Bierner v. City of Truth or Consequences

2004 NMCA 093, 96 P.3d 322, 136 N.M. 197
CourtNew Mexico Court of Appeals
DecidedJune 15, 2004
DocketNo. 23,434
StatusPublished
Cited by15 cases

This text of 2004 NMCA 093 (Bierner v. City of Truth or Consequences) 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
Bierner v. City of Truth or Consequences, 2004 NMCA 093, 96 P.3d 322, 136 N.M. 197 (N.M. Ct. App. 2004).

Opinion

OPINION

CASTILLO, J.

{1} This case requires us to determine whether the trial court erred in granting summary judgment in favor of Defendant City of Truth or Consequences (City). The court concluded that the City was immune from liability under the New Mexico Tort Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2003). Plaintiffs maintain that summary judgment was inappropriate because facts as to waiver of immunity were in dispute and discovery was not completed. We affirm.

I. BACKGROUND

{2} On January 7, 2001, a Domino’s Pizza delivery truck was parked in the restaurant’s lot on Third Street, also known as State Road 51 (road), in Truth or Consequences, New Mexico. The unattended truck rolled down the lot’s steep incline, crossed the road, entered the property of Cortez Gas Company (gas company), and struck a propane gas storage tank on the property. The tank exploded; the resulting fire damaged residential property in the area. Plaintiffs, who lived in the surrounding area, filed their first amended complaint against the gas company, Domino’s Pizza, the State Highway and Transportation Department (Highway Department), and the City. Plaintiffs sought relief for personal injury and property damage.

{3} Plaintiffs’ amended complaint alleged that the City maintained the road; that there were at least two substantially similar incidents of vehicles rolling out of the parking lot, crossing the road, and entering the gas company’s property; that the City “knew or should have known of these incidents”; and that the City “failed to take reasonable steps to ensure the public safety.” Plaintiffs further alleged that the City knew or should have known there were no barriers on or near the road to prevent motorists from colliding with a propane gas storage tank on the gas company’s property and that the City’s negligence caused the collision resulting in Plaintiffs’ injuries. These same allegations were directed toward the Highway Department.

{4} The City filed a summary judgment motion, primarily arguing that the City neither constructed, owned, nor maintained the road; that the City had no agreement with the Highway Department to participate in maintenance of the road; that installation of a barrier was not a maintenance function; and that immunity was not waived under the TCA, Section 41-4-ll(A) (withdrawing immunity for negligence in the maintenance of roadways). The Highway Department likewise filed a motion for summary judgment, acknowledging that the Highway Department had a duty to ensure the safety of the motoring public on the road but emphasizing that the duty did not extend to the protection of private property adjacent to the road; that there was no basis under engineering principles for a barrier on the road; that installation of a barrier is a design, not a maintenance, function; that even if the Highway Department had a duty to install a barrier, such installation would require a redesign and reconstruction of the road; and that the Highway Department was therefore immune from liability, under the TCA, Section 4H-11(B) (granting immunity for design defects of any roadway). In support of its position, the Highway Department attached the affidavit of one of its engineers, Paul Gray.

{5} The trial court, determining that there were no material facts in dispute and that immunity was not waived for either entity under the TCA, dismissed all claims against both the City and the Highway Department on August 5, 2002. The court also concluded that the installation of guardrails was a design issue and found the following pertinent facts:

5. Third Street, in the vicinity where this incident occurred, is a public highway owned and maintained by the [Highway Department].
6. Third Street, in the vicinity where this incident occurred, was designed by the [Highway Department] and built on a right-of-way owned by the [sic] New Mexico.
7. The [City] has established, by uneontroverted evidence, that it did not contractually undertake any responsibilities with reference to this portion of Third Street.
8. Neither the [City] nor the [Highway Department] created the alleged dangerous condition____
9. The Plaintiffs have offered no competent evidence as to what they contend the [City] could have done to have prevented this incident including what preventive measures, within the control of the [City], would have prevented this incident.
17. The Affidavit of Paul W. Gray, Assistant District Engineer, has not been controverted, by an expert to design liability, design immunity, and reconstruction immunity under the Tort Claims Act. The time for furnishing such an expert has long since expired.

{6} Plaintiffs subsequently settled their claims against the Highway Department. They appeal as to the City only.

II. DISCUSSION

A. Standard of Review

{7} Whether the TCA bars Plaintiffs’ claims against the City is a question of law, which we review de novo. See Rutherford v. Chaves County, 2003-NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199; Godwin v. Mem’l Med. Ctr., 2001-NMCA-033, ¶23, 130 N.M. 434, 25 P.3d 273. Generally, the existence of duty is determined as a matter of law. Koenig v. Perez, 104 N.M. 664, 666, 726 P.2d 341, 343 (1986). Plaintiffs contend that in this case, the existence of duty is a mixed question of law and fact. See Eckhardt v. Charter Hasp, of Albuquerque, 1998-NMCA-017, ¶¶ 36, 39, 124 N.M. 549, 953 P.2d 722 (stating that where the existence of duty depends on the resolution of disputed facts, the jury properly resolves the conflicting evidence). As we discuss below, the material facts in this case are not in dispute. We therefore agree with the City that duty here is purely a question of law.

{8} Summary judgment is considered a drastic measure and is to be used with the utmost caution. Pollock v. State Highway & Transp. Dep’t, 1999-NMCA-083, ¶ 5, 127 N.M. 521, 984 P.2d 768. We may find summary judgment proper if material facts are undisputed and only the legal interpretation of those facts remains. Rule 1-056(0 NMRA 2004; Garrity v. Overland Sheepskin Co. of Taos, 1996-NMSC-032, ¶ 29,121 N.M. 710, 917 P.2d 1382; Godwin, 2001-NMCA-033, ¶ 23, 130 N.M. 434, 25 P.3d 273. If the undisputed facts establish that the movant is entitled to judgment as a matter of law, then we will not disturb the trial court’s order. See Goodman v. Brock, 83 N.M. 789, 792-93, 498 P.2d 676, 679-80 (1972); Godwin, 2001-NMCA-033, ¶ 23, 130 N.M. 434, 25 P.3d 273. “The movant has the burden of establishing a prima facie case showing there was no genuine issue of material fact. A prima facie showing is evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted.” Pollock, 1999-NMCA-083, ¶ 5,127 N.M. 521, 984 P.2d 768 (internal quotation marks and citations omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
2004 NMCA 093, 96 P.3d 322, 136 N.M. 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bierner-v-city-of-truth-or-consequences-nmctapp-2004.