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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
May 12, 1997
TranSafety, Inc.
(360) 683-6276
Fax: (360) 335-6402
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New York Court Will Reconsider Allocation of Fault to Pedestrian Hit in Unmarked Crosswalk
Survey Measures Knowledge of Pedestrian Laws and Traffic Control Devices
Court to Decide if New Mexico Highway Department Should Have Foreseen Thirteen-Year-Old's Behavior in Crossing Urban Freeway
Does Enforcement of Pedestrian Right-of-Way Laws Increase Driver Compliance?
















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TranSafety's free consumer journal for automobile and road users, three subscription journals on road maintenance, engineering, and injury litigation, and highway safety publications catalog. See our free consumer journal for automobile and road users, three subscription journals on road maintenance, engineering, and injury litigation, and a highway safety publications catalog.

Court to Decide if New Mexico Highway Department Should Have Foreseen Thirteen-Year-Old's Behavior in Crossing Urban Freeway

Dawn Marie Lerma climbed the fence along Interstate 25 in Las Cruces, New Mexico. A vehicle struck the thirteen-year-old as she ran across the freeway. In a personal injury action, Emilio S. Lerma (as Dawn Lerma's next friend) sued the State Highway Department (Department), claiming the Department had a statutory and common-law duty to protect pedestrian traffic by maintaining fences along the highway. Concluding the Department had no duty to install and maintain freeway fences to protect pedestrians, the trial court granted the Department summary judgment and dismissed the suit. When the Court of Appeals reversed, the Supreme Court of New Mexico reviewed the case. Confirming the appellate court's reversal, the Supreme Court remanded the case to the trial court.

The Collision

On the afternoon of October 23, 1986, Dawn Lerma joined two friends in climbing over a four-foot-high fence along Interstate 25 near the Mesilla Valley Mall in Las Cruces, New Mexico. The friends crossed the freeway, warning Dawn Lerma to wait for an approaching vehicle to pass before crossing. She sustained injury when the car hit her as she attempted to cross the freeway.

Lower Court Decisions

In a summary judgment hearing, the plaintiff claimed the Department knew pedestrians often crossed the freeway in this area near the mall. Because of a concern for pedestrian safety, according to the plaintiff, the Department had made it more difficult to climb the fence or crawl under it by putting barbed wire on the top and rocks at the base. The plaintiff also pointed out that Department regulations required fences along Interstate 25 be six feet high; however, the fence Dawn Lerma and her friends climbed was only four feet high. The plaintiff, therefore, alleged the Department's breach of its duty to install and maintain a six-foot fence along this section of freeway was the proximate cause of Dawn Lerma's injuries.

Moving for summary judgment, the Department asserted it had no duty to protect pedestrians from freeway hazards. The trial court sustained this argument and granted the summary judgment.

The plaintiff appealed. Concurring with the district court, the Court of Appeals said the Department had no statutory duty to protect pedestrians from hazards on the freeway. The appellate court, however, found that the Department did have a common-law duty to "conduct its activities in a reasonable manner and to exercise ordinary care for the safety of others." The question of whether the Department breached its duty of care was, according to the court, an issue precluding summary judgment. Therefore, the Court of Appeals reversed the District Court decision in favor of the Department.

Supreme Court Decision

Reviewing this case, the Supreme Court of New Mexico considered two issues:

  1. whether the Court of Appeals erred by imposing a common-law duty upon the Department to maintain a fence for the protection of pedestrians; and
  2. whether, as a matter of law, Dawn's intentional act of crossing the interstate was the sole proximate cause of her injuries.

The court first reviewed the Department's statutory duty to protect pedestrians. The plaintiff supported a contention that the Department had such a duty by referring to NMSA 1978, Section 30-8-13(B)(1) (Repl.Pamp.1984) entitled "Unlawfully permitting livestock upon public highway." This section required the Department to "construct, inspect regularly and maintain fences along all highways under its jurisdiction." The Supreme Court, however, cited Mitchell v. Ridgway (77 N.M. 249, 252, 421 P.2d 778, 780 (1966)) to support its conclusion that Section 30-8-13(B)(1) only intended to protect motorists from wandering livestock that might enter the highway. The section, according to the court, did not address protecting pedestrians from freeway dangers. The court declined to find a statutory duty requiring the Department to install and maintain fences along the freeway for the protection of pedestrians.

Next the court addressed the plaintiff's claim that the Department had a common-law duty to protect the public from "foreseeable harm." Referring for support to Knapp v. Fraternal Order of Eagles (106 N.M. 11, 738 P.2d 129 (Ct.App.1987)), the plaintiff argued the Department had a common-law duty to "conduct its activities in a reasonable manner and to exercise ordinary care for the safety of others." Here the Supreme Court agreed and said that "the Department has always had the common-law duty to exercise ordinary care to protect the general public from foreseeable harm on the highways of the state." Citing NMSA 1978,  41-4-11(A) (Repl.Pamp.1989), the court also pointed out that sovereign immunity is not available when damages result from negligence in maintenance of highways.

The Supreme Court agreed that the Department had a duty to maintain its highways with ordinary care; however, they believed, "The Court of Appeals erred in basing the Department's maintenance duty on the fact that the Department undertook to build a fence." The appellate court had concluded that "once [the Department] undertook to build a fence along its highway, [it] had a duty to exercise ordinary care for the safety of others when erecting and maintaining the fence." Although the Supreme Court confirmed the Department's duty to exercise ordinary care in maintaining its highways, they concluded it would be for the factfinder to decide if this duty applied to installing or maintaining a fence along an urban freeway.

Finally, since the Supreme Court was remanding this case, they also addressed the Department's claim that Dawn Lerma was solely responsible for her injuries. Given that Dawn Lerma climbed an existing fence along the freeway and ignored her friends' warnings not to cross, the Department argued they had no percentage of negligence when Dawn Lerma's actions were the proximate cause of the collision. Citing Baker v. Fryar (77 N.M. 257, 262, 421 P.2d 784, 786 (1966)), the Supreme Court pointed out that proximate cause is a question of fact to be submitted to the factfinder. According to the decision in Baker, the only exception is "when facts regarding causation are undisputed and all reasonable inferences therefrom are plain, consistent and uncontradictory." Cf. Koenig v. Perez (104 N.M. 664, 667, 726 P.2d 341, 344 (1986)) established the same guideline for comparative fault--that comparative fault is an issue of material fact and precludes summary judgment. Finding "all reasonable inferences are not plain, consistent, and uncontradictory" here, the Supreme Court concluded the Department did not have access to summary judgment.

The court closed with wording from two cases that suggested the Department had a duty to protect Dawn Lerma from the hazards presented by the freeway. In Klopp v. Wackenhut Corp. (113 N.M. 153, 157, 824 P.2d 293, 297 (1992)), the court concluded that "some degree of negligence on the part of all persons is foreseeable," and the entity responsible to safeguard the public must anticipate this and take reasonable precautions. In Saul v. Roman Catholic Church (75 N.M. 160, 164, 402 P.2d 48, 51 (1965)), the court set as one guideline for deciding comparative negligence whether an involved child "exercised that degree of care ordinarily exercised by children of like age, capacity, discretion, knowledge and experience under the same or similar circumstances." Whether Dawn Lerma exercised such ordinary care remained an issue for determination by the factfinder.

These questions of fact, according to the Supreme Court, precluded a summary judgment for the Department. Therefore, they remanded Dawn Lerma's case to the trial court.

[For further reference, see Lerma v. State Highway Dept. of New Mexico (N.M. 1994) from West Publishing Vol. 877 Pacific Reporter, 2d Series, 1085]

Copyright © 1997 by TranSafety, Inc.


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