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Lerma v. State Highway Department of New Mexico6/23/1994
owes a duty of care to his tenants to maintain the common areas of the leased premises--in this case a playground adjacent to an area leading to a highway--in a reasonably safe condition." . In that regard, the Court held that "when a landowner undertakes to provide a common area for the use of his tenants, he undertakes to maintain it in a reasonably safe condition."
In this case, the determinative issue is whether the Department has a duty to exercise ordinary care in the maintenance of its highways. As stated above, we believe that the Department has such a duty. It is for the factfinder to decide whether this duty includes either the erection or maintenance of fences along an urban freeway.
The jury is to determine issues of comparative negligence and proximate cause. Because we are remanding this case for a determination of whether the Department breached its duty to exercise ordinary care, we must address the argument made by the Department that Dawn's action of crossing the highway was the sole proximate cause of her injuries. In essence, the Department is arguing that because Dawn crossed the road, despite the existence of a fence and warnings from her friend, Dawn should be held, as a matter of law, responsible for the full percentage of her injuries and the Department should be held not responsible for any percentage of the injuries under comparative negligence.
With few exceptions, proximate cause is a question of fact to be determined by the
factfinder. . The only time that this is not true is "when facts regarding causation are undisputed and all reasonable inferences therefrom are plain, consistent and uncontradictory." . Similarly, the question of comparative fault is an issue of fact to be determined by the factfinder. Cf. (stating that question of comparative fault of parties involved genuine issues of material fact that precluded summary judgment). In this case, all reasonable inferences are not plain, consistent, and uncontradictory; therefore, the issues of proximate cause and comparative negligence are to be decided by a factfinder.
The fact that the danger may have been open and obvious would not obviate a duty on the part of the Department to protect the public from the public's own foreseeable negligence. See (holding that "some degree of negligence on the part of all persons is foreseeable" and should be taken into account by the owner or occupier of a premises in the discharge of a duty to safeguard those who foreseeably may be injured by a danger avoidable through reasonable precautions). In determining the comparative negligence of Dawn in this case, the factfinder is to be reminded that the standard to be applied is whether Dawn "exercised that degree of care ordinarily exercised by children of like age, capacity, discretion, knowledge and experience under the same or similar circumstances." .
Conclusion. For the foregoing reasons, the trial court's entry of summary judgment in favor of the Department is reversed. This case is remanded for proceedings consistent with this opinion.
IT IS SO ORDERED.
RICHARD E. RANSOM, Justice
WE CONCUR:
SETH D. MONTGOMERY, Chief Justice
GENE E. FRANCHINI, Justice
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