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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-37913
MILES WASHINGTON,
Plaintiff-Appellant,
v.
BOARD OF REGENTS OF NEW MEXICO
STATE UNIVERSITY, in its capacity as the
Body Corporate for NEW MEXICO STATE
UNIVERSITY; JOHN DOES 1 through 50,
inclusive; NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION; and JOHN
DOES 51 through 100, inclusive,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
James T. Martin, District Judge
Bowles Law Firm
Jason Bowles
Albuquerque, NM
Blum Collins, LLP
Steven A. Blum
Los Angeles, CA
for Appellant
Modrall Sperling
R.E. Thompson
Albuquerque, NM
Bryan Cave Leighton Paisner LLP
Philip Bartz
Washington, DC
Meridyth M. Andresen
Jessica R. Maziarz
Phoenix, AZ
for Appellee National Collegiate Athletic Association
Wilson Elser Moskowitz Edelman & Dicker LLP
Scott D. Sweeney
Denver, CO
for Amicus Curiae Pop Warner Little Scholars
Geiger Law Firm, LLC
Mark P. Geiger
Albuquerque, NM
for Amicus Curiae New Mexico Activities Association
MEMORANDUM OPINION
IVES, Judge.
{1} Plaintiff Miles Washington appeals the district court’s dismissal of his complaint
against Defendant National Collegiate Athletic Association (the NCAA) with prejudice as
a sanction, pursuant to Rule 1-041(B) NMRA and Rule 1-037 NMRA. In its order of
dismissal, the district court concluded that Plaintiff and his counsel “failed to comply and
cooperate in discovery” on multiple occasions in violation of Rule 1-037. The court
specifically found that Plaintiff and the lawyers who represented him (1) “failed to attend
the noticed deposition of Plaintiff,” (2) “failed to attend another deposition,” (3) “failed to
respond to written discovery properly served upon Plaintiff,” (4) “failed to comply with
multiple [c]ourt-ordered deadlines,” (5) “refused to respond to Defendants’ counsel[’s]
numerous attempts to negotiate a deposition schedule,” and (6) “failed to attend a
[c]ourt hearing.” Significantly, the district court found that the failure of Plaintiff and his
counsel to attend Plaintiff’s properly-noticed deposition was “willful.” Because Plaintiff
has not rebutted the presumption that the district court’s order of dismissal is correct, we
affirm.
DISCUSSION
{2} Plaintiff has failed to adequately develop an argument to support his assertion
that we should reverse the district court’s dismissal order. We begin with Plaintiff’s
counsel’s failure to comply with the provision of Rule 12-318(A)(4) NMRA that requires
every brief in chief to include an argument that states the applicable standard of review.
This requirement serves an important purpose; the standard of review is the foundation
on which every analysis of an appellate issue is built. The standard of review is of even
greater significance where, as here, it requires the appellate court to defer to the trial
court. In this case, the question is whether the district court abused its discretion. See
Lewis ex rel. Lewis v. Samson, 2001-NMSC-035, ¶ 13, 131 N.M. 317, 35 P.3d 972
(recognizing that the standard of review for discovery sanctions imposed under Rule 1-
037 is abuse of discretion but that appellate courts review sanction orders that result in
dismissal more closely than other types of sanctions); Lowery v. Atterbury, 1992-NMSC-
001, ¶ 11, 113 N.M. 71, 823 P.2d 313 (recognizing that the standard of review for Rule
1-041(B) sanctions is an abuse of discretion). Plaintiff does not recite this deferential
standard of review or acknowledge in any other manner that we may not simply
substitute our view for the district court’s. Counsel compound this major briefing
deficiency with another: failure to comply with the provision of Rule 12-318(A)(4) that
requires every brief in chief to include citations to legal authority. In the section of
Plaintiff’s brief in chief addressing the sanction issue, counsel do not cite any legal
authority whatsoever, even though there is ample authority addressing the topic of
discovery sanctions. Plaintiff’s counsel do not mention either of the provisions of the
Rules of Civil Procedure on which the district court relied. And Plaintiff’s counsel do not
cite—much less discuss—even one of the several precedential opinions in which our
Supreme Court and this Court have interpreted and applied the relevant provisions of
those procedural rules. By making an argument that is completely untethered from
governing law, counsel have failed to present an issue for our review. See Guest v.
Berardinelli, 2008-NMCA-144, ¶ 38, 145 N.M. 186, 195 P.3d 353.
{3} In sum, Plaintiff’s counsel have not performed basic tasks that are essential to
adequately developing an appellate argument, and precedent from our Supreme Court
teaches that there are sound reasons for us not to perform those tasks for counsel:
To rule on an inadequately briefed issue, this Court would have to develop
the arguments itself, effectively performing the parties’ work for them. This
creates a strain on judicial resources and a substantial risk of error. It is of
no benefit either to the parties or to future litigants for this Court to
promulgate case law based on our own speculation rather than the
parties’ carefully considered arguments.
Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (citation
omitted). Without developing an argument in support of his claim of error, Plaintiff
cannot carry his burden of rebutting the ordinary appellate presumption that the district
court’s order of dismissal is correct. See State v. Aragon, 1999-NMCA-060, ¶ 10, 127
N.M. 393, 981 P.2d 1211. We therefore affirm.
{4} Having concluded that a party’s briefing suffers from fatal flaws, we would
ordinarily decline to discuss whether that party’s claim of error has merit. However,
because the dissent concludes that Plaintiff’s claim of error has merit, we briefly and
generally explain why we disagree.1 A willful violation of a discovery order may warrant
1The dissent asserts that Plaintiff’s briefing suffices to allow us to address the merits. Dissent ¶ 12. To be
clear, we discuss the merits to counter the analysis supplied by the dissent, which—unlike Plaintiff’s
briefs—applies the standard of review and New Mexico law regarding discovery sanctions to the facts of
this case. Although counsel for Plaintiff were not obligated to make the case for reversal as skillfully as
our esteemed colleague has in her dissent, we believe counsel were obligated to, at a bare minimum,
apply the law to the facts.
a sanction, such as dismissal with prejudice, that denies the violating party an
opportunity to be heard on the merits. See United Nuclear Corp. v. Gen. Atomic Co.,
1980-NMSC-094, ¶ 202, 96 N.M. 155, 629 P.2d 231. Plaintiff concedes this but argues
(for the first time in his reply brief)2 that the district court erred by concluding that the
failure to appear for Plaintiff’s deposition was willful. To violate a rule willfully, a party
need not have wrongful intent; a “conscious or intentional failure to comply” suffices.
United Nuclear Corp., 1980-NMSC-094, ¶ 203 (internal quotation marks and citation
omitted). Having carefully reviewed the record, we believe the evidence reasonably
supports the conclusion that the violation at issue was conscious or intentional. See
Pub. Serv. Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082, ¶ 36, 131 N.M.
100, 33 P.3d 651. We recognize that one of the California lawyers representing Plaintiff
invited the district court to conclude that responsibility for the deposition belonged to
Plaintiff’s local counsel in New Mexico, who had become unresponsive. But the district
court was not required to accept that excuse. The court was instead free to conclude,
based on the arguments and evidence presented, that the failure of Plaintiff and his
legal team to appear for his deposition was willful. Considering this significant, willful
violation together with the other violations, dismissal of Plaintiff’s complaint with
prejudice was within the range of sanctions that the district court had discretion to
impose under New Mexico law. Neither Plaintiff nor the dissent cites any legal authority
that prohibits dismissal with prejudice under circumstances like these. And with respect
to the choice of an appropriate sanction within the legally allowed range, we should be
especially wary of substituting our judgment, formed at a distance based on a cold
record, for the judgment that the district court made from a vantage point far closer to
the parties and the lawyers and their behavior throughout the course of the litigation.
The question presented is not “whether we would have chosen a more moderate
sanction,” United Nuclear Corp., 1980-NMSC-094, ¶ 385 (internal quotation marks and
citation omitted), but instead whether the district court chose a sanction that is out of
legal or logical bounds. The court did not do so here, in our view.
CONCLUSION
{5} We affirm.
{6} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
The dissent also asserts that we have “entertain[ed]” the merits “cursorily.” Dissent ¶ 12. Although we
have devoted substantial time and effort to considering Plaintiff’s arguments, such as they are, as well as
the arguments in the dissent, we have intentionally declined to fully explain why we have concluded that
those arguments do not support reversal. Our decision not to provide a more fulsome explanation was
driven by the important principles that our Supreme Court summarized in Elane Photography, 2013-
NMSC-040, ¶¶ 70-71. Writing a more extensive opinion would waste scarce judicial resources, and we
wish to avoid the hazards of issuing an opinion (even one with only persuasive value) that addresses, in
any detail, the merits of arguments that Plaintiff’s counsel failed to make.
2Appellate courts in New Mexico generally do not address issues raised for the first time in reply briefs.
Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 29, 127 N.M. 282, 980 P.2d 65.
I CONCUR:
JACQUELINE R. MEDINA, Judge
SHAMMARA H. HENDERSON, Judge (dissenting).
HENDERSON, Judge (dissenting).
{7} I respectfully dissent from the majority opinion on three bases. First, while I
acknowledge the deficiencies in Plaintiff’s brief in chief with regard to the issue of
dismissal as a sanction, I cannot agree, under the facts of this case, that this reason
alone is sufficient to swiftly affirm the district court. Second, in my view, the district
court’s sua sponte dismissal of Plaintiff’s strict liability claim with prejudice as a
sanction—a claim it had already dismissed on different grounds nearly three years
earlier—was unduly punitive. And third, because I would reverse the district court’s
second dismissal of Plaintiff’s strict liability claim as a sanction, I would necessarily
address its first dismissal of this claim—the other basis of Plaintiff’s appeal—and
remand on this issue, as the district court failed to employ the correct legal standard to
Plaintiff’s strict liability claim. I explain my position after providing a brief background of
the case and the facts giving rise to this appeal.
{8} Plaintiff is a former member of the New Mexico State University football team. In
April 2015, he filed a complaint for strict liability and negligence against Defendant and
others alleging that he sustained injuries during football practice, resulting in
quadriplegia. Defendant moved to dismiss the complaint pursuant to Rule 1-012(B)(6)
NMRA,3 arguing, among other things, that college football is not an abnormally
dangerous4 activity, thus precluding recovery on a theory of strict liability, and that even
if it was, recovery on both strict liability and negligence would be barred pursuant to the
doctrine of assumption of the risk.
{9} In August 2015, the district court held a hearing and dismissed Plaintiff’s strict
liability claim with prejudice, reasoning as a matter of law that college football is not an
inherently dangerous activity such that strict liability is a viable cause of action. The
3Defendant’s motion to dismiss does not cite Rule 1-012(B)(6) directly. However, the motion cites
authority premised on this rule, and Plaintiff responded accordingly.
4Plaintiff’s complaint alleges that “college football is an inherently and/or abnormally dangerous activity”
but makes reference only to the six factors set out in the Restatement (Second) of Torts § 520 (1977) to
determine whether an activity is abnormally dangerous. The same is true of his briefing on appeal. We
recognize that “inherently” and “abnormally” are often used interchangeably, though “an important
distinction” exists between the two. See Saiz v. Belen Sch. Dist., 1992-NMSC-018, ¶ 22, 113 N.M. 387,
827 P.2d 102. Indeed, a three-prong test that differs from the factors articulated in the Restatement
(Second) of Torts § 520 for abnormally dangerous activities is used to determine whether an activity is
inherently dangerous. See Gabaldon v. Erisa Mortg. Co., 1999-NMSC-039, ¶ 13, 128 N.M. 84, 990 P.2d
197. Because Plaintiff did not request that his claim below be subject to the test for inherently dangerous
activities, and likewise does not request that this Court view his strict liability claim through this lens on
appeal, I proceed with the assumption that Plaintiff only intended to allege that college football is an
abnormally dangerous activity, and offer no analysis as to whether it may be an inherently dangerous
activity.
district court allowed Plaintiff’s negligence claims to proceed. At Plaintiff’s request, the
district court granted leave for Plaintiff to apply for an interlocutory appeal. This Court
denied Plaintiff’s application.
{10} At some point during the litigation, Plaintiff’s local counsel fell ill and became
unreachable by Plaintiff’s out-of-state counsel, Defendant’s counsel, and the district
court. As a result of local counsel’s unresponsiveness and the impact it had on the
discovery process, Defendant moved to dismiss “all remaining claims” as a sanction. In
response, Plaintiff sought to dismiss his negligence claims against Defendant and
requested the district court “enter final judgment on his strict liability cause of action” in
order to pursue an appeal on the legal question of whether college football is an
abnormally dangerous activity. Defendant did not oppose Plaintiff’s desire to dismiss the
remaining claims.
{11} The district court held a hearing on Defendant’s motion, at which time the parties
detailed difficulties in the discovery process, due, at least in part, to local counsel’s
illness and unreachability. Plaintiff reiterated his desire to dismiss the remaining claims
voluntarily against Defendant and requested the district court enter a final judgment so
that he could pursue an appeal on the strict liability claim. Defendant noted that
because Plaintiff agreed to dismiss his remaining claims, the sole issue before the
district court at the hearing was whether Defendant was able to recover litigation costs
from Plaintiff, as requested in its motion to dismiss. Based on Plaintiff’s “failure to
comply and cooperate in discovery,” the district court dismissed both the strict liability
claim and the remaining negligence claims with prejudice as “the ultimate sanction” that
it could impose, though it had already dismissed Plaintiff’s strict liability claim with
prejudice some thirty-two months earlier. Plaintiff filed this appeal.
{12} The majority disposes of the case solely on deficient briefing. Yet, the briefing
provided is sufficient for the majority to entertain—albeit cursorily—the merits of
Plaintiff’s claim that the district court improperly imposed dismissal with prejudice of an
already dismissed claim. It is true, as the majority notes, that deficient briefing can
“create[] a strain on judicial resources and a substantial risk of error” if the appellate
court must engage in “speculation” and “develop the arguments itself.” Elane
Photography, 2013-NMSC-040, ¶ 70; Maj. Op. ¶ 3. But, that is not the case here. While
Plaintiff’s brief in chief suffers from significant shortcomings, it does not leave his
position unclear or put this Court in a place to “guess at what [his] arguments might be.”
Elane Photography, 2013-NMSC-040, ¶ 70 (internal quotation marks and citation
omitted). For this reason, I believe the merits of Plaintiff’s contention that dismissal as a
sanction was improper should be explored, and I do so here.
{13} Appellate review of the dismissal of claims with prejudice, pursuant to Rules 1-
037(D) and 1-041(B), is for an abuse of discretion, though our scrutiny must be stronger
because dismissal is a particularly extreme sanction. See Lewis, 2001-NMSC-035, ¶ 13;
Lowery, 1992-NMSC-001, ¶ 9; United Nuclear Corp., 1980-NMSC-094, ¶ 385. “An
abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions
demanded by the facts and circumstances of the case.” Sims v. Sims, 1996-NMSC-078,
¶ 65, 122 N.M. 618, 930 P.2d 153. The district court’s dismissal of a case as a sanction
“must be based on its conclusions about a party’s conduct and intent, [and] implicit in
the standard of review is the question of whether the court’s findings and decision are
supported by substantial evidence.” Enriquez v. Cochran, 1998-NMCA-157, ¶ 20, 126
N.M. 196, 967 P.2d 1136. “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Diamond D Const.
Co., 2001-NMCA-082, ¶ 36.
{14} To dismiss a case with prejudice as a sanction, it is necessary that the district
court evaluate “the violating party’s conduct weighed against the underlying principles
that cases should be tried on their merits and that dismissal is so severe a sanction that
it must be reserved for the extreme case and used only where a lesser sanction would
not serve the ends of justice.” Lujan v. City of Albuquerque, 2003-NMCA-104, ¶ 11, 134
N.M. 207, 75 P.3d 423. Indeed, this Court has held that in cases where discovery
violations are at issue, the district court may only dismiss the case “when a party shows
flagrant bad faith and callous disregard for one’s discovery duties.” Chavez v. Bd. of
Cnty. Comm’rs of Curry Cnty., 2001-NMCA-065, ¶ 44, 130 N.M. 753, 31 P.3d 1027.
Thus, “we must be mindful of the nature of the conduct and level of culpability found by
the [district] court and whether the [district] court’s sanction appears more stern than
necessary in light of the conduct prompting the sanction.” Enriquez, 1998-NMCA-157, ¶
20.
{15} My review of the record leads me to the conclusion that the district court
improperly imposed dismissal with prejudice as a sanction for Plaintiff’s litigation
conduct. At the time that Defendant moved to have “all remaining claims”5 dismissed as
a sanction for Plaintiff’s litigation conduct, only the negligence claim remained.
Moreover, following Defendant’s motion to dismiss, Plaintiff agreed to voluntarily
dismiss his only remaining claim (negligence)—a course of action that Defendant
agreed to. Defendant subsequently alerted the district court that, due to the parties’
agreement, the sole issue for decision at the hearing on the motion to dismiss was
whether an award of litigation costs in favor of Defendant was appropriate. However,
rather than simply ruling on the question before it, the district court, of its own accord,
dismissed Plaintiff’s remaining claim and his strict liability claim with prejudice, despite
having already dismissed Plaintiff’s strict liability claim with prejudice nearly three years
earlier.
{16} In light of the parties’ agreement to dismiss Plaintiff’s sole remaining claim
(negligence) and Defendant’s position that the district court need only rule on the
recovery of litigation costs, I do not address the imposition of dismissal as a sanction for
discovery misconduct as it relates to this claim, as the decisive issue in this case is the
punitive dismissal of Plaintiff’s previously dismissed strict liability claim. See Crist v.
Town of Gallup, 1947-NMSC-012, ¶ 14, 51 N.M. 286, 183 P.2d 156 (stating that
appellate courts need not address questions unnecessary for the resolution of the
5At the time of the events at issue, Plaintiff also had an active negligence claim against another party.
That party is not named in this appeal. For simplicity, I refer only to the negligence claim against
Defendant.
case), superseded by statute on other grounds as stated in Hoover v. City of
Albuquerque, 1954-NMSC-043, ¶ 5, 58 N.M. 250, 270 P.2d 386.
{17} Defendant correctly notes that the district court has the authority to revisit
interlocutory rulings, like dismissals that do not dispose of a party’s claims in their
entirety, when appropriate. See Melnick v. State Farm Mut. Auto. Ins. Co., 1988-NMSC-
012, ¶ 5, 106 N.M. 726, 749 P.2d 1105 (noting that an interlocutory ruling “leaves the
case in the [district] court for further proceedings” and that “the [district] court may revise
or rescind an interlocutory order at any time before entry of a judgment that concludes
the litigation”); Barnett v. Cal M Inc., 1968-NMSC-159, ¶ 7, 79 N.M. 553, 445 P.2d 974
(noting the district court’s ongoing jurisdiction over cases without final judgments and its
power to revise its rulings); see also Rule 1-054(B) NMRA (providing that “any order . . .
that adjudicates fewer than all the claims . . . does not end the action as to any of the
claims . . . and may be revised at any time before the entry of a judgment adjudicating
all the claims”); cf. Ulibarri v. State of N.M. Corr. Acad., 2006-NMSC-009, ¶ 17, 139
N.M. 193, 131 P.3d 43 (noting that a district court may reconsider a partial grant of
summary judgment since such a ruling is interlocutory); Thompson v. Potter, 2012-
NMCA-014, ¶ 5, 268 P.3d 57 (“The denial of a summary judgment motion is an
interlocutory order and may be reconsidered by the district court at any time before final
judgment.”). Even so, I cannot adopt the majority’s view that such an action was not an
abuse of discretion in this case.
{18} I view the district court’s decision to dismiss the strict liability claim as a sanction
as inappropriate, particularly because it had dismissed this claim nearly three years
earlier. Indeed, the district court ordered “[d]ismissal of the entire action with prejudice
as a sanction, including dismissal of Plaintiff’s strict liability claim . . . for . . . discovery
misconduct.” I reject this reasoning. I recognize that the district court found that failure
to attend certain depositions by Plaintiff’s counsel was “willful” and that it sought to
impose “the ultimate sanction” for this conduct. Presumably, however, the discovery
process during which any misconduct occurred was tailored to Plaintiff’s negligence
claim, as Plaintiff’s strict liability claim was dismissed with prejudice on Rule 1-012(B)(6)
grounds only four months after Plaintiff filed the complaint. See Rule 1-012(B) (providing
that dismissal for “failure to state a claim upon which relief can be granted” must be
based on the pleadings alone).
{19} The majority makes much of two things: (1) the district court’s use of the word
“willful” in its order dismissing Plaintiff’s entire case with prejudice as a discovery
sanction; and (2) the absence of “any legal authority that prohibits dismissal with
prejudice under circumstances like these.” Maj. Op. ¶¶ 1, 4. To be clear, these
circumstances, as I understand them, comprise a case where discovery for Plaintiff’s
strict liability claim was no longer active because that claim was dismissed by the district
court nearly three years prior, yet the district court reached back, without prompting by
Defendant, to again dismiss Plaintiff’s strict liability claim with prejudice, this time as a
discovery sanction.
{20} First, while the majority correctly sets out the “test of willfulness” quoted in United
Nuclear Corp., 1980-NMSC-094, ¶ 203, Maj. Op. ¶ 4, it ignores our duty to “be mindful
of the nature of the conduct and level of culpability found by the [district] court and
whether the [district] court’s sanction appears more stern than necessary in light of the
conduct prompting the sanction,” Enriquez, 1998-NMCA-157, ¶ 20. The root of
discovery noncompliance in this case is the disappearance of Plaintiff’s local counsel.
While it may be true that in the proceedings below, Plaintiff is the only one that
articulated with specificity the particular reasons for local counsel’s disappearance, i.e.,
severe illness and resulting issues from medication, the fact that local counsel became
unreachable by all interested parties is undisputed. It is also undisputed that Defendant
did not move for dismissal of Plaintiff’s strict liability claim as a sanction, as that claim
had been dismissed long before the relevant events here. Lastly, it is undisputed that
instead of affording Defendant the relief requested and unopposed by Plaintiff, i.e.,
dismissal of Plaintiff’s negligence claim, the district court went considerably further,
reaching back to reconsider the dismissal of a claim it had already dismissed nearly
three years earlier.
{21} In my view, these realities undermine the majority’s position that on-point legal
authority is necessary to reverse the district court’s order, when in fact, the standard of
review this Court is supposed to employ in a situation like this requires determination of
whether the district court’s conclusion can be accepted by reasonable minds. See
Diamond D Const. Co., 2001-NMCA-082, ¶ 36 (setting out the definition of substantial
evidence); Enriquez, 1998-NMCA-157, ¶ 20 (noting that appellate review for substantial
evidence is “implicit in the standard of review” for an abuse of discretion in cases where
a discovery sanction is at issue). Under this standard, I fail to see how dismissal without
prejudice of an already dismissed claim for which discovery was not being conducted as
a discovery sanction is congruous with the undisputed conduct giving rise to the
discovery noncompliance at issue here—noncompliance occurring wholly in the
discovery process for Plaintiff’s negligence claim that the parties agreed to dismiss. To
be sure, I am not suggesting that the district court cannot exercise discretion to review
an interlocutory order. Rather, it is my position that the district court abused its
discretion by imposing a sanction that was neither tailored to the discovery conduct at
issue nor designed to “serve the ends of justice.” Lujan, 2003-NMCA-104, ¶ 11. For
these reasons, I must dissent from the majority opinion on this issue.
{22} As noted above, because I would reverse on this basis, I necessarily address the
district court’s first dismissal of the strict liability claim on Rule 1-012(B)(6) grounds.
Rule 1-012(B)(6) provides for dismissal for “failure to state a claim upon which relief can
be granted.” This Court conducts a de novo review of the district court’s dismissal of a
claim under Rule 1-012(B)(6). Madrid v. Vill. of Chama, 2012-NMCA-071, ¶ 12, 283
P.3d 871. “A motion to dismiss a complaint for failure to state a claim upon which relief
can be granted merely tests the legal sufficiency of the complaint.” McNutt v. N.M. State
Trib. Co., 1975-NMCA-085, ¶ 25, 88 N.M. 162, 538 P.2d 804. Thus, appellate review
“assume[s] the veracity of all properly pleaded allegations in the complaint.” Davis &
Assocs., Inc. v. Midcon, Inc., 1999-NMCA-047, ¶ 20, 127 N.M. 134, 978 P.2d 341. Rule
1-012(B)(6) motions to dismiss offer a “drastic remedy” and should be “infrequently
granted.” Rummel v. Edgemont Realty Partners, Ltd., 1993-NMCA-085, ¶ 9, 116 N.M.
23, 859 P.2d 491.
{23} Strict liability may be based on either abnormally or inherently dangerous
activities, each of which has a separate test to determine if the activity at issue qualifies
as abnormally or inherently dangerous. Compare Apodaca v. AAA Gas Co., 2003-
NMCA-085, ¶¶ 13, 15, 134 N.M. 77, 73 P.3d 215, with Gabaldon, 1999-NMSC-039, ¶¶
2, 19. “[T]he determination of whether an activity is abnormally dangerous is a question
of law for a court to decide.” Apodaca, 2003-NMCA-085, ¶ 15. New Mexico has adopted
the six factors set out in the Restatement (Second) of Torts § 520 to determine whether
an activity is abnormally dangerous. Apodaca, 2003-NMCA-085, ¶¶ 15, 21. They are as
follows:
(a) existence of a high degree of risk of some harm to the person, land or
chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its
dangerous attributes.
Id. ¶ 21 (quoting Restatement (Second) of Torts § 520).
{24} My review of the transcript of the hearing on Defendant’s motion to dismiss and
the district court’s subsequent written order offer little insight into the district court’s legal
conclusion on this issue. Indeed, at the hearing, the district court did not analyze
Plaintiff’s claim under the six factors to determine whether an activity is abnormally
dangerous as argued by Plaintiff and outlined above. Rather, the district court, with no
elaboration, appeared to only employ the three-prong test adopted in Gabaldon to
determine whether an activity is inherently dangerous. See 1999-NMSC-039, ¶ 13. The
district court’s written order makes reference, without analysis, to Restatement (Second)
of Torts § 520, and otherwise relies on “the reasons that appear in the existing record.”
Thus, nowhere in the record are the Restatement factors analyzed as required. See
Restatement (Second) of Torts § 520 cmt. f (noting that every factor must be analyzed
and that each is “of importance”).
{25} In light of this, the record is insufficient to compel meaningful review on this
issue. The Restatement standard for abnormally dangerous activities that New Mexico
has adopted requires the district court to ascribe to each factor listed above such weight
as is warranted based “upon the facts in evidence.” Restatement (Second) of Torts §
520 cmt. l; see also Apodaca, 2003-NMCA-085, ¶ 19 (noting the applicability of the six
factors from the Restatement (Second) of Torts § 520). Furthermore, it is necessary to
reiterate that we have never held that only certain activities can qualify as abnormally
dangerous, particularly if the “facts warrant” extension of this qualification to additional
situations. Apodaca, 2003-NMCA-085, ¶ 19. If the district court is unable to clearly
articulate the facts on which it based its ruling, meaningful appellate review is also
elusive. See Ruiz v. City of Albuquerque, 1978-NMCA-015, ¶ 40, 91 N.M. 526, 577 P.2d
424 (stating that while Rule 1-012 does not require the district court to enter findings of
fact and conclusions of law, “[i]t is of assistance to this Court to know the reasons why a
final order is granted or denied below”); see also Salcido v. Farmers Ins. Exch., 2004-
NMCA-006, ¶ 19, 134 N.M. 797, 82 P.3d 968 (noting that even where a rule does not
require findings of fact from the district court, this Court “encourage[s] all district courts
to request and enter factual findings to facilitate meaningful review”).
{26} For these reasons, I would remand on the legal question of whether college
football is an abnormally dangerous activity such that strict liability is a viable cause of
action, and instruct the district court to employ the correct legal standard applicable to
Plaintiff’s claim and to do so in a manner that permits meaningful appellate review.
{27} Finally, I note that Defendant’s invitation to consider Plaintiff’s standing and
assumption of the risk is premature. If these defenses were applicable, Defendant could
choose to properly raise them in the proceedings below. However, the district court did
not rule on these questions and thus, they are not properly before this Court for
appellate review at this juncture. See Luginbuhl v. City of Gallup, 2013-NMCA-053, ¶
41, 302 P.3d 751 (stating that, in the absence of consideration or ruling by the district
court, an issue “is not properly before this Court”).
{28} To summarize, I would reverse the district court’s second dismissal of Plaintiff’s
strict liability claim with prejudice as a discovery sanction. Further, I would remand this
case to the district court with instructions that it utilize the legal standard applicable to
abnormally dangerous activities in ruling on Defendant’s Rule 1-012(B)(6) motion to
dismiss Plaintiff’s strict liability claim. Because the majority affirms on the district court’s
discovery sanction and does not reach the district court’s dismissal of Plaintiff’s strict
liability claim on Rule 1-012(B)(6) grounds, I respectfully dissent.
SHAMMARA H. HENDERSON, Judge
Washington v. Board of Regents of NMSU
Combined Opinion