OPINION
{1} On Mаrch 17,2006, a pick-up truck in the parking lot of Del Sol Shopping Center (Del Sol) in Santa Fe suddenly accelerated — due to a combination of driver and vehicle failure — and hurtled through one of Del Sol’s side-by-side business-front glass walls and into the Concentra Medical Clinic (Concentra). Tragically, a mother and her son were struck and killed inside, along with a medical receptionist assisting them at the time. Six other Concentra patients were also seriously injured by the runaway truck. The legal aftermath of the calamity included separate premises liability actions filed by the decedents’ estates, the surviving victims and their families (collectively, Plaintiffs). Each lawsuit alleged that the owners and operators of Del Sol (collectively, Defendants) negligently contributed to the occurrence by, among other things, failing to adequately post traffic signage and erect additional physical barriers between the parking lot and shopping center. Two district courts granted Defendants’ motions for summary judgment, each declaring that Defendants had no duty to protect Plaintiffs inside the building from criminally reckless drivers because the sequence of events was unforeseeable as a matter of law. We previously consolidated Plaintiffs’ appeals from the separate orders of summary judgment and now affirm. We do so, however, not based on the foreseeability-driven duty analysis employed by the district courts, but based on the policy-driven duty analysis advanced by the Restatement (Third) of Torts and Plaintiffs, and recently embraced by our New Mexico Supreme Court in Edward C. v. City of Albuquerque,
Standard of Review
{2} At the outset, we acknowledge that under New Mexico law summary judgment is “to be used with great caution,” and is proper in only two circumstances: (1) “when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law,” or (2) “when the material facts are not in dispute and the only quеstion to be resolved is the legal effect of the facts.” Monett v. Doña Ana Cnty. Sheriff’s Posse,
I. BACKGROUND
{3} Undisputed evidence demonstrates that Rachel Ruiz — who had been advised not to operate motor vehicles by physicians treating her seizure disorder — was nonetheless driving the pick-up truck that crashed into Del Sol and Concentra. Ms. Ruiz was also aware that the truck had previously experienced mechanical failure, including both sudden acceleration and loss of brake controls. While driving the truck and simultaneously disregarding her own and its pre-known conditions, Ms. Ruiz steered into Del Sol’s parking lot from St. Michael’s Drive. She reportedly intended to make an in-person dental appointment at “Perfect Teeth,” one of the many adjacent tenant businesses located within Del Sol.
{4} As Ms. Ruiz drove along a 600-foot entrance straightaway within the Del Sol parking lot, the truck’s accelerator apparently became stuck while depressed and its brakes failed to engage. Ms. Ruiz maintained she then experienced a “baby seizure,” causing her to abruptly lose consciousness. The unbridled truck continued accelerating, veered slightly to the left, and vaulted the perpendicular six-inch curb at the end of the straightaway. Its leftward drift caused the truck to narrowly miss a concrete overhang support pillar centered directly at the end of the straightaway. It then sped across a ten-foot wide pedestrian sidewalk, snapped a metal handrail, and crashed through Concentra’s floor-to-ceiling glass wall. It finally came to rest — after striking Plaintiffs — more than twelve feet into Concentra’s reception area.
{5} The legal aftermath of the tragedy resulted in these current lawsuits and separate criminal proceedings, during which Ms. Ruiz pleaded no contest to three counts of vehicular homicide and six counts of great bodily injury by vehicle, and was imprisoned. These appeals follow the issuance of separate written orders of summary judgment by district court judges who first held hearings and considered pleadings, exhibits, and arguments of counsel. We review the propriety of those determinations below.
Current State of New Mexico’s Legal Duty Analysis
{6} The core question presented in this appeal is what, if any, duty is owed by Defendants in the context of the facts recited abоve. Before answering, we briefly summarize the evolution ofNew Mexico’s legal duty analysis, and state what we consider to be the current test. The Solchenberger Plaintiffs assert in their brief-in-chief that New Mexico law has been “inconsistent regarding the role of foreseeability in duty determinations.” To this end, they cite with chronologic specificity our jurisprudence following the seminal case on this topic, Palsgraf v. Long Island R.R. Co.,
{7} Our New Mexico Supreme Court first asserted its adoption of the Palsgraf majority’s “foreseeable plaintiff’ test for determining duty in Ramirez v. Armstrong.
{8} Justice Ransom’s view has persisted, however, and even gained varying degrees of traction as our jurisprudence evolved. For example, since Calkins and Solon, New Mexico courts have applied foreseeability in the following ways:
(1) as the primary consideration in a legal duty analysis, see, e.g., Bober v. N.M. State Fair,
(2) as a necessary element alongside policy considerations, see, e.g., Quality Pontiac,
(3)relegated to the less resolutive status of a “false jury issue,” which is ripe for summary judgment only when a court determines that no rational trier of fact could find the victim foreseeable, see Torres v. State,
{9} Most recently, this Court — in an opinion that both district courts in the present cases credited as being legally dispositive — echoed and applied the Ramirez-born understanding that “foreseeability is a critical and essential component of New Mexico’s duty analysis.” Romero v. Giant Stop-N-Go of N.M., Inc.,
[A] finding of foreseeability would require anticipation of a remarkable confluence of events. Defendants would have had to foresee that a woman, diagnosed with a seizure disorder and advised by her doctor not to drive, would nevertheless decide to drive, that hеr vehicle would malfunction and the stress of the malfunctioning vehicle would cause her to suffer from a mini-seizure, which would result in her vehicle swerving, jumping a curb, crossing a ten foot covered sidewalk and missing a concrete pillar, and crashing through the front window of a business.2
Joined soon thereafter by a second district judge who reached the same result on the same legal basis
{10} Fortunately, for the sake of clarity in the law and ease of analysis, the legal duty test in New Mexico appears to have achieved homeostasis, as recently written by our New Mexico Supreme Court in Edward C.,
The question of the existence and scope of a defendant’s duty of care is a legal question that depends on the nature of the ... activity in question, the parties’ general relationship to the activity, and public policy considerations. . . . [It] is a question [primarily] of policy to be determined with reference to legal рrecedent, statutes, and other principles comprising the law.
{11} This appears generally to be the standard sought by Plaintiffs, particularly the Solchenberger Plaintiffs, who emphasized both in briefing and in oral argument the need for clarity in what has become an increasingly complex area of law.
Foreseeability ... is but one factor to consider when determining duty and not the principal question. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 cmt. j (2010) (disapproving the use of foreseeability to limit liability in preference for “articulatfing] policies] or principle^] ... to facilitate more transparent explanations of the reasons for a no-duty [or limited-duty] ruling and to protect the traditional function of the jury as factfinder”). Instead, “duty is a policy question . . . .”
The approach we take is consistent with the approach suggested by the American Law Institute. . . . The American Law Institute notes that courts can “render a judgment about that category of cases” under “the rubric of duty” taking “into account factors that might escape the jury’s attention in a particular case, such as the overall social impact of imposing a significant precautionary obligation on a class of actors.” “Such a categorical determination ... has the benefit of providing clearer rules of behavior for actors who may be subject to tort liability and who structure their behavior in response to that potential liability.”
II. DISCUSSION
{12} Having clarified the current state of our legal duty analysis, we now frame the question on appeal broadly, as did our Supreme Court in Edward C., and proceed with legal analysis without any undue focus on the factor of foreseeability: What duty should owner/occupants of a shopping center in New Mexico have to protect business invitees within its buildings from vehicles that depart the confines of designated parking areas? See
[Equating] the concept of “duty” with such specific details of conduct [posting warning signs, removing obstructions, installing traffic control devices, fixing potholes, and the like] is unwise. Attempting to define or evaluate conduct in terms of duty tends to rigidify the concept of negligence — a concept which, by definition, must vary from case to case .... [T]he problems of “duty” are sufficiently complex without subdividing it to cover an endless series of details of conduct. . . . [D]uty [should] remain[] constant, while the conduct necessary to fulfill it varies with the circumstances.
Bober,
{13} It is well established that the general duty an owner/occupier owes an invitee is one of ordinary care. See Ford v. Bd. of Cnty. Comm’rs,
If an [owner] [occupant] breaches the duty to use ordinary care to keep the premises safe for use by a visitor, resulting in injury to the visitor from the acts of a third person, the [owner’s] [occupant’s] breach of duty is to be compared with the conduct of the third person who actually caused the injury to the visitor [, as well as with the visitor’s own fault,] in order to determine the [owner’s] [occupant’s] proportionate degree of fault. The [owner’s] [occupant’s] duty to protect visitors arises from a foreseeable risk that a third person will injure a visitor and, as the risk of danger increases, the amount of care to be exercised by the [owner] [oсcupant] also increases. Therefore, the proportionate fault of the [owner] [occupant] is not necessarily reduced by the increasingly wrongful conduct of the third person.
UJI 13-1320 NMRA (emphasis added). This jury instruction derives from Reichert, which recognized “the importance of the duty of the owner or operator of a place of business to prevent the harmful conduct of a third party.”
{14} The question here, however, is not whether Defendants bore a general duty of ordinary care to Plaintiffs — they most certainly did. The gravamen of our legal inquiry asks whether the scope of the duty of ordinary care for owner/occupiers in this circumstance incorporated the protection of invitees inside buildings from third-party vehicles uncontrollably straying from adj acent parking lots. See Provencio v. Wenrich,
Nature of the Activity and the Parties’ Relationship Thereto
{15} The nature of the activity here — the provision of goods and services to the public within a shopping center and adjacent parking lot — bears no inherent risk of vehicle-pedestrian accidents within the related businesses. Certainly, we recognize that Defendants’ facility was purposefully designed to attract the general public (and their vehicles) to both visit businesses within Del Sol and park vehicles in its parking lot. The duty of ordinary care thus required D efendants — who elected to provide a parking lot for public convenience — to construct and maintain parking facilities in an ordinarily acceptable manner. Inevitably, some of the visiting vehicles and pedestrians were likely to collide while commingling in the parking lot. But we see nothing about the nature of the activity here — awaiting medical services within Concentra Medical Clinic near Del Sol’s parking area — that would unacceptably expose patrons to the risk of vehicle collisions inside the building such as the risk found to exist in Edward C.,
{16} The absence ofapparentandinherent danger to patrons within Del Sol businesses militates against the inclusion of a duty to prevent injury from runaway vehicles within the scope of what is ordinarily owed to Del Sol patrons in this case. The combined record in these cases reflects that (1) Del Sol’s parking lot is used by approximately 26,000 vehicles per day, (2) it has been in use as a shopping center for over twenty years, and (3) in that time period only three vehicles ever struck Del Sol’s buildings and only one of those (Ms. Ruiz’s pick-up truck) ever penetrated the building and caused more than minor damage to the premises. The sheer improbability and lack of inherent danger, as shown by those statistics, are commonly cited around the country as a basis to refuse to extend a specific duty of care to this category of accidents. See, e.g.,Eckerd-Walton, Inc. v. Adams,
{17} Other than sharing an inherent vulnerability to intrusion by runaway vehicles with many like-situated shopping centers, we disagree that there was anything about Del Sol or its adjacent parking lot that justifies a broadened standard of care owed to visitors. Like other states, New Mexico’s shopping centers run some minimal but known risk of vehicle-building collisions, as proximity to high-traffic roads and the attendant need for parking space are highly advantageous, if not necessary, components to the success of any business location.
Public Policy
{18} Last, we turn to public policy. In so doing, we apply that primary barometer of legal duty, identified by Edward C., to ascertain the scope of ordinary care owed by Defendants to Plaintiffs.
{19} To show Defendants failed to meet generally accepted norms of safety, Plaintiffs submitted an affidavit to both district courts prepared by Barrett Miller, whose asserted expertise included “identifying and controlling safety hazards involving errant vehicles, commercial parking lots, and building structures.” Plaintiffs contend that Mr. Miller’s assessment and recommendations, alongside referenced academic publications in the field of safety engineering, establish that Del Sol harbored several identifiable safety hazards. These were: (1) “[t]he long 600-foot straightaway and ‘T-bone’ configuration of the parking lot and shopping center”; (2) “[t]he ‘absence’ of any traffic control devices ... at the end of the long straightawаy”; (3) “[t]he absence of bollards to protect against errant vehicles”; (4) the history of traffic patterns, “including speeding vehicles, ‘rolling’ stops, collisions, and cars parked illegally”; (5) “[t]he washboard surface of the parking lot”; (6) the presence of a medical care clinic and bar, “which may attract impaired and/or careless drivers”; and (7) “[t]he high vehicle traffic numbers . . . per day.” Among other exhibits in support of their opposition to motions for summary judgment, Plaintiffs presented several photographs of other local businesses that have installed bollards and pillars in front of their entrances and storefront glass walls.
{20} We disagree that the proffered evidence, considered collectively, legally establishes a norm of professional safety giving rise to an expanded duty to protect. Despite Mr. Miller’s hindsight identification of the many potential manners of hazard prevention, only the placement of bollаrds or additional barriers at short intervals from one another could have definitively prevented a runaway vehicle from crashing through Del Sol’s storefronts. Neither the layout of the parking lot, its history, surface, heavy use, signage, or the nature of its surrounding businesses could have prevented the injuries and loss of life that occurred within Concentra. Rather, the tragedy depended wholly upon the presence of a faulty vehicle at the hands of an inept driver. Accordingly, the essence of Plaintiffs’ assertion is that Del Sol bore at all times a duty to protect its indoor patrons — by erecting some type of impenetrable barrier between the shopping center and its adjacent parking lot — to prevent vehicle-person collisions within Del Sol’s buildings. That an expert has identified certain “safety hazards” and recommended placement of bollards and barriers does not indicate that Del Sol’s election not to emplоy such safety devices falls beneath professional norms of safety. Similarly, the fact that some nearby businesses have undertaken affirmative precautionary measures does not establish a newly applicable safety norm, a building code-derived regulation, or a public policy. See Hartford Ins. Co. v. Cline,
{21} More compellingly, based on the briefs and the record developed before the district courts, we can discern no policy articulated by the Legislature, or city and county government, addressing the specific requirements of shopping center parking lot construction, or endorsing the heightened standards of safety advanced by Plaintiffs. The parties similarly have not alerted us to any regulation, code, or statute that suggests Del Sol was in any way non-compliant with the commercial building сode, the international building code adopted therein, or even accepted professional norms of safety. See 14.7.2.8(A) NMAC (“This rule adopts by reference the 2009 international building code, as amended by this rule.”). But nonetheless, and with an eye toward determinations of policy, we compare instances where our courts have included within the duty of ordinary care a requirement to specifically protect visitors from third-party harm. See Torres,
New Mexico Precedent
{22} It is clear, as stated above, that an owner/occupier’s duty is one of ordinary care. That standard can include the protection of visitors from the acts of third parties in certain circumstances:
[Tjhe proprietor of a place of business ... is subject to liability to guests who are upon the premises and who are injured by the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron.
Coca v. Arceo,
{23} In each of these cases, the specific circumstances of the given environment were sufficient to place the defendants on notice of the specific third-party actors and their propensity to act. For example, Coсa, Reichert, and Barth recognized predictable dangers when serving alcohol to patrons involved in known personal disputes. See Coca,
{24} We conclude that the case at bar is distinguishable from both circumstances where our jurisprudence has recognized a duty to protect. Here, Del Sol could not have anticipated, prevented, or even reacted to Ms. Ruiz and her runaway truck, unlike a bar owner/occupier’s ability to anticipate barroom violence by observing patrons over time, or a homeowner’s ability to exclude guests known to be dangerous. And although Plaintiffs sought to impute knowledge of risk by presenting evidence of two previous vehicle-building collisions that occurred during the twenty years Del Sol existed, neither involved the penetration of the building’s front, or more notably, resulted in injury to patrons inside. Moreover, neither incident involved the parking lot’s long straightaway or directly related to Del Sol’s parking lot configuration. See Cromer v. Hutto,
{25} Furthermore, as the district courts recognized, we have refused to apply the same “duty to protect” in a third context — to convenience store owners whose patrons are the targets of an intentional homicidal attack. In Romero, this Court imported reasoning from a California case:
It was an act of terrorism that could have occurred anywhere that the intended victim happened to be. [The defendant] had no basis to foresee such event, and there was no effective action which it could reasonably have taken to prevent said act under the circumstances.. .. The shooting was a transitory act that could have been carried out at any time and place that the intended victim happened to be.
{26} Finally, we note the existence of two additional principles of law in our appellate jurisprudence that supplementally support our determination of policy. The first proposition — that “a proprietor or store owner is not an insurer or guarantor of the safety of his [or her] business invitees” — was included within a former version of our uniform jury instruction given in “slip and fall” cases. Hallett v. Furr’s, Inc.,
{27} We conclude that these principles within our precedent additionally support our decision to circumscribe the owner/occupant’s “duty to protect” short of vehicle-building collisions. We cannot require premises owner/occupants to anticipate, implement ways to thwart, or to otherwise shoulder the burden of financial liability for the disastrous consequences of remote mechanical and human fallibility. To do so would, in essence, require premises owners to become absolute insurers of patron safety, forcing businesses into one of three undesirable alternatives: (1) significantly revise the physical and aesthetic layout of buildings and parking lots at substantial expense, (2) retain the status quo and risk the enormous cost of catastrophic liability, or (3) close down the business premises entirely. Moreover, “[t]o erect an impregnable barrier around all of the buildings would both obstruct normal pedestrian traffic and impose on the owners a burden completely out of proportion to the anticipated risk.” Mack,
Out of State Precedent
{28} We note that the great weight of authority from around the country has
similarly refused to recognize a duty of business owners to protect their indoor patrons from vehicle collisions. See, e.g., Fawley v. Martin’s Supermarkets, Inc.,
One of the seminal cases on this issue is often quoted as stating:
[Ijt cannot be contended with any degree of reason or logic that the owner of a store, by permitting automobiles to park perpendicularly to the curb in front of his entrance, or by failing to erect an impregnable barrier between the entrance of his store and an adjacent area where motor vehicles are driven and parked, should have anticipated that automobiles will be negligently propelled over the curb and across the sidewalk into the entrance of his store. We are not unmindful of the obvious fact that at times operators lose control over the forward progress and direction of their vehicles either through negligence or as a result of defective mechanisms, which sometimes results in damage or injury to others. In a sense аll such occurrences are foreseeable. They are not, however, incidents to ordinary operation of vehicles, and do not happen in the ordinary and normal course of events. When they happen, the consequences resulting therefrom are matters of chance and speculation. If as a matter of law such occurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter. Such occurrences fall within the category of the unusual or extraordinary, and are therefore unforeseeable in contemplation of the law.
Schatz v. 7-Eleven, Inc.,
III. CONCLUSION
{29} No onе can deny the inexorable finality of what occurred at the Del Sol Shopping Center on March 17,2006. Thatthe most fundamental characteristic of time is its unidirectional progression is never more apparent than when our collective humanity desires something heartbreaking to be reversed. But sometimes in law, no matter how unfair the misfortune perpetrated upon innocents, or how universally just may be the corresponding calls for retribution, no legal remedy can stand against those whose only role is to own, develop, or occupy a physical space as situationally vulnerable to calamity as any other. “There are, moreover, innumerable, tremendous risks inherent in our modern-day, complex society.” Madrid v. Lincoln Cnty. Med. Ctr.,
{30} IT IS SO ORDERED.
WE CONCUR:
Notes
Justice Bosson specially concurred in Quality Pontiac, giving renewed voice to the criticism that New Mexico’s use of foreseeability as a part of the legal duty inquiry is a “legal fiction for restricting or expanding liability.”
We note that District Judge Clay Campbell separately supported his duty determination by policy considerations. Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., No. CV-2006-01855 (1st Jud. Dist. Ct. Mar. 18, 2010) (“[T]he Court determines that neither foreseeability nor considerations of policy, nor a combination of the two, can support the imposition of duty here.”).
District Court Judge Sarah Singleton, in her order granting summary judgment to Defendants, advocated her own opinion that “the foreseeability analysis in the Restatement Third of Torts is the correct way to analyze foreseeability” under duty. Her grant of summary judgment was thus based not upon independent legal acumen, but rather the responsibility to apply what she perceived to be binding precedent.
Curiously, the parties on appeal did not cite Edward C., perhaps based upon its resolution of a question of duty within a uniquely narrow arena of law — baseball park liability. The facts of that case and the determination of the Court regarding the duty owed to baseball spectators are situationally distinct from the analysis of duty herein. But we conclude that the manner in which duty is defined by Edward C. is applicable, particularly given its departure from the many prior incorporations of foreseeability as the primary determinant of duty.