N.M. court abdicates responsibility to define tort duties

Today, the New Mexico Supreme Court decided in Rodriguez v. Del Sol Shopping Center that when a court decides whether a property owner has a duty to protect people from harm on the premises, the court must never consider whether the harm was foreseeable. PLF has long argued in premises liability cases that foreseeability cannot be dispositive, because the court must also consider the public policy considerations of imposing a duty to protect. The court’s holding that foreseeability must never be even a factor, however, sets it apart from every other court in the nation, to the detriment of New Mexican property owners and businesses.

The case began in March 2006, when Rachel Ruiz, who was prone to seizures and told by her doctors not to drive, suffered a seizure at the wheel of her pick-up truck in a strip mall parking lot and lost consciousness. The truck accelerated, vaulted the six-inch curb at the end of the straightaway narrowly missing a concrete support pillar, crossed a ten-foot wide sidewalk, snapped a metal handrail, and crashed through the medical clinic’s floor-to-ceiling glass wall. She killed three people and injured six others. Ms. Ruiz was prosecuted for her actions, pled no contest to vehicular homicide and other charges, and was imprisoned. The deceased victims’ estates, the surviving victims, and their families filed separate premises liability actions, alleging that the shopping mall owners negligently failed to adequately post traffic signage and erect additional physical barriers between the parking lot and shopping center. The trial court and Court of Appeals found that the shopping mall had no duty to prevent this tragically bizarre occurrence, but today the state high court reversed.

The New Mexico Supreme Court’s disinterest in the facts is apparent from the beginning of the opinion, in which the accident is boiled down to nothing more than “a truck crashed through the front glass of the Concentra Medical Clinic in the Del Sol Shopping Center in Santa Fe, killing three people and seriously injuring several others.”  After glossing over the facts, the court then disdains the many cases that found no duty in similar circumstances, saying, “We will not belabor the discussion of the cases that have caused the confusion [regarding the extent to which foreseeability considerations are relevant to the legal determination of duty],” choosing instead to “explain why foreseeability should not be considered” at all. The court’s analysis boils down to this: Questions of foreseeability demand consideration of the facts of a case, and it is the function of a jury, not a court, to determine facts; therefore, foreseeability can only be an element of breach or causation, not of duty itself. This approach means that, as a practical matter, New Mexico courts can never dismiss a case on the grounds that the defendant owed no duty to the plaintiff. The opinion acknowledges as much, concluding:

“Courts are not powerless to dismiss cases as a matter of law, despite our holding that a foreseeability-driven duty analysis is inappropriate. A court may still decide whether a defendant did or did not breach the duty of ordinary care as a matter of law, or that the breach of duty did not legally cause the damages alleged in the case. However, these determinations are materially different than a no-duty or modified-duty analysis…. this determination requires judges to abandon their own personal thoughts regarding the merits of cases and to imagine the thoughts of twelve adult citizens from a variety of socioeconomic backgrounds—such as scientists, college faculty, laborers, uneducated, rich, poor, persons with different political persuasions—and what that diverse group might find regarding the merits of a case. The judge can enter judgment as a matter of law only if the judge concludes that no reasonable jury could decide the breach of duty or legal cause questions except one way.”

This is a shocking departure from standard tort doctrine that squarely places upon courts the responsibility to determine the nature and extent of tort duties. All property owners and businesses in the state should be on notice that any accident, no matter how bizarre or unlikely, that occurs on their premises will almost certainly go to a jury – or settle. The court effectively brands property owners and businesses as insurers of the public safety, demanding that they expend whatever it takes to avoid even the most remote risks of harm. Ultimately, New Mexican consumers and residents will pay the price, as the increased costs of protection are passed along.

PLF thanks our local counsel, A. Blair Dunn, for his assistance filing PLF’s amicus brief in this case.