Chavez v. Convergys Corp.

535 P.3d 721

Sandra CHAVEZ, as Personal Representative of the Estate of Briana Chavez, Plaintiff-Appellant,

v. CONVERGYS CORPORATION; Convergys Customer Management Group, Inc.; and Spirit CS Las Cruces NM, LLC, Defendants-Appellees,andBinns Construction, Inc.; Binns Ltd. Co.; and Adevco Corporation, Defendants.

No. A-1-CA-39694

Court of Appeals of New Mexico.

Filing Date: June 26, 2023

Certiorari Denied, September 7, 2023, No. S-1-SC-40015

Jaramillo Law Firm, David J. Jaramillo, Albuquerque, NM, Liles White PLLC Stuart, R. White, Kevin W. Liles, Rob George, Corpus Christi, TX, for Appellant

Butt, Thornton & Baehr, P.C., Monica R. Garcia, Rheba Rutkowski, Sarah L. Shore, Albuquerque, NM, for Appellees Convergys Corporation and Convergys Customer Management Group, Inc.

Ylaw, P.C., Joseph B. Wosick, Sean E. Garrett, Albuquerque, NM, for Appellee Spirit Las Cruces NM, LLC

BUSTAMANTE, Judge, retired, sitting by designation.

{1} This case requires us to revisit the duty analysis for a premises liability claim in light of Rodriguez v. Del Sol Shopping Center Associates., L.P. , 2014-NMSC-014, ¶¶ 1, 19, 326 P.3d 465. Plaintiff Sandra Chavez, as personal representative of the estate of Briana Chavez (Decedent), asserts that Decedent was hit and killed by a bus adjacent to property owned and leased by Defendants in this case. The district court decided that Defendants—the landlord and tenant—owed no duty to Decedent and granted summary judgment. Plaintiff appeals. Concluding that both the landlord and tenant did owe Decedent a duty, we reverse and remand to the district court for further proceedings consistent with this opinion.

BACKGROUND

{2} Decedent was killed adjacent to property on Del Rey Boulevard in Las Cruces (the property) owned by Defendants Spirit CS Las Cruces NM LLC (Spirit) and leased by Defendants Convergys Corporation and Convergys Customer Management Group (collectively, Convergys). Convergys runs a call center where Decedent worked prior to the fatal collision. A bus stop is located across the street from the property. On December 26, 2017, Decedent went to Convergys to pick up her final paycheck. Around 6:00 p.m., Decedent was hit and killed by a city bus driving south on Del Rey Boulevard across from the property.

{3} Plaintiff's second amended complaint included broad allegations of negligence by Defendants. The gist of the assertions was that Defendants failed to properly take into account the effect development of the property would have on the safety of employees and others using and visiting the property. Plaintiff emphasized that the property was located in a rural, largely undeveloped plat of land and the development would create increased traffic and uncertainty. Plaintiff asserted that Defendants had the duty and ability to design the property in a way "that would keep persons such as [Decedent] reasonably safe." Plaintiff included specific assertions that Convergys "had the ability to place light poles, lighting, a crosswalk, and other traffic control devices that would aid in pedestrian traffic and improve safety."

{4} Convergys filed a motion for summary judgment, arguing that Plaintiff could not establish as a matter of law that Convergys owed Decedent a duty. In the briefing, Convergys focused primarily on the allegation that Defendants could have installed safety measures on the public road and right-of-way. Plaintiff's response to Convergys' motion for summary judgment emphasized that her complaint also included allegations focused on Convergys' failure to take safety measures on its property that created a danger on the adjoining public roadway. After briefing and a hearing, the district court granted Convergys' motion.

{5} Just before the district court entered its order on Convergys' motion, Spirit filed a motion for summary judgment, arguing it also did not owe Decedent a duty. Spirit's motion echoed Convergys' assertions concerning its lack of a duty to take any measures on the public right-of-way. Spirit also argued that it had no duty because it was a nonpossessory landlord.

{6} Plaintiff's response to Spirit's motion repeated its argument that the complaint made broader allegations than just the conditions of the roadway. Plaintiff also asserted that she was "not arguing that any of these Defendants should have done anything in the roadway or at the bus stop." We interpret this statement to mean that Plaintiff was abandoning her allegations concerning any duty to change the public right-of-way. We also note that Plaintiff does not make any argument on appeal that Defendants' had a duty concerning the right-of-way, and we deem the argument abandoned.

{7} Plaintiff also argued Spirit had a duty because the lease for the property gave it the right to reenter the premises to "perform any acts related to ... safety," and because under the lease it had a duty to maintain the common areas of the property. Once briefed and argued, the district court granted Spirit's motion for summary judgment. Plaintiff appeals from the district court's ruling on both motions.

DISCUSSION

I. Standard of Review

{8} "Summary judgment is reviewed on appeal de novo." Juneau v. Intel Corp. , 2006-NMSC-002, ¶ 8, 139 N.M. 12, 127 P.3d 548. "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Self v. United Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We review the evidence "in the light most favorable to the party opposing summary judgment." City of Albuquerque v. BPLW Architects & Eng'rs, Inc. , 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146.

II. An Owner/Occupier of Land Owes a Duty of Reasonable Care in These Circumstances

{9} To prevail on a negligence claim, a plaintiff must prove "the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiff's damages." Spencer v. Health Force, Inc. , 2005-NMSC-002, ¶ 18, 137 N.M. 64, 107 P.3d 504 (internal quotation marks and citation omitted). "Whether the defendant owes a duty to the plaintiff, is a legal question for the courts to decide." Lujan v. N.M. Dep't of Transp. , 2015-NMCA-005, ¶ 8, 341 P.3d 1. That legal question is one of "policy made with reference to legal precedent, statutes, and other principles comprising the law." Morris v. Giant Four Corners, Inc. , 2021-NMSC-028, ¶ 10, 498 P.3d 238 (internal quotation marks and citation omitted).

{10} Summary judgment on a negligence claim is appropriate only "in exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases," Rodriguez , 2014-NMSC-014, ¶ 13, 326 P.3d 465 (alteration, internal quotation marks, and citation omitted), or when there is simply no evidence that could support a plausible inference in the plaintiff's favor on the jury questions of breach and legal cause. Id. ¶ 24.

{11} The issue before us is whether an owner/occupier of land located adjacent to a roadway has a duty to provide other reasonable safety features on the premises for the benefit of its invitees coming to and going from the property during times when it is naturally dark. We determine it does and explain.

{12} It is well established that an "owner/occupier owes a duty of ordinary care under the circumstances, ... including the duty to exercise ordinary care to prevent harmful conduct from a third person, even if the third person's conduct is intentional." Rodriguez , 2014-NMSC-014, ¶ 5, 326 P.3d 465 ; see also UJI 13-1309 NMRA ("An [owner] [occupant] owes a visitor the duty to use ordinary care to keep the premises safe for use by the visitor [, whether or not a dangerous condition is obvious]."). "In determining whether a duty of care exists or should be expanded or contracted, a court's analysis should focus on policy considerations." Morris , 2021-NMSC-028, ¶ 11, 498 P.3d 238 (internal quotation marks and citation omitted). Foreseeability does not play a part when the court assesses the existence or scope of a duty. Rodriguez , 2014-NMSC-014, ¶¶ 1, 4, 326 P.3d 465 ; id. ¶ 1 (adopting the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010) for duty analysis).

{13} In addition to these general principles of premises liability, New Mexico case law has three seminal premises liability cases that support finding a duty in this circumstance. The most relevant of the three historical duty cases is Bober v. New Mexico State Fair , 1991-NMSC-031, 111 N.M. 644, 808 P.2d 614. In Bober , the plaintiff alleged that the State Fair had failed to properly control traffic leaving the fairgrounds, resulting in a car crash on a roadway bordering the fairgrounds. Id. ¶¶ 1 -2, 30. Our Supreme Court succinctly determined, "[W]e come to the simple proposition that lies at the core of the holding in Mitchell [ v. C & H Transportation Co. , 1977-NMSC-045, 90 N.M. 471, 565 P.2d 342 ] (and many other cases like it): Every person has a duty to exercise ordinary care for the safety of the person and the property of others." Bober , 1991-NMSC-031, ¶ 10, 111 N.M. 644, 808 P.2d 614 (internal quotation marks and citation omitted). Our Supreme Court concluded in relevant part that the duty of a landowner to exercise ordinary care is not determined "by identity of the person injured ... or by the happenstance that the accident and resulting injury occur inside or outside the property boundary." Id. ¶ 12. Accordingly, "an occupier of land has the duty to avoid creating an unreasonable risk of harm to persons outside the land, such as in an adjoining roadway." Id. ¶ 16.

{14} Convergys argues that Bober is not controlling because it relies on foreseeability and because the facts of this case are distinguishable. First, we do not agree that foreseeability played a role in Bober . Bober held—in concert...