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Ciup v. Chevron U.S.A. Inc.9/30/1996
MINZNER, Justice.
{1} Plaintiffs appeal the trial court's grant of summary judgment in favor of Chevron U.S.A., Inc. They contend that the trial court erred in determining that Chevron was not liable for assault resulting from the robbery of an independently-owned and independently-operated service station dispensing Chevron gasoline. They also contend that the trial court erred in proceeding with a motion for summary judgment before Disposition of a pending motion to compel discovery. We conclude that the trial court properly granted summary judgment to Chevron, because Plaintiff failed to rebut Chevron's showing that it had no right to control the day-to-day operation of the gas station. We also conclude that Plaintiffs failed to preserve the second issue. Accordingly, we affirm.
FACTS
{2} This case arose out of the attempted robbery of a Chevron gas station. In 1993, Reis Lopez shot and seriously injured the gas station attendant, Marion Ionita, and shot and killed a visitor to the station, Mihai Ciup. See generally (affirming Lopez's convictions for felony murder and aggravated battery arising out of incident). Maria Ciup, in her own capacity and as personal representative of Mihai Ciup, and Marion Ionita (collectively Plaintiffs) sued for personal injury and wrongful death arising from the robbery attempt. Plaintiffs sued Nicolae Spilca, operator and lessee of the gas station, and Rio Grande Oil Co., Inc., the owner-lessor of the gas station and distributor of Chevron gasoline in New Mexico. Additionally, they sued Chevron, which manufactured the gasoline sold at the Chevron-branded station.
{3} Both Chevron and Rio Grande moved for summary judgment, asserting that Spilca operated the gas station as an independent contractor, and that neither Chevron nor Rio Grande exerted sufficient control over the gas station's operation to support vicarious liability on theories of respondeat superior or agency or to support recovery on the basis of premises liability. The record indicates that the trial court stayed the first hearing for summary judgment to allow Plaintiffs an additional sixty days to pursue discovery. During the subsequent summary judgment hearing, the court noted that an entire year had passed since the filing of the original complaint. The court proceeded with a full hearing on the merits, and subsequently granted Chevron's motion for summary judgment, but denied it as to Rio Grande.
{4} Ciup appealed. The Court of Appeals certified the following question to this Court: What is the proper scope of liability of a national corporation, which allows a local service station to use its logo and products without a franchise agreement, for an assault occurring on the service station premises?
Discussion
A. Evidence of Control
{5} As a general rule, a person does not have a duty to protect another from harm caused by the criminal acts of third persons unless the person has a special relationship with the other giving rise to a duty. ), cert. denied, 115 N.M. 709, 858 P.2d 85 (1993). A duty flowing from actual or apparent agency arises with the existence of some degree of control by the principal over the conduct and activities of the agent. W. Page Keeton et al., Prosser and Keeton on the Law of Torts ยง 70, at 508 (5th ed. 1984). The degree of control giving rise to liability depends on the particular facts of each case. , relying on ("every case must ultimately be decided on its unique facts"). In the context of tort liability on gas station premises, a court must closely examine the oil company's control or right to control the actual day-to-day operation of the service station.
{6} P
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