JAMES O. BROWNING, District Judge.
In 1988, the San Miguel Board of County Commissioners held a meeting in which closing Arriba Road was discussed. See Minutes From September 10, 1988 Regular Meeting of the Board of Commissioners of San Miguel County at 1, filed June 10, 2011 (Doc. 91-2); Plaintiff's Response
The Esquibels are the parents of M. Esquibel. See, e.g., Complaint in Intervention for Wrongful Death and Negligence ¶ 2, at 2, filed August 19, 2010 (Doc. 1-2) ("Complaint"); Memorandum of Points and Authorities in Support of Defendant Board of County Commissioners of the County of San Miguel's Motion for Summary Judgment ¶ 1, at 2, filed May 25, 2011 (Doc. 87) ("San Miguel County's Memo.") (setting forth this fact); Response to San Miguel County's Memo. ¶ 1, at 4 (not controverting this fact). On January 15, 2009, M. Esquibel, was traveling east on a road leading to railroad crossing DOT NO. 013655C in San Miguel County. See, e.g., Complaint ¶ 8, at 3; Defendant City of Las Vegas' Motion for Summary Judgment ¶ 1, at 3, filed March 1, 2011 (Doc. 63) ("City of Las Vegas' Motion") (setting forth this fact); Plaintiffs' Response in Opposition to Defendant City of Las Vegas' Motion for Summary Judgment at 6, filed March 14, 2011 (Doc. 69) ("Response to City of Las Vegas' Motion") (not controverting this fact); San Miguel County's Memo. ¶ 2, at 2 (setting forth this fact); Response to San Miguel County's Memo. ¶ 2, at 4 (not controverting this fact). M. Esquibel was on his way to the waste transfer station that the City of Las Vegas owned. See, e.g., Complaint ¶¶ 11, 13-14, at 3; City of Las Vegas' Motion ¶ 2, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact). At approximately 3:51 p.m. on January 15, 2009, a train owned by Defendant The National Railroad Passenger Company (Amtrak), traveling north on railroad tracks that Defendant Burlington Northern Santa Fe Railway Company (BNSF) owned, collided with the vehicle that M. Esquibel drove. See, e.g., Complaint ¶¶ 8-10, 15-16, 20-21, at 3, 4; City of Las Vegas' Motion ¶ 3, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact); San Miguel County's Memo. ¶ 3, at 2 (setting forth this fact); Response to San Miguel County's Memo. ¶ 3, at 4 (not controverting this fact). This collision resulted in M. Esquibel's death. See, e.g., Complaint ¶¶ 9, 20, at 3, 4; City of Las Vegas' Motion ¶ 4, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact); San Miguel County's Memo. ¶ 3, at 2 (setting forth this fact); Response to San Miguel County's Memo. ¶ 3, at 4 (not controverting this fact). The collision occurred at the railroad crossing at Arriba Road, which leads directly to the City of Las Vegas' waste transfer station.
The portion of the road upon which M. Esquibel was traveling when the collision occurred was not located in the City of Las Vegas. See, e.g., Complaint ¶¶ 8, 16, at 3; Affidavit of Carlos Ortiz ¶ 5, at 2 (executed March 1, 2011), filed March 1, 2011 (Doc. 63-1, Ex. A). The portion of the road upon which M. Esquibel was traveling when the collision occurred was not constructed by the City of Las Vegas. See Ortiz Aff. ¶ 5, at 2; Affidavit of Paul W. Gray ¶ 7, at 4 (executed July 14, 2010), filed March 1, 2011 (Doc. 63-1, Ex. B). The portion of the road upon which M. Esquibel was traveling when the collision occurred was not owned, maintained, or operated by the City of Las Vegas. See Complaint ¶ 12, at 3; Ortiz Aff. ¶¶ 5-6, at 2; Gray Aff. ¶¶ 6-7, at 2. The portion of the road upon which M. Esquibel was traveling when the collision occurred is owned by Defendant New Mexico Department of Transportation ("NMDOT"). See Gray Aff. ¶ 7, at 2. The City of Las Vegas has never had an agreement with the New Mexico State Highway Department or NMDOT
In deciding where to place the waste transfer station, City of Las Vegas councilors acknowledged a detriment about the "Franken site," because the City of Las
In applying to the State for a permit for the waste transfer station, the City of Las Vegas had to certify that the routes used to gain access to the waste transfer station were suitable. See Application at 12. The City of Las Vegas, in its Application, stated that it was attaching a road suitability letter from the New Mexico State Highway and Transportation Department, yet no such letter was attached. See Application, Ex. F. The map attached to the Application shows that the only access to and from the facility is over the railroad tracks.
At the time of the accident involving M. Esquibel, there was no agreement between San Miguel County and NMDOT, or any other entity, whereby San Miguel County had assumed the responsibility to maintain Arriba Road. See Affidavit of Les Montoya ¶ 6, at 1 (sworn May 18, 2011), filed May 25, 2011 (Doc. 87-2). At the time of the accident, San Miguel County was not in receipt of monies from NMDOT, or from any other entity for the purpose of maintaining Arriba Road. See Montoya Aff. ¶ 7, at 2.
San Miguel County can produce no evidence of what was done to ensure that the public was safe during its abandonment.
Defendant San Miguel County's Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, 7, at 4, 6.
On February 12, 2009, Plaintiff Victoria Stark-Romero filed a Complaint for Wrongful Death and Negligence against BNSF Railway and Defendants National Railroad Passenger Company d/b/a Amtrak, BNSF, City of Las Vegas, San Miguel County, the New Mexico Department of Transportation, and Ride to Pride at the Barn, LLC, in the Fourth Judicial District Court in San Miguel County, New Mexico. See Stark-Romero v. Nat'l R.R. Passenger Co., No. CIV 09-0295 MV/RLP, Complaint for Wrongful Death and Negligence, filed March 26, 2009 (Doc. 1-1). On March 26, 2009, the Defendants in that action removed Stark-Romero v. National Railroad Passenger Co. to the United States District Court for the District of New Mexico. See Stark-Romero v. Nat'l R.R. Passenger Co., No. CIV 09-0295 MV/RLP, Notice of Removal, filed March 26, 2009 (Doc. 1) ("First Notice of Removal"). Stark-Romero filed a Motion to Remand on April 20, 2009, alleging that the First Notice of Removal was procedurally defective, because it did not establish that all Defendants served at the time of removal consented to the removal, given that San Miguel County did not sign the notice of removal or file an independent consent to removal. See Stark-Romero v. Nat'l R.R. Passenger Co., No. 09-cv-0295-MV-RLP, Motion to Remand and Memorandum in Support Thereof at 4-5, filed April 20, 2009 (Doc. 14) ("Stark-Romero's Motion to Remand"). On March 31, 2010, the Honorable Martha Vázquez, then-Chief Judge,
On July 19, 2010, E. Esquibel and H. Esquibel filed their Complaint in Intervention for Wrongful Death and Negligence in the Fourth Judicial District, County of San Miguel, in which they intervened in the action Stark-Romero filed. See Complaint in Intervention for Wrongful Death and Negligence in the Fourth Judicial District, filed August 19, 2010 (Doc. 1-2). On August 19, 2010, BNSF Railway and Amtrak removed the action. See Doc. 1.
Stark-Romero and the Esquibels filed the Plaintiffs' Motion to Remand and Memorandum in Support Thereof, filed September 9, 2010 (Doc. 19), and the Motion Requesting that this Matter be Returned to the Previously Assigned Judge, filed October 10, 2010 (Doc. 32), which requested the Court to transfer the matter to Judge Vázquez. On January 12, 2011, 763 F.Supp.2d 1231 (D.N.M.2011) the Court filed a Memorandum Opinion and Order, denying the request to transfer the case to Judge Vázquez, remanding Stark-Romero's claims, but denying the Esquibels' request that the Court remand their claims. See Doc. 53.
On March 1, 2011, the City of Las Vegas filed Defendant City of Las Vegas' Motion for Summary Judgment. See Doc. 63. The City of Las Vegas argues that it is entitled to judgment on the Esquibels' Complaint against it, because it did not construct, and does not own, maintain, or operate, the road or the railroad crossing where the accident occurred, and because business owners and proprietors do not, as a matter of law, have a duty to ensure safe ingress and egress to their invitees over property not owned or controlled by the owner or proprietor. The City of Las Vegas argues that it is immune from liability pursuant to the New Mexico Tort Claims Act, ("NMTCA"), NMSA 1978, §§ 41-4-2 through 41-4-30.
On March 14, 2011, the Esquibels filed the Plaintiffs' Response in Opposition to Defendant City of Las Vegas' Motion for Summary Judgment. See Doc. 69. The Esquibels argue that the City of Las Vegas had a duty to provide its business invitees with a safe means of ingress and egress. The Esquibels also argue that the City of Las Vegas exercised control over maintenance of the road leading up to the crossing. The Esquibels further assert that they have presented more than sufficient evidence with which to overcome a motion for summary judgment; however, they state that, should the Court seek additional evidence, the Court should dismiss the City of Las Vegas' motion as premature. They argue that the facts necessary to refute the City of Las Vegas' claims are in the City of Las Vegas' sole possession. The Esquibels thus ask the Court to deny the City of Las Vegas' motion or, in the alternative, to continue the motion until the parties have had a reasonable opportunity to conduct discovery.
On March 14, 2011, the Esquibels filed the Rule 56F Affidavit of Maria E. Touchet (executed March 14, 2011) (Doc. 70). In her affidavit, Ms. Touchet states that facts necessary to refute the City of Las Vegas' motion are in its sole possession, and that the Esquibels have sent written discovery requests and have requested depositions of the City of Las Vegas' employees, but, as of that date, the City of Las Vegas had not responded to the written discovery and had not allowed any of the requested depositions. She states that the Esquibels intend to use discovery tools to reveal information necessary to fully oppose the City of Las Vegas' motion, such as when the waste transfer station was first considered, what consideration was given to ingress and egress to the facility from the time it was first considered, and whether the City of Las Vegas developed
On March 28, 2011, the City of Las Vegas filed Defendant City of Las Vegas's Reply in Further Support of Motion for Summary Judgment. See Doc. 73. The City of Las Vegas argues that it has established that it does not own Rio Arriba Road. The City of Las Vegas also argues that it is immune from liability under NMTCA. The City of Las Vegas asserts that the Esquibels' allegedly disputed facts are not material. It states that the Court should deny the Esquibels' request that it allow them to continue discovery.
On May 25, 2011, San Miguel County filed Defendant Board of County Commissioners of the County of San Miguel's Motion for Summary Judgment. See Doc. 86. The same day, San Miguel County filed its Memorandum of Points and Authorities in Support of Defendant Board of County Commissioners of the County of San Miguel's Motion for Summary Judgment. See Doc. 87. San Miguel County argues that the undisputed material facts are that it neither owned, constructed, or maintained the road on which M. Esquibel was traveling as he approached the railroad crossing where the collision occurred. It argues that it thus owed no duty to M. Esquibel to maintain the road and that, because it owed no duty, the Esquibels' claim that it was negligent fails.
On June 10, 2011, the Esquibels filed the Plaintiff's Response in Opposition to Defendant San Miguel County's Motion for Summary Judgment. See Doc. 91. The Esquibels argue that San Miguel County had a duty to construct, maintain, or regulate Arriba Road in such a manner as to protect the traveling public from foreseeable harm. They also argue that they have presented more than sufficient evidence with which to overcome a motion for summary judgment, but state that, should the Court seek additional evidence, the Esquibels ask the Court to dismiss San Miguel County's motion as premature under rule 56(d).
Also on June 10, 2011, the Esquibels filed the Rule 56(d) Affidavit of Maria E. Touchet. See Doc. 92. Ms. Touchet states that the stage of discovery in this case renders a determination of whether facts are undisputed premature, because the Esquibels have not had the opportunity to discover information essential to their opposition. She states that the Esquibels have presented sufficient evidence with which to overcome a motion for summary judgment, but states that, should the Court seek additional evidence, the Esquibels ask the Court to dismiss San Miguel County's motion as premature. She states that San Miguel County has prevented the Esquibels from conducting necessary and essential discovery, and thus they will have been denied to opportunity in which to fully respond to San Miguel County's motion.
On July 5, 2011, the Esquibels filed the Supplemental Rule 56(d) Affidavit of Maria E. Touchet (sworn July 5, 2011). See Doc. 111 ("Supplemental Affidavit"). In her affidavit, Ms. Touchet reiterates the information contained in her earlier affidavit regarding the City of Las Vegas. She also adds the statement: "Additionally, Plaintiffs are entitled to inspect the entire `Arriba Road Railroad Crossing File' identified in the `xc' line of the February 12, 2009 letter from Mayor Marquez produced in this case as NMDOT 00021-22, attached hereto as Exhibit A." Supplemental Affidavit ¶ 11, at 4. Ms. Touchet also states that the "Plaintiffs have requested production of this file, but as of today's date, the file has not yet been produced." Supplemental Affidavit ¶ 12, at 4.
On July 5, 2011, the City of Las Vegas filed the Defendant City of Las Vegas's Motion to Strike Supplemental Rule 56(d)
On July 12, 2011, San Miguel County filed its Reply to Plaintiff's Response in Opposition to Defendant San Miguel County's Motion for Summary Judgment. See Doc. 125. San Miguel County argues that it has carried its burden of establishing a prima-facie case that there is no genuine issue of material fact and that it is entitled to the entry of summary judgment in its favor, as a matter of law. It argues that the Esquibels have not demonstrated that there is a genuine issue of material fact. It also argues that the additional discovery the Esquibels seek will not create a genuine issue of material fact.
At the hearing on July 6, 2011, the Esquibels stated that the purpose of the supplemental affidavit was to point out that there was another file, which they had requested. They stated that they believe that the Federal Rules of Civil Procedure allow the Court to consider evidence up until the time of a hearing on a summary judgment motion and thus argue that the supplemental affidavit was not untimely. They state, however, that, for all intents and purposes, the supplemental affidavit is moot, because the City of Las Vegas has produced the file. The Esquibels stated that they did not wish to file a written response to the motion and that they did not oppose the Court ruling on the motion based on oral arguments.
At the hearing on July 14, 2011, the Court told the Esquibels:
Transcript of Hearing at 42:3-43:17 (taken July 14, 2011) (Court, Touchet) ("Tr.").
The Court asked NMDOT: "So when the City and the County come in and say, the State [of New Mexico] says it's their property, they own it, whatever liability they have it, you don't disagree with that? Is that correct. . . ." Tr. at 27:22-25 (Court). NMDOT responded that the Court's statement was correct. See Tr. at 28:1 (Creecy). The Court asked San Miguel County: "Do you think if I allowed discovery against the County, are you basically telling me there is no institutional memory there, so I'm not going to find out, and neither is Ms. [Touchet] going to find out a lot more about this issue?" Tr. at 21:21-24 (Court) San Miguel County responded: "In terms of ownership of the road, to my knowledge, there may not be a great deal more to learn." Tr. at 21:25-22:1 (Waters). The Court asked San Miguel County about Arriba Road.
Tr. at 5:23-6:17 (Court, Waters).
Rule 56(c) states that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is
The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Rule 56 provides that "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his [or her] pleadings." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) ("However, `once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.'" (citation omitted)). Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). "In responding to a motion for summary judgment, `a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'" Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
To survive summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv.
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
The NMTCA provides governmental entities with immunity from tort liability unless the NMTCA specifically waives that immunity. See NMSA 1978, § 41-4-4 ("A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act and by Sections 41-4-5 through 41-4-12 NMSA 1978."); Weinstein v. City of Santa Fe, 121 N.M. 646, 649, 916 P.2d 1313, 1316 (1996); Abalos v. Bernalillo County District Attorney's Office, 105 N.M. 554, 557, 734 P.2d 794, 797 (Ct.App.), cert. quashed, 106 N.M. 35, 738 P.2d 907 (1987). The NMTCA waives immunity "for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any . . . roadway." NMSA 1978, § 41-4-11A. The NMTCA also waives immunity for "damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings." NMSA 1978, § 41-4-6. "Liability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." NMSA 1978, § 41-4-2A. See Eckhardt v. Charter Hosp. of Albuquerque, Inc., 124 N.M. 549, 559, 953 P.2d 722, 732 (Ct.App.1997) ("Plaintiff's negligence claims must be premised on a duty that Charter owed to Plaintiff, and it is for the court to determine as a matter of law whether such a duty exists." (internal citation omitted)); Johnson v. Sch. Bd. of Albuquerque Pub. Sch. Sys., 114 N.M. 750, 845 P.2d 844 (Ct.App.1993) ("Duty or responsibility is not provided in the Tort Claim Act; it must be found outside the Act either at common law or by statute."). "Where there is no duty, there can be no negligence." Sw. Pub. Serv. Co. v. Artesia Alfalfa Growers' Ass'n, 67 N.M. 108, 117, 353 P.2d 62, 68 (1960) (citation omitted). See Herrera v. Quality Pontiac, 134 N.M. 43,
The Court will deny the City of Las Vegas' motion to strike and will deal with the substance of Ms. Touchet's original rule 56(d) affidavit and supplemental rule 56(d) affidavit regarding the City of Las Vegas in the legal analysis of its Memorandum Opinion and Order. The Court will grant the City of Las Vegas' motion for summary judgment, because it did not have a duty to maintain the roadway where the collision occurred, and because it did not have a duty to ensure M. Esquibel's safe ingress and egress to and from its waste transfer facility. The Court will deny the Esquibels' request that it dismiss the City of Las Vegas' motion as premature and allow discovery against the City of Las Vegas to continue, because the Ms. Touchet's rule 56(d) affidavits do not identify with specificity probable facts which are not available and which are relevant to the motion. The Court will deny San Miguel County's request for summary judgment, because it does not find, as a matter of law, that San Miguel County did not owe a duty to the Esquibels or to M. Esquibel. Because the Court will deny San Miguel County's request for summary judgment, it need not address the Esquibels' request that it find the motion for summary judgment premature and allow discovery to continue.
The Court will deny the City of Las Vegas' motion to strike the supplemental affidavit. The City of Las Vegas argues that Ms. Touchet's supplemental rule 56(d) affidavit was neither filed on time nor approved by the Court. The only difference between Ms. Touchet's original affidavit and supplemental affidavit was the addition of two paragraphs which pertain to an Arriba Road railroad crossing file, which the City of Las Vegas has now located and produced to the Esquibels. Ms. Touchet stated at the hearing on July 6, 2011, that her supplemental affidavit is now moot. "Motions to strike . . . are generally a disfavored and drastic remedy." Begay v. Pub. Serv. Co. of N.M., 710 F.Supp.2d 1161, 1185 (D.N.M.2010) (Browning, J.) (quoting Sierra Club v. Tri-State Generation & Transmission Ass'n, Inc., 173 F.R.D. 275, 285 (D.Colo.1997)). The Court will deny the City of Las Vegas' motion to strike the supplemental affidavit, because, although the supplemental affidavit was not timely filed, Ms. Touchet has represented that the additional material in the supplemental affidavit is now moot. The Court will consider the material in the supplemental affidavit and the material in the original affidavit in determining whether it should dismiss the City of Las Vegas' motion as premature and allow more discovery. Cf. Conagra Trade Group, Inc. v. Fuel Exploration, LLC, 636 F.Supp.2d 1166 (D.Colo.2009) ("The Court denies ConAgra's request to "strike" the affidavit because, although the affidavit contains some impermissible, self-serving statements, the Court has excluded offending material in making its ruling." (citation omitted)).
The City of Las Vegas argues that, under the NMTCA, it is immune from liability for any tort, except as waived in the NMTCA. It argues that the negligent maintenance waiver in NMSA 1978, § 41-4-11A does not apply to it, because it is undisputed that the portion of the road upon which M. Esquibel was traveling was not in the City of Las Vegas, because the City of Las Vegas did not construct, does not own, maintain or operate that portion of the road, and because the City of Las Vegas does not own or operate the railroad tracks that cross the road where the collision occurred. The City of Las Vegas also argues that it did not have a duty to ensure M. Esquibel's safe ingress and egress to and from the waste transfer facility. It argues that, because the Esquibels have not alleged that the alleged unsafe condition of the road and crossing arose on or from the waste transfer facility, the NMTCA's waiver of immunity for the City of Las Vegas' operation and maintenance of the facility is inapplicable.
The Esquibels argue that the City of Las Vegas had a duty to provide its business invitees with a safe means of ingress and egress. The Esquibels argue that the physical boundaries of the land do not limit a landowner's duty to avoid creating or permitting an unsafe condition or activity on its premises. The Esquibels argue that M. Esquibel was clearly a foreseeable direct victim and that the City of Las Vegas owed a duty to him. They argue that there are questions of fact whether the City of Las Vegas breached that duty, because it was aware of the safety risk to the public and potential liability exposure related to locating its facility next to the railroad tracks, and because the Esquibels do not have information about what the City of Las Vegas did to investigate and to mitigate the risk to the traveling public. The Esquibels also argue that there are questions of fact whether the City of Las Vegas exercised control over the maintenance of the road leading up to the crossing and of the crossing.
The NMTCA waives immunity "for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any . . . roadway." NMSA 1978, § 41-4-11A. "Liability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." NMSA 1978, § 41-4-2A. "Where there is no duty, there can be no negligence." Sw. Pub. Serv. Co. v. Artesia Alfalfa Growers' Ass'n, 67 N.M. at 117, 353 P.2d at 68 (citation omitted).
In Bierner v. City of Truth or Consequences, the Court of Appeals of New Mexico addressed "whether the trial court erred in granting summary judgment in favor of Defendant City of Truth or Consequences." 136 N.M. at 198, 96 P.3d at 323. A Domino's Pizza delivery truck was parked in a restaurant's lot on a road in Truth or Consequences, New Mexico. See 136 N.M. at 198, 96 P.3d at 323.
136 N.M. at 198, 96 P.3d at 323. The City of Truth of Consequences moved for summary judgment, arguing that it "neither constructed, owned, nor maintained the road; that the City had no agreement with the Highway Department to participate in maintenance of the road; that installation of the barrier was not a maintenance function; and that immunity was not waived under the TCA." 136 N.M. at 198, 96 P.3d at 323. The district court dismissed all claims against the City of Truth of Consequences. See 136 N.M. at 198, 96 P.3d at 323. The Court of Appeals of New Mexico stated "[w]hether the City had either a statutory or a common law duty to maintain the road is dispositive on the issue of immunity." 136 N.M. at 200, 96 P.3d at 325.
136 N.M. at 200-01, 96 P.3d at 325-26 (internal citations omitted). The Court of Appeals of New Mexico disagreed with the plaintiffs that the facts they raised were sufficient to withstand summary judgment. See 136 N.M. at 201, 96 P.3d at 326.
136 N.M. at 201-02, 96 P.3d at 326-27 (internal citations omitted).
The City of Las Vegas did not have a duty to maintain Arriba Road. The portion of the road upon which M. Esquibel was traveling when the collision occurred was not located in the City of Las Vegas. See, e.g., Complaint ¶¶ 8, 16, at 3; Ortiz Aff. ¶ 5, at 2. The portion of the road upon which M. Esquibel was traveling when the collision occurred was not constructed by the City of Las Vegas. See Ortiz Aff. ¶ 5,
Furthermore, at the hearing on July 14, 2011, the Esquibels informed the Court that their only argument concerning the City of Las Vegas revolves around NMSA 1978, § 41-4-6.
Tr. at 42:3-43:17 (Court, Touchet). The Esquibels thus appear to have conceded that the negligent maintenance waiver of immunity set forth in NMSA 1978, § 41-4-11A does not apply.
The NMTCA waives immunity for "damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings." NMSA 1978, § 41-4-6. "Section 41-4-6 . . . contemplate[s] waiver of immunity where due to the alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government." Castillo v. Santa Fe County, 107 N.M. 204, 205, 755 P.2d 48, 49 (1988) (emphasis added).
The Esquibels rely on Mitchell v. C & H Transportation Co., Inc., 90 N.M. 471, 565 P.2d 342 (1977), and Bober v. New Mexico State Fair, 111 N.M. 644, 808 P.2d 614 (1991), in support of their argument that the City of Las Vegas owed M. Esquibel a duty to ensure his safe ingress and egress from the waste transfer facility. In Mitchell v. C & H Transportation Co., Inc., Supreme Court of New Mexico stated that it approved of the reasoning of a case in which the Supreme Court of Illinois "held that the rule that an occupant or owner of premises owes to an invitee a duty to use ordinary care to have the premises in a reasonably safe condition includes the duty to provide an invitee with reasonably safe means of ingress and egress, both within the confines of the premises owned or controlled by the inviter, and, `within limitations
In Bober v. New Mexico State Fair, the Supreme Court of New Mexico considered "whether a landowner's duty to avoid creating or permitting an unsafe condition or activity on the premises is limited by the physical boundaries of the land." 111 N.M. at 646, 808 P.2d at 616. The Supreme Court stated that, in Mitchell v. C & H Transportation Co. and in Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36 (1990), it ruled "that the landowner's duty is not so limited" and that "the owner . . . may be held liable for injuries sustained by someone beyond the boundaries of the land if those injuries proximately result from the owner's breach of duty to exercise ordinary care to avoid creating an unreasonable risk of harm to that person." 111 N.M. at 646, 808 P.2d at 616. The Supreme Court stated:
111 N.M. at 648-49, 808 P.2d at 618-19 (footnote omitted).
Subsequent opinions from the Supreme Court of New Mexico and Court of Appeals of New Mexico have discussed these cases. In Cobos v. Dona Ana County Housing Authority, 126 N.M. 418, 970 P.2d 1143 (1998), the Supreme Court of New Mexico discussed Bober v. New Mexico State Fair. See 126 N.M. at 423, 970 P.2d at 1147. The Supreme Court stated:
126 N.M. at 423, 970 P.2d at 1147 (emphasis added).
In Stetz v. Skaggs Drug Centers, Inc., 114 N.M. 465, 840 P.2d 612 (Ct.App.1992), the Court of Appeals of New Mexico found that Skaggs Drug Centers, Inc. ("Skaggs") had no duty to the plaintiff, stating that "[e]xtending a duty beyond the owner or possessor's premises for hazards not on the premises or arising on or from the premises makes the existence of duty entirely unpredictable." 114 N.M. at 468-69, 840 P.2d at 615-16. The Court of Appeals of New Mexico discussed Bober v. New Mexico State Fair and Mitchell v. C & H Transportation Co. See 114 N.M. at 467-68, 840 P.2d at 614-15.
114 N.M. at 467-69, 840 P.2d at 614-16.
Although the Esquibels rely on Mitchell v. C & H Transportation Co., Inc., and Bober v. New Mexico State Fair, these cases do not stand for the proposition that the City of Las Vegas owed M. Esquibel a duty. The Supreme Court of New Mexico has stated that Bober v. New Mexico State Fair stands for the proposition that, if a property owner permits a dangerous condition to exist on his or her premises, and that dangerous condition causes an injury off the premises, the property owner can be held liable for the injury. See Cobos v. Dona Ana Cnty. Housing Auth., 126 N.M. at 423, 970 P.2d at 1147 ("Likewise, in Bober v. New Mexico State Fair, the State Fair's ownership and control of a concert hall imposed duties to prevent unsafe conditions on the property that led to injuries on property adjacent to the public property.") (emphasis added). Furthermore, the Court of Appeals of New Mexico has subsequently discussed Mitchell v. C & H Transportation Co., Inc., a case from 1977, and stated that the "rationale of stare decisis requires that judicial opinions serve the broader societal interest in the predictable application of legal rules. Extending a duty beyond the owner or possessor's premises for hazards not on the premises or arising on or from the premises makes the existence of duty entirely unpredictable." Stetz v. Skaggs Drug Ctrs., Inc., 114 N.M. at 469, 840 P.2d at 616. The Court agrees with the Court of Appeals of New Mexico in Stetz v. Skaggs Drug Ctrs., Inc. While the Supreme Court of New Mexico's language in Mitchell v. C & H Transportation Co., Inc. could be read to impose a duty on all landowners for any possible ingress and egress of the property, the Court does not believe that the Supreme Court of New Mexico would go that far, because almost all roads are connected, and the duty would almost have no limits. The New Mexico law is already liberal in protecting people who are traveling to a property owner's land, but there is no indication that the duty is without limits. The Court does not believe the Supreme Court of New Mexico would find New Mexico law imposes no limits on duty. The Court believes that Stetz v. Skaggs Drug Ctrs., Inc. represents what the Supreme Court of New Mexico would do, given the Supreme Court's interpretation of Bober v. New Mexico State Fair in Cobos v. Dona Ana County Housing Authority.
Furthermore, Stetz v. Skaggs Drug Centers, Inc. is in line with the Restatement (Second) of Torts.
Finally, cases from other jurisdictions employ a test similar to the Court of Appeals employs in Stetz v. Skaggs Drug Centers, Inc. See Jump v. Bank of Versailles, 586 N.E.2d 873 (Ind.App.1992) ("[S]ometimes a business owner may owe a duty to a member of the general public injured off of its business premises when the owner has maintained a hazardous condition or conducted some activity on the premises beyond the mere fact of operating the business, which causes an off-premises injury. . . ."); Galperina v. Mandelbaum, 27 A.D.3d 520, 813 N.Y.S.2d 122 (N.Y.App.Div.2006) ("Generally, an owner of property owes no duty of care to others to warn them of, or protect them from, a defective or dangerous condition on neighboring premises[.] The defendant had no duty to warn the plaintiff of the alleged defective condition on his neighbor's property.") (internal citation omitted); Robinson v. Johnson, No. LE-2305-3, 1999 WL 58607, at * (Va.Cir.Ct. Jan. 19, 1999) (stating that "[t]he accident occurred off the premises on a public street in Richmond," and that "[a]lthough a tavern owner would owe a common law duty to its customers to use reasonable care for their safety while on the premises, that duty does not extend to protection against the negligent acts of a third party which occur away from the owner's property").
The Court thus believes that, in New Mexico, property owners have "a duty to refrain from creating or permitting conditions on such property that will foreseeably lead to an unreasonable risk of harm to others beyond the property's borders." Stetz v. Skaggs Drug Ctrs., Inc., 114 N.M. at 468, 840 P.2d at 615 (emphasis added). See Cobos v. Dona Ana Cnty. Housing Auth., 126 N.M. at 423, 970 P.2d at 1147 ("[I]n Bober v. New Mexico State Fair, the State Fair's ownership and control of a concert hall imposed duties to prevent unsafe conditions on the property that led to injuries on property adjacent to the public property.") (emphasis added); Williams v. Cent. Consol. Sch. Dist., 124 N.M. 488, 952 P.2d 978 (Ct.App.1997) ("Under modern principles of tort law, the owner or occupier of the premises has a duty to visitors of reasonable care to prevent or correct dangerous conditions on the premises." (citing Bober v. New Mexico State Fair, 111 N.M. at 647-51, 808 P.2d at 617-21) (emphasis added)). In Johnson v. School Board of Albuquerque
114 N.M. at 754, 845 P.2d at 848 (emphasis added) (citation omitted). Under this interpretation of New Mexico law, the City of Las Vegas did not have a duty to prevent an unsafe or dangerous condition that might exist upon property outside the waste transfer facility. See Stetz v. Skaggs Drug Ctrs., Inc., 114 N.M. at 468-69, 840 P.2d at 615-16 ("Extending a duty beyond the owner or possessor's premises for hazards not on the premises or arising on or from the premises makes the existence of duty entirely unpredictable. For these reasons, Skaggs had no duty to plaintiff in this case.").
In Johnson v. School Board of Albuquerque Public School System, the plaintiff appealed the district court's entry of summary judgment in favor of the Defendant School Board of Albuquerque Public School System ("APS"). 114 N.M. at 751, 845 P.2d at 845. The plaintiff sought damages for injuries her daughter—Dawn Johnson—suffered when she was allegedly struck by a vehicle as she was leaving Manzano High School, in Albuquerque, New Mexico. See 114 N.M. at 751, 845 P.2d at 845. "The parties focus[ed] their arguments on appeal on the following issue: whether the immunity granted under the Tort Claims Act, NMSA 1978, Sections 41-4-1 through -29 (Repl. Pamp. 1989), has been waived under Section 41-4-11 of that Act pertaining to maintenance of streets," but the Court of Appeals of New Mexico stated that "the dispositive issue in deciding the waiver question [wa]s whether APS had a responsibility at all to maintain a crosswalk and accompanying signs and signals in front of the school." 114 N.M. at 751, 845 P.2d at 845.
114 N.M. at 751, 845 P.2d at 846. The Court of Appeals of New Mexico stated that it could not conclude that immunity
114 N.M. at 753-54, 845 P.2d at 847-48. The Court of Appeals found that "APS had no responsibility for maintaining the crosswalk and accompanying signs and signals
The undisputed facts demonstrate that there was not an unsafe, dangerous, or defective condition on the waste transfer facility that caused M. Esquibel's injuries. On January 15, 2009, M. Esquibel, was traveling east on a road leading to railroad crossing DOT NO. 013655C in San Miguel County. See, e.g., Complaint ¶ 8, at 3; City of Las Vegas' Motion ¶ 1, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact); San Miguel County's Memo. ¶ 2, at 2 (setting forth this fact); Response to San Miguel County's Memo. ¶ 2, at 4 (not controverting this fact). M. Esquibel was on his way to the waste transfer station that the City of Las Vegas owned. See, e.g., Complaint ¶¶ 11, 13-14, at 3; City of Las Vegas' Motion ¶ 2, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact). At approximately 3:51 p.m. on January 15, 2009, a train owned by Amtrak, traveling north on railroad tracks that BNSF Railway Company owned, collided with the vehicle that M. Esquibel drove. See, e.g., Complaint ¶¶ 8-10, 15-16, 20-21, at 3, 4; City of Las Vegas' Motion ¶ 3, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact); San Miguel County's Memo. ¶ 3, at 2 (setting forth this fact); Response to San Miguel County's Memo. ¶ 3, at 4 (not controverting this fact). This collision resulted in M. Esquibel's death. See, e.g., Complaint ¶¶ 9, 20, at 3, 4; City of Las Vegas' Motion ¶ 4, at 3 (setting forth this fact); Response to City of Las Vegas' Motion at 6 (not controverting this fact); San Miguel County's Memo. ¶ 3, at 2 (setting forth this fact); Response to San Miguel County's Memo. ¶ 3, at 4 (not controverting this fact). The collision occurred at the railroad crossing at Arriba Road, which leads directly to the City of Las Vegas' waste transfer station. See Complaint ¶ 9, at 3; Application at 12, Ex. F; San Miguel County's Memo. ¶ 4, at 3 (setting forth this fact); Response to San Miguel County's Memo. ¶ 4, at 4-5 (not controverting this fact). The undisputed facts establish that M. Esquibel was on Arriba Road, on his way to the waste transfer station that the City of Las Vegas owned, when the collision occurred, but there is no evidence and the undisputed facts do not establish that a condition on the property that the City of Las Vegas owns—the facility—caused M. Esquibel's injuries. Instead, a condition which is not part of the property that the City of Las Vegas owns—the railroad crossing—is the condition that caused the M. Esquibel's injuries. As in Johnson v. School Board of Albuquerque Public School System, where the Court of Appeals of New Mexico found that APS had no responsibility for maintaining the crosswalk, and accompanying signs and signals in front of the school, and distinguished Schleft v. Board of Education, where it had waived immunity under NMSA 1978, § 41-4-6, because, unlike Schleft v. Board of Education, the "alleged dangerous conditions [were] clearly . . . outside the school grounds," 114 N.M. at 754, 845 P.2d at 848, the alleged dangerous condition of the railroad crossing is outside of the facility's grounds. Because the railroad crossing, which is the condition that caused M. Esquibel's injuries, is outside the facility's grounds, the waiver of immunity in NMSA 1978, § 41-4-6 does not apply. See Stetz v. Skaggs Drug Ctrs., Inc., 114 N.M. at 468-69, 840 P.2d at 615-16 ("Extending a duty beyond the owner or possessor's premises for hazards not on the premises or arising on or from the premises makes the existence of duty entirely unpredictable. For these reasons, Skaggs had no duty to plaintiff in this case.").
The Court will grant the City of Las Vegas' motion for summary judgment.
The Esquibels argue that they have presented more than sufficient evidence with which to overcome the City of Las Vegas' motion for summary judgment. They state, however, that should the Court seek additional evidence, it should dismiss the City of Las Vegas' motion as premature. They assert that, at the date of filing, none of the depositions that they have requested have taken place. They also assert that the facts necessary to refute the City of Las Vegas' claims are in its sole possession. In her rule 56(d) affidavits, Ms. Touchet asserts that the facts necessary to refute the City of Las Vegas' claims are in its sole possession. Ms. Touchet states that the Esquibels intend to use discovery tools to reveal information necessary to fully oppose the motion, including information regarding: (i) when the waste transfer station was first considered, and all activity, meetings, analysis, discussions, or other documents generated during its consideration, development, approval, and implementation; (ii) what consideration was given to ingress and egress to the facility, especially to the railroad crossing; (iii) a description of all activity generated during its consideration, approval, and implementation, which address ingress and egress to the facility; (iv) discovery regarding the city's evaluation of various proposed locations; (v) whether there was a joint-use agreement for the facility; (vi) any documents mentioning the permitting, planning, and development of the facility; (vii) meeting minutes regarding the review and analysis of the various proposed sites; (viii) who the City of Las Vegas believes owns the road and crossing; (ix) who was responsible for inspection and maintenance of the road and crossing; (x) whether the City of Las Vegas did any inspections or maintenance of the road; (xi) whether the City of Las Vegas received any funding, or had an agreement with the New Mexico State Highway Department or NMDOT, to maintain the road; and (xii) which entity constructed Arriba Road.
The City of Las Vegas argues that the Esquibels' argument that they need discovery of this information ignores that, regardless of what information is obtained, the City of Las Vegas remains entitled to summary judgment. It argues that the decisions the City of Las Vegas' representatives made or did not make concerning the location of and public access to the waste transfer facility do not involve the operation or maintenance of the facility. The City of Las Vegas also argues that the Esquibels have had an opportunity to obtain information, because the City of Las Vegas has answered the discovery requests propounded upon it in the state-court proceeding in Stark-Romero v. Nat'l R.R. Passenger Co. concerning Arriba Road, which confirm, under oath, that the City of Las Vegas does not own or control
Rule 56(d) of the Federal Rules of Civil Procedure states:
Fed.R.Civ.P. 56(d).
To invoke the shelter that rule 56(d) provides, a party must (i) file an affidavit, see Pasternak v. Lear Petroleum Exploration Inc., 790 F.2d at 832-33; (ii) identify the probable facts not available, their relevance, and what steps have been taken to obtain those facts, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522; (iii) explain why facts precluding summary judgment cannot be presented, id.; and (iv) state with specificity how the desired time would enable the nonmoving party to meet its burden in opposing summary judgment, see id. "Rule 56([d]) may not be invoked based solely upon the assertion that discovery is incomplete or that the specific facts necessary to oppose summary judgment are unavailable." Schaefer v. Antill, No., CV 06-0460 JB/ACT, 2007 WL 709046 at *9 (D.N.M. Jan. 31, 2007) (Browning, J.) (citations omitted). "Rule 56([d]) is not a license for a fishing expedition. . . ." Lewis v. Ft. Collins, 903 F.2d 752, 759 (10th Cir.1990).
Ms. Touchet's affidavits do not identify with specificity probable facts which are not available and which are relevant to the City of Las Vegas' motion. NMSA 1978, § 41-4-6 waives immunity for damages "caused by the negligence of public employees while acting within the scope of their duties in the operation or
San Miguel County argues that the NMTCA provides that governmental entities are immune from suit for damages for any tort, except as that immunity is waived in the NMTCA. It argues that the NMTCA provides that the immunity of governmental entities is waived for the negligence of their public employees, acting within the scope of their duties, during the construction and subsequent maintenance of any roadway. San Miguel County argues that it did not construct, own, or maintain the road at the time of the accident involving M. Esquibel, and that NMDOT owned the road at that time. It thus argues that it owed no duty to the Esquibels or to M. Esquibel to maintain the road in a safe condition, and that, because there was no duty, there could be no negligence.
The Esquibels argue that a governmental entity has a duty to exercise ordinary care to protect the general public from foreseeable harm on the highways. They argue that, although San Miguel County has stated that it abandoned Arriba Road, up until 1988 it had assumed responsibility for inspecting and maintaining the road, it did not formally abandon the road in writing, and it was not duly declared by any entity to which the property rights had been vested. See Response at 11-12. The Esquibels argues that the road was not closed, and that San Miguel County did nothing to maintain and inspect the road. The Esquibels also argue, moreover, Arriba Road provides access to the City of Las Vegas' waste treatment facility and that the Esquibels believe that the facility was developed in conjunction with San Miguel County. They thus argue that San Miguel County may have had a duty under a joint-use agreement to provide safe ingress and egress from the facility. The Esquibels assert that San Miguel County had a responsibility to the traveling public to use ordinary care in maintaining its highways and roadways, and that there are questions of fact whether it breached that duty.
The NMTCA waives immunity "for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any . . . roadway." NMSA 1978, § 41-4-11A. "Liability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." NMSA 1978, § 41-4-2A. "Where there is no duty, there can be no negligence." Sw. Pub. Serv. Co. v. Artesia Alfalfa Growers' Ass'n, 67 N.M. at 117, 353 P.2d at 68 (citation omitted).
At the hearing on July 14, 2011, San Miguel County stated that, for purposes of this motion, the Court could assume that it had Arriba Road and maintained Arriba Road before 1988. See Tr. at 5:23-6:17 (Court, Waters). San Miguel County has stated under oath that, in 1988, it abandoned Arriba Road. See Defendant San Miguel County's Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, at 4; Response to San Miguel County's Memo. ¶ 10, at 8 (setting forth this fact); San Miguel County's Reply (not controverting this fact). The New Mexico statute regarding abandonment, vacation, and reverter of public roads, streets and highways states:
NMSA 1978, § 67-2-6 (emphasis added). San Miguel County can produce no evidence as to whom this road was abandoned and can produce no evidence to show if the road was abandoned in favor of any person or entity. See Defendant San Miguel County's Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, at 4; Response to San Miguel County's Memo. ¶ 12, at 8 (setting forth this fact); San Miguel County's Reply at 14 (not controverting this fact). There is thus no evidence "in whom the property . . . right [in Arriba Road] . . . vested." NMSA 1978, § 67-2-6. The evidence in the record therefore indicates that San Miguel County did not properly abandon the road in accordance with NMSA 1978, § 67-2-6. At the hearing on July 14, 2011, San Miguel County conceded that its steps towards abandonment did not comply with the New Mexico statute.
Tr. at 8:25-9:9 (Court, Waters).
San Miguel County argues that, although its abandonment of the Arriba Road did not comply with NMSA 1978, § 67-2-6, it has carried its burden of establishing that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. It argues that it is entitled to summary judgment as a matter of law, because it has established that, at the time of the accident, it had no ownership interest nor operational duties concerning the road, as NMDOT has since come forth and stated that it owned the road. Although the NMDOT "is now stepping forward and saying, [it] owned [the road] since 1981, it should have been on our list of roads to maintain, it apparently wasn't for a period of time, but there is absolutely no doubt as to who owned the road." Tr. at 48:12-16 (Waters).
The ownership of the road remains unclear. On February 4, 2009, after M. Esquibel's accident, the NMDOT sent a letter to Senator Campos explaining that NMDOT believed that Arriba Road was county owned. See Feb. 4, 2009 Letter at 1. A February 5, 2009 NMDOT electronic mail transmission explains that Paul Montoya
Tr. at 8:25-10:15 (Court, Waters).
Furthermore, although San Miguel contends that, because it "had no ownership interest nor operation duties concerning the road at the time of the accident," it is entitled to summary judgment, the plain language of the statute does not contain an "at the time of the accident" caveat, and San Miguel County has not directed the Court's attention to precedent interpreting the statute to mean at the time of the accident. NMSA 1978, § 41-4-11 states only that immunity is waived "for damages. . . caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any . . . roadway." New Mexico courts will not "read into a statute or ordinance language which is not there, particularly if it makes sense as written." Regents of Univ. of N.M. v. N.M. Fed'n of Teachers, 125 N.M. 401, 411, 962 P.2d 1236, 1246 (1998) (quoting Burroughs v. Bd. of Cnty. Com'rs of Bernalillo Cnty., 88 N.M. 303, 306, 540 P.2d 233, 236 (1975)) (internal quotation marks omitted). Because the statute does not contain the "at the time of the accident" language, the Court will not read this language into the statute absent controlling authority suggesting it should do so.
The Court will not find, as a matter of law, that San Miguel County did not owe a duty to the Esquibels or M. Esquibel to keep Arriba Road in a safe condition. For purposes of this motion, the Court will assume that San Miguel County had Arriba Road and maintained Arriba Road before 1988. Furthermore, San Miguel County did not comply with the New Mexico statute in abandoning Arriba Road. Although NMDOT now asserts that it owns the road, it does not appear that, on the record before the Court, the ownership of
Application at 12. The application includes, as exhibit F, a map of the transportation plan for the waste transfer station. The map shows the railroad crossing leading to the waste transfer station. This evidence is not offered to prove the truth of the matter asserted—that "transport trucks will use City and State maintained roads to deliver the solid waste" to the facility, see Application at 12; instead, it is offered to show that the railroad crossing leads directly to the waste transfer station. See United States v. Emmons, 24 F.3d 1210, 1216-17 (10th Cir. 1994) (addressing the argument that "the alleged map should have been excluded as inadmissible hearsay" and stating that, because the evidence was not offered to prove the truth of the matter asserted—"that marijuana was indeed growing on Roger's property"—"the map was plainly admissible for the non-hearsay purpose of demonstrating that Roger had knowledge of the location and quantity of the marijuana plants and of the efforts to treat the ground for their cultivation"). The evidence thus is not hearsay. See Fed.R.Evid. 801. Because the evidence is not hearsay, and because the City of Las Vegas has not directed the Court's attention to evidence controverting the asserted fact, the Court will deem the asserted fact admitted. See D.N.M.LR-Civ. 56.1(b).
The Esquibels also assert: "There can be high volumes of traffic going to and coming from the solid waste transfer station." Response to City of Las Vegas' Motion ¶ 2, at 8 (citing Electronic Mail Transmission From Henry R. Gonzales to Paul W. Gray (dated January 16, 2009), filed March 14, 2011 (Doc. 69-6) ("Jan. 16, 2009 Electronic Mail Transmission")). The City of Las Vegas asserts that the Jan. 16, 2009 Electronic Mail Transmission is hearsay. See City of Las Vegas' Reply at 11-12. The Jan. 16, 2009 Electronic Mail Transmission states: "You are correct, this is the second accident that has occurred at this crossing in the last four months; this crossing leads to the Dump where there can be high volumes of traffic at times." Gonzales Electronic Mail Transmission at 1. Because this evidence is offered to prove the truth of the matter asserted, it is hearsay, and the Court cannot consider it in its Memorandum Opinion and Order. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006) ("Thus, for example, at summary judgment courts should disregard inadmissible hearsay statements ... as those statements could not be presented at trial in any form."). The Court thus will not deem this asserted fact admitted.
The Esquibels assert: "The City's solid waste transfer station is the primary traffic generator for the public using the crossing." Response to City of Las Vegas' Motion ¶ 3, at 8 (citing Electronic Mail Transmission from Paul W. Gray to lyn.hartley@bnsf.com (dated February 6, 2009), filed March 14, 2011 (Doc. 69-7) ("Feb. 6, 2009 Electronic Mail Transmission"). The City of Las Vegas objects to the Feb. 6, 2009 Electronic Mail Transmission as hearsay. See City of Las Vegas' Reply at 11-12. The Feb. 6, 2009 Electronic Mail Transmission states:
Feb. 6, 2009 Electronic Mail Transmission at 1. Because this evidence is offered to prove the truth of the matter asserted, it is hearsay, and the Court will not deem the asserted fact admitted. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d at 1199.
D.N.M.LR-Civ. 56.1(b). Because the Esquibels have not directed the Court's attention to evidence which specifically controverts the City of Las Vegas' asserted facts, the Court will deem these facts admitted. The Court will address the Esquibels' argument that they have not had sufficient opportunity to conduct discovery in its legal analysis.
Minutes at 6. The evidence is not offered to prove the truth of the matters that Garcia asserted at the hearing; instead, it is offered to show knowledge or notice that the site could create liability issues. The Court will consider the evidence and deem the asserted fact admitted for the limited purpose of notice.
The Esquibels assert: "Despite the negatives identified and potential liability related, the Franken Site was chosen as the site for the solid waste transfer station." Response to City of Las Vegas' Motion ¶ 5, at 8 (citing Application). The City of Las Vegas objects to the Application as hearsay. See City of Las Vegas' Reply at 11-12. The Application is an application for a waste transfer station on the Franken site. The evidence is offered to prove the truth of the matter asserted, because it is offered to prove that the Franken site was chosen as the site for the waste transfer station. Because the evidence is offered for the truth of the matter asserted, it is hearsay, and the Court will not deem the Esquibels' assertion admitted.
Response ¶ 6, at 8 (citing Application). The City of Las Vegas objects to the Application as hearsay. See City of Las Vegas' Reply at 11-12. The Application contains a section regarding "the routes that will be used by waste vehicles and the suitability of roads and bridges involved," in which it states that the transport trucks will use "City and State maintained roads to deliver solid waste" and that, most of the time, the transport trucks will be on Interstate 25. Application at 12. The Application also states that "Attachment F ... contains a copy of a road suitability letter." Application at 12. The Esquibels do not offer the Application as evidence of the truth of the matter asserted; instead they offer it to demonstrate that the City of Las Vegas had to certify the routes used to gain access, that the City of Las Vegas did not attach a road suitability letter, and that the map shows that the only access to and from the facility is over the railroad tracks. The Court will thus deem the Esquibels' asserted facts admitted.
Application at 18 (emphasis in original). The evidence is not offered to prove that the facility was bordered by railroad tracks; instead, it is offered to prove what the City of Las Vegas knew and acknowledged that the facility was bordered by railroad tracks. This evidence is thus not hearsay, and the Court will thus deem the Esquibels' asserted fact that the City acknowledged the facility would be bordered by railroad tracks admitted. The evidence is, however, offered to prove that, in applying for a permit for the solid-waste transfer station, the City of Las Vegas was required to locate and operate the facility in a manner that does not create a potential hazard. Because the evidence is offered for the truth of the matter asserted, it is hearsay, and the Court will not deem the Esquibels' assertion that, in applying to the State, the City of Las Vegas was required to locate and operate the facility in a manner that did not create a potential hazard to public health, admitted.
The Esquibels also assert: "The City of Las Vegas would not claim responsibility for the road even though the City's Solid Waste Station is accessed via this route. Following two fatalities at his crossing, personnel from the City of Las Vegas met with other entities to discuss the crossing." Response to City of Las Vegas' Motion ¶¶ 9-12, at 9 (citing Letter from Paul W. Gray to the Honorable Pete Campos (dated February 4, 2009), filed March 14, 2011 (Doc. 69-8) ("Feb. 4, 2009 Letter")). The Feb. 4, 2009 Letter states:
Gray Letter at 1. Because the evidence is offered for the truth of the matter asserted, it is hearsay, and the Court will not deem the Esquibels' assertions admitted.
Response to San Miguel County's Memo. ¶ 1, at 6 (citing Letter from Paul W. Gray to the Honorable Pete Campos (dated February 4, 2009), filed June 10, 2011 (Doc. 91-3) ("Feb. 4, 2009 Letter")); Response to Las Vegas' Motion ¶ 8, at 9 (citing Feb. 4, 2009 Letter). San Miguel County asserts that the letter is unauthenticated and inadmissible hearsay. See San Miguel County's Reply at 6. The City of Las Vegas asserts that the Feb. 4, 2009 Letter is hearsay. See City of Las Vegas' Reply at 11-12.
The United States Court of Appeals for the Tenth Circuit has stated: "We do not require an affidavit to authenticate every document submitted for consideration at summary judgment." Law Co., Inc. v. Mohawk Const. & Supply Co., Inc., 577 F.3d 1164, 1170 (10th Cir.2009). As the Tenth Circuit has stated:
Law Co., Inc. v. Mohawk Const. & Supply Co., Inc., 577 F.3d at 1170 (quoting Fed.R.Evid. 901(a)). Rule 901 provides several illustrations of authentication or identification conforming to the rule's requirements, including: "Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances," and "Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed ..., or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept." Fed.R.Evid. 901(b)(4), (7).
The letter is on letterhead from the NMDOT. The recipient's name and address typed at the top of the letter, and the recipient's name, aligns with the person to whom the letter is addressed. The subject line aligns with the subject matter of the letter. The Court thus believes there is sufficient evidence to demonstrate that the letter is what the Esquibels are asserting it is. See Fed.R.Evid. 901(b). The letter states:
Feb. 4, 2009 Letter at 1. Because the letter is offered to prove the truth of the matter asserted therein, it is hearsay, and the Court will not deem the Esquibels' asserted fact admitted.
The Esquibels also assert: "Prior to the collision that killed Michael Esquibel, no entity took responsibility for inspecting or maintaining Arriba Road.... All agencies involved have liability concerns, which may be why there is a reluctance to claim ownership or maintenance responsibility." Response to City of Las Vegas' Motion ¶¶ 9, 11, at 9 (citing Feb. 4, 2009 Letter); Response to San Miguel County's Memo. ¶¶ 2-3 (citing Feb. 4, 2009 Letter and Exhibits 1-7). Instead of setting forth a broad citation to all the exhibits supporting their summary judgment motion in support of an asserted fact, the Esquibels should direct the Court's attention to specific evidence in the record. It is not the Court's job to scour the Esquibels' exhibits to determine which exhibits may support the Esquibels' asserted facts. See Gonzales v. City of Albuquerque, No. CIV 09-0520 JB/RLP, ___ F.Supp.2d ___, ___, 2011 WL 1114830, at *24 (D.N.M. Mar. 23, 2011) ("[I]t is not the Court's responsibility to scour the record for evidence to defeat [a] Motion for Summary Judgment ....") (citing Hauff v. Petterson, 755 F.Supp.2d 1138, 1150 (D.N.M.2010) (Kelly, J.) ("Nor is it the court's function to `scour the record in search of evidence to defeat a motion for summary judgment.'") (quoting Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996))). Exhibit 1 is a newspaper article from the Las Vegas Optic News, entitled No Agency Taking Responsibility. See Lee Elner, No Agency Taking Responsibility, Las Vegas Optic News, Apr. 23, 2009, filed June 10, 2011 (Doc. 91-1). It thus appears that the Esquibels are relying on this newspaper article in support of their asserted facts. The newspaper states: "[M]ost officials believe [the railroad crossing is] someone else's job.... Neither the city of Las Vegas, the County of San Miguel, the state Department of Transportation, Amtrak or Burlington Northern Santa Fe, which owns the tracks, are accepting responsibility for upgrading safety equipment at the site." Newspaper Article at 1-2. Because the Esquibels offer the newspaper article for the truth of the matter asserted therein, the newspaper article is hearsay. San Miguel County and the City of Las Vegas argue that the Feb. 4, 2009 Letter is also hearsay. San Miguel County further argues that the newspaper article is not admissible evidence, because it is not authenticated and is hearsay. The Feb. 4, 2009 Letter states:
Feb. 4, 2009 Letter at 1. The letter is hearsay, because its contents are offered to prove the truth of the matter asserted therein. The Court thus will not deem the Esquibels' assertions admitted.
The Esquibels assert: "Because no entity would take ownership or responsibility for the road, following the deaths of Fred Stark and Michael Esquibel, the New Mexico state police `[i]n the interest of public safety' ordered the NMDOT to post stop signs and paint clear stop lines at the rail crossing." Response to the City of Las Vegas' Motion ¶ 13, at 9 (citing Letter from Captain Toby Dolan to Paul W. Gray (dated February 12, 2009), filed March 14, 2011 (Doc. 69-9) ("Feb. 12, 2009 Letter"); Response to San Miguel County's Memo. ¶ 18, at 9 (citing Dolan Letter). The City of Las Vegas objects to the Feb. 12, 2009 Letter as hearsay. See City of Las Vegas' Reply at 11-12. San Miguel County objects to the Feb. 12, 2009 Letter as unauthenticated and containing hearsay. See San Miguel County's Reply at 18. The Feb. 12, 2009 Letter states:
Dolan Letter at 1. Because the evidence is offered to prove the truth of the matter asserted, it is hearsay. The Court thus will not deem this asserted fact admitted.
The Esquibels assert: "Acting under authority granted by the NM State Police as a `public safety concern,' the NMDOT sought concurrence from the from the City on the placement of stop signs and pavement markings." Response to City of Las Vegas' Motion ¶ 14, at 10 (citing Electronic Mail Transmission From Paul W. Gray to calosortiz@ci.las-vegas.nm.us at 1 (dated February 12, 2009), filed March 14, 2011 (Doc. 69-10) ("Feb. 12, 2009 Electronic Mail Transmission"). The City of Las Vegas objects to the electronic mail transmission as hearsay. See City of Las Vegas' Reply at 11-12. The Feb. 12, 2009 Electronic Mail Transmission states:
Feb. 12, 2009 Electronic Mail Transmission at 1. Because the evidence is offered for the truth of the matter asserted, it is hearsay. The Court thus will not deem the Esquibels' asserted fact admitted.
The Esquibels assert: "The City of Las Vegas concurred with the NMDOT plan to place stop signs and pavement markings at the Arriba Road crossing. The City offered help and support in implementing the safety plan at the crossing." Response to City of Las Vegas' Motion ¶ 15, at 10 (citing Letter From Tony E. Marquez, Jr. to Paul W. Gray at 1 (dated February 12, 2009), filed March 14, 2011 (Doc. 69-11) ("Marquez Feb. 12, 2009 Letter"). The City of Las Vegas objects to the letter as hearsay. See City of Las Vegas' Reply at 11-12. The Marquez Feb. 12, 2009 Letter states:
Feb. 12, 2009 Letter at 1. Because the evidence is offered for the truth of the matter asserted, it is hearsay. The Court thus will not deem the Esquibels' asserted fact admitted.
San Miguel County Memo. ¶ 15-16, at 4 (citations omitted). The Esquibels dispute these asserted facts, stating only "See Plaintiff's Additional Material Facts, supra." Response to San Miguel County's Memo. ¶¶ 15-17, at 6. The Esquibels do not direct the Court's attention to evidence directly controverting San Miguel County's assertions that, at the time of the accident, there was no agreement between it and NMDOT or any other entity, whereby it assumed the responsibility to maintain Arriba Road at the time of the accident, and that, at the time of the accident, San Miguel County was not in receipt of money from NMDOT or from any other entity for the purpose of maintaining Arriba Road. The Court will thus deem these assertions admitted. See D.N.M.LR-Civ. 56.1(b). The Esquibels direct the Court's attention, however, to the fact that San Miguel County can produce no evidence as to whom the road was abandoned or that it was abandoned in favor of any entity. NMSA 1978, § 67-2-6 states:
NMSA 1978, § 67-2-6 (emphasis added). The Esquibels also directed the Court's attention to evidence that no employee or agent of San Miguel has been responsible for inspecting or maintaining Arriba Road since 1988. See Defendant San Miguel County's Supplemental Answers to Plaintiff's First Set of Interrogatories and Requests for Production of Documents, Answer to Interrogatory No. 4, at 4, filed June 10, 2011 (Doc. 91-6). The Esquibels have thus directed the Court's attention to evidence disputing the asserted fact that San Miguel County did not own, construct, maintain, or have any operational duties whatsoever towards Arriba Road. The Court will thus not deem San Miguel County's asserted fact admitted. See D.N.M.LR-Civ. 56.1(b).
Response to San Miguel County's Memo. ¶¶ 13-14, at 8 (citing Defendant San Miguel County's Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, at 4). San Miguel County states: "It is an undisputed material fact that no employee or agent of Defendant Board has been responsible for inspecting or maintaining Arriba Road since 1988[;] [h]owever, there is absolutely no admissible evidence to support [the assertion] that `[t]he County ensured that Arriba Road would remain unmaintained and unsafe." San Miguel County's Reply at 15. San Miguel County further states that there is no admissible evidence that it ensured the crossing would remain unmaintained and unsafe by failing to assign someone to those tasks. San Miguel County's answers to interrogatories state: "San Miguel ... abandoned Arriba Road in 1988. No employee or agent of San Miguel, therefore has been responsible for inspecting or maintaining Arriba Road since 1988." Defendant San Miguel County's Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, at 4. Because the evidence to which the Esquibels' cite does not go far enough to support their assertions that San Miguel County ensured Arriba Road and the crossing would remain unmaintained and unsafe by assigning none of its employees to inspect or maintain the road since 1988, the Court will not deem the Esquibels' assertion admitted.
Defendant San Miguel County's Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, 7, at 4, 6. The evidence does not fully support the Esquibels' assertions; the Court will thus limit the Esquibels' asserted facts to the evidence in the record.
