Rickerson v. STATE OF NM & CITY OF ROSWELL

LOPEZ, J., We should in mind how it is concurs in keep unfair result. plaintiff to be to five perempto-

to a limited HERNANDEZ, J., dissents. ry challenges, and defendants have adopted ten. Texas has now the rule that HERNANDEZ, Judge (dissenting). side equal each must be allowed an number respectfully I dissent. challenges reasonable assur- ance of obtaining jury. an unbiased Dunn contributory doctrine Co., v. Patterson Dental S.W.2d principle founded individu- case, (Tex.Civ.App.1979). In the instant al is never relieved from the of exer- whether the jury composed of six or cising reasonable care his own safety. members, twelve the defendants will have opinion In my reasonable minds could not greater opportunity secure what concluding differ in that the deceased failed believe to be a balanced This should to his own exercise care for safe- not be multiple allowed unless ty. power plain line sight. adverse, have antagonistic or in- different And, regardless of what instructions Mr. terests which require each to same have the might might given, Carter have number of peremptory challenges to seek a was in deceased control of truck. balanced jury. We do not re- find that I would affirm. quirement necessary instant case. Hunsaker, agree

We supra, which

resolved this problem difficult most

logical and reasonable manner —the use

pretrial procedure. The court said: seriously District Courts should

consider the pretrial use of the confer- ence as the procedure best be used resolving questions such as the number RICKERSON, Represent Kathy Personal peremptory challenges to be each allowed Williams, the Estate R. ative of of Gail side. If for some rare reason the District Deceased, and First National Bank of conference, Court holds no pretrial Conservator of Estate of Roswell question of peremptory challenges should Williams, Plaintiffs-Appellants, Michael be raised appropriate written motion filed before the jury commencement of selection, and it should set forth facts all MEXICO, NEW STATE tending references his support ROSWELL, CITY of Defendants- case, claim of hostility. oppos- Appellees. ing party parties given should be ade- quate time respond to the claims No. 4360. hostility. [588 501.] Appeals Court of Mexico. of New For a review of the prob- serious see, lems view, involved and differences April 1980. Jury: Number Peremptory Challenges Of May Writ of Certiorari Denied Allowable In Civil Where Are Cases There Involved, Than More Two Parties 32 A.L. 747 (1970).

R.3d case,

In the instant ex- Defendants shall

ercise jointly challenges five in the event of

a new trial.

Reversed. Plaintiff is tri- a new

al.

IT IS SO ORDERED. Shamas, Roswell, Hunt,

Tandy L. Hunt & plaintiffs-appellants. Bell, L. At- Bob E. Turner and Steven Cooter, A., wood, Malone, P. Ros- Mann & Cusack, well, Cusack, P. Schnedar & John Roswell, defendants-appellees. Fleming, stop signs either four-way signaliza- OPINION tion installed when first concluded WALTERS, Judge. that the intersection was inadequately con- Plaintiff appeals grant court’s the trial might trolled well have induced both driv- in favor of the State approach ers to the intersection differently the City of Roswell. We reverse. February than did on 1978. If that notice in alleged City Plaintiff inference, then a jury could and State of a dangerous intersection at appellees’ that also find inaction contribut- plaintiff’s killed, which was decedent and to the plaintiffs’ ed death of decedent. failure of those install ade We do not think such an inference quate controls. appellees-defendants beyond jury’s the bounds of a consideration urge in this court that data collected on the presently developed under the facts in this traffic and other features intersec request by case. 1977 for tion did not warrant the installation of sig assistance from the in installing State nals. Whether or not that is so is a ques signal triggered traffic must have been by tion fact which by cannot resolved judgment a considered summary intersection judgment. Fidelity Nat’l Bank v. time, not Tommy Goff, Inc., 106, adequately L. was controlled at that 92 N.M. and a continuing inadequacy 470 into the future negligently dangerous could be foreseen. A Appellees also that summary contend operated upon by condition commission of judgment was proper because it was “clear” negligent might another which not act un that the non-appealing defendant Lara’s occur, regarded be foreseen to proximate was the sole cause of a proximate injury as cause of the finally wrongful death here involved. resulting Thompson from the condition. They point to deposition of Lara in Anderman, 400, 285 59 N.M. P.2d 507 which he he knew admitted that the stop sign and, fact, was there that he stopped could If reasonable minds differ on before proceeding through into cause, issues of sole remote plaintiffs’ on which decedent was travel- cause, cause, concurring intervening ling. Thus, they argue, traffic control cause, is for the the matter device adequately purpose served in- 591, Kelly v. 470 Montoya, 81 N.M. P.2d 563 forming required defendant that he was affidavits, (Ct.App.1970). By depositions, ignored and he negligently the traffic exhibits, plaintiff and raised sufficient sign. questions concurring causation to avoid summary judgment. Ewing, Harless v.

Lara’s See negligence, admission how ever, (Ct.App.1969). N.M. 483 is not a complete plaintiff’s answer to claims that the was controlled however, City, strongly argues anby improper sign, or inadequate governmental body that neither is liable a need for installation traffic signals and entered in intersection, “for the safety of favor reason supported their of sover the citizens of City,” recognized eign immunity extended 41-4-4A §§ conveyed that need to the 41-4-11B, pro N.M.S.A. Highway Department State seven months vide, respectively: before the fatal accident Gail Williams 41-4-4..... Highway occurred. The Department ultimately agreed the City’s governmental entity any A. A pub- study relating pertinent intersection, acting to the within employee lic while for it responded one later year scope granted immunity with a writ are agreement ten any except install a tort “complete signalization provided Act illumination” in the Tort Claims [41— system at that location. Plaintiffs 4-1 suggest to 41-4-25 N.M.S.A.1978]. jury questions. negligent, accident

41-4-11. Metropolitan Albuquerque Gallagher Cf. immunity has B. The Auth., Flood Arroyo Control pursuant been waived Subsection 90 N.M. (Ct.App.), cert. den. include A of this section shall (1977) (negligent failure P.2d 485 damages by: caused liability for reasonably safe condi- maintain streets in (1) a defect liability). subjects governing body to street, culvert, highway, roadway, bridge, area; or alley, parking sidewalk or the case judgment is reversed and or recon- (2) the failure to construct the merits. remanded for trial on culvert, highway, road- any bridge, struct street, parking way, alley, sidewalk SUTIN, J., specially concurring. area. HERNANDEZ, J., dissenting. 4-11A, however, 41—4-6 and resulting withdraw SUTIN, (specially concurring). Judge operation “in the or main- negligence from specially I concur. any equipment tenance of . . . Plaintiffs sued defendants for negligence “in the furnishings,” and R. Williams. Her for the death of Gail any of or for the existence of maintenance of an automobile death as a result occurred .” highway, roadway, street . driven dece- between vehicles collision of McGaf- Lara at the intersection dent and Redding, 93 Albuquerque In Roswell. The fey and Sunset Streets (1980), argu- 605 P.2d 1156 N.M. traffic con- maintenance of installation and here, the street ment was and the sole control trol devices were under of, sewage drain complained defect jointly or exercised supervision 41—4- grate, was one of § that defend- Plaintiffs claim City. with the immunity 11B from granted known that or should have ants knew statute, specific court held that the more improper due to was hazardous intersection collection, referring 41—4-8A to waste § and control devices inadequate and traffic applied, injury and it denied rectify such haz- had a arising negligence operation from negligently failed to and ardous condition such services. so; result and that as-a direct reasoning applies The same this case. the collision oc- negligence, of defendants’ 4-11A, 41—4-6 and dis- 41— curred. negligent equipment cuss maintenance of that 30" claim is Basically, plaintiffs’ (the sign on the furnishings single stop McGaffey for signs placed on each side Lara) negligent travelled street, Sunset, were through into entrance highway, any maintenance or existence of to control inadequate improper (inadequate controls at roadway, or street hazard; and created the intersection at intersection), specific are more statutes and Lara entered on that Gail drove Sunset concerning maintenance or existence of occurred; a collision McGaffey and from equipment, traffic control must negligent were State/Municipality govern in Redding, supra. this case. the death Gail. negligence caused their in concept also to dismiss or filed a motion Defendants (Civ.) cludes failure to act. N.M.U.J.I. 12.0. summary judgment. the alternative therefore, Appellees exempt, are not from claimed: Defendants statutory immunity. under Wheth to state a failed 1. Plaintiffs have er additional equipment traffic-control which relief can maintained, claim negli should have been Mexi- not, Act of New Tort Claims gently was and whether the mainte under the N.M.S.A., 4r-25, co, sign-controlled nance or existence of the 41-4-1 to § as it Comp. the time of the surface, delving 2. On the without into the These Defendants immune any suit Plaintiffs on the cause presented by plaintiffs, facts State/Munici- of actions stated in Complaint, Plaintiffs’ pal liability cannot arise where the reasona- provisions Claims Tort by proper ble flow of traffic is controlled Act of New Mexico. stop signs at intersections. these Under alternative, In the should the Court circumstances, the intersection is reason- any have to consider matters involved ably by persons exercising safe for use ordi- this case other than the pleadings, there nary safety. care and caution for their own genuine any is no issue as to material fact cause of the collision would and these Defendants are entitled to be the fault of one or both of the drivers. judgment as a matter of law. impose liability on order defendants to The trial court did not rule on defend- precautionary guard take measures to ants’ motion to dismiss. It entered a Sum- safety public using pub- of members of the Judgment mary and Order that there was and extra ways, ordinary lic an unusual genuine no issue of material fact to be hazardous condition exist such as submitted to the probability would create a reasonable of an granted, Before thereby occurring accident to the travelers. the district court has a duty to follow the County, Md.App. Gordon v. Howard Brock, rules announced in Goodman v. 280 A.2d 906 Good- Under exists, When a hazardous condition duties man, the burden was defendants to Welsh, change. In McDaniel v. 234 So.2d a prima make facie showing genu- that no (La.App.1970), the court said: ine issue of material fact existed or that in mu- judicially We note that defendants were summary judg- entitled to areas, ment as a matter of nicipalities, especially metropolitan law for some other reason. If respect, defendants failed in this congestion public vehicular on the summary judgment must be denied. On constantly increasing. We deem it rea- hand, the other if defendants met their increasing sonable to conclude that traf- burden, plaintiffs the burden shifted to poses fic volume new and added control prove genuine that a issue of material fact charged problems to those authorities existed and that defendants were not enti- obligation regulating with automo- tled to summary judgment as a matter of the volume of greater bile traffic. The law or other reason. traffic, greater is the need for effec- If these rules spelled were followed and control, which includes tive vehicular out in in accordance functioning signals upon which properly allegations complaint, our may rely with confidence. motorists duties would be In lessened. the Brief-In- traf- stop signs to control presence Court, Chief filed in this plaintiffs should an intersec- entering fic a street before on have shown that defendants failed to make entity government not absolve a tion does prima a showing. facie If prima a facie dangerous a condition has liability where showing was plaintiffs then Feingold County of Los been created. establish by transcript genuine is- Cal.Rptr. Cal.App.2d Angeles, 254 sues of material fact were present. course, dangerous where a Of Seldom are the Goodman rules followed not exist at the condition does in the district court or in an appeal. occurred at which the accident Defendants made showing no as a matter warning by signals, not required to of law that signs McGaffey on signs or Callahan other devices. Street were sufficient to control traffic at Francisco, Cal.App.3d County of San the intersection. they Neither did show 93 Cal.Rptr. 122 exist, that a hazardous condition did not nor Highway Com- Mexico, this hazardous condition was New the State not the proximate cause of the collision. were statutori- mission authorities and local rule, ly place mandated to defendants can maintain such Under Goodman as a matter they “that were entitled control devices as show they may deem summary other reason to a of law for some necessary regulate, guide warn or traffic. their favor.” judgment in [83 66-7-102, 66-7-103, N.M.S.A. P.2d 679.] 1978. The words “deem necessary” has of color in meaning. shades The ordinary only remaining issue whether de- meaning of “deem” is “to. think judge; fendants are immune from opinion; to have an to believe.” In other of the Tort Claims Act. provisions Sec- 41-4-1, duty seq., words the 1978. In place defendants was to et N.M.S.A. Declaration, public Legislative policy was such traffic control devices at the Sunset be, governmental declared to “that entities intersection which McGaffey they thought public employees only shall be liable necessary regulate were traffic. This is within the limitations of the Tort Claims mandatory, not discretionary function. principles Act and in accordance with the subject Defendants are if de judicially in that act.” All cre- established reasonably regulate fendants did not “governmental” categories, ated such as protection flow of traffic for the of users of “discretionary” “proprietary” functions the intersection. The duty statutory. used de- previously or “ministerial” acts duty violation of this falls within the liability, were abol- termine realm negligence. The factual issue to or omissions . “Liability ished. for acts determine is stop signs whether on McGaf upon the traditional tort con- shall be based fey were Street sufficient reasonably prudent cepts regulate the flow of traffic on February perform- person’s standard of care 1978, the date of the accident. If the de duty.” 41-4-2. ance of that Section undertaken, fendants’ investigations or ex adoption Prior to the of the Tort Claims pert testimony produced, would establish Act manner in which the streets should “the signs were sufficient to control the stop signs be used and the installation of traffic, law, flow as a matter of systems electrical control calls for the exer- sufficient, would not liable. it If not discretion, governmental municipal cise of would reasonably be foreseen that accidents function, municipality cannot probably would occur. Whether the traffic respecting employ- be called to account condition at the intersection be called ultra- Hammell v. of power.” ment of such hazardous, hazardous, dangerous or unsafe 374, 376, Albuquerque, 63 N.M. liability. is not alone conclusive of The “governmental func- The controlling factor is whether the and the exercise of tion” has been abolished negligence cause of the collision was the of municipal discretion has been made manda- the drivers of the vehicles or the lack of 66-7-103, Hammell, tory by supra. § signalization. reasonable supra, alleged negligence case, In the instant have stat- defendants stop sign a where failing to reinstall (1) ed several defenses: defendants did not supposed to have been directed. one dangerous have notice of the condition at negligence This was the cause of duty the intersection and therefore had no the accident. dangers; (2)

to warn of the that the inter- Act, under the absent Today, Tort Claims condition; section was in a safe a immunity, defendants would be under (3) negligence proxi- Lara’s was the sole stop sign to if reinstall mate cause of decedent’s death. Discussion they failed to exer- necessary. deemed it If unnecessary say to that under the evi- care, defendants would be cise dence these defenses are issues of fact. damages. in liable Summary judgment upon based whether case, are confronted In the instant we genuine issues of material fact exist should subject improvement signali- of of Sunset-McGaffey be reversed. at the intersection. zation disposal from liability Are immune to un- waste collection and the defendants manner, roadway, incidentally der This and in this the Tort Claims Act? is a matter to the flow of traffic of facilitate impression. first roadway. Act, Tort Generally, under the Claims signalization of an intersection is to governmental entities immunity of traffic. facilitate use and flow It is employees acting while any public design plan not incidental to the or except scope duty, provided within the of street. 4(A). in If defend- the Act. Section 41^4— exception, they ants not fall within an plan in or design Inasmuch as no defect only pertinent immune to exists, are not immune to liabili- 41-4-ll(A) (B).

section of the Act is (B)(1). ty under subsection (B): Under subsection (A): Under subsection immunity has liability immunity granted . does (A) pursuant been waived Subsection apply liability damages result- liability shall not include this section . ing wrongful . death . by: caused public by negligence caused em- in or (1) plan design a defect scope within the ployees acting while . street . of . their duties in the maintenance any . . street “governmental” preserves This subsection a or plan for defect in immunity exception This subsection is an design an exception of a street. It is not immunity. rule general “governmental” or plan design rule. The immunity It caused does waive thought project is a and ideas the maintenance of a model, and, paper described on or street. approval, operation. is structured for It is preserves Section 41-4-11 engineers work for skilled in the cre- street, but plan design of a waives ation thoroughfare part of a in a city, a immunity in of a the maintenance street. which is pedestrian reserved for vehicle and legislature Professor Kovnat noted that the use. In preparation plan design, of a category created artificial invites signalization is included. litigation, by argument, about prolonged case, In the instant initial within the activity whether an is included plan of the Sunset-McGaffey intersection amply provides category. 41—4-11 Section was placed operation. No defect was Kovnat, Torts: opportunities dispute. shown to exist with reference plan. to this Immunity in Sovereign and Governmental Although study has been made of 249-268 Mexico, New 6 N.M.L.Rev. design, second it has not been com- of a “maintenance What meant pleted put operation. in to conclude me, logical To street”? it is only 4—11(B)(1) reverence to design that, or of a plan in since “defect City Albuquerque Redding, found in of v. section with same appears street” Redding street,” of “maintenance “maintenance of gate in the of holds that a drain curb lane or perimeter its within a street” includes part the of sur- street formed the street or “plan de- scope, improvement face, only plan but it was incidental to the “up- is defined sign.” “Maintenance” Therefore, words, or the street. subsec- design of if other the keep or continuance.” applicable. not (B)(1) tion was court at an intersec- signals design” or of “plan grate: to the drain said with reference operation due prove to be defective tion of the flow traf- increase in was not to an unusual purpose Its direct facilitate have a fic, State/Municipality the use of or flow of traffic signaliza- primary purpose Its direct and roadway. maintain reasonably safe it a liquid for or that will make obviously was to care solid control of traffic. When this place for occurs, cause of the

event George R. and Donnelle HAW C. that of the drivers of motor will be collision Court, Kings dba THORNE Rest of signalization lack of vehicles and Protestants-Appellants, the intersection. (B) may be 4-ll(A) and Section 41— DIRECTOR OF REVENUE DIVISION for “compromise legislation” termed TAXATION AND REVENUE DEPART public. The protection of the and the MENT, Mexico, Respon State of New design” “plan features of or indeterminate dent-Appellee. immunity, but the deter- of a deserve No. 3882. of of minate features “maintenance ef- legislature said in street” not. Appeals Court of New Mexico. the correction of defects or fect that May or the need mistakes heretofore de- improvement original “plan traffic,

sign” changes due to the flow of State/Municipality be held liable shall maintenance; upkeep thereof. process continuance This logical

reasonable and in the mind of

legislature. legisla- It was an expression judiciary pay

tive intent.

respect legislature. to the intent

Defendants are not immune to

HERNANDEZ, Judge (dissenting).

I respectfully dissent. N.M.S.A.1978, 4-ll(B)(l),

Section 41 —

grants governmental entities “a damages caused plan design

defect in roadway . The deci-

highway, . ”. not to

sion to install or install traffic con- warning primary part

trols or devices is a Its highway. of a purpose

direct is to “facilitate the use or

flow of traffic” or road- highway

way. City Albuquerque Redding, su-

pra. my opinion Appellees It is law,

immune from as a matter properly

granted.

Case Details

Case Name: Rickerson v. STATE OF NM & CITY OF ROSWELL

Court Name: New Mexico Court of Appeals

Date Published: Apr 1, 1980

Citation: 612 P.2d 703

Docket Number: 4360

Court Abbreviation: N.M. Ct. App.