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Solorzano v. Bristow9/16/2004
ant focused on the legal effect of suicide and made no reference to the duty of ordinary care. Because the argument on appeal is different from that argued to the district court, we hesitate to respond. We choose to do so for the sake of completeness.
Defendant's argument is twofold. First, emphasizing the singular nature of the facts, Defendant rhetorically asks "What was I to do?" Defendant's rhetorical response is that there was nothing she could do or be expected to do; therefore, she did not have any duty to do anything. Second, Defendant asks that we adopt a rule absolving drivers of responsibility for a passenger's actions in a vehicle. Defendant cites Stephenson v. Ledbetter, 596 N.E.2d 1369 (Ind. 1992) as her preferred approach. In Stephenson, a drunk passenger sitting on the side rail of the bed of a pickup traveling about 40 miles per hour fell to his death. Id. at 1370. Over a dissent, the court held as a matter of law that the driver's failure to "stop or slow the truck and compel [the deceased], a competent (if drunk) adult passenger, to sit in a safer position" did not breach the duty of reasonable care to the passenger. Id. at 1372-73.
We do not believe that Stephenson accurately represents the law in New Mexico. In this state, a negligence claim requires the existence of a duty from a plaintiff to a defendant, as well as breach of that duty which is the proximate cause and cause in fact of the plaintiff's damages. Herrera v. Quality Pontiac, 2003-NMSC-018, 6, 134 N.M. 43, 73 P.3d 181. Whether a duty exists is a question of law for the courts to decide. Schear v. Bd. of County Comm'rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984). Foreseeability is a critical and essential component of New Mexico's duty analysis because "no one is bound to guard against or take measures to avert that which he [or she] would not reasonably anticipate as likely to happen," and because " here can be no duty in relation to another person absent foreseeablity." Herrera, 2003-NMSC-018, 20 (internal quotation marks and citations omitted). In this case, we must decide as a matter of law whether the possibility of harm was foreseeable, so as to impose a duty. Clearly, Defendant knew that Garrett was impaired. When Garrett got up out of her seat and moved around in the van, Defendant was on alert that some harm could come to her passenger. Then, when Garrett opened the door, there was the possibility that she would fall out. This possibility increased as Garrett wiggled back and forth trying to get to the back of the door where she ultimately fell out. Based on these facts, we hold that harm to Garrett was foreseeable and that the general law of reasonable care thus applies.
In New Mexico, " very person has a duty to exercise ordinary care for the safety of the person and the property of others." UJI 13-1604 NMRA. In turn, the measure of this duty is ordinary care "in the light of all the surrounding circumstances." UJI 13-1603 NMRA; see Hughes v. Walker, 78 N.M. 63, 65, 428 P.2d 37, 39 (1967) (applying duty of ordinary care in favor of car passenger). Whether a defendant breached her duty of care is a question of the reasonableness of her conduct. Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 13, 738 P.2d 129, 131 (Ct. App. 1987). As such, it is normally a fact question. Id. Rhetorical flourishes aside, we agree with Defendant that this presents a very strange fact pattern. We do not agree, however, that the strangeness of the situation allows us to decide the case as a matter of law. It might well be that a jury will absolve Defendant of any responsibility. But, we believe that the jury should make the decision.
Defendant relies on out-of-state cases containing state
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