Stark-Romero v. Nat'l R.R. Passenger Co.

• Decision Date: 08 August 2011
• Docket Number: No. CIV 10–0778 JB/RLP.,CIV 10–0778 JB/RLP.
• Citation: 805 F.Supp.2d 1145
• Parties: Victoria STARK–ROMERO, Individually and as Personal Representative of the Estate of Fred P. Stark, Plaintiff,andEmilio J. Esquibel and Helen G. Esquibel, Individually and as Co–Personal Representatives of the Estate of Michael S. Esquibel, deceased, Plaintiff–Intervenors, v. The NATIONAL RAILROAD PASSENGER COMPANY (AMTRAK), Burlington Northern Santa Fe Railway Company (BNSF), City of Las Vegas, San Miguel County and New Mexico Department of Transportation, and Ride to Pride at the Barn, L.L.C., Defendants.
• Court: U.S. District Court — District of New Mexico

805 F.Supp.2d 1145

Victoria STARK–ROMERO, Individually and as Personal Representative of the Estate of Fred P. Stark, Plaintiff,andEmilio J. Esquibel and Helen G. Esquibel, Individually and as Co–Personal Representatives of the Estate of Michael S. Esquibel, deceased, Plaintiff–Intervenors,

v.The NATIONAL RAILROAD PASSENGER COMPANY (AMTRAK), Burlington Northern Santa Fe Railway Company (BNSF), City of Las Vegas, San Miguel County and New Mexico Department of Transportation, and Ride to Pride at the Barn, L.L.C., Defendants.

No. CIV 10–0778 JB/RLP.

United States District Court, D. New Mexico.

Aug. 8, 2011.

Dave E. Romero, Jr., Romero Law Firm, P.A., Las Vegas, NM, James F. Scherr, Scherr & Legate, PLLC, El Paso, TX, Philip C. Gaddy, David Jaramillo, Maria E. Touchet, Gaddy Jaramillo, Albuquerque, NM, for Plaintiffs.

Earl E. DeBrine, Jr., Tim L. Fields, Alex Cameron Walker, Greg L. Gambill, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Defendant National Railroad Passenger Company and Burlington Northern Santa Fe Railway Company (BNSF).

Tony F. Ortiz, Christopher M. Grimmer, Scheuer, Yost & Patterson, P.C., Santa Fe, NM, for Defendant City of Las Vegas.Christina L. Brennan, James P. Sullivan, Brennan & Sullivan, P.A., Santa Fe, NM, Joan M. Waters, Albuquerque, NM, for Defendant San Miguel County.

Jerry A. Walz, Alfred D. Creecy, Walz & Associates, Albuquerque, NM, for Defendant New Mexico Department of Transportation.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant City of Las Vegas's Motion for Summary Judgment, filed March 1, 2011 (Doc. 63); (ii) Defendant City of Las Vegas's Motion to Strike Supplemental Rule 56(d) Affidavit of Marie [sic] Touchet, filed July 5, 2011 (Doc. 116); and (iii) Defendant Board of County Commissioners of the County of San Miguel's Motion for Summary Judgment, filed May 25, 2011 (Doc. 86). The Court held hearings on July 6, 2011 and on July 14, 2011. The primary issues are: (i) whether the Court should strike the supplemental rule affidavit Plaintiffs Emilio J. Esquibel's and Helen G. Esquibel's counsel, Maria Touchet, filed pursuant to rule 56(d) of the Federal Rules of Civil Procedure; (ii) whether the Court should grant the City of Las Vegas' motion for summary judgment, because the City of Las Vegas did not construct Arriba Road, the road in San Miguel County, New Mexico on which the accident at issue in this matter occurred, and does not own, maintain, or operate Arriba Road or the railroad crossing in San Miguel County where the accident occurred, and because it did not have a duty to ensure safe ingress and engress to invitees over property not owned or controlled by it; (iii) whether the Court should grant San Miguel County's motion for summary judgment, because it did not owe the Esquibels or the decedent, Michael S. Esquibel, a duty, as it did not construct, own, or maintain Arriba Road; (iv) whether the Court should grant the Esquibels' request that it dismiss Defendant City of Las Vegas, New Mexico's motion for summary judgment as premature and allow more time for discovery; and (v) whether the Court should grant the Esquibels' request and dismiss Defendant San Miguel County's motion for summary judgment as premature and allow more time for discovery. The Court will deny the City of Las Vegas' motion to strike and will deal with the substance of Ms. Touchet's original rule 56(d) affidavit and supplemental rule 56(d) affidavit regarding the City of Las Vegas in the legal analysis of its Memorandum Opinion and Order. The Court will grant the City of Las Vegas' motion for summary judgment, because it did not have a duty to maintain the roadway where the collision occurred, and because it did not have a duty to ensure M. Esquibel's safe ingress and egress to and from its waste transfer facility. The Court will deny the Esquibels' request that it dismiss the City of Las Vegas' motion as premature and allow discovery against the City of Las Vegas to continue, because the Ms. Touchet's rule 56(d) affidavits do not identify with specificity probable facts which are not available and which are relevant to the motion. The Court will deny San Miguel County's request for summary judgment, because it does not find, as a matter of law, that San Miguel County did not owe a duty to the Esquibels or to M. Esquibel. Because the Court will deny San Miguel County's request for summary judgment, it need not address the Esquibels' request that it find the motion for summary judgment premature and allow discovery to continue.

FACTUAL BACKGROUND

In 1988, the San Miguel Board of County Commissioners held a meeting in which closing Arriba Road was discussed. See Minutes From September 10, 1988 Regular Meeting of the Board of Commissioners of San Miguel County at 1, filed June 10, 2011 (Doc. 91–2); Plaintiff's Response in Opposition to Defendant San Miguel County's Motion for Summary Judgment ¶ 4, at 7, filed June 10, 2011 (Doc. 91) (“Response to San Miguel County's Memo.”) (setting forth this fact). See Reply to Plaintiff's [sic] Response in Opposition to Defendant San Miguel County's Motion for Summary Judgment at 10, filed July 12, 2011 (Doc. 125) (“San Miguel County's Reply”) (not controverting this fact).

The Esquibels are the parents of M. Esquibel. See, e.g., Complaint in Intervention for Wrongful Death and Negligence ¶ 2, at 2, filed August 19, 2010 (Doc. 1–2) (“Complaint”); Memorandum of Points and Authorities in Support of Defendant Board of County Commissioners of the County of San Miguel's Motion for Summary Judgment ¶ 1, at 2, filed May 25, 2011 (Doc. 87) (“San Miguel County's Memo.”) (setting forth this fact); Response to San Miguel County's Memo. ¶ 1, at 4 (not controverting this fact). On January 15, 2009, M. Esquibel, was traveling east on a road leading to railroad crossing DOT NO. 013655C in San Miguel County. See, e.g., Complaint ¶ 8, at 3; Defendant City of Las Vegas' Motion for Summary Judgment ¶ 1, at 3, filed March 1, 2011 (Doc. 63) (“City of Las Vegas' Motion”) (setting forth this fact); Plaintiffs' Response in Opposition to Defendant City of Las Vegas' Motion for Summary Judgment at 6, filed March 14, 2011 (Doc. 69) (“Response to City of Las Vegas' Motion”) (not controverting this fact); San Miguel County's Memo. ¶ 2, at 2 (setting forth this fact); Response to San Miguel County's Memo. ¶ 2, at 4 (not controverting this fact). M. Esquibel was on his way to the waste transfer station that the City of Las Vegas owned. See, e.g., Complaint ¶¶ 11, 13–14, at 3; City of Las Vegas' Motion ¶ 2, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact). At approximately 3:51 p.m. on January 15, 2009, a train owned by Defendant The National Railroad Passenger Company (Amtrak), traveling north on railroad tracks that Defendant Burlington Northern Santa Fe Railway Company (BNSF) owned, collided with the vehicle that M. Esquibel drove. See, e.g., Complaint ¶¶ 8–10, 15–16, 20–21, at 3, 4; City of Las Vegas' Motion ¶ 3, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact); San Miguel County's Memo. ¶ 3, at 2 (setting forth this fact); Response to San Miguel County's Memo. ¶ 3, at 4 (not controverting this fact). This collision resulted in M. Esquibel's death. See, e.g., Complaint ¶¶ 9, 20, at 3, 4; City of Las Vegas' Motion ¶ 4, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact); San Miguel County's Memo. ¶ 3, at 2 (setting forth this fact); Response to San Miguel County's Memo. ¶ 3, at 4 (not controverting this fact). The collision occurred at the railroad crossing at Arriba Road, which leads directly to the City of Las Vegas' waste transfer station. ¹ See Complaint ¶ 9, at 3; Application at 12, Ex. F; San Miguel County's Memo. ¶ 4, at 3 (setting forth this fact); Response to San Miguel County's Memo. ¶ 4, at 4–5 (not controverting this fact).

The portion of the road upon which M. Esquibel was traveling when the collision occurred was not located in the City of Las Vegas. See, e.g., Complaint ¶¶ 8, 16, at 3; Affidavit of Carlos Ortiz ¶ 5, at 2 (executed March 1, 2011), filed March 1, 2011 (Doc. 63–1, Ex. A). The portion of the road upon which M. Esquibel was traveling when the collision occurred was not constructed by the City of Las Vegas. See Ortiz Aff. ¶ 5, at 2; Affidavit of Paul W. Gray ¶ 7, at 4 (executed July 14, 2010), filed March 1, 2011 (Doc. 63–1, Ex. B). The portion of the road upon which M. Esquibel was traveling when the collision occurred was not owned, maintained, or operated by the City of Las Vegas. See Complaint ¶ 12, at 3; Ortiz Aff. ¶¶ 5–6, at 2; Gray Aff. ¶¶ 6–7, at 2. The portion of the road upon which M. Esquibel was traveling when the collision occurred is owned by Defendant New Mexico Department of Transportation (“NMDOT”). See Gray Aff. ¶ 7, at 2. The City of Las Vegas has never had an agreement with the New Mexico State Highway Department or NMDOT ² to participate in maintenance of the portion of the road upon which M. Esquibel was traveling when the collision occurred. See Ortiz Aff. ¶ 6, at 2. The City of Las Vegas has never received any funding from the New Mexico State Highway Department or NMDOT to maintain the portion of the road upon which M. Esquibel was traveling when the collision occurred.³ See Ortiz Aff. ¶ 7, at 2.

In deciding where to place the waste transfer station, City of Las Vegas councilors acknowledged a detriment about the “Franken site,” because the City of Las Vegas “would have an elevated water tank and the railroad crossing,” and noted that at the “Industrial Park all utilities are in place ... and there is immediate access that would not cause liability.” ⁴ Minutes at 6.

In applying to the State for a permit for the waste transfer station, the City of Las Vegas had to...