Tapia v. McKenzie

• Citation: 83 N.M. 116,489 P.2d 181,1971 NMCA 128
• Decision Date: 06 August 1971
• Docket Number: No. 588,588
• Parties: Isidore TAPIA, personal representative of Willie Gauna, Jr., Deceased, Plaintiff-Appellant, v. Blevins McKENZIE, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 181

489 P.2d 181

83 N.M. 116

Isidore TAPIA, personal representative of Willie Gauna, Jr., Deceased, Plaintiff-Appellant, v. Blevins McKENZIE, Defendant-Appellee.

No. 588.

Court of Appeals of New Mexico.

Aug. 6, 1971.

Rehearing Denied Sept. 7, 1971.

[83 N.M. 117] Eugene E. Klecan, James T. Roach, Albuquerque, for plaintiff-appellant.

Charles A. Pharris, Keleher & McLeod, Albuquerque, for defendant-appellee.

OPINION

WOOD, Chief Judge.

This car-cow collision case is concerned with summary judgment and res ipsa loquitur.

On the day of the accident cattle had been worked on the south side of the highway and 25 to 30 cows had been brought to the north side of the highway through an underpass. These cows had been put into a pasture north of and adjacent to the highway. The pasture was approximately 800 acres and 35 to 40 cows were in the pasture. One of the cows got onto the highway, but the record does not show when. After it was dark, Gauna, a motorist, collided with it. Gauna died from injuries received in the collision. His personal representative sued defendant for wrongful death. In this appeal, no claim is made that defendant was not the owner of the cow which got onto the highway.

The pasture from which the cow escaped was separated from the highway by a fence and a cattle guard. The briefs concede this to be an interstate highway. The fence and the cattle guard had been installed by a contractor for the State Highway Department and that department owned and maintained the fence and cattle guard. Following the accident, it was determined that the portion of the fence inspected was in good repair and that the cattle guard was 'top pole,' 'real good,' 'in repair and not in disrepair.' The cow's 'tracks crossed the cattle guard;' and she was trailed 'up to where she got hit.' '* * * A cattle guard would ordinarily hold anything, but it didn't this one.'

On the basis of the foregoing, the trial court granted summary judgment; plaintiff appeals.

Summary judgment.

The basis of any liability on the part of defendant in this case is negligence. See Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965); § 40A--8--10, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969); § 64--18--62, N.M.S.A.1953 (Repl.Vol. 9, pt. 2, Supp.1969); compare § 22--20--1, N.M.S.A.1953.

Defendant, the movant for summary judgment, had the burden of establishing the absence of a material issue of fact and that he was entitled to summary judgment as a matter of law. Sanchez v. Shop Rite Foods, 82 N.M. 369, 482 P.2d 72 (Ct.App.1971). In this case, defendant had the burden of establishing an absence of a material issue of fact on the question of negligence.

Defendant did not meet this burden. The facts before the trial court make a prima facie showing as to the means by which the cow got out of the pasture. These facts, however, do not make a prima facie showing of no negligence (see N.M. U.J.I. 12.1) on the part of defendant because they show nothing as to action, inaction or foreseeability on the part of defendant in connection with the means of escape. Compare Martin v. Board of Education of City of Aubuquerque, 79 N.M. 636, 447 P.2d 516 (1968).

The summary judgment was improperly granted because defendant did not make a prima facie showing that he was entitled to summary judgment. Sanchez v. Shop Rite Foods, supra; compare Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970).

Res Ipsa Loquitur.

Because of the emphasis placed on res ipsa loquitur, both in the trial court and in this appeal, and because the summary judgment was erroneous, we briefly discuss this doctrine.

It is plaintiff's contention that under this doctrine he may go to the jury in this case upon a showing that defendant's cow was on the highway; that the highway was fenced and that decedent's car collided with the cow. This is a misreading of Mitchell v. Ridgway, supra. In that case, the horse escaped from the defendant's corral; the highway was not fenced at this point. Our Supreme Court held the facts is Mitchell were sufficient to avoid a non-suit; that the trial court erred in dismissing the suit '* * * for failure to state a claim upon which relief could be granted. * * *' When the dismissal is for failure to state a claim upon which relief can be granted, the issue is whether the plaintiff would be entitled to recover under any state of facts provable under the claim that is made. Pattison v. Ford, 82 N.M. 605, 485 P.2d 361 (Ct.App.1971). No such question is involved in this case.

In holding a cause of action was stated, Mitchell v. Ridgway, supra, referred to res ipsa loquitur and indicated the doctrine could be applicable in car-cow collision cases. For it to be applicable:

'* * * The plaintiff must still fulfill the burden of satisfying the court, or the jury, that the accident was of a kind which ordinarily does not occur in the absence of someone's negligence, and that the agency or instrumentality, in this case a domestic animal, was within the exclusive control of the defendant. * * *'

If plaintiff fails to establish the essential elements of the doctrine, it would not be available to make a prima facie case of liability. Hisey v. Cashway Supermarkets, Inc., 77 N.M. 638, 426 P.2d 784 (1967).

Thus, under the New Mexico Supreme Court decisions, plaintiff would not be entitled to go to the jury in this case upon a showing that defendant's cow escaped through a Highway Department cattle guard and was upon the highway, causing the collision. To get to the jury, there must be evidence tending to establish the elements of res ipsa loquitur. Mitchell v. Ridgway, supra.

It would not be different in a summary judgment situation. If defendant makes a prima facie showing entitling him to summary judgment, plaintiff, to defeat summary judgment, must then show there is a factual issue. Rekart v. Safeway Stores, Inc., supra. Plaintiff could do this by showing there are facts tending to establish the elements of res ipsa loquitur. If there is no showing that a factual issue exists as to the elements of the doctrine, the doctrine would not be available to defeat the summary judgment. Thus, the facts on which plaintiff relies here would not defeat a summary judgment, once a prima facie showing supporting summary judgment is made by defendant, because these facts do not tend to establish the elements of res ipsa loquitur.

The summary judgment is reversed.

The cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

HENDLEY, J., concurs.

SUTIN, J., specially concurring.

SUTIN, Judge (specially concurring).

We disagree as to the meaning of summary judgment, the failure to explain applicable statutes, and the applicability of the doctrine of res ipsa loquitur. Therefore, I specially concur.

(a) The Meaning of Summary Judgment

McKenzie, the owner of a cow, was awarded summary judgment in an action for the wrongful death of Gauna, Jr., brought by Tapia under the doctrine of res ipsa loquitur. The deceased was driving an automobile in the nighttime in an easterly direction on Interstate Highway 40 (formerly Highway 66), when he collided with McKenzie's cow, between Clines Corners and Santa Rosa, New Mexico. Gauna is dead and silent. The only evidence is the deposition of McKenzie.

In order to sustain summary judgment under the doctrine, McKenzie had the burden of showing there was no genuine issue of material fact because, as a matter of law, (1) Gauna's death was not proximately caused by the cow while it was under the exclusive control and management of McKenzie; or (2) that the presence of the cow on the highway was not of a kind which ordinarily occurs in the absence of negligence on the part of McKenzie; or (3) McKenzie used ordinary care in his control and management of the cow. See, U.J.I. 12.14; Renfro v. J. D. Coggins Co., 71 N.M. 310, 378 P.2d 130 (1963). The burden rested in McKenzie, Ballard v. Markey, 66 N.M. 265, 346 P.2d 1045 (1959), and not on Tapia. Coca v. Arceo, 71 N.M. 186, 193, 376 P.2d 970 (1962).

McKenzie failed in his burden. This means there is a genuine issue of material fact as to each element of res ipsa loquitur.

Since there are genuine material issues of fact, they must be submitted to the jury. Zengerle v. Commonwealth Insurance Co. of New York, 60 N.M. 379, 291 P.2d 1099 (1955); Johnson v. Primm, 74 N.M. 597, 396 P.2d 426 (1964); Great Western Construction Co. v. N. C. Ribble Co., 77 N.M. 725, 427 P.2d 246 (1967). Tapia is entitled to present this case to the jury on the merits. Buffington v. Continental Casualty Company, 69 N.M. 365, 367 P.2d 539 (1961); Cortez v. Martinez, 79 N.M. 506, 445 P.2d 383 (1968). In other words, at the close of all the evidence in this case at the time of trial, McKenzie is not entitled to a directed verdict because there are disputed issues of material fact.

The majority opinion holds only that McKenzie failed to establish the absence of negligence. But under the doctrine of res ipsa loquitur, Tapia would not be entitled to go to the jury unless he presents evidence tending to establish the elements of res ipsa loquitur. The reason I disagree is that if any elements of rea ipsa loquitur are now absent, the majority has a duty to sustain the summary judgment. If McKenzie failed to establish the absence of negligence, can Tapia now add a claim based upon McKenzie's negligence?

The majority opinion fails to set forth all of the material facts. To do so, might aid the trial court. It should not direct a verdict for McKenzie. On remand, the trial court must necessarily look to the opinion, and not to the judgment of mandate, for the law of the case. All matters determined by the decision become the law of the case and are binding upon the courts and litigants. First National Bank of El Paso, Texas v. Cavin, 28 N.M. 468, 214 P. 325 (1923).

I have reviewed all of the New Mexico cases on summary...