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Solorzano v. Bristow9/16/2004
Plaintiff appeals the order of the district court granting summary judgment in favor of Defendant. For the reasons that follow, we reverse.
BACKGROUND
Plaintiff in this wrongful death action is Frances Solorzano, personal representative of Nelda Sue Garrett's estate (Garrett) and guardian of Garrett's minor children. Garrett was Defendant Frankie Bristow's daughter. Plaintiff's claims arise from a sad incident where Garrett either fell or jumped from a van being driven by Defendant.
Defendant was the only witness to the events leading to Garrett's death. The facts in the record come from Defendant's depositions and statements. Defendant gave Garrett a ride to Las Cruces, New Mexico from Alamogordo, New Mexico for a dentist appointment where Garrett had several teeth extracted. Garrett was "normal" on the trip to Las Cruces. After the dental procedure, Garrett was confused and disoriented and had a blank look on her face. Garrett did not respond to the receptionist about a follow-up appointment. Garrett was able to get into the van by herself. Part of the time, Garrett did not recognize Defendant. As Defendant drove back to Alamogordo, she became concerned that her daughter "might have had too much medication" or "was having a reaction to the medication." Because of her concerns, Defendant decided to stop at a park-the Aguirre Springs area located about two miles off the road-to give Garrett a chance "to walk off whatever it was that the dentist had given her." They stopped and walked around for about half an hour. While they were in the park, Garrett was "logical" or "coherent" twice, but, by the time they started back to the van, Garrett reverted to the prior state and did not appear to recognize her mother. Garrett walked "real fast" down the path back to the van, walking by her mother as if she were "a stranger in Hawaii." Defendant was concerned. When Garrett reached the bottom of the path, it appeared that she did not recognize the van. Defendant recalled that when she unlocked the door and held it open, Garrett "didn't know who [Defendant was]." After Garrett got into the van, Defendant had to fasten her seat belt for her. It appeared to Defendant that Garrett did not know what she was doing.
Defendant then got back on the highway heading toward Alamogordo. She set the cruise control for 60 miles per hour and left it there until Garrett fell out of the van. Garrett was initially quiet and unresponsive to conversation. At some unspecified time after getting underway, Garrett made a loud "growling" sound and at the same time made a wide sweeping motion with her right hand. The sound and motion startled Defendant. Defendant asked "What's the matter?" but Garrett did not respond. Within a short time after the sound and motion, Garrett unfastened her seat belt and started toward the back of the van and then sat back down. After sitting back down, Garrett opened the door and leaned out while sitting in the seat. Defendant started yelling, but Garrett did not respond. The van was too wide to allow Defendant to reach Garrett.
It is unclear from the record what Defendant said or how long this first door-opening lasted. Defendant testified that the door did not shut after Garrett sat back down. After sitting back down, Garrett turned to the door again and this time stood on the step in the van and started "wiggling back and forth trying to get to the back of the door where she would fall out." Garrett kept bumping against the door until she fell out. Defendant thought throughout that Garrett was getting sick and was trying to vomit outside. Defendant never applied the brakes or otherwise tried to slow the van. When asked why she did not sl
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