Acosta v. City of Santa Fe

11 P.3d 596, 129 N.M. 632
CourtNew Mexico Court of Appeals
DecidedAugust 18, 2000
Docket20,332
StatusPublished
Cited by14 cases

This text of 11 P.3d 596 (Acosta v. City of Santa Fe) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acosta v. City of Santa Fe, 11 P.3d 596, 129 N.M. 632 (N.M. Ct. App. 2000).

Opinion

OPINION

PICKARD, Chief Judge.

{1} Kathryn Acosta (Pedestrian) appeals the trial court’s decision to dismiss her “trip and fall” tort claims against Wirtco, Inc. (the Store). Pedestrian sued the Store and the City of Santa Fe for damages after she tripped and broke her elbow on a public sidewalk abutting the Store’s property. Pedestrian’s complaint against the City is typical — she requested damages from the City because it owns the sidewalk upon which she tripped. However, Pedestrian’s complaint against the Store raises an issue of first impression because she alleges, among other things, that the Store is liable for her damages on the ground that it violated city ordinances requiring it to keep the sidewalk in a safe condition. Pedestrian recovered from the City; however, she was denied the opportunity to recover from the Store because the trial court dismissed her claims against the Store.

{2} On appeal, Pedestrian claims the trial court erred when it dismissed her tort claims against the Store. Pedestrian raises three issues: (1) whether the Store incurred tort liability on the ground that it allegedly failed to inspect, maintain, and repair the public sidewalk abutting its property, as required by a city ordinance; (2) whether the Store incurred tort liability on the ground that it allegedly exercised control over the public sidewalk upon which Pedestrian tripped; and (3) whether the Store incurred tort liability on the ground that it allegedly created or helped create the hazard posed by the uneven section of the public sidewalk abutting its property. For the reasons stated in this opinion, we affirm.

BACKGROUND

{3} Pedestrian was walking on a public sidewalk in front of a building owned by the Store, when she tripped and fell. The section of the sidewalk that she tripped upon was cracked, uplifted, and uneven. Pedestrian broke her elbow and suffered other injuries as a result of her fall. Pedestrian believed that both the Store and the City were responsible for her accident, so she sued them for damages.

{4} Pedestrian sued the City because it owns the sidewalk upon which she tripped. Pedestrian also sued the Store even though it does not own the public sidewalk. She sought to impose tort liability upon the Store pursuant to a negligence per se theory and two common law theories (control and creation of a danger) that impose off-premises tort liability upon property owners when certain conditions are satisfied. Pedestrian’s suit against the City is not at issue in this appeal, so we limit our discussion to the Store’s alleged liability. Before addressing the legal issues presented by this appeal, we first set forth the procedural background underlying Pedestrian’s claims.

A. Ordinance

{5} Pedestrian first claimed that the Store was liable because it violated Santa Fe City Code Ordinances. Ordinance 14-93.8 provides:

14-93.8 Maintenance of Public Parkways. Maintenance of the public parkway, including the utility corridor and the sidewalk, shall be the responsibility of the person owning or in charge or control of any lot or property contiguous to the parkway exclusive of controlled access arterials. Maintenance shall be for the purpose of elimination of public nuisances and for insuring pedestrian and vehicular safety and visibility, and shall include, but not be limited to, weed eradication and trimming of trees and shrubs.

Ordinance 23-1.6 provides:

A. No person owning or in charge or control of any lot or property within the city shall permit any footway or sidewalk contiguous thereto or running along the street line thereof to be out-of-repair, loose or broken or to be unsafe to pedestrians.
B. The person owning or in charge or control of any lot or property within the city where there exists a footway or sidewalk contiguous thereto or running along the street line thereof which is out-of-repair, loose or broken or is unsafe to pedestrians, shall immediately notify the public works department of the city of the aforesaid need for repair of the sidewalk and when the repairs shall be promptly completed. In the event the person owning or in charge or control of any lot or property within the city where a sidewalk repair is necessary fails to immediately notify the city of the need for repair of the sidewalk and to repair the same in accord with this paragraph, then the governing body shall require the person owning or in charge or control of any lot property within the city to make such repairs as are deemed necessary to repair the sidewalk, as provided in subsection 23-1.7 SFCC 1987.

{6} Pedestrian asserted that Ordinance 23-1.6 imposes an affirmative duty upon abutting property owners like the Store to inspect, maintain, and repair public sidewalks. She then argued that the Store’s alleged failure to fulfill these affirmative duties rendered the Store negligent per se.

{7} The Store filed a motion for summary judgment on this claim, which the trial court denied. The Store subsequently moved the trial court to reconsider its decision. In support for its motion, the Store contended that Ordinance 23-1.6 does not establish a duty to pedestrians, but rather operates for the benefit of the City. The Store claimed that another city ordinance, Santa Fe City Code Ordinance 23-1.7, establishes the limited circumstances under which an abutting property owner can be held liable for injuries sustained by pedestrians. This ordinance states in relevant part:

If, within twenty (20) days of the receipt of the final order, the owner of the tract or parcel of land which is contiguous to the sidewalk fails to repair, improve or reconstruct the sidewalk as required in the notice, the owner of the tract or parcel of land contiguous to the sidewalk is liable for any injury received by any person which injury is proximately caused by the negligence of such owner pertaining to such faulty repair, construction or maintenance of the sidewalk, and the municipality is not liable.

{8} The Store asserted that Ordinance 23-1.7 sets forth certain due process requirements that must be satisfied before the City can impose tort liability upon an abutting property owner. The Store argued that it was therefore entitled to summary judgment because it was undisputed at trial that the due process requirements had not been fulfilled.

{9} Upon reconsideration, the trial court determined that the Store could not be held liable for pedestrian injuries unless the notice procedures set forth in Ordinance 23-1.7 had been followed. Pedestrian did not contend that the notice procedures had been satisfied, so the trial court granted the Store’s motion for summary judgment.

B. Control

{10} Pedestrian next claimed that the Store was liable for her damages under our common law because it exercised control over the sidewalk. Pedestrian asserted that in addition to pulling weeds and clearing ice and snow on the sidewalk, the Store once removed a section of the public sidewalk in order to repair a leaking water pipe without asking for or receiving the City’s permission.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Simkins v. Bank of Nova Scotia
2025 V.I. 2 (Supreme Court of The Virgin Islands, 2025)
Taneja v. Freitas
W.D. Washington, 2023
State v. Renolds
New Mexico Court of Appeals, 2012
Groh v. City of Aztec
New Mexico Court of Appeals, 2011
McDevitt v. Sportsman's Warehouse, Inc.
255 P.3d 1166 (Idaho Supreme Court, 2011)
Heath Ex Rel. Holdyn H. v. La Mariana Apartments
2008 NMSC 017 (New Mexico Supreme Court, 2008)
Heath ex rel. Heath v. La Mariana Apartments
2007 NMCA 003 (New Mexico Court of Appeals, 2006)
Foster v. Redd
128 P.3d 316 (Colorado Court of Appeals, 2005)
Krieger v. Wilson Corp.
2006 NMCA 034 (New Mexico Court of Appeals, 2005)
New Mexicans for Free Enterprise v. City of Santa Fe
2006 NMCA 007 (New Mexico Court of Appeals, 2005)
City of Albuquerque v. Sachs
2004 NMCA 065 (New Mexico Court of Appeals, 2004)
Apodaca v. AAA Gas Co.
2003 NMCA 085 (New Mexico Court of Appeals, 2003)
City of Sunland Park v. MacIas
2003 NMCA 098 (New Mexico Court of Appeals, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
11 P.3d 596, 129 N.M. 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acosta-v-city-of-santa-fe-nmctapp-2000.