OPINION
1. The State Transportation Division of the State of New Mexico Board of Education (the Division) appeals from a judgment entered on a jury verdict finding the Division partially liable for injuries suffered by Martha Gallegos when she was struck by a vehicle as she attempted to cross State Road 3 in order to catch the bus to her school. Plaintiffs (Martha and her parents) cross-appeal on the issue of whether the tort claims damages cap under NMSA 1978, Section 41-4-19 (Repl.Pamp.1989) is constitutional.
2. On appeal, the Division argues that:
(1) the exclusive remedy provision in NMSA 1978, Section 41-4-17(B) (Repl. Pamp.1996), barred recovery from it because Plaintiffs settled their claims against certain county and local governmental entities;
(2) the Division had no legal duty to establish location of bus stops and thus owed no duty of care to Plaintiffs;
(3) there was insufficient evidence to show that (a) the bus stop was negligently located, (b) determination of the location of the stop constituted maintenance of a highway, or (c) the location of the bus stop proximately caused the occurrence;
(4) the Division was entitled to mistrial based on remarks made during Plaintiffs’ closing argument;
(5) the trial court erred in refusing the Division’s tendered jury instructions; and
(6) the trial court erred in denying the Division’s motions for new trial or remittitur for damages awarded to Martha’s parents. We affirm.
3. With respect to the cross-appeal, the parties have stipulated that, if the cap is held unconstitutional after further hearing in Trujillo v. City of Albuquerque,
4. On January 10, 1989, seven-year-old Martha Gallegos was struck by a vehicle as she attempted to cross State Road 3 in order to reach her school bus stop. The driver of the vehicle, Martha’s great-uncle, was driving into a blinding sun without use of sunglasses or his prescription eyeglasses. Palmyra Gallegos, Martha’s mother, was watching from inside her home and saw Martha struck by the vehicle. Martha suffered various injuries which can reasonably be characterized as serious.
5. Plaintiffs filed a complaint against the Division, the New Mexico State Police, the New Mexico State Highway Department, the Board of Commissioners of San Miguel County, the County Sheriffs Department, the School District of West Las Vegas, the Las Vegas Schools Transportation Director, and the school bus driver. Plaintiffs settled with those defendants connected with San Miguel County and the School District of West Las Vegas, but proceeded to trial against the Division and the New Mexico State Highway Department. The complaint against the New Mexico State Police was voluntarily dismissed by Plaintiffs.
6. After trial, the jury found no liability with regard to the State Highway Department but assigned 37.5% liability to the Division. The Division filed motions for a new trial, remittitur, and judgment notwithstanding the verdict. All were denied.
DISCUSSION
Application of NMSA 1978, Section jl-j17(B)
7. Prior to trial, the Division sought summary judgment asserting that Section 41-4-17(B) barred Plaintiffs’ claims against the Division. Making a plain language argument, the Division asserted that Plaintiffs’ settlement with the county defendants and the school district defendants precluded Plaintiffs from pursuing any claims, arising out of the same accident, against any other governmental entity. The trial court denied the Division’s motion for summary judgment. The Division reiterates its “plain reading” argument here.
8. Before reaching the merits of the argument, however, we must decide whether the denial is reviewable on appeal. Plaintiffs argue that the Division is not entitled to have this Court review the issue because the Division did not raise the argument in a motion for directed verdict or in a post-trial motion. Plaintiffs rely on Green v. General Accident Insurance Co. of America,
9. A party moving for summary judgment must show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Ciup v. Chevron U.S.A, Inc.,
10. However, Green did not reach, nor did it need to address whether a different rule of reviewability might be appropriate if the motion only addressed a pure question of law. Where a motion for summary judgment is based solely on a purely legal issue which cannot be submitted to the trier of fact, and the resolution of which is not dependent on evidence submitted to the trier of fact, the policy rationale underlying the rule enunciated in Green is inapplicable and the issue should be reviewable on appeal from the judgment.
11. Our appellate courts are not bound by the conclusions of law reached by the trial court, and the applicable standard of review for such issues is de novo. See Harger v. Structural Servs., Inc.,
12. We conclude that as long as (1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law which does not depend to any degree on facts to be addressed at trial, (3) there is a denial of the motion, and (4) there is an entry of a final judgment with an appeal therefrom, then the appellant may include in the appeal the purely legal issues that were argued unsuccessfully in the motion for summary judgment, and the appellant need not have renewed that legal issue during trial to preserve it. See Johnson v. Alaska State Dep’t of Fish & Game,
13. We are sensitive to the fact that our conclusion is contrary to the great weight of authority in the federal courts and our sister states. Most courts considering this issue have chosen to adopt a bright line rule, primarily because of perceived difficulties with administration of any rule meant to differentiate between “legal” and “factual” issues. See, e.g., Feiger, Collison & Killmer v. Jones,
14. Turning to that argument, we do not believe the statute can bear the Division’s expansive interpretation, and we thus affirm the trial court’s denial of the motion for summary judgment. We hold that Section 41-4-17(B) did not preclude Plaintiffs’ claim against the Division.
15. Section 41-4-17(B) states: “The settlement or judgment in an action under the Tort Claims Act shall constitute a complete bar to any action by the claimant, by reason of the same occurrence against a governmental entity or the public employee whose negligence gave rise to the claim.”
16. In determining the meaning of the section, we must first examine the plain meaning of the language used. See Bybee v. City of Albuquerque,
17. Applying this interpretation to the facts of this case, after settlement, Plaintiffs were barred from bringing further action against the West Las Vegas School District, the San Miguel Board of Commissioners, the San Miguel Sheriffs office, or any employees of those entities. Settlement with these entities would not, however, protect the Division from liability for its share of comparative negligence. If the Legislature had intended the statute to act as such a bar, it could have used language that clearly expresses that intention. For example, instead of using language such as “against a governmental entity,” the Legislature could have stated, “against any governmental entity.” The Legislature did not use such language.
18. Further, the Division’s position would result in at least two untoward consequences which argue against its position. First, the Division’s interpretation of the statute would discourage settlement. See Gonzales v. At-nip,
19. Conversely, defendants could be forced into unduly harsh quandaries. For example, if an entity with a small liability risk filed a reasonable offer of judgment pursuant to NMRA 1997, 1-068, plaintiff would be forced to refuse the offer — otherwise acceptable — in order not to lose claims against the primary tortfeasor entity. Thus, the adverse effects of the Division’s position would not be limited to plaintiffs. Entities with relatively small liability risk could be forced to go to trial rather than settling quickly for reasonable amounts, thus increasing the cost of litigation at all levels. This would undermine the policy of our Supreme Court favoring settlements which is implicit in Rule 68. In the absence of explicit language indicating a desire to discourage settlements in this manner, we will not interpret the statute as urged by the Division.
20. Second, the Tort Claims Act provides that governmental tort liability is to be determined using “traditional tort concepts of duty and the reasonably prudent person’s standard of care.... ” NMSA 1978, § 41-4-2(B) (Repl.Pamp.1996). New Mexico has adopted the principle of comparative negligence, allowing the relative responsibility of tortfeasors, whether public or private, to be determined in each case. See NMSA 1978, § 41-3A-1 (Repl.Pamp.1996); Bartlett v. New Mexico Welding Supply,
21. The Division relies on Sugarman v. City of Las Cruces,
The Division’s Duty to Establish and Approve Bus Stops
22. The Division has a statutory responsibility to establish and approve school bus routes for transportation of students. See NMSA 1978, § 22-16-2(0 (Repl. Pamp.1993). Section 22-16-2(0 provides that “the state transportation division shall ... establish and approve school bus routes for the transportation of students ... to and from public schools.” NMSA 1978, Section 22-16-4(A) (Repl.Pamp.1993) requires the Division to approve the routes annually. NMSA 1978, Section 22-16-ll(A) (Repl. Pamp.1993) allows the Division to adopt and enforce regulations governing the operation of school buses. Pursuant to the latter provision, the Division promulgated Regulation 83-3 (3.2.1(a)), which provides:
All regular school bus stops utilized to load or unload students should be established by a coordinated effort between the local school bus operator, school administrator responsible for transportation and a member of the police organization having jurisdiction. School bus stops may be reviewed and changed by the State School Transportation Division.
The Division argues there is a difference between “routes” and “stops,” and that because it delegated its duty to establish bus stops to the local bus operators, school districts, and police departments, maintaining only a discretionary review over the decisions of those groups, it had no legal duty, and thus, no liability, to Plaintiffs. We disagree. We decline to adopt the Division’s artificial and strained attempt to disconnect bus stops from the routes themselves. The statutory responsibility to establish bus stops remains with the Division.
23. Accepting the Division’s interpretation of the regulation does -not change the result. There is an apparent conflict between Regulation 83-3, as read by the Division, and Section 22-16-2(C). As noted above, our statute assigns the ultimate responsibility, and thus the duty, to establish bus routes to the Division. When a statute and a regulation conflict, the statute prevails. Jones v. Employment Servs. Div. of the Human Servs. Dep’t,
24. Moreover, even under Regulation 83-3, the Division did not entirely relinquish its duty to establish bus routes. It retained the authority to review and change decisions made by school districts concerning bus routes. This role is sufficient in this context reasonably to impose a duty of care. It should be noted that the Division exercised its authority by later requiring changes in this bus route minimizing the need for children to cross the road.
Sufficiency of Evidence Issues
25. The Division argues there was insufficient evidence to support findings that: (1) the bus stop was negligently located; (2) placement of the bus stop constituted maintenance of a road, rather than being an aspect of plan or design, or failure to construct or reconstruct; (3) the Division’s activities fell within the parameters of NMSA 1978, Section 41-4-ll(A) (Repl.Pamp.1996); or (4) the location of the bus stop was a proximate cause of the accident.
26. In considering a substantial evidence claim, the appellate court resolves “all disputed facts in favor of the successful party,” and indulges “all reasonable inferences in support of a verdict,” and disregards “all evidence and inferences to the contrary.” Clovis Nat’l Bank v. Harmon,
27. With regard to issues 1 and 2, there was evidence that all bus stops on Martha’s route were located on one side of the road, creating a situation where children were forced to cross the road in order to board the school bus. Although the Division claims that there was evidence to the contrary, we disregard any such evidence. See Harmon,
28. The Division claims that the placement of the bus stop does not constitute maintenance but rather is part of the design of the road, and, therefore, immunity is not waived under Section 41-4-11. In an earlier appeal in this case, we stated that the decision to locate a bus stop at a particular place was a matter of maintenance unless there were specific facts showing that the location was a part of the design of the road. See Gallegos v. School Dish of West Las Vegas,
29. In addition, there was evidence that the Division employees had inspected the bus routes for safety and should have recognized that it was dangerous to have children cross the road to board the bus. This activity bolsters our conclusion that location of the bus routes should be categorized as maintenance in this case.
Remarks by Plaintiffs’ Counsel
30. The Division argues that the trial court erred in failing to grant a mistrial based on remarks made by Plaintiffs’ counsel during closing argument. Our standard of review is abuse of discretion, and, absent a clear abuse of discretion, we will not reverse. See State v. Abeyta,
31. The Division primarily complains about three statements made by Plaintiffs’ counsel during closing arguments. The first involved a misstatement by counsel about Plaintiffs’ recovery of damages as a result of Martha’s mishap. In essence, counsel stated, or left the impression, that this lawsuit was the only chance for Plaintiffs to receive any compensation. This statement was misleading because Plaintiffs had already settled with a number of the defendants and thus had received some compensation. Counsel and the trial court engaged in a fairly heated exchange concerning the misimpression left by counsel with the jury, and the trial court eventually required counsel to go before the jury and correct the misimpression. Counsel complied with the trial court’s request and informed the jury that he
didn’t intend to imply that this is the only award of damages that Martha and her family might recover as a result of this accident. What it is, is the only opportunity that Martha and her family have to recover damages from these two Defendants, the State Highway Department and State School Division[.]
32. Second, while addressing the Mother’s bystander damages, Plaintiffs’ counsel stated, “I suggest you tie the amount of Palmyra’s damages for her emotional distress and pain and suffering, which is what you award to Palmyra, to the amount of Martha’s damages. Maybe 40%, maybe 50%, use your judgment.” The Division objected, and the trial court admonished the jury that its instructions on the law should guide the jury and that the jury must consider each award for each plaintiff separately. The trial court later instructed the jury to determine the damages separately. Third, the Division argues that Plaintiffs’ counsel impermissibly interjected himself and his wife into Plaintiffs’ shoes and then vouched that Plaintiff had acted reasonably.
33. We note first that counsel have considerable latitude in closing arguments. See McDowell v. Napolitano,
34. Based on the instructions to the jury, the curative statement made by Plaintiffs’ counsel, and the jury’s answer to special interrogatories apportioning liability, we cannot say that the trial court abused its discretion in denying a mistrial. See State v. Rowell,
35. In addition to the arguments noted above, the Division argues that Plaintiffs’ counsel made improper closing remarks by referring to his wife as a former police officer and the fact that he and his wife had just learned she was pregnant with triplets. As pointed out by Plaintiffs, the Division did not object to £he comments in a timely fashion and, therefore, these arguments are not properly preserved for appeal. See Rowell,
Refused Jury Instructions
36. The Division argues that forty nonUJIs tendered by it were improperly refused. Plaintiffs respond that the refused jury instructions improperly instructed the-jury in matters of statutory construction, concerned issues not relevant to the case, incorrectly stated the law, were misleading, improperly submitted to the jury purely legal issues of immunity under the Tort Claims Act, or concerned matters already covered by other instructions.
37. The burden is on the Division to show that the trial court’s refusal was erroneous and created prejudice. See Jewell v. Seidenberg,
Motion for New Trial/Motion for Remittitur
38. The Division claims that the damage award of $150,000 to Martha’s parents was excessive, requiring remittitur or a new trial. The parties stipulated that Martha sustained approximately $42,000 in medical expenses for which her parents were liable. In addition, there was testimony concerning $20,000 of future medical care for ankle surgery. The Division does not contest this evidence. The Division’s basic argument is that any verdict in excess of $62,000 is of necessity excessive. The Division does not explicitly argue, much less demonstrate, that the amount awarded is the result of passion or prejudice or other improper influence. See Hall v. Stiles,
39. In addition to damages for medical expense, jury instruction 32 allowed damages to Martha’s parents for “[t]he reasonable value of necessary nonmedical expenses which have been required as a result of Martha’s injuries and the present cash value of such nonmedical expenses reasonably certain to be required in the future until Martha reaches age 18.” Plaintiffs introduced evidence that Martha’s parents provided home health care for several months after the accident, intensive tutoring while their child was out of school during the rest of second grade and tutoring through the six years since the accident. Plaintiffs also introduced evidence that the child would probably need continued help as she gets older. This evidence, combined with the testimony concerning $62,000 of medical expense, provides substantial support for the jury’s award to Martha’s parents.
40. The Division appears to argue that Plaintiffs cannot recover damages for non-medical expenses because such expenses were not included in the complaint. The evidence in support of non-medical expenses was introduced at trial, apparently without objection. See Martinez v. Zia Co., 100
N.M. 8, 10,
41. The Division has failed to show that the trial court’s refusal to grant its motions was a “clear and unmistakable abuse of discretion.” See State v. Griffin,
42. We affirm on all issues raised in the appeal. We dismiss the cross-appeal.
43. IT IS SO ORDERED.