HERMOSILLO V. LEADINGHAM, 2000-NMCA-096,
129 N.M. 721, 13 P.3d 79
LISA HERMOSILLO, Plaintiff-Appellant,
vs.
LIN S. LEADINGHAM and GREG LEADINGHAM,
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
2000-NMCA-096, 129 N.M. 721, 13 P.3d 79
APPEAL FROM THE DISTRICT COURT OF
CHAVES COUNTY. Alvin F. Jones, District Judge.
Released for Publication November 17,
2000.
TANDY L. HUNT, Roswell, NM, for
Appellant.
GREGORY V. PELTON, PELTON &
ASSOCIATES, P.A., Albuquerque, NM, for Appellees.
MICHAEL D. BUSTAMANTE, Judge. WE CONCUR:
JAMES J. WECHSLER, Judge, JONATHAN B. SUTIN, Judge.
AUTHOR: MICHAEL D. BUSTAMANTE
{1} Plaintiff appeals
from a district court order granting summary judgment dismissing several claims
against Defendant Greg Leadingham (Greg) for personal injuries arising out of
an automobile collision involving a vehicle driven by Defendant Lin Leadingham
{*81} {*723} (Lin).
At the time of the accident, Greg and Lin were married but had been living
separately for approximately two months. Their divorce action was pending. In
the district court and on appeal, Plaintiff has attempted to predicate Greg's
independent liability for the collision on three grounds: (1) common law
negligence principles, (2) negligent entrustment, and (3) the family purpose
doctrine. We affirm.
{2} Greg and Lin were
married in November 1993. Prior to the marriage Lin owned a 1989 Toyota
automobile. She retained ownership of this vehicle throughout the marriage,
although community funds were used to pay for a single insurance policy that
covered the Toyota and Greg's vehicle. The Leadinghams separated in July 1996,
and Lin filed a petition for divorce on August 20, 1996. On September 23, 1996,
Lin was driving with the couple's young daughter in the car when Lin's vehicle
struck Plaintiff's vehicle. A police investigation at the scene revealed a half
empty bottle of wine in Lin's vehicle; she was arrested for driving while
intoxicated. Lin's blood alcohol content after the crash measured .25%, which
is more than three times the legal limit.
See NMSA 1978, §
66-8-102(C)
(1999).
{3} Plaintiff filed a
complaint for personal injuries against both Lin and Greg, claiming that Lin's
negligence constituted a community tort. Plaintiff's complaint also alleged
that Greg "negligently permitted Defendant Lin Leadingham to drive the
1989 Toyota while knowing that Lin Leadingham would drink alcoholic beverages
and then drive." Plaintiff attempted to establish Greg's independent
liability in several different ways, including his own negligence in either
facilitating Lin's past drinking or failing to prevent her from drinking and
driving once they were separated. Plaintiff also claimed that Greg had
negligently entrusted the Toyota to Lin, and that the Toyota was a "family
purpose vehicle."
{4} Greg filed a
motion for summary judgment relying on his own affidavit, which sets forth
several of the undisputed facts described above. Specifically, Greg noted that
the Toyota was Lin's separate property before the marriage, that he was never
on the title of the vehicle, and that he had not even seen his wife from the
end of July 1996 until after the September 23, 1996, accident.
{5} Plaintiff's
initial response to the summary judgment motion focused on the fact that Greg
and Lin were still married at the time of the accident. In her supplemental
response, however, Plaintiff focused on Greg's deposition in an effort to
establish that there were grounds for holding Greg liable independent of the
community tort claim. In his deposition, Greg described Lin's drinking pattern
during the course of their marriage. Greg would purchase wine for Lin
"pretty much all the time because she wanted it." Lin would start
drinking in the morning and would drink approximately a half gallon of wine
over a six to twelve hour period. Lin had apparently admitted to having a
drinking problem and had briefly attended Alcoholics Anonymous. Notwithstanding
Lin's drinking, Greg stated that he was not concerned that Lin would be
involved in an automobile accident during their marriage because it was very
rare for her to drive in the afternoon or evening.
{6} After considering
the parties' briefs and arguments, the district court entered an order
dismissing Plaintiff's claims against Greg for common law negligence, negligent
entrustment, and family purpose. In a letter decision to the parties, and at a
later presentment hearing, the district court indicated that Plaintiff's
community debt claim could await resolution until the collection stage, if
necessary. This appeal followed.
{7} After reviewing
the parties' briefs and the district court's order, we were concerned about the
finality of the order being appealed, insofar as it did not dispose of all of
the claims against Greg that Plaintiff stated in her complaint.
See Kelly
Inn No. 102, Inc. v. Kapnison,
113 N.M. 231, 236,
824 P.2d 1033, 1038
(1992). We remanded the case to the district court for the limited purpose of
seeking clarification of the court's order of dismissal.
See Khalsa v.
Levinson,
1998-NMCA-110, P16,
125 N.M. 680, 964 P.2d
{*724}
844.
{*82} In response, the district
court entered an order directing the entry of judgment in favor of Greg on the
issues of common law negligence, negligent entrustment, and the family purpose
doctrine and specifically finding that "there is no just reason to delay
an appeal."
See Khalsa,
1998-NMCA-110, P18, 125 N.M. at 685, 964
P.2d at 849; Rule
1-054(B)(1) NMRA 2000. We therefore exercise jurisdiction
over the appeal.
{8} "The standard
of review for a motion for summary judgment is whether there are any genuine
issues of material fact and whether the moving party is entitled to summary
judgment as a matter of law."
Williams v. Central Consol. Sch. Dist.,
1998-NMCA-6, P7,
124 N.M. 488,
952 P.2d 978;
see also Rule
1-056(C) NMRA
2000. We consider the facts in the light most favorable to the party opposing
summary judgment.
See Gillin v. Carrows Restaurants, Inc.,
118 N.M. 120,
122,
879 P.2d 121, 123 . If, however, the facts are not in dispute, and only a
legal interpretation of the facts remains, summary judgment is appropriate.
See
Garrity v. Overland Sheepskin Co., 1996-NMSC-32, P29,
121 N.M. 710,
917
P.2d 1382.
{9} In her brief,
Plaintiff states the essential question in this appeal as follows: "Does
the husband of an alcoholic wife who knows that her driving poses a danger to
herself, to their daughter and to others using the highways have a duty of
reasonable care to prevent the foreseeable harm from occurring?" Plaintiff
answers this question in the affirmative by referring us to well-established
New Mexico case law discussing duty.
See, e.g.,
Torres v. State,
119 N.M. 609, 612-13,
894 P.2d 386, 389-90 (1995);
Calkins v. Cox Estates,
110 N.M. 59, 61-62,
792 P.2d 36, 38-39 (1990).
{10} Plaintiff's
approach might be viable were we restricted to a consideration of any facts
provable under the broadly worded language in the complaint. Such was the case
in
Torres, 119 N.M. at 612-13, 894 P.2d at 390-91, analyzing duty in the
context of a motion to dismiss for failure to state a claim. However, analyzing
a complaint in light of a motion for summary judgment rather than a motion to
dismiss, "can eliminate scenarios consistent with the pleadings but inconsistent
with uncontradicted facts presented to the court for consideration of the
summary judgment motion."
Dunn v. McFeeley, 1999-NMCA-84, P13,
127
N.M. 513,
984 P.2d 760. Such is the case here. Applying New Mexico case law to
the undisputed facts developed in this case, we hold that the district court
properly granted the motion for summary judgment.
{11} In
Davis v.
Board of County Commissioners,
1999-NMCA-110, PP14-15,
127 N.M. 785,
987
P.2d 1172, this Court recently had the opportunity to discuss the current state
of "duty" analysis as articulated by our Supreme Court. As noted in
Davis,
we are guided by our Supreme Court's pronouncement that "policy determines
duty."
Torres, 119 N.M. at 612, 894 P.2d at 389. The general rule
is that an individual does not have a duty to control the acts of a third party
in the absence of a duty imposed by statute or recognized as a result of a
special relationship that exists between a defendant and the tortfeasor.
See
Davis,
1999-NMCA-110, P15, 127 N.M. at 790-791, 987 P.2d at 1177-1178;
Restatement (Second) of Torts § 315 (1965). Unlike the situation considered in
Torres,
there is no statute applicable in the present case.
See Torres, 119 N.M.
at 612, 894 P.2d at 389. Thus, our focus is whether there is a "special
relationship" which supports imposition of a duty.
{12} There are several
examples of "special relationships" that give rise to an exception to
the general rule that a person has no duty to control the actions of a third
party.
See Restatement (Second) of Torts §§ 314A, 316-319 (1965);
see
also, e.g.,
Chavez v. Torres,
1999-NMCA-133, P20,
128 N.M. 171,
991
P.2d 1 (discussing landowner exception). None of the recognized "special
relationships" is applicable in this case. The Restatement does include a
caveat indicating that the authors express no opinion as to whether other
relations may impose a duty where it might otherwise not exist, but it also
indicates that, while there had apparently not yet, at the time of publication,
been any cases
{*725} imposing a heightened
"special relationship" duty on husbands and wives, the law was moving
toward recognizing a duty where there is a dependence or mutual dependence.
See
Restatement,
supra, § 314A caveat, cmt. b, at 119. The general trend,
however, appears to be that the marital relationship, without more, does not
trigger an independent duty to control the behavior of one's spouse.
See,
e.g.,
Wise v. Superior Court, 222 Cal. App. 3d 1008, 272 Cal. Rptr.
222, 224-25 ;
Touchette v. Ganal, 82 Haw. 293, 922 P.2d 347, 355 (Haw.
1996).
{13} We do not deem it
necessary to consider whether or under what circumstances the marital
relationship might constitute a "special relationship" to trigger a
duty under Sections 314A or 315 of the Restatement. The undisputed facts here
are that, by the time of the accident, Greg's and Lin's estrangement was
permanent and the dissolution of their marriage was imminent. Under the
circumstances, it would be inappropriate to impose a "special
relationship" duty upon them simply because they were technically still
married. Any duty on the part of Greg must be predicated on conduct independent
of his marital status at the time of the accident. We note, however, that
Greg's and Lin's relationship is not irrelevant to our duty analysis. It simply
does not, in and of itself, trigger a duty in this case.
{14} As we discussed
in
Davis, duty may also exist under the following circumstances:
Assuming other policy considerations are satisfied, a
duty to exercise ordinary care, where one otherwise would not exist, may arise
when a person voluntarily undertakes a course of conduct which, in the absence
of due care, may foreseeably injure others as a natural and probable
consequence of the person's conduct.
1999-NMCA-110, P15, 127 N.M. at 790-791, 987 P.2d at
1172-1173; see also Restatement (Second) of Torts § 876 (1979).
{15} We believe that
Plaintiff may be attempting to establish duty on this latter theory.
Specifically, Plaintiff maintains that Greg's conduct led to a foreseeable
result, and that public policy considerations not only permit but compel
recognition of Greg's duty to her under the facts of this case. She begins with
foreseeability. She claims that Greg should have foreseen that a member of the
driving public could have been injured as a result of his failure to (1)
exercise reasonable care in controlling Lin's drinking, (2) assist Lin in
finding programs for problem drinkers, (3) persuade her to stop drinking, and
(4) preclude her from driving by canceling her insurance. In her reply brief, however,
Plaintiff essentially concedes that Greg is correct in arguing that
cancellation of insurance should not be considered as part of this analysis. We
agree. Plaintiff presented no evidence to suggest that Lin would have stopped
driving if Greg had cut off the insurance. More importantly, it does not make
sense as a matter of policy to expose the public to an uninsured driver.
{16} Turning to
Plaintiff's other grounds, we agree with Plaintiff that it is foreseeable that
an individual with a drinking problem could injure a member of the public as a
result of the drinking. The focus here, however, is on Greg's conduct. Although
Plaintiff is correct that time and place factors are generally left to the
jury,
see Torres, 119 N.M. at 614, 894 P.2d at 391, we believe that
Greg's conduct is simply too attenuated from the date of the accident to impose
liability. It is undisputed that Greg neither had contemporaneous knowledge of
nor provided contemporaneous assistance for the drinking which resulted in the collision.
Cf. GCM, Inc. v. Kentucky Cent. Life Ins. Co., 1997-NMSC-52, P15,
124
N.M. 186,
947 P.2d 143 (discussing duty to refrain from causing or assisting
another to violate a duty owed to a third person);
Rael v. Cadena,
93
N.M. 684, 685,
604 P.2d 822, 823 (affirming finding of tort liability for
defendant who yelled encouragement while battery was being committed).
{17} Plaintiff's
position would require us to impose a duty with open-ended time and place
limits on anyone who might be able, as Plaintiff says, to "prevent the
driver from getting drunk or from freely driving while in an intoxicated
state." That is, by imposing an independent duty on Greg to correct or
prevent the potentially tortious behavior of his estranged spouse after two months
of
{*726} complete separation and upon
imminent divorce, we could open up an arena of limitless potential for
liability. We find no basis to do so.
{18} In light of what
we believe are clear public policy considerations against creating or expanding
a duty under the circumstances in this case, we agree with the district court
that summary judgment was properly granted on Plaintiff's negligence claim.
{19} Plaintiff argues
that summary judgment should not have been granted on the negligent entrustment
claim because there were material factual disputes with respect to whether Greg
had sufficient control over the Toyota to trigger a duty to prevent Lin from
driving. This Court has previously adopted the following definition of negligent
entrustment:
It is negligence to permit a third person to use a
thing or to engage in an activity which is under the control of the actor, if
the actor knows or should know that such person intends or is likely to use the
thing or to conduct himself in the activity in such a manner as to create an
unreasonable risk of harm to others.
McCarson v. Foreman, 102 N.M. 151, 156, 692 P.2d 537,
542 (quoting Restatement (Second) of Torts § 308 (1965)). To establish a claim
for injuries caused by the negligent entrustment of an automobile, the
plaintiff must show that the defendant entrusted his automobile to another whom
the defendant knew or should have known was an incompetent driver, and whose
incompetence caused the plaintiff's injuries. See DeMatteo v. Simon, 112
N.M. 112, 114, 812 P.2d 361, 363 (Ct. App. 1991); Spencer v. Gamboa, 102
N.M. 692, 693, 699 P.2d 623, 624 (Ct. App. 1985).
{20} In their briefs,
the parties debate whether Greg was entitled to summary judgment based on the
undisputed fact that Lin was the owner of the vehicle. We do not need to reach
the issue of whether there may be situations in which a non-owner would have
sufficient control over an object to trigger liability under a negligent
entrustment theory if the non-owner relinquishes control to an owner who
foreseeably could cause harm. The undisputed facts here show that Greg lacked
any control over the vehicle. He was not in possession of the vehicle at any
time during the months preceding the accident. Moreover, he lacked legal authority
over the vehicle, and had no consensual basis for exerting any degree of
control over the vehicle. As such, Plaintiff's negligent entrustment claim must
fail.
Cf. DeMatteo, 112 N.M. at 114-15, 812 P.2d at 363-64 (suggesting
negligent entrustment claim could lie against defendant construction company
because company's representative knew or should have known of poor driving
record of the driver to whom it had entrusted its vehicle);
McCarson,
102 N.M. at 156-57, 692 P.2d at 542-43 (affirming jury's finding of negligent
entrustment where evidence showed father knew of son's prior conviction for
driving while intoxicated and plea agreement for possession of cocaine yet
still allowed son to drive company's vehicle).
E. Family Purpose Doctrine
{21} Like Plaintiff's
negligent entrustment claim, the family purpose doctrine is simply inapplicable
to the facts of this case. As set forth in the elements of UJI
13-1210 NMRA
2000, the family purpose doctrine imposes liability on the head of a household
for the negligent operation of a vehicle by a member of the household to whom
the head of household has furnished the vehicle. As Plaintiff points out, the
Supreme Court has articulated the public policy behind this doctrine as an
effort to "require a responsible person to answer for damages caused by
the user of the family car."
Madrid v. Shryock,
106 N.M. 467, 469,
745 P.2d 375, 377 (1987). The goal is to encourage owners to exercise a greater
degree of care when deciding whether to permit a financially irresponsible
driver to use the family car.
See id. at 470, 745 P.2d at 378.
{22} Plaintiff fails
on practically every element of a family purpose doctrine claim. First, the
doctrine is inapplicable because it is undisputed that Lin was insured and was
therefore not a "financially irresponsible" driver.
See id. ;
see
also Ramirez v. Ramirez,
1996-NMCA-116, P10,
122 N.M. 590,
929 P.2d 982.
Second, as in
Madrid, 106 N.M. at 471, 745 P.2d at 379, and consistent
{*727} with our negligent entrustment
discussion, Plaintiff failed to come forward with any facts establishing that
Greg furnished the vehicle to Lin or otherwise had sufficient control over the
vehicle to suggest that he had made the vehicle available in his capacity as
the head of the household. Finally, Lin and Greg were not living together at
the time of the accident and, while technically still married, could not be
considered a "household" for purposes of invoking liability.
See
Ramirez,
1996-NMCA-116, P11, 122 N.M. at 592, 929 P.2d at 984.
{23} For the reasons
discussed above, we conclude that the district court properly granted summary
judgment on Plaintiff's claims alleging common law negligence, negligent
entrustment, and liability under the family purpose doctrine.
MICHAEL D. BUSTAMANTE, Judge