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Pollock v. State4/29/1999
{1} Plaintiffs sued the Highway and Transportation Department (the Department) for wrongful death, personal injuries and loss of consortium arising from a two-vehicle, head-on collision. In their suit, Plaintiffs claimed that the Department's negligence in failing to post proper traffic signs resulted in the accident causing the death and damages. The trial court granted summary judgment in favor of the Department. Plaintiffs raise the following issues on appeal: (1) the trial court erred in the use of an expert's supplemental affidavit and excerpts from his deposition, (2) the Department had a duty to maintain a safe highway and post warning signs, and (3) the jury should have been permitted to determine the questions of the Department's breach of duty and proximate cause. Because we reverse on the second and third issues without considering the supplemental affidavit and deposition excerpts, we do not decide the admissibility or use of that testimony in the summary judgment proceeding.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} One night in January 1994, George Perry Pollock, Jr., (the deceased) accompanied by his son, was driving north on Interstate 25 near the community of Bernalillo. An elderly woman, Emma McClain, was driving the wrong way in the northbound lane and collided head on with the car occupied by the Pollocks. As a result of the accident, the deceased and Ms. McClain were killed; the deceased's son sustained injuries. No witnesses observed where or how Ms. McClain entered the Interstate nor how long she had traveled in the wrong direction before the collision.
{3} The Department moved for summary judgment, arguing that there was no evidence indicating how Ms. McClain accessed the Interstate, the Department owed no duty of care, and Plaintiffs could not establish proximate cause. In May 1997, the trial court held a hearing on the motion and orally indicated its intent to deny the motion. Plaintiffs moved to compel discovery, and the trial court scheduled a hearing on that motion later in the month. At that later hearing, the Department raised certain concerns on the pending summary judgment ruling, which the court addressed. Plaintiffs protested that they did not have the opportunity to prepare for a reargument of the summary judgment motion; nonetheless, the trial court sought clarification of the issues. The Department took issue with various assertions made by Plaintiffs in a letter sent to the court a few days after the earlier hearing held that month. That letter, however, was not made a part of the record. Plaintiffs argued that additional affidavits would support their factual assertions and argument concerning the accident and negligence. The trial court, however, denied Plaintiffs' request to supplement the record with additional affidavits but allowed the parties to submit supplemental briefs on the issues of duty and proximate cause.
{4} Although the trial court ordered that no additional affidavits be filed, Plaintiffs nevertheless attached to their brief the affidavit of Dr. Bleyl, their expert on highway traffic and safety engineering, and new excerpts from his deposition. In response, the Department moved to strike the affidavit and additional deposition testimony, but the trial court did not rule on the motion. The court later granted the Department's summary judgment motion. Plaintiffs appealed. At the time this appeal was proceeding through the court's calendaring process, this Court deemed the record ambiguous concerning whether the trial court had considered Dr. Bleyl's supplemental testimony. Consequently, this Court directed the trial court to enter an order indicating whether it had considered the supplemental testimony. In
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