Trujillo v. Treat

• Decision Date: 01 March 1988
• Docket Number: No. 9718,9718
• Citation: 1988 NMCA 17,752 P.2d 250,107 N.M. 58
• Parties: Kenneth TRUJILLO, Personal Representative of the Estate of Henry Trujillo, Jr., Deceased, Plaintiff-Appellant, v. Linda W. TREAT and Thomas J. Treat, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 250

752 P.2d 250

107 N.M. 58

Kenneth TRUJILLO, Personal Representative of the Estate of Henry Trujillo, Jr., Deceased Plaintiff-Appellant, v. Linda W. TREAT and Thomas J. Treat, Defendants-Appellees.

No. 9718.

Court of Appeals of New Mexico.

March 1, 1988.

[107 NM 59] Lorenzo A. Chavez, Gerald A. Hanrahan, Chavez Law Offices, Albuquerque, for plaintiff-appellant.

John A. Klecan, Butt, Thornton & Baehr, P.C., Albuquerque, for defendants-appellees.

OPINION

DONNELLY, Chief Judge.

Plaintiff, as personal representative of the estate of Henry Trujillo, Jr., appeals from an order granting summary judgment and dismissing his wrongful death action against defendants Linda W. Treat and Thomas J. Treat (defendants). The sole issue on appeal is whether the district court erred in granting defendants' motion for summary judgment. We reverse and remand.

On November 13, 1984, at approximately 8:45 p.m., decedent was struck and killed by an automobile driven by defendant Linda Treat (Treat). At the time of the accident, decedent was standing in the left lane of northbound U.S. Highway 85, near Belen. On January 3, 1985, plaintiff filed a wrongful death action against defendants and Gilbert Trujillo, doing business as El Nido Supper Club. In a prior appeal, this court affirmed an order of the district court granting a motion to dismiss Gilbert Trujillo as a defendant in the action. See Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (Ct.App.1986). Subsequent thereto, defendants moved for summary judgment. In support of this motion, defendants attached the affidavits of Mary Moya, a witness to the accident, and Frank Valles, the police officer who investigated the accident. Also before the court was the deposition of Treat, and her answers to interrogatories. On November 10, 1986, the district court granted defendants' motion, determining that "there are no issues of material fact and that defendants are entitled to [summary] Judgment as a matter of law."

Plaintiff argues that the district court erred in granting summary judgment. Specifically, plaintiff asserts that under our comparative negligence law, the question of whether Treat saw or should have seen decedent prior to impact so as to avoid fatally injuring him is a genuine issue of material fact subject to the jury's determination. Defendants, on the other hand, contend that summary judgment was proper because there was nothing Treat could do to avoid hitting decedent and that the accident was unavoidable.

Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. SCRA 1986, 1-056(C); Koenig v. Perez, 104 N.M. 664, 726 P.2d 341 (1986); Westgate Families v. County Clerk of Inc. County of Los Alamos, 100 N.M. 146, 667 P.2d 453 (1983). The movant need only make a prima facie showing that he is entitled to summary judgment. Koenig v. Perez; Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). Upon making a prima facie showing, the burden then shifts to the party opposing the motion to show at least a reasonable doubt as to whether a genuine issue exists. Koenig v. Perez; Savinsky v. Bromley Group, Ltd., 106 N.M. 175, 740 P.2d 1159 (Ct.App.1987).

When considering a motion for summary judgment, the district court must give the party opposing the motion the benefit of all reasonable doubt in determining whether a genuine issue of material fact exists. Young v. Seven Bar Flying Serv., Inc., 101 N.M. 545, 685 P.2d 953 (1984); Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 738 P.2d 129 (Ct.App.1987). Even where basic facts are undisputed, if equally logical but conflicting inferences can be drawn from the facts, summary judgment should be denied. Barber's Super Markets, Inc. v. Stryker, 81 N.M. 227, 465 P.2d 284 (1970); Pena v. New Mexico Highway Dep't Mountain States Mut. Ins. Co., 100 N.M. 408, 671 P.2d 656 (Ct.App.1983). Summary judgment is a drastic remedy which should be used with extreme caution. Cunningham v. Gross, 102 N.M. 723, 699 P.2d 1075 (1985); Cebolleta Land Grant, ex rel. Bd. of Trustees v. Romero, 98 N.M. 1, 644 P.2d 515 (1982).

It is well established that the driver of a motor vehicle has a duty to keep a proper lookout and to maintain proper control of his vehicle. SCRA 1986, 13-1202; see NMSA 1978, Sec. 66-7-337 (Repl.Pamp.1987); Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799 (1962); Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 (1951); Martinez v. City of Albuquerque, 84 N.M. 189, 500 P.2d 1312 (Ct.App.1972). The duty to keep a proper lookout requires more than merely looking; it requires a person to actually see what is in plain sight or is obviously apparent to one under like or similar circumstances. SCRA 1986, 13-1203; see New Mexico State Highway Dep't v. Van Dyke, 90 N.M. 357, 563 P.2d 1150 (1977). Similarly, a pedestrian has a duty to exercise due care for his own safety. SCRA 1986, 16-1604.

We recently reaffirmed the duty of a motorist to keep a proper lookout and to see that which could be seen in the exercise of ordinary care. See Trujillo v. Galio, 106 N.M. 486, 745 P.2d 711 (Ct.App.1987). The facts in Trujillo are similar to those in the instant case. In both Trujillo and the present case, defendant motorists were driving in a dark, unlit area, the victims were alleged to have been intoxicated, defendant motorists did not see the victims until shortly before impact, and defendant motorists unsuccessfully swerved to avoid the accident. In Trujillo, defendant's wife, who was a passenger in the front seat, indicated that she saw plaintiff just before impact. This court held that whether defendant could have or should have seen a pedestrian was a question of fact to be determined by the factfinder after a consideration of all the attendant circumstances. Id. at ----, 745 P.2d at 713. The factfinder, in Trujillo, determined that the driver was not liable.

Negligence and proximate cause are, likewise, generally questions of fact for the jury, unless reasonable minds cannot differ. See New Mexico State Highway Dep't v. Van Dyke; Reynolds v. Swigert, 102 N.M. 504, 697 P.2d 504 (Ct.App.1984); see generally 6 J. Moore, Moore's Federal Practice, pt. 2, Sec. 56.17(42) (1987); V. Schwartz, Comparative Negligence Sec. 17.3 (2d ed.1986). New Mexico case law demonstrates that the question of whether a motorist could have avoided a collision with a pedestrian is normally a factual issue for the trier of fact. In Merrill v. Stringer, 58 N.M. 372, 271 P.2d 405 (1954), overruled on other grounds, Archuleta v. Pina, 86 N.M. 94, 519 P.2d 1175 (1974), defendant motorist testified that he did not see plaintiff pedestrian until the time of impact. Another driver, following closely behind defendant, saw plaintiff approaching the center line and was able to bring his vehicle to a stop. Based upon this evidence, our supreme court held that the trial court erred in directing a verdict for defendant where a factual issue existed as to whether the nighttime accident was unavoidable.

In Falkner v. Martin, 74 N.M. 159, 391 P.2d 660 (1964), a pedestrian was struck by defendant motorist while crossing a street at night. Defendant testified at trial that the plaintiff was wearing dark clothing and "suddenly loomed in front of the car." Id. at 162, 391 P.2d at 662. No other eyewitness saw the pedestrian crossing the street until the accident occurred. Under these facts, the court in Falkner held that whether the driver was negligent was a factual question to be determined by the jury. Similarly, in Galvan v. City of Albuquerque, 85...