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Andrews v. Saylor9/25/2003
e issue of proximate cause. Defendants did not attempt to pierce Plaintiff's allegations establishing Scarborough's negligence. Accordingly, we accept them as true for purposes of review. Bartlett v. Mirabal, 2000-NMCA-036, 17, 128 N.M. 830, 999 P.2d 1062 (discussing the movant's burden of making a prima facie case of no genuine issue of material fact). Because Defendants incorrectly assumed that proximate causation was a question of law for the district court, they did not support their motion for summary judgment with expert testimony establishing to a reasonable legal certainty that an appeal would have succeeded, nor did they argue that Plaintiff's expert's testimony was insufficient to create a genuine issue of material fact as to whether an appeal would have succeeded. Thus, they failed to make out a prima facie case of entitlement to summary judgment. Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 13, 738 P.2d 129, 131 (Ct. App. 1987) (reversing summary judgment; observing that movant failed to make out a prima facie case of entitlement to summary judgment and that therefore the burden of production never shifted to the non-movant). We therefore reverse the grant of summary judgment in Defendants' favor.
3. The District Court Committed Substantive Error in Treating the Alleged Malpractice of Successor Counsel as "the" Proximate Cause
In addition to its error in deciding the question of proximate cause as a question of law, the district court committed substantive error by ruling that malpractice by Plaintiff's successor attorneys would constitute "the" proximate cause of Plaintiff's loss and would necessarily prevent Scarborough's initial malpractice from being a proximate cause of the loss of Plaintiff's community share of PERA benefits.
As noted above, Plaintiff alleges that Scarborough negligently failed to protect Plaintiff's community interest in Stephen's PERA benefits by failing to include in the final decree express language awarding Plaintiff her community share. If the jury finds that Scarborough was negligent, then, in determining whether Scarborough's negligence was a cause of the loss of Plaintiff's community share of PERA benefits, the jury will decide what would have happened if Scarborough had included in the 1986 final decree a provision awarding Plaintiff her community interest in the PERA benefits. We believe it is open to proof that had Scarborough included a provision expressly awarding Plaintiff her community share of Stephen's PERA benefits, there would have been no need to bring a Section 40-4-20 motion to divide the PERA benefits, the hearing before Judge Lang would not have occurred, and the question of appealing the April 15, 1998, order would not have arisen. Thus, a jury could find that Scarborough's negligence was a cause in fact of the loss of Plaintiff's share of benefits-i.e., a factor "without which the [loss of PERA benefits] would not have occurred." UJI 13-305 NMRA 2003.
Proximate cause superimposes considerations of foreseeability on causation in fact. See Torres v. El Paso Elec. Co., 1999-NMSC-029, 14, 127 N.M. 729, 987 P.2d 386 (noting the necessity of limiting "potentially limitless liability arising from mere cause in fact"). New Mexico follows the rule that "` ny harm which is in itself foreseeable, as to which the actor has created or increased the recognizable risk, is always "proximate," no matter how it is brought about.'" Id., 23 (quoting Restatement (Second) of Torts ยง 442B cmt. b (1965)). Our Supreme Court has held that medical malpractice is a foreseeable consequence of negligent operation of a motor vehicle resulting in an injury to the plaintiff that requires medical treat
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