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Lerma v. State Highway Department of New Mexico6/23/1994
RANSOM, Justice.
Emilio S. Lerma, as next friend of his daughter Dawn Marie Lerma, appealed to the Court of Appeals from the trial court's entry of summary judgment dismissing Lerma's personal injury action against the State Highway Department. In an unpublished opinion, the Court of Appeals reversed. We issued a writ of certiorari to review two issues: (1) whether the Court of Appeals erred by imposing a common-law duty upon the Department to maintain a fence for the protection of pedestrians; and (2) whether,
as a matter of law, Dawn's intentional act of crossing the interstate was the sole proximate cause of her injuries. We affirm the Court of Appeals and remand this case to the trial court.
Facts and proceedings. On October 23, 1986, thirteen-year-old Dawn Lerma and two friends climbed over a fence along Interstate 25 near the Mesilla Valley Mall in Las Cruces. The friends crossed the highway first and warned Dawn to wait for a vehicle to pass. Dawn did not wait and was hit by the oncoming car. Emilio Lerma filed an action on Dawn's behalf, seeking compensation for her personal injuries. Lerma alleged that the Department had a statutory and common-law duty to maintain the fences along the highway for the protection of the pedestrian traffic.
According to evidence presented at the summary judgment hearing, the Department was aware that people often crossed the highway in this area and had attempted to make climbing the fence or going under it harder by adding barbed wire and rocks. Further, according to Department regulations, the fences along that highway are supposed to be six feet high and the fence that Dawn climbed over was approximately four feet high. Lerma alleged that the Department breached its duty by not maintaining six-foot fences and that this breach was the proximate cause of Dawn's injuries.
The Department moved for summary judgment, arguing that it did not have a duty to protect pedestrians from the dangers of the highway. The district court agreed and granted the Department's motion. On appeal, the Court of Appeals determined that the Department did not have a statutory duty to protect pedestrian traffic, but that it did have a common-law duty to "conduct its activities in a reasonable manner and to exercise ordinary care for the safety of others." The Court concluded that the question whether the Department breached this duty was a question of fact that precluded summary judgment.
The Department does not have a statutory duty to protect pedestrian traffic. Lerma argues that the Department has a statutory duty to maintain fences along public highways for the protection of pedestrians, citing for support NMSA 1978, Section 30-8-13(B)(1) (Repl. Pamp. 1984) ("Unlawfully permitting livestock upon public highway."). Under this Section, the Department is required to "construct, inspect regularly and maintain fences along all highways under its jurisdiction." Lerma contends that the Department breached its duty by constructing a fence that was only four feet high and by failing to maintain that fence.
In , this Court stated that the purpose of Section 30-8-13 (then codified as NMSA 1953, Section 40A-8-10) was to protect the motoring public from wandering livestock. This statement has been reaffirmed in several Court of Appeals cases, including ), cert. quashed (Oct. 9, 1980), in which the Court reviewed the history of the statute and determined that the purpose of the statute was to place on the Department the burden of keeping livestock off public highways. See also ) (stating that purpose of the sta
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