The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: June 26, 2023
4 No. A-1-CA-39694
5 SANDRA CHAVEZ, as Personal 6 Representative of the Estate of 7 Briana Chavez,
8 Plaintiff-Appellant,
9 v.
10 CONVERGYS CORPORATION; 11 CONVERGYS CUSTOMER 12 MANAGEMENT GROUP, INC.; and 13 SPIRIT CS LAS CRUCES NM, LLC,
14 Defendants-Appellees,
15 and
16 BINNS CONSTRUCTION, INC.; BINNS 17 LTD. CO.; and ADEVCO CORPORATION,
18 Defendants.
19 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 20 Francis J. Mathew, District Court Judge
21 Jaramillo Law Firm 22 David J. Jaramillo 23 Albuquerque, NM 1 Liles White PLLC 2 Stuart R. White 3 Kevin W. Liles 4 Rob George 5 Corpus Christi, TX
6 for Appellant
7 Butt, Thornton & Baehr, P.C. 8 Monica R. Garcia 9 Rheba Rutkowski 10 Sarah L. Shore 11 Albuquerque, NM
12 for Appellees Convergys Corporation and Convergys Customer Management 13 Group, Inc.
14 Ylaw, P.C. 15 Joseph B. Wosick 16 Sean E. Garrett 17 Albuquerque, NM
18 for Appellee Spirit Las Cruces NM, LLC 1 OPINION
2 BUSTAMANTE, Judge, retired, sitting by designation.
3 {1} This case requires us to revisit the duty analysis for a premises liability claim
4 in light of Rodriguez v. Del Sol Shopping Center Associates., L.P., 2014-NMSC-
5 014, ¶¶ 1, 19, 326 P.3d 465. Plaintiff Sandra Chavez, as personal representative of
6 the estate of Briana Chavez (Decedent), asserts that Decedent was hit and killed by
7 a bus adjacent to property owned and leased by Defendants in this case. The district
8 court decided that Defendants—the landlord and tenant—owed no duty to Decedent
9 and granted summary judgment. Plaintiff appeals. Concluding that both the landlord
10 and tenant did owe Decedent a duty, we reverse and remand to the district court for
11 further proceedings consistent with this opinion.
12 BACKGROUND
13 {2} Decedent was killed adjacent to property on Del Rey Boulevard in Las Cruces
14 (the property) owned by Defendants Spirit CS Las Cruces NM LLC (Spirit) and
15 leased by Defendants Convergys Corporation and Convergys Customer
16 Management Group (collectively, Convergys). Convergys runs a call center where
17 Decedent worked prior to the fatal collision. A bus stop is located across the street
18 from the property. On December 26, 2017, Decedent went to Convergys to pick up
19 her final paycheck. Around 6:00 p.m., Decedent was hit and killed by a city bus
20 driving south on Del Rey Boulevard across from the property. 1 {3} Plaintiff’s second amended complaint included broad allegations of
2 negligence by Defendants. The gist of the assertions was that Defendants failed to
3 properly take into account the effect development of the property would have on the
4 safety of employees and others using and visiting the property. Plaintiff emphasized
5 that the property was located in a rural, largely undeveloped plat of land and the
6 development would create increased traffic and uncertainty. Plaintiff asserted that
7 Defendants had the duty and ability to design the property in a way “that would keep
8 persons such as [Decedent] reasonably safe.” Plaintiff included specific assertions
9 that Convergys “had the ability to place light poles, lighting, a crosswalk, and other
10 traffic control devices that would aid in pedestrian traffic and improve safety.”
11 {4} Convergys filed a motion for summary judgment, arguing that Plaintiff could
12 not establish as a matter of law that Convergys owed Decedent a duty. In the briefing,
13 Convergys focused primarily on the allegation that Defendants could have installed
14 safety measures on the public road and right-of-way. Plaintiff’s response to
15 Convergys’ motion for summary judgment emphasized that her complaint also
16 included allegations focused on Convergys’ failure to take safety measures on its
17 property that created a danger on the adjoining public roadway. After briefing and a
18 hearing, the district court granted Convergys’ motion.
19 {5} Just before the district court entered its order on Convergys’ motion, Spirit
20 filed a motion for summary judgment, arguing it also did not owe Decedent a duty.
2 1 Spirit’s motion echoed Convergys’ assertions concerning its lack of a duty to take
2 any measures on the public right-of-way. Spirit also argued that it had no duty
3 because it was a nonpossessory landlord.
4 {6} Plaintiff’s response to Spirit’s motion repeated its argument that the complaint
5 made broader allegations than just the conditions of the roadway. Plaintiff also
6 asserted that she was “not arguing that any of these Defendants should have done
7 anything in the roadway or at the bus stop.” We interpret this statement to mean that
8 Plaintiff was abandoning her allegations concerning any duty to change the public
9 right-of-way. We also note that Plaintiff does not make any argument on appeal that
10 Defendants’ had a duty concerning the right-of-way, and we deem the argument
11 abandoned.
12 {7} Plaintiff also argued Spirit had a duty because the lease for the property gave
13 it the right to reenter the premises to “perform any acts related to . . . safety,” and
14 because under the lease it had a duty to maintain the common areas of the property.
15 Once briefed and argued, the district court granted Spirit’s motion for summary
16 judgment. Plaintiff appeals from the district court’s ruling on both motions.
17 DISCUSSION
18 I. Standard of Review
19 {8} “Summary judgment is reviewed on appeal de novo.” Juneau v. Intel Corp.,
20 2006-NMSC-002, ¶ 8, 139 N.M. 12, 127 P.3d 548. “Summary judgment is
3 1 appropriate where there are no genuine issues of material fact and the movant is
2 entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-
3 NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We review the evidence “in the light
4 most favorable to the party opposing summary judgment.” City of Albuquerque v.
5 BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d
6 1146.
7 II. An Owner/Occupier of Land Owes a Duty of Reasonable Care in These 8 Circumstances
9 {9} To prevail on a negligence claim, a plaintiff must prove “the existence of a
10 duty from a defendant to a plaintiff, breach of that duty, which is typically based
11 upon a standard of reasonable care, and the breach being a proximate cause and cause
12 in fact of the plaintiff’s damages.” Spencer v. Health Force, Inc., 2005-NMSC-002,
13 ¶ 18, 137 N.M. 64, 107 P.3d 504 (internal quotation marks and citation omitted).
14 “Whether the defendant owes a duty to the plaintiff, is a legal question for the courts
15 to decide.” Lujan v. N.M. Dep’t of Transp., 2015-NMCA-005, ¶ 8, 341 P.3d 1. That
16 legal question is one of “policy made with reference to legal precedent, statutes, and
17 other principles comprising the law.” Morris v. Giant Four Corners, Inc., 2021-
18 NMSC-028, ¶ 10, 498 P.3d 238 (internal quotation marks and citation omitted).
19 {10} Summary judgment on a negligence claim is appropriate only “in exceptional
20 cases, when an articulated countervailing principle or policy warrants denying or
21 limiting liability in a particular class of cases,” Rodriguez, 2014-NMSC-014, ¶ 13
4 1 (alteration, internal quotation marks, and citation omitted), or when there is simply
2 no evidence that could support a plausible inference in the plaintiff’s favor on the
3 jury questions of breach and legal cause. Id. ¶ 24.
4 {11} The issue before us is whether an owner/occupier of land located adjacent to
5 a roadway has a duty to provide other reasonable safety features on the premises for
6 the benefit of its invitees coming to and going from the property during times when
7 it is naturally dark. We determine it does and explain.
8 {12} It is well established that an “owner/occupier owes a duty of ordinary care
9 under the circumstances, . . . including the duty to exercise ordinary care to prevent
10 harmful conduct from a third person, even if the third person’s conduct is
11 intentional.” Rodriguez, 2014-NMSC-014, ¶ 5; see also UJI 13-1309 NMRA (“An
12 [owner] [occupant] owes a visitor the duty to use ordinary care to keep the premises
13 safe for use by the visitor [, whether or not a dangerous condition is obvious].”). “In
14 determining whether a duty of care exists or should be expanded or contracted, a
15 court’s analysis should focus on policy considerations.” Morris, 2021-NMSC-028,
16 ¶ 11 (internal quotation marks and citation omitted). Foreseeability does not play a
17 part when the court assesses the existence or scope of a duty. Rodriguez, 2014-
18 NMSC-014, ¶¶ 1, 4; id. ¶ 1 (adopting the Restatement (Third) of Torts: Liability for
19 Physical and Emotional Harm § 7 (2010) for duty analysis).
5 1 {13} In addition to these general principles of premises liability, New Mexico case
2 law has three seminal premises liability cases that support finding a duty in this
3 circumstance. The most relevant of the three historical duty cases is Bober v. New
4 Mexico State Fair, 1991-NMSC-031, 111 N.M. 644, 808 P.2d 614. In Bober, the
5 plaintiff alleged that the State Fair had failed to properly control traffic leaving the
6 fairgrounds, resulting in a car crash on a roadway bordering the fairgrounds. Id.
7 ¶¶ 1-2, 30. Our Supreme Court succinctly determined, “[W]e come to the simple
8 proposition that lies at the core of the holding in Mitchell[ v. C & H Transportation
9 Co., 1977-NMSC-045, 90 N.M. 471, 565 P.2d 342] (and many other cases like it):
10 Every person has a duty to exercise ordinary care for the safety of the person and the
11 property of others.” Bober, 1991-NMSC-031, ¶ 10 (internal quotation marks and
12 citation omitted). Our Supreme Court concluded in relevant part that the duty of a
13 landowner to exercise ordinary care is not determined “by identity of the person
14 injured . . . or by the happenstance that the accident and resulting injury occur inside
15 or outside the property boundary.” Id. ¶ 12. Accordingly, “an occupier of land has
16 the duty to avoid creating an unreasonable risk of harm to persons outside the land,
17 such as in an adjoining roadway.” Id. ¶ 16.
18 {14} Convergys argues that Bober is not controlling because it relies on
19 foreseeability and because the facts of this case are distinguishable. First, we do not
20 agree that foreseeability played a role in Bober. Bober held—in concert with
6 1 Mitchell—that an owner/occupier of property could be held liable for the off-
2 premises effects of its on-premises negligence. Bober, 1991-NMSC-031, ¶ 10.
3 Bober’s reference to Udy v. Calvary Corp., 780 P.2d 1055 (Ariz. Ct. App. 1989),
4 made clear that foreseeability played a role in determining the scope of the duty, not
5 the existence of the duty. Bober, 1991-NMSC-031, ¶ 13. We reiterate that we are
6 applying an established duty, not creating a new one or expanding one. The duty of
7 reasonable care of landowners and occupiers is settled law. Rodriguez, 2014-NMSC-
8 014, ¶ 5. Second, the factual distinctions between this case and the facts of Bober
9 are of little moment in the determination of duty in these circumstances. Requiring
10 comparable facts from one case to another to establish relevance runs the risk of
11 equating duty with the specific facts of conduct. Such an inquiry tends to “rigidify
12 the concept of negligence—a concept which, by definition, must vary from case to
13 case, depending upon the relationship of the parties and the facts of each case.”
14 Coburn v. City of Tucson, 691 P.2d 1078, 1080 (Ariz. 1984) (in banc), cited with
15 approval in Bober, 1991-NMSC-031, ¶¶ 14, 15, 17. Once again, we are considering
16 a well-established duty here.
17 {15} Spirit argues that Bober is distinguishable because in Bober, the State Fair
18 created the dangerous condition, but here, the dangerous condition is darkness,
19 which “is a naturally occurring event in nature.” Spirit posits that Bober cannot
20 suggest that an owner/occupier has an “affirmative duty to use its premises to cure
7 1 the naturally occurring darkness on the public roadway.” As Plaintiff notes, Bober
2 is clear that it was assessing “a landowner’s duty to avoid creating or permitting an
3 unsafe condition or activity on the premises.” Id. ¶ 1 (emphasis added). Bober is not
4 limited to a dangerous condition created by the landowner/occupier but extends to
5 one it permits to persist, which could include a dangerous amount of darkness in the
6 area. Moreover, the record shows that the potentially dangerous condition here was
7 exacerbated by the development of the land and its use for a business with employees
8 and visitors coming and going. Spirit’s argument assumes that a
9 landowner/occupier’s duty presumptively ends at the property line. Mitchell and
10 Bober belie that notion.
11 {16} Bober’s holding is in accord with and supported by two other historical
12 premises liability cases. See Monett v. Doa Ana County Sheriff’s Posse, 1992-
13 NMCA-096, ¶ 18, 114 N.M. 452, 840 P.2d 599 (“[A]n owner or occupier of property
14 has a duty to maintain the property in a safe condition, and that the duty to avoid
15 creating or permitting an unsafe condition to exist on the premises is not limited by
16 the physical boundaries of the land.”); Calkins v. Cox Estates, 1990-NMSC-044,
17 ¶ 16, 110 N.M. 59, 792 P.2d 36 (determining that an “injury resulting from a breach
18 of that duty [to exercise reasonable care] need not occur on the property for the lessor
19 to be liable, if the breach proximately causes the harm”). To the extent Convergys
8 1 differentiates Monett from this case, it relies on the case’s breach analysis, which is
2 not an issue before this Court.
3 {17} These premises liability cases together demonstrate that “[a]n [owner]
4 [occupant] owes a visitor the duty to use ordinary care to keep the premises safe for
5 use by the visitor [, whether or not a dangerous condition is obvious].” UJI 13-1309
6 NMRA. Given that the duty of reasonable care encompasses a landowner’s duty to
7 guard against a dangerous situation that existed at the exit from its premises onto the
8 adjacent roadway, Bober, 1991-NMSC-031, ¶ 18, an adjacent occupier’s duty to
9 keep an area where invitees and golf carts were simultaneously traversing reasonably
10 safe, Monett, 1992-NMCA-096, ¶ 22, and a lessor’s duty to maintain a fence in a
11 common area with an adjacent frontage road, Calkins, 1990-NMSC-044, ¶ 19, the
12 duty of reasonable care also encompasses a landowner/occupier’s duty to their
13 invitees to provide safety features adjacent to a roadway.
14 {18} As Rodriguez instructs, we turn now to consider whether “specific policy
15 reasons, unrelated to foreseeability considerations, [establish] that a defendant does
16 not have a duty or that an existing duty should be limited.” 2014-NMSC-014, ¶ 1.
17 Convergys argues that “concerns about unpredictability and limitless liability based
18 on expansive theories of the duties of landowners” raised in Stetz v. Skaggs Drug
19 Centers, Inc., 1992-NMCA-104, ¶ 12, 114 N.M. 465, 840 P.2d 612, are policy
20 considerations that establish the duty here should be contracted. In Stetz, the plaintiff
9 1 was injured when she fell on a sidewalk leading into a store located in a shopping
2 mall. Id. ¶ 2. This Court stated that “in the context of a shopping mall, it is black-
3 letter law that it is the mall owner, and not the various shopkeepers, who has legal
4 responsibility for conditions in the common areas of a shopping center.” Id. ¶ 8. It
5 then refused to find the store liable for a condition in the common area, which the
6 shopping mall controlled. Id. ¶¶ 7, 9. Stetz is limited to the determination of control
7 over common areas in a shopping mall situation. Id. ¶ 8. In addition, it was decided
8 before Rodriguez. Finally, it is notable that our Court in Stetz recognized the
9 “traditional rule that one who owns or controls property has a duty to refrain from
10 creating or permitting conditions on such property that will foreseeably lead to an
11 unreasonable risk of harm to others beyond the property’s borders.” Id. ¶ 9. Thus,
12 Stetz is not persuasive authority in this context.
13 {19} Convergys’ and Spirit’s general concerns regarding “limitless liability” is
14 simultaneously unavailing. We first note that a determination of duty does not
15 establish liability. A plaintiff must also meet their burden to establish breach of duty,
16 proximate cause, and cause in fact. Spencer, 2005-NMSC-002, ¶ 18. We take no
17 position on whether Defendants failed to provide adequate safety features, or if that
18 failure was the proximate cause or cause in fact of Decedent’s death. Plaintiff’s
19 remaining burdens are sufficient to establish that our decision does not create
20 “limitless liability” based on this determination of duty. Second, Defendants’
10 1 arguments as to “unlimited liability” are rooted in their arguments concerning
2 expansion of the duty to encompass work on and maintenance of the public right-of-
3 way. As we noted at the beginning of this opinion, these theories and assertions have
4 been abandoned and are not before us. The sole question here is whether Defendants
5 had a duty to install safety features on their owned or leased property.
6 {20} Like the plaintiffs in Rodriguez, Plaintiffs here “are not seeking a broadened
7 standard of care; they simply contend that [Defendants] breached the duty of
8 ordinary care.” See 2014-NMSC-014, ¶ 15. Thus, we need not articulate specific
9 policy reasons to broaden the duty.
10 III. Spirit Had a Duty of Care to Decedent as a Landlord with the Right to 11 Reenter the Property
12 {21} We next turn to Plaintiff’s argument that Spirit, a nonpossessory landlord,
13 owed Decedent a duty based on Spirit’s retained right to reenter the property and the
14 common law duty to maintain the common areas. We agree that Spirit owed
15 Decedent a duty based on its right to reenter the premises.
16 {22} “The duty of a landowner generally to keep the premises in a safe condition
17 arises from its position of control over the premises.” Gourdi v. Berkelo, 1996-
18 NMSC-076, ¶ 14, 122 N.M. 675, 930 P.2d 812. “When a landlord leases premises,
19 he or she generally relinquishes control for the period of the tenancy.” Id. ¶ 13. Based
20 on this lack of control, the landowner “is under no duty to inspect [the premises’]
21 condition while a tenant remains in possession, and is not chargeable with liability
11 1 for defects not made by him [or her] or under his [or her] direction or for a failure to
2 make repairs.” Mitchell, 1977-NMSC-045, ¶ 19. However, “a landlord who retained
3 a right to enter and inspect the premises for purposes of repair [is] liable to third
4 parties for injuries resulting from defects[,] which ordinary care in making such an
5 inspection would have revealed.” Id. ¶ 20; see Torres v. Piggly Wiggly Shop Rite
6 Foods, Inc., 1979-NMCA-093, ¶ 6, 93 N.M. 408, 600 P.2d 1198 (noting a landlord’s
7 liability continues “where the landlord has reserved the right to enter to make repairs,
8 even in cases where he [or she] has not covenanted to make any repairs”). “[A]
9 landlord who reserves a privilege which bears directly upon his [or her] relation to
10 the passerby has not surrendered or divested himself [or herself] of the duty of care.”
11 Mitchell, 1977-NMSC-045, ¶ 20.
12 {23} The lease between Spirit and Convergys states:
13 Landlord shall have the right to . . . enter the Leased Premises at 14 reasonable times and upon reasonable notice and at any time in the 15 event of an emergency to inspect, alter or repair the Leased Premises 16 or the Building and to perform any acts related to the safety, protection, 17 reletting, sale or improvement of the Leased Premises or the Building.
18 (Emphases added.) The contract provides a right of reentry to Spirit to perform acts
19 related to safety, which would include providing safety features. See id. ¶¶ 18-20
20 (holding a party who “retained the right to go on the premises to make whatever
21 repairs or changes that it considered necessary” was not relieved of responsibility
22 pursuant to the right to reenter exception).
12 1 {24} Spirit argues that it cannot have a duty because it was not aware of the need
2 for inspection. See Gourdi, 1996-NMSC-076, ¶ 15 (“Only when the landlord who
3 has reserved this right has notice of facts indicating the need to make an inspection
4 should it be charged with knowledge of any dangerous condition that a reasonable
5 inspection would have revealed.”). Spirit’s argument is unpersuasive. Spirit knew
6 the facility was located in a remote, unlighted area. A reasonable inspection would
7 have revealed whether the property incorporated reasonable safety features on the
8 edge of the premises. Therefore, Spirit had a duty based on its right to reenter the
9 premises. Cf. id. (determining a reasonable inspection would not have revealed a
10 latent defect in the drainage pipe, thus the landlord did not have a duty based on the
11 right to reenter). Spirit cites nothing for its assertions that “[s]uch a generic
12 observation . . . does not rise to the level of notice required to impose a duty” and
13 that Spirit needed “specific knowledge of a dangerous condition that would have
14 triggered its duty to inspect and, by extension, a duty to ‘repair’ darkness on a public
15 roadway.” See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676
16 P.2d 1329 (explaining that where arguments are not supported by cited authority, we
17 presume counsel was unable to find supporting authority, will not research authority
18 for counsel, and will not review issues unsupported by authority).
19 {25} Given that Spirit reserved the right to perform acts related to inspection,
20 alteration, and repair of the property, it has not surrendered the duty of care
13 1 established under these circumstances. Thus, we reverse the district court’s decision
2 that Spirit did not have a duty to Decedent. Since we have reversed the district
3 court’s dismissal as to both Convergys and Spirit, we need not address Plaintiff’s
4 argument regarding Spirit’s duty in common areas, discovery, and the district court’s
5 failure to cite policy reasons to support its dismissal.
6 CONCLUSION
7 {26} We reverse the district court’s determinations that Convergys and Spirit owed
8 no duty to Decedent, and remand to the district court for further proceedings
9 consistent with this opinion.
10 {27} IT IS SO ORDERED.
11 __________________________________ 12 MICHAEL D. BUSTAMANTE, Judge, 13 retired, sitting by designation.
14 WE CONCUR:
15 ________________________________ 16 JANE B. YOHALEM, Judge
17 ________________________________ 18 GERALD E. BACA, Judge