Rodriguez v. Del Sol Shopping Ctr. Assoc., L.P.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 15:35:42 2013.02.06
Certiorari Granted, January 17, 2013, No. 33,949
Certiorari Granted, January 28, 2013, No. 33,896

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-020

Filing Date: October 12, 2012

Docket No. 30,421 consolidated with No. 30,578

JAMES RODRIGUEZ, Individually and as
Representative of the Estates of JANELL L.
RODRIGUEZ and DAVID RODRIGUEZ,
Deceased, LEANN AGUILAR, DOMENIC
A. RODRIGUEZ, JUAN M. TERRAZAS,
Individually and as Representative of the Estate
of VIVIANA E. TERRAZAS, Deceased,
LUDIVINA TERRAZAS ENRIQUEZ, and
BILLY J. TRUJILLO, as Next Friend of
ISAIAH TRUJILLO,

Plaintiffs-Appellants,

v.

DEL SOL SHOPPING CENTER ASSOCIATES,
L.P., a/k/a DEL SOL SHOPPING CENTER,
BGK PROPERTIES, INC., BGK REALTY, INC.,
BGK PROPERTY MANAGEMENT, L.L.C.,
and BGK EQUITIES III, INC.,

Defendants-Appellees.

and

MARIA C. BUSTAMANTE, as Representative
of the Estate of MICHAEL SOLCHENBERGER,
and his wife LYDIA SOLCHENBERGER, Deceased,

Plaintiff-Appellant,

v.

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BGK PROPERTIES, INC., DEL SOL SHOPPING
CENTER ASSOCIATES, L.P., and CONCENTRA
HEALTH SERVICES, INC.,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Clay P. Campbell and Sarah M. Singleton, District Judges

Law Offices of Beatrice Lockhart
Beatrice Castellano Lockhart
Santa Fe, NM

Joe Cruz Castellano, Attorney at Law
Joe Cruz Castellano
Santa Fe, NM

Watts Guerra Craft L.L.P.
John G. Escamilla
Edinburg, TX

Gaddy Jaramillo Lawyers
David Jaramillo
Albuquerque, NM

Attorneys for Appellants
James Rodriguez, et al.
O’Friel and Levy, P.C.
Daniel J. O’Friel
Aimee Bevan
Santa Fe, NM

Attorneys for Appellant
Maria C. Bustamante

Madison, Harbour & Mroz, P.A.
Ada B. Priest
M. Eliza Stewart
Albuquerque, NM

Attorneys for Appellees
BGK Properties, Inc. and Del Sol
Shopping Center Associates, L.P.,
BGK Realty, Inc. and BGK Equities

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III, LLC

Civerolo, Gralow, Hill & Curtis, P.A.
Lisa Entress Pullen
M. Clea Gutterson
Albuquerque, NM

Attorneys for Appellees
BGK Property Management, LLC

Rammelkamp, Muehlenweg & Cordova, P.A.
Lara White Davis
Albuquerque, NM

Attorney for Appellee
Concentra Health Services, Inc.

Brown & Gay, P.C.
Remo E. Gay, Jr.
Melissa A. Brown
Albuquerque, NM

Attorneys for Appellee
Concentra Health Services, Inc.

OPINION

HANISEE, Judge.

{1} On March 17, 2006, a pick-up truck in the parking lot of Del Sol Shopping Center
(Del Sol) in Santa Fe suddenly accelerated—due to a combination of driver and vehicle
failure—and hurtled through one of Del Sol’s side-by-side business-front glass walls and
into the Concentra Medical Clinic (Concentra). Tragically, a mother and her son were struck
and killed inside, along with a medical receptionist assisting them at the time. Six other
Concentra patients were also seriously injured by the runaway truck. The legal aftermath
of the calamity included separate premises liability actions filed by the decedents’ estates,
the surviving victims and their families (collectively, Plaintiffs). Each lawsuit alleged that
the owners and operators of Del Sol (collectively, Defendants) negligently contributed to the
occurrence by, among other things, failing to adequately post traffic signage and erect
additional physical barriers between the parking lot and shopping center. Two district courts
granted Defendants’ motions for summary judgment, each declaring that Defendants had no
duty to protect Plaintiffs inside the building from criminally reckless drivers because the
sequence of events was unforeseeable as a matter of law. We previously consolidated
Plaintiffs’ appeals from the separate orders of summary judgment and now affirm. We do

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so, however, not based on the foreseeability-driven duty analysis employed by the district
courts, but based on the policy-driven duty analysis advanced by the Restatement (Third) of
Torts and Plaintiffs, and recently embraced by our New Mexico Supreme Court in Edward
C. v. City of Albuquerque, 2010-NMSC-043, ¶ 15, 148 N.M. 646, 241 P.3d 1086.

Standard of Review

{2} At the outset, we acknowledge that under New Mexico law summary judgment is “to
be used with great caution,” and is proper in only two circumstances: (1) “when there are
no genuine issues of material fact and the moving party is entitled to judgment as a matter
of law,” or (2) “when the material facts are not in dispute and the only question to be
resolved is the legal effect of the facts.” Monett v. Doña Ana Cnty. Sheriff’s Posse, 114
N.M. 452, 454, 840 P.2d 599, 601 (Ct. App. 1992) (internal quotation marks and citations
omitted). The issue presented here is of the latter type, which compels our resolution of the
legal question of duty in the context of the established material facts. Accordingly, we apply
de novo review. See Cable v. Wells Fargo Bank N.M., N.A. (In re Cable Family Trust),
2010-NMSC-017, ¶ 9, 148 N.M. 127, 231 P.3d 108 (“An appeal from the grant of a motion
for summary judgment presents a question of law and is reviewed de novo.” (internal
quotation marks and citation omitted)); see also Herrera v. Quality Pontiac, 2003-NMSC-
018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (stating that “[w]hether a duty exists is a question of
law” to be reviewed de novo).

I. BACKGROUND

{3} Undisputed evidence demonstrates that Rachel Ruiz—who had been advised not to
operate motor vehicles by physicians treating her seizure disorder—was nonetheless driving
the pick-up truck that crashed into Del Sol and Concentra. Ms. Ruiz was also aware that the
truck had previously experienced mechanical failure, including both sudden acceleration and
loss of brake controls. While driving the truck and simultaneously disregarding her own and
its pre-known conditions, Ms. Ruiz steered into Del Sol’s parking lot from St. Michael’s
Drive. She reportedly intended to make an in-person dental appointment at “Perfect Teeth,”
one of the many adjacent tenant businesses located within Del Sol.

{4} As Ms. Ruiz drove along a 600-foot entrance straightaway within the Del Sol parking
lot, the truck’s accelerator apparently became stuck while depressed and its brakes failed to
engage. Ms. Ruiz maintained she then experienced a “baby seizure,” causing her to abruptly
lose consciousness. The unbridled truck continued accelerating, veered slightly to the left,
and vaulted the perpendicular six-inch curb at the end of the straightaway. Its leftward drift
caused the truck to narrowly miss a concrete overhang support pillar centered directly at the
end of the straightaway. It then sped across a ten-foot wide pedestrian sidewalk, snapped
a metal handrail, and crashed through Concentra’s floor-to-ceiling glass wall. It finally came
to rest—after striking Plaintiffs—more than twelve feet into Concentra’s reception area.

{5} The legal aftermath of the tragedy resulted in these current lawsuits and separate

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criminal proceedings, during which Ms. Ruiz pleaded no contest to three counts of vehicular
homicide and six counts of great bodily injury by vehicle, and was imprisoned. These
appeals follow the issuance of separate written orders of summary judgment by district court
judges who first held hearings and considered pleadings, exhibits, and arguments of counsel.
We review the propriety of those determinations below.

Current State of New Mexico’s Legal Duty Analysis

{6} The core question presented in this appeal is what, if any, duty is owed by
Defendants in the context of the facts recited above. Before answering, we briefly
summarize the evolution of New Mexico’s legal duty analysis, and state what we consider
to be the current test. The Solchenberger Plaintiffs assert in their brief-in-chief that New
Mexico law has been “inconsistent regarding the role of foreseeability in duty
determinations.” To this end, they cite with chronologic specificity our jurisprudence
following the seminal case on this topic, Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y.
1928). Our own review of these cases has likewise discerned vacillation between the
different constructions by which duty can be recognized and measured. The Palsgraf debate,
written by Chief Judge Cardozo on behalf of the majority and with Judge Andrews penning
the dissent, specifically addressed the application of foreseeability within the legal question
of duty, and underscored the tension between the differing roles of judges and juries in
resolving negligence-based lawsuits. In short, Judge Cardozo prevailed in his effort to
incorporate foreseeability within the strictly legal determination of duty. See Palsgraf, 162
N.E. at 100 (“[T]he orbit of the danger as disclosed to the eye of reasonable vigilance would
be the orbit of the duty.”). He did so despite the separate application of foreseeability within
the element of causation—a quintessential question of fact resolved by juries. See Johnstone
v. City of Albuquerque, 2006-NMCA-119, ¶ 20, 140 N.M. 596, 145 P.3d 76 (“[A]ny
consideration of foreseeability of injury is intertwined with the concept of proximate
causation of that injury.”); Baker v. Fryar, 77 N.M. 257, 262, 421 P.2d 784, 787 (1966)
(“We recognize that proximate cause is a question of fact to be determined by the
factfinder.”). Judge Andrews advocated the divergent viewpoint in his dissent, maintaining
that “[d]ue care is a duty imposed on each one of us to protect society from unnecessary
danger,” and that any limitation of duty should be derived from matters of effective policy
rather than the more nebulous legal notion of foreseeability. See Palsgraf, 162 N.E. at 102,
103 (“[B]ecause of convenience, of public policy, of a rough sense of justice, the law
arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is
practical politics.”).

{7} Our New Mexico Supreme Court first asserted its adoption of the Palsgraf majority’s
“foreseeable plaintiff” test for determining duty in Ramirez v. Armstrong. 100 N.M. 538,
541, 673 P.2d 822, 825 (1983) (“If it is found that a plaintiff, and injury to that plaintiff,
were foreseeable, then a duty is owed to that plaintiff by the defendant.”), overruled in part
by Folz v. State, 110 N.M. 457, 797 P.2d 246 (1990). But Ramirez’s imprecise phrasing of
the express Palsgraf holding was later criticized by New Mexico Supreme Court Chief
Justice Ransom in a particularly enduring special concurrence. See Solon v. WEK Drilling

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Co., 113 N.M. 566, 572, 829 P.2d 645, 651 (1992) (Ransom, C.J., specially concurring)
(“Chief Judge Cardozo held in Palsgraf that there can be no duty in relation to another
person absent foreseeability . . . , it does not follow that duty necessarily is present if risk of
injury to that other person is foreseeable from one’s acts and omissions. . . . It is unfortunate
that in Ramirez . . . this Court stated [otherwise].”). Chief Justice Ransom additionally wrote
that “the crux of the duty analysis that is required . . . is not a factual foreseeability
determination, but rather it is a legal policy determination.” Id.; accord Calkins v. Cox
Estates, 110 N.M. 59, 67, 792 P.2d 36, 44 (1990) (Ransom, J., dissenting) (“More often,
duty as a matter of law turns not on an absence of the fact issue of foreseeability, but rather
the policy issue of whether it is reasonable to impose a duty to avoid a risk of injury which,
although foreseeable, is remote.”). Despite these protests, our appellate courts incorporated
the primary determination of foreseeability into the legal question of duty. Calkins, 110
N.M. at 61, 792 P.2d at 38 (“In determining duty, it must be determined that the injured
party was a foreseeable plaintiff—that he was within the zone of danger created by [the]
respondent’s actions; in other words, to whom was the duty owed?”); Solon, 113 N.M. at
569-70, 829 P.2d at 648-49 (recognizing that New Mexico’s duty analysis “limits a
tortfeasor’s liability to the foreseeable plaintiff and excludes it where the plaintiff is
unforeseeable”).

{8} Justice Ransom’s view has persisted, however, and even gained varying degrees of
traction as our jurisprudence evolved. For example, since Calkins and Solon, New Mexico
courts have applied foreseeability in the following ways:

(1) as the primary consideration in a legal duty analysis, see, e.g., Bober v. N.M. State
Fair, 111 N.M. 644, 649, 808 P.2d 614, 619 (1991) (“[O]nce a duty is established, the
foreseeability of harm governs the scope of that duty.” (internal quotation marks and citation
omitted)); Monett, 114 N.M. at 459, 840 P.2d at 606 (“[T]he issue of duty . . . turn[s] on the
question of foreseeability.”); Reichert v. Atler, 117 N.M. 623, 626, 875 P.2d 379, 382 (1994)
(“The owner’s duty to protect patrons extends to all foreseeable harm . . . .” (emphasis
added));

(2) as a necessary element alongside policy considerations, see, e.g., Quality Pontiac,
2003-NMSC-018, ¶ 9, 134 N.M. 43, 73 P.3d 181 (2003) (“The Court of Appeals has
similarly recognized that duty requires analysis of both foreseeability and policy.”)1; Blake
v. Pub. Serv. Co. of N.M., 2004-NMCA-002, ¶ 7, 134 N.M. 789, 82 P.3d 960
(“Determination of duty is based in part on whether the injury to the plaintiff was

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Justice Bosson specially concurred in Quality Pontiac, giving renewed voice to the
criticism that New Mexico’s use of foreseeability as a part of the legal duty inquiry is a
“legal fiction for restricting or expanding liability.” 2003-NMSC-018, ¶ 40 (internal
quotation marks and citation omitted). Justice Bosson suggested that “[p]erhaps policy
issues like remoteness, aided by indications of legislative intent, are the better tools for
shaping duty, and we should leave the foreseeable plaintiff for the jury.” Id. ¶ 41.

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foreseeable. . . . [Yet], policy also determines duty.”); Chavez v. Desert Eagle Distrib. Co.
of N.M., LLC, 2007-NMCA-018, ¶ 16, 141 N.M. 116, 151 P.3d 77 (“The initial step in a
common law duty analysis is to determine whether a particular plaintiff and a particular
harm are foreseeable[;] . . . we then determine whether policy considerations preclude the
imposition of a common law duty in a particular case.”); and

(3) relegated to the less resolutive status of a “false jury issue,” which is ripe for
summary judgment only when a court determines that no rational trier of fact could find the
victim foreseeable, see Torres v. State, 119 N.M. 609, 612-13, 894 P.2d 386, 389-90 (1995)
(declaring for the first time—with Justice Ransom at last having the opportunity to serve as
author for the majority—that “policy determines duty”).

{9} Most recently, this Court—in an opinion that both district courts in the present cases
credited as being legally dispositive—echoed and applied the Ramirez-born understanding
that “foreseeability is a critical and essential component of New Mexico’s duty analysis.”
Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, ¶¶ 7-8, 146 N.M. 520, 212 P.3d
408 (alteration, internal quotation marks, and citation omitted) (holding that purposeful,
targeted criminal behavior in the parking lot of a convenience store was unforeseeable as a
matter of law). In applying Romero, both district courts in the instant case concluded that
this accident “was not foreseeable” as a matter of law and therefore no duty existed. The
district court judge to first consider the question of duty in these parallel cases explained in
his memorandum opinion and order that

[A] finding of foreseeability would require anticipation of a
remarkable confluence of events. Defendants would have had to foresee that
a woman, diagnosed with a seizure disorder and advised by her doctor not to
drive, would nevertheless decide to drive, that her vehicle would malfunction
and the stress of the malfunctioning vehicle would cause her to suffer from
a mini-seizure, which would result in her vehicle swerving, jumping a curb,
crossing a ten foot covered sidewalk and missing a concrete pillar, and
crashing through the front window of a business.2

Joined soon thereafter by a second district judge who reached the same result on the same

2
We note that District Judge Clay Campbell separately supported his duty
determination by policy considerations. Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P.,
No. CV-2006-01855 (1st Jud. Dist. Ct. Mar. 18, 2010) (“[T]he Court determines that neither
foreseeability nor considerations of policy, nor a combination of the two, can support the
imposition of duty here.”).

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legal basis3, the now-combined cases serve to illustrate the fallibility of an overly
foreseeability-dependent analysis by district courts tasked with determining order in a
convoluted area of law, as Justice Bosson warned in his special concurrence in Quality
Pontiac. 2003-NMSC-018, ¶ 42 (“When we attempt to define legal duty in terms of a
foreseeable plaintiff, it is all too tempting to use ‘foreseeability’ as a surrogate for result-
oriented conclusions.”); accord Marquez v. Gomez, 116 N.M. 626, 631, 866 P.2d 354, 359
(Ct. App. 1991) (“The existence and scope of duty, as questions of law, should not be
scrutinized with such specificity that the factual issue of negligence is subsumed.”). This
dilemma is readily apparent in this case, where minutia-specific foreseeability analysis
overwhelms the ascertainability of legal duty. For “if we look into the past of any given
event, there is an infinite number of events, each of which is a necessary condition of the
given event . . . .” See H. L. A. Hart & A. M. Honoré, Causation and Responsibility, in
Philosophy of Law: Classic and Contemporary Readings 307, 309 (Larry May & Jeff
Brown, eds., 2009) (emphasis added); see also, Edward N. Lorenz, The Essence of Chaos
181 (1995) (“If a single flap of a butterfly’s wings can be instrumental in generating a
tornado, so also can all the previous and subsequent flaps of its wings, as can the flaps of the
wings of millions of other butterflies, not to mention the activities of innumerable more
powerful creatures, including our own species.”).

{10} Fortunately, for the sake of clarity in the law and ease of analysis, the legal duty test
in New Mexico appears to have achieved homeostasis, as recently written by our New
Mexico Supreme Court in Edward C., 2010-NMSC-043. In reversing the Court of Appeals’
judgment—“that ordinary care was the applicable standard [of duty] because [the plaintiff]
and his injury were foreseeable”—our Supreme Court unanimously, and for the first time,
adopted an approach more consistent with the Restatement (Third) of Torts than with
Palsgraf, and that “disapprov[es] the use of foreseeability to limit liability.” Edward C.,
2010-NMSC-043, ¶ 18 (alteration omitted) (citing Restatement (Third) of Torts: Liability
for Physical and Emotional Harm § 7 cmt. j (2010)). The ensuing legal duty test as
articulated in Edward C. now reads as follows:

The question of the existence and scope of a defendant’s duty of care is a
legal question that depends on the nature of the . . . activity in question, the
parties’ general relationship to the activity, and public policy considerations.
. . . [It] is a question [primarily] of policy to be determined with reference to
legal precedent, statutes, and other principles comprising the law.

2010-NMSC-043, ¶ 14 (internal quotation marks and citation omitted).

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District Court Judge Sarah Singleton, in her order granting summary judgment to
Defendants, advocated her own opinion that “the foreseeability analysis in the Restatement
Third of Torts is the correct way to analyze foreseeability” under duty. Her grant of
summary judgment was thus based not upon independent legal acumen, but rather the
responsibility to apply what she perceived to be binding precedent.

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{11} This appears generally to be the standard sought by Plaintiffs, particularly the
Solchenberger Plaintiffs, who emphasized both in briefing and in oral argument the need for
clarity in what has become an increasingly complex area of law.4 We recognize that it is not
the job of an intermediate appellate court to cement or dismiss legal nuances that a higher
tribunal has oft employed. Rather, it is the job of the authoring court to discount antiquated
legal relics within its own body of jurisprudence, when it sees fit to do so. But, despite the
lack of an express dismissal of the historic application of foreseeability to the question of
legal duty in New Mexico by the Edward C. Court, we believe its import is plain enough:

Foreseeability . . . is but one factor to consider when determining duty and
not the principal question. See Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 7 cmt. j (2010) (disapproving the use of
foreseeability to limit liability in preference for “articulat[ing] polic[ies] or
principle[s] . . . to facilitate more transparent explanations of the reasons for
a no-duty [or limited-duty] ruling and to protect the traditional function of the
jury as factfinder”). Instead, “duty is a policy question . . . .”

The approach we take is consistent with the approach suggested by
the American Law Institute. . . . The American Law Institute notes that courts
can “render a judgment about that category of cases” under “the rubric of
duty” taking “into account factors that might escape the jury’s attention in a
particular case, such as the overall social impact of imposing a significant
precautionary obligation on a class of actors.” “Such a categorical
determination . . . has the benefit of providing clearer rules of behavior for
actors who may be subject to tort liability and who structure their behavior
in response to that potential liability.”

2010-NMSC-043, ¶¶ 18, 21 (alterations in original) (internal citations omitted). Incidentally,
the subjugation of foreseeability into a mere factor in the analysis of legal duty, and the
concomitant shift toward a policy-driven duty analysis, seems to have finally adopted the
approach articulated by Justices Ransom and Bosson. We also trumpet the impact of
Edward C. to promote uniformity of analysis to the legal question of duty frequently
encountered by this Court and the district courts around our State, which have even since
Edward C. continued to diverge based on conflicting precedent. Compare Bowen v.
Mescalero Apache Tribe, No. 29,625, slip op. at 6 (N.M. Ct. App. Jan. 27, 2011)

4
Curiously, the parties on appeal did not cite Edward C., perhaps based upon its
resolution of a question of duty within a uniquely narrow arena of law—baseball park
liability. The facts of that case and the determination of the Court regarding the duty owed
to baseball spectators are situationally distinct from the analysis of duty herein. But we
conclude that the manner in which duty is defined by Edward C. is applicable, particularly
given its departure from the many prior incorporations of foreseeability as the primary
determinant of duty.

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(“[D]etermining whether a duty exists requires two steps: the first step is to consider
whether there was foreseeability as to a particular plaintiff and a particular harm, and the
second step is to examine whether public policy reasons support the imposition of a duty.”
(citing Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 30, 142
N.M. 583, 168 P.3d 155)), cert. granted, 2011-NMCERT-004, 150 N.M. 649, 264 P.3d
1172, with Vargas v. Cruz, No. 30,884, slip op. at 1 (N.M. Ct. App. June 19, 2012)
(“Foreseeability is one factor to consider when determining duty, however, ‘[p]olicy is the
principal factor in determining whether a duty is owed and the scope of that duty.’”
(alteration in original) (citing Edward C., 2010-NMSC-043, ¶¶ 14, 18)). Moreover, in cases
such as these currently at bar, a definitive framework could best advance the consistent and
transparent application of law to sudden and unimaginable tragedies, to the benefit of
litigants, businesses seeking clear canons for responsible behavior, and judicial efficiency
alike.

II. DISCUSSION

{12} Having clarified the current state of our legal duty analysis, we now frame the
question on appeal broadly, as did our Supreme Court in Edward C., and proceed with legal
analysis without any undue focus on the factor of foreseeability: What duty should
owner/occupants of a shopping center in New Mexico have to protect business invitees
within its buildings from vehicles that depart the confines of designated parking areas? See
2010-NMSC-043, ¶ 14 (“What duty should owner/occupants of a baseball stadium in New
Mexico have to protect spectators from projectiles that leave the field of play?”). We note
the wisdom of defining and analyzing the duty broadly within context, rather than as
manifested by specific conduct, such as a duty to erect bollards, barriers, speed bumps,
concrete walls, etc.:

[Equating] the concept of “duty” with such specific details of conduct
[posting warning signs, removing obstructions, installing traffic control
devices, fixing potholes, and the like] is unwise. Attempting to define or
evaluate conduct in terms of duty tends to rigidify the concept of
negligence—a concept which, by definition, must vary from case to case . .
. . [T]he problems of “duty” are sufficiently complex without subdividing it
to cover an endless series of details of conduct. . . . [D]uty [should] remain[]
constant, while the conduct necessary to fulfill it varies with the
circumstances.

Bober, 111 N.M. at 649, 808 P.2d at 619 (second alteration in original) (citation omitted).

{13} It is well established that the general duty an owner/occupier owes an invitee is one
of ordinary care. See Ford v. Bd. of Cnty. Comm’rs, 118 N.M. 134, 139, 879 P.2d 766, 771
(1994) (“A landowner or occupier of premises must act as a reasonable man in maintaining
his property in a reasonably safe condition in view of all the circumstances, including the
likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the

10
risk.”); see also UJI 13-1309 NMRA (“An [owner] [occupant] owes a visitor the duty to use
ordinary care to keep the premises safe for use by the visitor [, whether or not a dangerous
condition is obvious].”). Ordinary care is that “which a reasonably prudent person would
use in the conduct of the person’s own affairs . . . [and] varies with the nature of what is
being done.” UJI 13-1603 NMRA. The duty of an owner/occupant to exercise ordinary care
can even include the protection of visitors against acts of third parties in circumstances
where knowledge of a specific danger is apparent. But whether an established duty in such
an instance has been breached is a question of fact that juries are asked to resolve by
considering the following instruction:

If an [owner] [occupant] breaches the duty to use ordinary care to
keep the premises safe for use by a visitor, resulting in injury to the visitor
from the acts of a third person, the [owner’s] [occupant’s] breach of duty is
to be compared with the conduct of the third person who actually caused the
injury to the visitor [, as well as with the visitor’s own fault,] in order to
determine the [owner’s] [occupant’s] proportionate degree of fault. The
[owner’s] [occupant’s] duty to protect visitors arises from a foreseeable risk
that a third person will injure a visitor and, as the risk of danger increases,
the amount of care to be exercised by the [owner] [occupant] also increases.
Therefore, the proportionate fault of the [owner] [occupant] is not necessarily
reduced by the increasingly wrongful conduct of the third person.

UJI 13-1320 NMRA (emphasis added). This jury instruction derives from Reichert, which
recognized “the importance of the duty of the owner or operator of a place of business to
prevent the harmful conduct of a third party.” 117 N.M. at 626, 875 P.2d at 382. In the
Reichert case, Justice Ransom was careful to note that the “duty to protect visitors arises
from the likelihood that a third party will injure a visitor . . . regardless of whether that harm
results from intentional or negligent conduct.” Id. (emphasis added).

{14} The question here, however, is not whether Defendants bore a general duty of
ordinary care to Plaintiffs—they most certainly did. The gravamen of our legal inquiry asks
whether the scope of the duty of ordinary care for owner/occupiers in this circumstance
incorporated the protection of invitees inside buildings from third-party vehicles
uncontrollably straying from adjacent parking lots. See Provencio v. Wenrich, 2011-NMSC-
036, ¶ 16, 150 N.M. 457, 261 P.3d 1089 (“In a negligence action, . . . the court must first
find an actionable duty of care and then define the nature and scope of that duty.”). In
answering that query, we consider (1) “the nature of the . . . activity in question,” (2) “the
parties’ general relationship to the activity,” and (3) “public policy.” See Edward C., 2010-
NMSC-043, ¶ 14.

Nature of the Activity and the Parties’ Relationship Thereto

{15} The nature of the activity here—the provision of goods and services to the public
within a shopping center and adjacent parking lot—bears no inherent risk of vehicle-

11
pedestrian accidents within the related businesses. Certainly, we recognize that Defendants’
facility was purposefully designed to attract the general public (and their vehicles) to both
visit businesses within Del Sol and park vehicles in its parking lot. The duty of ordinary care
thus required Defendants—who elected to provide a parking lot for public convenience—to
construct and maintain parking facilities in an ordinarily acceptable manner. Inevitably,
some of the visiting vehicles and pedestrians were likely to collide while commingling in the
parking lot. But we see nothing about the nature of the activity here—awaiting medical
services within Concentra Medical Clinic near Del Sol’s parking area—that would
unacceptably expose patrons to the risk of vehicle collisions inside the building such as the
risk found to exist in Edward C., 2010-NMSC-043, ¶ 41 (acknowledging that flying
projectiles from the field of play are an inherent risk of baseball to be anticipated—even
desired—by the spectator).

{16} The absence of apparent and inherent danger to patrons within Del Sol businesses
militates against the inclusion of a duty to prevent injury from runaway vehicles within the
scope of what is ordinarily owed to Del Sol patrons in this case. The combined record in
these cases reflects that (1) Del Sol’s parking lot is used by approximately 26,000 vehicles
per day, (2) it has been in use as a shopping center for over twenty years, and (3) in that time
period only three vehicles ever struck Del Sol’s buildings and only one of those (Ms. Ruiz’s
pick-up truck) ever penetrated the building and caused more than minor damage to the
premises. The sheer improbability and lack of inherent danger, as shown by those statistics,
are commonly cited around the country as a basis to refuse to extend a specific duty of care
to this category of accidents. See, e.g., Eckerd-Walton, Inc. v. Adams, 190 S.E.2d 490, 492
(Ga. Ct. App. 1972) (holding that the alleged act of negligence—that “defendant should have
[taken precautions in] anticipat[ion] that some negligent motorist would attempt to drive
through his store”—was “so remote and improbable as not reasonably to be anticipated by
a merchant in the exercise of ordinary care”); Mack v. McGrath, 150 N.W.2d 681, 686
(Minn. 1967) (“We agree that liability cannot be predicated on the fact that out of the many
thousands of vehicles which use parking areas in a normal way, one or two may occasionally
jump the curb and expose pedestrians as well as tenants to the remote possibility of injury.”).

{17} Other than sharing an inherent vulnerability to intrusion by runaway vehicles with
many like-situated shopping centers, we disagree that there was anything about Del Sol or
its adjacent parking lot that justifies a broadened standard of care owed to visitors. Like
other states, New Mexico’s shopping centers run some minimal but known risk of vehicle-
building collisions, as proximity to high-traffic roads and the attendant need for parking
space are highly advantageous, if not necessary, components to the success of any business
location.

Public Policy

{18} Last, we turn to public policy. In so doing, we apply that primary barometer of legal
duty, identified by Edward C., to ascertain the scope of ordinary care owed by Defendants
to Plaintiffs. 2010-NMSC-043, ¶ 14. “The existence of a duty is a question of policy to be

12
determined with reference to legal precedent, statutes, and other principles comprising the
law.” Calkins, 110 N.M. at 62, 792 P.2d at 39. Because “it is the particular domain of the
[L]egislature, as the voice of the people, to make public policy,” we would normally begin
our analysis by construing any applicable statutes and regulations that may apply to
shopping center design and maintenance. Torres, 119 N.M. at 612, 894 P.2d at 389.
Defendants contend and Plaintiffs do not refute, however, that “[i]n this instance, there are
no laws, codes or ordinances promulgated by the legislature, nor any governing body, that
mandate the placement of barriers sufficient to prevent vehicles that leave the designated
roadway from crashing through businesses in a strip mall.” Similarly, nothing in the record
presented by any plaintiff indicates that Defendants’ parking lot was not in full compliance
with applicable state and local building codes. And finally, no party cites any passage of law
indicating the Legislature’s stance, if it exists, with respect to liability in this instance.

{19} To show Defendants failed to meet generally accepted norms of safety, Plaintiffs
submitted an affidavit to both district courts prepared by Barrett Miller, whose asserted
expertise included “identifying and controlling safety hazards involving errant vehicles,
commercial parking lots, and building structures.” Plaintiffs contend that Mr. Miller’s
assessment and recommendations, alongside referenced academic publications in the field
of safety engineering, establish that Del Sol harbored several identifiable safety hazards.
These were: (1) “[t]he long 600-foot straightaway and ‘T-bone’ configuration of the parking
lot and shopping center”; (2) “[t]he ‘absence’ of any traffic control devices . . . at the end of
the long straightaway”; (3) “[t]he absence of bollards to protect against errant vehicles”; (4)
the history of traffic patterns, “including speeding vehicles, ‘rolling’ stops, collisions, and
cars parked illegally”; (5) “[t]he washboard surface of the parking lot”; (6) the presence of
a medical care clinic and bar, “which may attract impaired and/or careless drivers”; and (7)
“[t]he high vehicle traffic numbers . . . per day.” Among other exhibits in support of their
opposition to motions for summary judgment, Plaintiffs presented several photographs of
other local businesses that have installed bollards and pillars in front of their entrances and
store-front glass walls.

{20} We disagree that the proffered evidence, considered collectively, legally establishes
a norm of professional safety giving rise to an expanded duty to protect. Despite Mr.
Miller’s hindsight identification of the many potential manners of hazard prevention, only
the placement of bollards or additional barriers at short intervals from one another could
have definitively prevented a runaway vehicle from crashing through Del Sol’s storefronts.
Neither the layout of the parking lot, its history, surface, heavy use, signage, or the nature
of its surrounding businesses could have prevented the injuries and loss of life that occurred
within Concentra. Rather, the tragedy depended wholly upon the presence of a faulty
vehicle at the hands of an inept driver. Accordingly, the essence of Plaintiffs’ assertion is
that Del Sol bore at all times a duty to protect its indoor patrons—by erecting some type of
impenetrable barrier between the shopping center and its adjacent parking lot—to prevent
vehicle-person collisions within Del Sol’s buildings. That an expert has identified certain
“safety hazards” and recommended placement of bollards and barriers does not indicate that
Del Sol’s election not to employ such safety devices falls beneath professional norms of

13
safety. Similarly, the fact that some nearby businesses have undertaken affirmative
precautionary measures does not establish a newly applicable safety norm, a building code-
derived regulation, or a public policy. See Hartford Ins. Co. v. Cline, 2006-NMSC-033, ¶
8, 140 N.M. 16, 139 P.3d 176 (“The predominant voice behind the declaration of public
policy of the state must come from the [L]egislature . . . .”).

{21} More compellingly, based on the briefs and the record developed before the district
courts, we can discern no policy articulated by the Legislature, or city and county
government, addressing the specific requirements of shopping center parking lot
construction, or endorsing the heightened standards of safety advanced by Plaintiffs. The
parties similarly have not alerted us to any regulation, code, or statute that suggests Del Sol
was in any way non-compliant with the commercial building code, the international building
code adopted therein, or even accepted professional norms of safety. See 14.7.2.8(A)
NMAC (“This rule adopts by reference the 2009 international building code, as amended by
this rule.”). But nonetheless, and with an eye toward determinations of policy, we compare
instances where our courts have included within the duty of ordinary care a requirement to
specifically protect visitors from third-party harm. See Torres, 119 N.M. at 612, 894 P.2d
at 389 (“Courts should make policy . . . only when the body politic has not spoken and only
with the understanding that any misperception of the public mind may be corrected shortly
by the [L]egislature.”).

New Mexico Precedent

{22} It is clear, as stated above, that an owner/occupier’s duty is one of ordinary care.
That standard can include the protection of visitors from the acts of third parties in certain
circumstances:

[T]he proprietor of a place of business . . . is subject to liability to guests who
are upon the premises and who are injured by the harmful acts of third
persons if, by the exercise of reasonable care, the proprietor could have
discovered that such acts were being done or about to be done, and could
have protected against the injury by controlling the conduct of the other
patron.

Coca v. Arceo, 71 N.M. 186, 189, 376 P.2d 970, 973 (1962). We have, however, recognized
such a “duty to protect” in only two contexts: (1) for bar owner/occupiers to their patrons
who are injured by the intentional violent conduct of other patrons, see id.; Reichert, 117
N.M. at 626, 875 P.2d at 382; Barth v. Coleman, 118 N.M. 1, 878 P.2d 319 (1994), and (2)
for private homeowners whose visitors are injured by the foreseeable criminal conduct of a
third party, Chavez v. Torres, 1999-NMCA-133, 128 N.M. 171, 991 P.2d 1.

{23} In each of these cases, the specific circumstances of the given environment were
sufficient to place the defendants on notice of the specific third-party actors and their
propensity to act. For example, Coca, Reichert, and Barth recognized predictable dangers

14
when serving alcohol to patrons involved in known personal disputes. See Coca, 71 N.M.
at 188, 376 P.2d at 972 (barroom attack with glass bottle by patron known to have insulted
and argued with another patron earlier that evening); Reichert, 117 N.M. at 624, 875 P.2d
at 380 (barroom shooting by patron known to be violent, armed, and arguing with another
patron); Barth, 118 N.M. at 2, 878 P.2d at 320 (barroom attack following previous
altercation and manager’s assurance to the victim that he “would monitor the situation”).
Similarly, in Chavez this Court recognized a “duty to protect” owed by residential
homeowners who were present and “knew or should have known of the ability to control
persons causing injury to a visitor and the necessity and opportunity to exercise such
control.” 1999-NMCA-133, ¶ 20.

{24} We conclude that the case at bar is distinguishable from both circumstances where
our jurisprudence has recognized a duty to protect. Here, Del Sol could not have anticipated,
prevented, or even reacted to Ms. Ruiz and her runaway truck, unlike a bar owner/occupier’s
ability to anticipate barroom violence by observing patrons over time, or a homeowner’s
ability to exclude guests known to be dangerous. And although Plaintiffs sought to impute
knowledge of risk by presenting evidence of two previous vehicle-building collisions that
occurred during the twenty years Del Sol existed, neither involved the penetration of the
building’s front, or more notably, resulted in injury to patrons inside. Moreover, neither
incident involved the parking lot’s long straightaway or directly related to Del Sol’s parking
lot configuration. See Cromer v. Hutto, 280 S.E.2d 202, 203 (S.C. 1981) (“[N]o liability
results from lack of a safety barrier unless that condition contributed to the loss of control.”).
Rather, the prior incidents at Del Sol were minor mishaps caused by common driver error.
Thus, we can discern no basis on the facts of these cases to legally extend a “duty to protect”
visitors from runaway vehicles into the responsiblility of ordinary care applicable to
Defendants.

{25} Furthermore, as the district courts recognized, we have refused to apply the same
“duty to protect” in a third context—to convenience store owners whose patrons are the
targets of an intentional homicidal attack. In Romero, this Court imported reasoning from
a California case:

It was an act of terrorism that could have occurred anywhere that the
intended victim happened to be. [The defendant] had no basis to foresee
such event, and there was no effective action which it could reasonably have
taken to prevent said act under the circumstances. . . . The shooting was a
transitory act that could have been carried out at any time and place that the
intended victim happened to be.

2009-NMCA-059, ¶ 14 (alteration in original) (citation omitted). Although Romero
excluded from the construct of ordinary care an obligation to protect from intentional
criminal acts, its reasoning is analogous. Ms. Ruiz’s truck could have collided with an
object or a person anywhere she chose to drive that day; the actual location and the persons
struck were products of happenstance. And short of erecting a substantial barrier in front of

15
all its business-front windows, there was no definitively prophylactic action Del Sol could
have undertaken to ensure it was not the location at which tragedy struck. All cars cannot
point away from a given inhabited building at all times, and all storefronts with roadway
access cannot be expected to erect concrete barriers to guarantee the prevention of such
lightning strikes of misfortune. We perceive no basis within our caselaw on which to expand
liability to this category of accidents as a matter of policy, absent some guidance or directive
from our Legislature.

{26} Finally, we note the existence of two additional principles of law in our appellate
jurisprudence that supplementally support our determination of policy. The first
proposition—that “a proprietor or store owner is not an insurer or guarantor of the safety of
his [or her] business invitees”—was included within a former version of our uniform jury
instruction given in “slip and fall” cases. Hallett v. Furr’s, Inc., 71 N.M. 377, 382, 378 P.2d
613, 617 (1963), overruled in part on other grounds by Proctor v. Waxler, 84 N.M. 361, 503
P.2d 644 (1972); UJI 13-1318 NMRA (prior to 1996 amendment). And while we have since
deleted that language from the UJI itself, the principle remains intact within New Mexico
law. Brooks v. K-Mart Corp., 1998-NMSC-028, ¶ 10, 125 N.M. 537, 964 P.2d 98. The
second principle that provides guidance is our recognition that “New Mexico has already
determined where much of the burden of tort liability should lie when a motor vehicle is
involved in an accident” by mandating “that all residents who own and operate motor
vehicles be financially responsible for damages as a result of motor vehicle accidents.”
Blake, 2004-NMCA-002, ¶ 23; cf. Ziemba v. Mierzwa, 566 N.E.2d 1365, 1369 (Ill. 1991)
(“The underlying rationale for holding a landowner liable for injuries occurring as a result
of conditions on his land is that the landowner is in the best position to prevent the injury.
However, in this case, we find that the truck driver was in the best position to prevent the
injury. Thus the usual justification for imposing landowner liability is not present . . . .”).

{27} We conclude that these principles within our precedent additionally support our
decision to circumscribe the owner/occupant’s “duty to protect” short of vehicle-building
collisions. We cannot require premises owner/occupants to anticipate, implement ways to
thwart, or to otherwise shoulder the burden of financial liability for the disastrous
consequences of remote mechanical and human fallibility. To do so would, in essence,
require premises owners to become absolute insurers of patron safety, forcing businesses into
one of three undesirable alternatives: (1) significantly revise the physical and aesthetic
layout of buildings and parking lots at substantial expense, (2) retain the status quo and risk
the enormous cost of catastrophic liability, or (3) close down the business premises entirely.
Moreover, “[t]o erect an impregnable barrier around all of the buildings would both obstruct
normal pedestrian traffic and impose on the owners a burden completely out of proportion
to the anticipated risk.” Mack, 150 N.W.2d at 686. We believe it particularly unwise to
impose such a wide reaching duty in the absence of clear guidance from our Legislature or
our precedent. See Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 19, 122 N.M. 537, 928
P.2d 263 (noting that “[u]nder these circumstances, we have no basis for expanding liability
by recognizing a duty other than that arising under existing case law”). It is not the business
of the judiciary to so burden facilities across the state with accountability for conduct they

16
cannot reasonably regulate.

Out of State Precedent

{28} We note that the great weight of authority from around the country has similarly
refused to recognize a duty of business owners to protect their indoor patrons from vehicle
collisions. See, e.g., Fawley v. Martin’s Supermarkets, Inc., 618 N.E.2d 10, 13 (Ind. Ct.
App. 1993) (“The majority of cases from other jurisdictions have likewise concluded that
a store owner owes no duty to invitees to protect them from runaway vehicles in parking lots,
since this kind of occurrence is not sufficiently foreseeable for a store owner to be required
to protect against it.”). Most have done so based on a foreseeability-driven duty analysis.
Albert v. Hsu, 602 So.2d 895, 896 (Ala. 1992) (no duty to protect 10-year-old decedent from
car that backed through restaurant from adjacent parking lot because “harm was not
reasonably foreseeable”); Howe v. Stubbs, 570 A.2d 1203, 1203 (Me. 1990) (no duty to
protect patron standing inside store from vehicles, despite store’s location at base of hill and
three previous similar accidents); Glick v. Prince Italian Foods of Saugus, Inc., 514 N.E.2d
100, 101 (Mass. App. Ct. 1987) (no duty to protect from out-of-control automobile that
crashed into restaurant from adjacent road “because the harm was not reasonably
foreseeable”); (Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708, 709 (Miss.
1987) (“no duty owed by a convenience store owner, to persons inside the store, to erect
barriers in order to prevent vehicles from driving through the store’s plate glass window”);
Carter v. Gambulous, 748 P.2d 1008, 1009 (Okla. Civ. App. 1987) (“While [the a]ppellee
is indeed under a duty to use reasonable care with respect to his customers, the accident
herein was not foreseeable, and [the a]ppellee is not an absolute insurer of his customers’
safety.”); Watkins v. Davis, 308 S.W.2d 906, 909 (Tex. App. 1957) (“doctrine of
unforeseeable consequences is likewise deemed applicable here”); but see, e.g., Marshall
v. Burger King Corp., 856 N.E.2d 1048, 1059-60 (Ill. 2006) (duty of ordinary care includes
the duty to protect patrons inside buildings from runaway vehicles).

One of the seminal cases on this issue is often quoted as stating:

[I]t cannot be contended with any degree of reason or logic that the owner of
a store, by permitting automobiles to park perpendicularly to the curb in front
of his entrance, or by failing to erect an impregnable barrier between the
entrance of his store and an adjacent area where motor vehicles are driven
and parked, should have anticipated that automobiles will be negligently
propelled over the curb and across the sidewalk into the entrance of his store.
We are not unmindful of the obvious fact that at times operators lose control
over the forward progress and direction of their vehicles either through
negligence or as a result of defective mechanisms, which sometimes results
in damage or injury to others. In a sense all such occurrences are
foreseeable. They are not, however, incidents to ordinary operation of
vehicles, and do not happen in the ordinary and normal course of events.
When they happen, the consequences resulting therefrom are matters of

17
 chance and speculation. If as a matter of law such occurrences are held to be
foreseeable and therefore to be guarded against, there would be no limitation
on the duty owed by the owners of establishments into which people are
invited to enter. Such occurrences fall within the category of the unusual or
extraordinary, and are therefore unforeseeable in contemplation of the law.

Schatz v. 7-Eleven, Inc., 128 So.2d 901, 904 (Fla. Dist. Ct. App. 1961). No matter the
methodology employed, the result reached by the majority of courts addressing this issue is
consistent, if not expressly referenced therein, with the sound determination of policy.

III. CONCLUSION

{29} No one can deny the inexorable finality of what occurred at the Del Sol Shopping
Center on March 17, 2006. That the most fundamental characteristic of time is its
unidirectional progression is never more apparent than when our collective humanity desires
something heartbreaking to be reversed. But sometimes in law, no matter how unfair the
misfortune perpetrated upon innocents, or how universally just may be the corresponding
calls for retribution, no legal remedy can stand against those whose only role is to own,
develop, or occupy a physical space as situationally vulnerable to calamity as any other.
“There are, moreover, innumerable, tremendous risks inherent in our modern-day, complex
society.” Madrid v. Lincoln Cnty. Med. Ctr., 121 N.M. 133, 139, 909 P.2d 14, 20 (Ct. App.
1995). Today, we hold as a matter of policy that the owners and operators of Del Sol were
not assigned the duty to prevent the tragedy that occurred on its premises, or to protect its
patrons from the extraordinary events arising from pervasive modern-day risks.
Accordingly, we affirm the ruling of the district courts that dismissed Plaintiffs’ claims
against Defendants as a matter of law.

{30} IT IS SO ORDERED.

____________________________________
J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
RODERICK T. KENNEDY, Judge

Topic Index for Rodriguez v. Del Sol Shopping Ctr. Assoc., LP, Nos. 30,421/30,578

APPEAL AND ERROR
Standard of Review

18
CIVIL PROCEDURE
Expert Witnesses
Summary Judgment

NEGLIGENCE
Duty
Foreseeability
Wrongful Death

TORTS
Foreseeability
Invitees
Negligence
Premises Liability
Wrongful Death

19