This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ANITA VARGAS, as parent and 3 next friend to Simon Patrick 4 Vaughn, a minor,
5 Plaintiff-Appellant, 6 v. No. 30,884
7 JOEY A. CRUZ, ALICE SHIRLEY, 8 GEORGE SHIRLEY, STATE FARM 9 INSURANCE, LA FINCA DE LOS 10 ROMEROS EN LAS TRAMPAS, LLC, 11 and STATE OF NEW MEXICO ex rel. 12 NEW MEXICO DEPARTMENT OF 13 TRANSPORTATION,
14 Defendants, 15 and
16 ANDRES L. ZAMORA, ESTATES OF 17 FLORAIDA ROMERO ZAMORA, 18 and LEANDRO ZAMORA, deceased,
19 Defendants-Appellees.
20 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 21 John M. Paternoster, District Judge
22 Tibo J. Chavez, Jr.
1 Reggie C. Chavez 2 Belen, NM
3 for Appellant
4 The Simons Firm, LLP 5 Thomas A. Simons, IV 6 Frieda Simons Burnes 7 Faith Kalman Reyes 8 Santa Fe, NM
9 for Appellees 10 MEMORANDUM OPINION 11 SUTIN, Judge. 12 Plaintiff Anita Vargas, as parent and next of friend of Simon Patrick Vaughn, 13 her minor son, sued several defendants, including Andres L. Zamora individually and 14 as personal representative of the estates of his parents. This case involves property 15 that Zamora inherited (the property). The lawsuit was based on Simon’s personal 16 injuries received when he rode his bicycle from a driveway at a residence adjacent to 17 the property, without yielding, onto State Road 76 (SR 76) in Taos County, New 18 Mexico, where he was hit by an oncoming vehicle. Even though the accident and 19 injuries occurred after Zamora had sold the property, in her lawsuit Plaintiff claimed 20 breach of the duty of ordinary care for having negligently failed to remove a portion 21 of a structure that is situated next to the road and that allegedly obstructed Simon’s 22 view and for having sold the property knowing of the dangerous condition. The
3
1 district court granted summary judgment in favor of Zamora. We refer to Zamora and 2 his deceased parents together as the Zamoras. 3 More specifically, on appeal, Plaintiff argues the following. The accident and 4 injury were foreseeable in that the Zamoras knew or should have known of the 5 dangerous condition on the property. The Zamoras failed to correct the condition. 6 Zamora failed to notify the purchaser of the defective condition. As a matter of public 7 policy, our courts have recognized a duty of land owners to keep their properties free 8 from visual obstructions to vehicular traffic. And the New Mexico Legislature has 9 expressed public policy prohibiting road obstructions by imposing criminal penalties 10 for obstruction of public roads. 11 The district court granted summary judgment in favor of Zamora. The court 12 determined as a matter of law that Plaintiff failed to establish that the Zamoras owed 13 a legal duty to Plaintiff. We agree. There existed no legal duty and, therefore, no 14 question for the jury existed as to whether a duty was breached. We affirm summary 15 judgment in favor of Zamora. 16 The Applicable Standards 17 “Summary judgment is appropriate where there are no genuine issues of 18 material fact and the movant is entitled to judgment as a matter of law.” Self v. United 19 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. In
4
1 determining whether a factual dispute exists, courts must resolve all reasonable 2 inferences in favor of the nonmovant and must view all of the evidence and pleadings 3 in the light most favorable to a trial on the merits. Alcantar v. Sanchez, 2011-NMCA- 4 073, ¶ 2, 150 N.M. 146, 257 P.3d 966. The legal question of whether a party was 5 entitled to summary judgment is reviewed de novo. Id. 6 The question of whether a duty exists is a question of law for the court to 7 determine. Corlett v. Smith, 107 N.M. 707, 713, 763 P.2d 1172, 1178 (Ct. App. 8 1988). “The question of the existence and scope of a defendant’s duty of care is a 9 legal question that depends on the nature of the . . . activity in question, the parties’ 10 general relationship to the activity, and public policy considerations.” Edward C. v. 11 City of Albuquerque, 2010-NMSC-043, ¶ 14, 148 N.M. 646, 241 P.3d 1086. 12 Foreseeability is one factor to consider when determining duty, however, “[p]olicy is 13 the principal factor in determining whether a duty is owed and the scope of that duty.” 14 Id. ¶¶ 14, 18. We analyze whether the Zamoras owed a duty to Simon under 15 Plaintiff’s particular visual-obstruction theory. Our review is de novo. Thompson v. 16 Potter, 2012-NMCA-014, ¶ 19, __ N.M. __, 268 P.3d 57. 17 Plaintiff’s Duty Argument 18 Plaintiff argues two theories of duty. One theory is that a duty arose out of a 19 contract between the Zamoras and the State of New Mexico Highway Commission.
5
1 The other is based on Zamora’s status as the vendor of land. As a vendor, according 2 to the Restatement (Second) of Torts §§ 352 and 353 (1965), Zamora may be held 3 liable for any concealed or undisclosed condition that involved an unreasonable risk 4 to people on the land provided certain other conditions are met. We hold that neither 5 of these theories supports a determination that the Zamoras owed a duty to Plaintiff 6 under the circumstances of this case. 7 Plaintiff first attempts to establish duty through evidence of the contract 8 between Zamora’s parents and the State Highway Commission. In Plaintiff’s view, 9 the contract establishes foreseeability because it demonstrates that the parents “were 10 parties to the state highway condemnation proceedings that addressed safety issues 11 and required removal of a portion of their building that obstructs the view of highway 12 traffic.” Likewise, Plaintiff contends, that Zamora knew about the “condemnation 13 proceedings” because he inherited the property, he had copies of the documents “that 14 addressed safety issues in the context of the condemnation proceeding and required 15 removal of a portion of their residential building.” 16 At the outset, it is necessary that we clarify the contents of the record as it 17 pertains to the contract between Zamora’s parents and the State. Plaintiff directs us 18 to the affidavit of Zamora and to a copy of a 1966 “New Mexico State Highway 19 Commission Contract.” Zamora’s affidavit reads, in pertinent part, as follows:
6
1 4. In or around 1966, Leandro and Floraida Romero Zamora 2 contracted to sell a portion of the [p]roperty to the State Highway 3 Commission [for a lump sum of $11,705].
4 5. As a condition to the sale of the property to the Commission, 5 Leandro and Floraida Romero Zamora were required to remove 6 212 sq ft of an adobe residence.
7 6. Pursuant to the contract with the Commission, the Commission 8 withheld a portion of the payment, $205.00, until the portion of 9 the adobe residence was removed to the satisfaction of the 10 Commission. . . .
11 7. On or around January 22, 1970, the Commission issued a Payment 12 Voucher, confirming that the $205.00 had been paid to the 13 Zamoras. . . .
14 8. Also on January 22, [1]970, the Commission issued a [n]otice 15 confirming that all conditions as outlined in the contract had been 16 fulfilled. In other words, the portion of the adobe residence had 17 been removed. . . .
18 The conditions of the contract comport with Zamora’s affidavit and read as follows:
19 It is understood and agreed that the [Zamoras] will remove [212 sq. ft. 20 more or less of an adobe residence] on or before September 11, 1966 and 21 that of the total amount of compensation provided, the sum of $205.00 22 shall be withheld until all improvements have been removed in a 23 satisfactory manner and thereafter notify, in writing, the . . . New Mexico 24 State Highway Commission[.]
25 Also contained in the record, though not cited by Plaintiff, are two other documents 26 to which Zamora refers in his affidavit, namely, a payment voucher showing that his 27 parents were paid the sum of $205 by the State Highway Commission on January 22,
7
1 1970, and a written notice bearing the same date that authorized the withheld payment 2 to be released because the conditions of the agreement had been fulfilled. 3 Notably absent from these documents is any reference to safety or to the 4 structure having obstructed the view of highway traffic. Nor has Plaintiff provided 5 any other evidence that would support her characterization of the contract between 6 Zamora’s parents and the State Highway Commission having been for the purpose of 7 “safety” in general or for the specific purpose of removing a visual obstruction. In 8 sum, there exists no evidence that the purpose of the contract was what Plaintiff 9 claims it to have been. To the extent, therefore, that Plaintiff’s claim is grounded in 10 the contract’s having been for the purpose of removing a visual obstruction or for the 11 general purpose of safety, she failed to produce any evidence to support her claim. 12 Moreover, even if Plaintiff had provided some evidentiary support for her claim 13 that the contract between Zamora’s parents and the State Highway Commission was 14 for the purpose of safety or related to an obstruction of view, any alleged breach of the 15 contractual duty to remove a portion of the residence would not establish a duty to 16 Plaintiff because Plaintiff was not privy to, nor was she a third-party beneficiary of, 17 the contract. As explained in Baca v. Britt,
18 [a] plaintiff in an action for negligence, who bases his suit upon the 19 theory of a duty owed to him by the defendant as a result of [a] contract 20 must be a party or a privy to the contract; otherwise, he fails to establish
8
1 a duty toward[] himself on the part of the defendant, and fails to show 2 any wrong done to himself.
3 73 N.M. 1, 7, 385 P.2d 61, 65 (1963) (internal quotation marks and citation omitted); 4 see also Valdez v. Cillessen & Son, Inc., 105 N.M. 575, 581, 734 P.2d 1258, 1264 5 (1987) (explaining that to prove third-party beneficiary status, the contract itself or 6 some other evidence must show that the parties to the contract intended to benefit the 7 third party). Therefore, to the extent that Plaintiff’s claim relies on any alleged breach 8 of a contractual duty to remove a portion of a structure that existed by virtue of Mr. 9 and Mrs. Zamora’s contract with the State Highway Commission, the claim cannot 10 stand. See Baca, 73 N.M. at 7, 385 P.2d at 65 (stating that “no cause of action in tort 11 arises from a breach of duty existing by virtue of the contract unless there exists 12 between the defendant and the injured person . . . privity of contract” (internal 13 quotation marks omitted)). 14 Plaintiff’s Restatement (Second) of Torts Argument 15 Plaintiff’s alternative theory of duty is based on the Restatement (Second) of 16 Torts §§ 352 and 353. Section 352 reads as follows:
17 Except as stated in [Section] 353, a vendor of land is not subject to 18 liability for physical harm caused to his vendee or others while upon the 19 land after the vendee has taken possession by any dangerous condition, 20 whether natural or artificial, which existed at the time that the vendee 21 took possession.
9
1 See also § 352 cmt. (a) (“The vendee is required to make his own inspection of the 2 premises, and the vendor is not responsible to him for their defective condition, 3 existing at the time of transfer. Still less is he liable to any third person who may 4 come upon the land[.]”). The exception, as stated in Section 353, reads:
5 (1) A vendor of land who conceals or fails to disclose to his vendee 6 any condition, whether natural or artificial, which involves an 7 unreasonable risk to persons on the land, is subject to liability to the 8 vendee and others upon the land . . . for physical harm caused by the 9 condition after the vendee has taken possession, if
10 (a) the vendee does not know or have reason to know of the 11 condition or the risk involved, and
12 (b) the vendor knows or has reason to know of the condition, 13 and realizes or should realize the risk involved, and has reason to 14 believe that the vendee will not discover the condition or realize 15 the risk.
16 (2) If the vendor actively conceals the condition, the liability stated in 17 Subsection (1) continues until the vendee discovers it and has reasonable 18 opportunity to take effective precautions against it. Otherwise the 19 liability continues only until the vendee has had reasonable opportunity 20 to discover the condition and to take such precautions.
21 Plaintiff argues that the accident was foreseeable because Zamora, as the vendor of 22 the property, failed to notify the vendee of the existence of the dangerous condition. 23 In essence, Plaintiff’s contention is that Simon’s accident was the foreseeable result 24 of Zamora’s having failed to warn the current owner (the vendee) that the structure
10
1 created a dangerous visual obstruction to traffic because it sat close to the edge of the 2 highway. 3 Plaintiff’s argument in this regard fails for several reasons. First, by its own 4 terms, the Restatement provisions cited by Plaintiff pertain only to harms that befall 5 a third party who is actually on the land at the time of the accident or injury. See 6 § 352 cmt. (a) (stating the general rule that a vendee is not “liable to any third person 7 who may come upon the land” (emphasis added)); § 352 (stating that, under certain 8 conditions, a vendor may be liable to a vendee or “others while upon the land” for 9 physical harm caused by dangerous conditions on the land (emphasis added)). Here, 10 Simon’s injuries did not occur on the land previously owned by Zamora; rather, the 11 injuries indisputably occurred on SR 76. Plaintiff has supplied no authority that 12 applies Section 353 to facts remotely analagous to those here where the injury did not 13 occur on the owned property, and we therefore assume that none exist. See Disabled 14 Am. Veterans v. Lakeside Veterans Club, Inc., 2011-NMCA-099, ¶ 16, 150 N.M. 569, 15 263 P.3d 911 (“[W]here no supporting authority for a proposition is cited, this Court 16 may assume that no applicable or analogous authority exists[.]”). 17 Second, even if we were to assume that the Restatement provisions could apply 18 to injuries that occurred off the land but were caused by a dangerous condition on the 19 land, Plaintiff failed to establish any factual basis regarding other aspects of Zamora’s
11
1 liability as vendor under the cited Restatement sections. Plaintiff relies on affidavits 2 and photographs that purportedly show that Zamora knew or should have known that 3 the structure created a dangerous visual obstruction to traffic and that there had been 4 “similar accidents” in the same location. Assuming, without deciding, that the 5 affidavits may have indicated that an accident was foreseeable, Plaintiff did not 6 establish that Zamora, as a vendor of the land, has any liability to Plaintiff, a third 7 party, as described by the Restatement. 8 In order to impose any liability upon Zamora as a vendor, Plaintiff was required 9 not only to show that Zamora had knowledge, actual or imputed, of the dangerous 10 condition, but also that he (1) either concealed or failed to disclose the dangerous 11 condition, and (2) the vendee did not know or have reason to know of the condition 12 or of the risk involved, and (3) Zamora had a reason to believe that the vendee would 13 not discover the condition or realize the risk. See § 353. Plaintiff failed to produce 14 any evidence that Zamora concealed or failed to disclose the alleged dangerous 15 condition, and she likewise failed to produce any evidence in regard to what the 16 vendee may have known about the alleged dangerous condition. Thus, Plaintiff has 17 failed to show that Section 353 provides any basis for holding Zamora, as vendor, 18 liable for Simon’s injuries. 19 Plaintiff’s Policy Argument
12
1 Plaintiff contends that “[a]s a matter of public policy, New Mexico courts have 2 recognized a duty imposed upon land owners to keep their properties free from visual 3 obstructions to vehicular traffic.” In support of this point, Plaintiff cites Bolen v. Rio 4 Rancho Estates, Inc., 81 N.M. 307, 466 P.2d 873 (Ct. App. 1970). In Bolen, the 5 plaintiff, the estate of a deceased motorcyclist, brought an action in negligence against 6 a number of defendants, including a home owner who had a four-foot fence on his 7 property and the builder of the fence, claiming that they knew or should have known 8 that the fence would cause a visual obstruction to vehicular traffic, yet, in the face of 9 this knowledge, they failed to reduce its height. Id. at 308, 466 P.2d at 874. The court 10 determined that there was no factual basis for the theory of negligence against either 11 the home owner or the fence builder because “neither evidence nor inference” 12 supported the plaintiff’s theory that the fence obstructed the view of traffic. Id. at 308, 13 309, 466 P.2d at 874, 875. Having decided the case pursuant to the physical-facts 14 rule, this Court did not reach the question of whether the erection and maintenance of 15 the fence provided a legal basis for imposing liability on the defendants. Id. at 309- 16 10, 466 P.2d at 875-76. We fail to see, and Plaintiff fails to explain, how Bolen 17 provides any support for her position. 18 In addition, Plaintiff relies on a California case, which she states was “cited” 19 by the Bolen Court. Although the Bolen Court noted the case of Campbell v. City of
13
1 Palm Springs, 32 Cal. Rptr. 164 (Ct. App. 1963), it did so for the limited purpose of 2 indicating its inapplicability to the Bolen case and only because the Bolen plaintiff 3 relied upon it for part of his argument. Bolen, 81 N.M. at 311, 466 P.2d at 877. 4 Plaintiff briefly recounts the facts of Campbell, in which a California appellate court 5 affirmed a judgment against the appellee city that maintained a row of trees that 6 created a “blind intersection” that was the proximate cause of a vehicular collision. 7 32 Cal. Rptr. at 167, 169-70. 8 In Campbell, the evidence showed that the city operated and maintained the 9 property at issue at the time of the collision. Id. at 169. Here, on the other hand, it is 10 undisputed that Zamora neither operated nor maintained the property when Simon’s 11 accident occurred. Plaintiff provides no argument to explain how Campbell lends 12 support to her New Mexico public policy argument. “[W]e will not review unclear 13 arguments, or guess at what a party’s argument might be and neither will we review 14 arguments that are inadequately developed[.]” Titus v. City of Albuquerque, 2011- 15 NMCA-038, ¶ 48, 149 N.M. 556, 252 P.3d 780 (alteration, internal quotation marks, 16 and citation omitted). Therefore, in the context of this case, without any argument 17 pertaining to its applicability, we decline further consideration of Campbell. 18 No case supplied by Plaintiff supports her assertion that, as a matter of public 19 policy, the district court should have imposed a duty upon Zamora, as a former land
14
1 owner, for an injury that occurred off of the land and occurred after he sold the 2 property. We assume therefore, that no such authority exists. Disabled Am. Veterans, 3 2011-NMCA-099, ¶ 16. 4 Plaintiff further argues that “[t]he New Mexico Legislature has articulated 5 public policy statements regarding road obstructions by imposing criminal penalties 6 for obstruction of public roads[.]” The criminal statutes upon which Plaintiff relies 7 relate only to obstructions on roads, not obstructions that obstruct a view of the road. 8 See NMSA 1978, § 67-7-1 (1915) (prohibiting the obstruction of public roads in any 9 manner “by putting therein or thereon any obstruction whatsoever” (emphasis 10 added)); NMSA 1978, § 67-7-2 (1915) (prohibiting obstruction and damage to 11 highways and bridges, including a prohibition against erecting a fence or a house 12 “upon any highway” (emphasis added)). Because the structure formerly owned by the 13 Zamoras was not on the road, these statutes have no bearing on this case. 14 Also irrelevant is Plaintiff’s reference, unaccompanied by any argument, to the 15 public nuisance statute, NMSA 1978, § 30-8-1 (1963), which prohibits “knowingly 16 creating, performing[,] or maintaining anything affecting any number of citizens 17 without lawful authority which is . . . injurious to public health, safety, morals[,] or 18 welfare; or . . . interferes with the exercise and enjoyment of public rights, including 19 the right to use public property.” We are given no basis on which to conclude that
15
1 Zamora, at any time relevant to this case, created or maintained a public nuisance, nor 2 are we persuaded that, as a matter of public policy, Section 30-8-1 provides a basis for 3 holding that Zamora owed a duty to Plaintiff under the facts of this case. Plaintiff’s 4 decision to refer to Section 30-8-1 without developing any argument in regard to its 5 applicability leaves this Court under no obligation to examine the issue further. See 6 Bank of N.Y. v. Romero, 2011-NMCA-110, ¶ 16, 150 N.M. 769, 266 P.3d 638.
7 In Sum, Plaintiff Failed to Establish a Legal Duty and 8 Summary Judgment Was Properly Granted in Favor of Zamora
9 In sum, Plaintiff has failed to provide any applicable or persuasive authority, 10 and has failed to provide any evidence to support a conclusion that Zamora owed a 11 legal duty to Simon. Because there was no duty, there was likewise no breach of duty. 12 See Lopez v. Ski Apache Resort, 114 N.M. 202, 216, 836 P.2d 648, 662 (Ct. App. 13 1992) (Bivins, J., dissenting) (stating that where there is “no duty to begin with, there 14 is no breach of duty to constitute negligence” (internal quotation marks and citation 15 omitted)). It follows that summary judgment was appropriate. See Thompson, 2012- 16 NMCA-014, ¶¶ 24, 40 (affirming summary judgment in favor of the defendants in a 17 negligence action where “there [was] no issue of material fact about whether [the 18 d]efendant[s] violated any duty”). We turn now to Plaintiff’s remaining contention. 19 Plaintiff’s Discovery Argument
16
1 Plaintiff adds a contention that “disputed facts exist about the 1966 construction 2 project[.]” Plaintiff claims that facts regarding the 1966 construction project “will 3 ultimately be developed through further discovery” and because there are fact 4 questions regarding the reasons for the State Highway Commission’s having sought 5 partial removal of the structure, these questions should go to the jury. 6 Any discovery pertaining to the construction project that would have been 7 relevant to establishing Zamora’s duty should have been requested prior to the 8 summary judgment hearing. See Butler v. Deutsche Morgan Grenfell, Inc., 2006- 9 NMCA-084, ¶ 38, 140 N.M. 111, 140 P.3d 532 (stating that a party facing a summary 10 judgment motion may request that the district court stay its determination so that the 11 nonmovant can conduct discovery needed to rebut the motion). Moreover, to the 12 extent that Plaintiff implies or attempts to argue that she did not have a reasonable 13 opportunity to engage in discovery, this issue was not raised in the district court and 14 was therefore not preserved for our review. See Rule 12-216(A) NMRA (“To 15 preserve a question for review[,] it must appear that a ruling or decision by the district 16 court was fairly invoked[.]”). 17 CONCLUSION 18 We affirm. 19 IT IS SO ORDERED.
17
1 __________________________________ 2 JONATHAN B. SUTIN, Judge
3 WE CONCUR:
4 5 _________________________________ 6 CELIA FOY CASTILLO, Chief Judge
7 _________________________________ 8 LINDA M. VANZI, Judge