers' compensation setting, there is a presumption against suicide. Suicide is an affirmative defense which defendants must prove. Neel v. State Distribs., Inc., 105 N.M. 359, 361, 732 P.2d 1382, 1384 (Ct.App.1986). "This presumption, though not conclusive, is sufficient unless rebutted by substantial evidence, to support an award for compensation." Medina v. N.M. Consol. Mining Co., 51 N.M. 493, 496, 188 P.2d 343, 345 (1947) (suggesting the kind of evidence necessary to rebut the presumption, including "domestic trouble" and "signs of worry"). In the life insurance contract setting, the language of the policy controls the definition of suicide. Typically, life insurance policies include clauses which specify that if a death is the result of a suicide, the insurer is not liable for the face amount of the policy. Estate of Galloway v. Guar. Income Life Ins. Co., 104 N.M. 627, 627, 725 P.2d 827, 827 (1986). At issue in Estate of Galloway was a life insurance policy that excluded liability "[i]f the insured commits suicide, while sane or insane." Id. Affirming summary judgment in favor of the insurer, the Court noted the history behind this verbiage.

Many early cases have held that self-destruction while insane was not suicide within a suicide exclusion clause since it was deemed that there could be no suicide unless the person committing the self-destructive act could form a conscious intention to kill himself and carry out that act, realizing its moral and physical consequences. As a reaction to these holdings, insurers began to add to suicide exclusion clauses the phrase "sane or insane."

Id. at 628, 725 P.2d at 828. The workers' compensation cases demonstrate that intent is taken into account in distinguishing between accident and suicide, while the insurance policy cases reveal that insurers have sought to remove knowing intent from the concept of suicide.

{11} The case before us, of course, is not a workers' compensation claim and does not involve an insurance policy definition. These opinions do, however, indicate that absent contractual provisions to the contrary, the deceased person's state of mind is relevant in deciding whether a death is properly classified as a suicide. Other authorities confirm this view. For example, dictionary definitions require intention on the part of the actor, and awareness of the likely consequences of one's voluntary acts. Black's Law Dictionary defines suicide as "[s]elf-destruction; the deliberate termination of one's own life." Black's Law Dictionary 1434 (6th ed. 1990). Webster's Dictionary elaborates...