October 12, 2012 – James Rodriguez, individually and as Representative of the Estates of Janell L. Rodriguez and David Rodriguez, deceased, Leann Aguilar, Domenic A. Rodriguez, Juan M. Terrazas, individually and as Representative of the Estate of Viviana E. Terrazas, Deceased, Ludivina Terrazas, deceased, Ludivina Terrazas Enriquez, and Billy J. Trujillo, as Next Friend of Isaiah Trujillo v. Del Sol Shopping Center Associates, L.P., a/k/a Del Sol Shopping Center, BGK Properties, Inc., BGK Realty, Inc., BGK Property Management, L.L.C., and BGK Equities III, Inc., and Maria C. Bustamante, as Representative of the Estate of Michael Solchenberger, and his wife Lydia Solchenberger, deceased v. BGK Properties, Inc., Del Sol Shopping Center Associates, L.P., and Concentra Health Services, Inc., No. 30,421 consolidated with No. 30,578

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 12, 2012

NO. 30,421 consolidated with No. 30,578

JAMES RODRIGUEZ, Individually and as
Representative of the Estates of JANELL L.
RODRIGUEZ and DAVID RODRIGUEZ,
Deceased, LEANN AGUILAR, DOMENIC

A. RODRIGUEZ, JUAN M. TERRAZAS,
Individually and as Representative of the Estate
of VIVIANA E. TERRAZAS, Deceased,
LUDIVINA TERRAZAS ENRIQUEZ, and
BILLY J. TRUJILLO, as Next Friend of
ISATAH TRUJILLO,

Plaintiffs-A ppellants,

DEL SOL SHOPPING CENTER ASSOCIATES,
L.P., a/k/a DEL SOL SHOPPING CENTER,
BGK PROPERTIES, INC., BGK REALTY, INC.,
BGK PROPERTY MANAGEMENT, L.L.C.,

and BGK EQUITIES II, INC.,

Defendants-A ppellees.

and

MARIA C. BUSTAMANTE, as Representative
of the Estate of MICHAEL SOLCHENBERGER,
and his wife LYDIA SOLCHENBERGER, Deceased,
Plaintiff-Appellant,
v.
BGK PROPERTIES, INC., DEL SOL SHOPPING
CENTER ASSOCIATES, L.P., and CONCENTRA
HEALTH SERVICES, INC.,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge
Law Offices of Beatrice Lockhart
Beatrice Castellano Lockhart
Santa Fe, NM
Joe Cruz Castellano, Attorney at Law
Joe Cruz Castellano
Santa Fe, NM
Watts Guerra Craft L.L.P.
John G. Escamilla
Edinburg, TX
Gaddy Jaramillo Lawyers
David Jaramillo
Albuquerque, NM
Attorneys for Appellants
James Rodriguez, et al.
O’Friel and Levy, P.C.

Daniel J. O’Friel
Aimee Bevan
Santa Fe, NM
Attorneys for Appellant
Maria C. Bustamante
Madison, Harbour & Mroz, P.A.
Ada B. Priest
M. Eliza Stewart
Albuquerque, NM
Attorneys for Appellees
BGK Properties, Inc. and Del Sol
Shopping Center Associates, L.P.,
BGK Realty, Inc. and BGK Equities
III, LLC
Civerolo, Gralow, Hill & Curtis, P.A.
Lisa Entress Pullen
M. Clea Gutterson
Albuquerque, NM
Attorneys for Appellees
BGK Property Management, LLC
Rammelkamp, Muehlenweg & Cordova, P.A.
Lara White Davis
Albuquerque, NM
Attorney for Appellee
Concentra Health Services, Inc.

OPINION
HANISEE, Judge.
{1} 	On March 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 young child 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

2
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, 2010-NMSC-043, ¶ 15,
148 N.M. 646, 241 P.3d 1086.
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 question to be resolved is the legal effect of the facts.” 	Monett v. Doña Ana
Cnty. Sheriff’s Posse, 114 N.M. 452, 454, 840 P.2d 599, 601 (Ct. App. 1992) (internal
quotation marks and citations omitted). The issue presented here is of the latter type,
which compels our resolution of the legal question of duty in the context of the
established material facts. Accordingly, we apply de novo review. See Cable v. Wells
Fargo Bank N.M., N.A. (In re Cable Family Trust), 2010-NMSC-017, ¶ 9, 148 N.M.
127, 231 P.3d 108 (“An appeal from the grant of a motion for summary judgment
presents a question of law and is reviewed de novo.” (internal quotation marks and
citation omitted)); see also Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134

3
N.M. 43, 73 P.3d 181 (stating that “[w]hether a duty exists is a question of law” to be
reviewed de novo).
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

4
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 above. Before answering, we briefly
summarize the evolution of New 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

5
jurisprudence following the seminal case on this topic, Palsgraf v. Long Island
Railroad Co., 162 N.E. 99 (N.Y. 1928). Our own review of these cases has likewise
discerned vacillation between the different constructions by which duty can be
recognized and measured. The Palsgraf debate, written by Chief Judge Cardozo on
behalf of the majority and with Judge Andrews penning the dissent, specifically
addressed the application of foreseeability within the legal question of duty, and
underscored the tension between the differing roles of judges and juries in resolving
negligence-based lawsuits. 	In short, Judge Cardozo prevailed in his effort to
incorporate foreseeability within the strictly legal determination of duty. 	See
Palsgraf, 162 N.E. at 100 (“[T]he orbit of the danger as disclosed to the eye of
reasonable vigilance would be the orbit of the duty.”). He did so despite the separate
application of foreseeability within the element of causation—a quintessential
question of fact resolved by juries. 	See Johnstone v. City of Albuquerque,
2006-NMCA-119, ¶ 20, 140 N.M. 596, 145 P.3d 76 (“[A]ny consideration of
foreseeability of injury is intertwined with the concept of proximate causation of that
injury.”); Baker v. Fryar, 77 N.M. 257, 262, 421 P.2d 784, 787 (1966) (“We
recognize that proximate cause is a question of fact to be determined by the
factfinder.”). 	Judge Andrews advocated the divergent viewpoint in his dissent,

6
maintaining that “[d]ue care is a duty imposed on each one of us to protect society
from unnecessary danger,” and that any limitation of duty should be derived from
matters of effective policy rather than the more nebulous legal notion of foreseeability.
See Palsgraf, 162 N.E. at 102, 103 (“[B]ecause of convenience, of public policy, of
a rough sense of justice, the law arbitrarily declines to trace a series of events beyond
a certain point. This is not logic. It is practical politics.”).
{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.
100 N.M. 538, 541, 673 P.2d 822, 825 (1983) (“If it is found that a plaintiff, and
injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the
defendant.”), overruled in part by Folz v. State, 110 N.M. 457, 797 P.2d 246 (1990).
But Ramirez’s imprecise phrasing of the express Palsgraf holding was later criticized
by New Mexico Supreme Court Chief Justice Ransom in a particularly enduring
special concurrence. See Solon v. WEK Drilling Co., 113 N.M. 566, 572, 829 P.2d
645, 651 (1992) (Ransom, C.J., specially concurring) (“Chief Judge Cardozo held in
Palsgraf that there can be no duty in relation to another person absent foreseeability
. . . , it does not follow that duty necessarily is present if risk of injury to that other
person is foreseeable from one’s acts and omissions. . . . It is unfortunate that in

7
Ramirez . . . this Court stated [otherwise].”). Chief Justice Ransom additionally wrote
that “the crux of the duty analysis that is required . . . is not a factual foreseeability
determination, but rather it is a legal policy determination.” 	Id.; accord 	Calkins v.
Cox Estates, 110 N.M. 59, 67, 792 P.2d 36, 44 (1990) (Ransom, J., dissenting) (“More
often, duty as a matter of law turns not on an absence of the fact issue of
foreseeability, but rather the policy issue of whether it is reasonable to impose a duty
to avoid a risk of injury which, although foreseeable, is remote.”). 	Despite these
protests, our appellate courts incorporated the primary determination of foreseeability
into the legal question of duty. 	Calkins, 110 N.M. at 61, 792 P.2d at 38 (“In
determining duty, it must be determined that the injured party was a foreseeable
plaintiff—that he was within the zone of danger created by [the] respondent’s actions;
in other words, to whom was the duty owed?”); Solon, 113 N.M. at 569-70, 829 P.2d
at 648-49 (recognizing that New Mexico’s duty analysis “limits a tortfeasor’s liability
to the foreseeable plaintiff and excludes it where the plaintiff is unforeseeable”).
{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.

1 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.” 2003-NMSC-018, ¶
40 (internal quotation marks and citation omitted). 	Justice Bosson suggested that
“[p]erhaps policy issues like remoteness, aided by indications of legislative intent, are
the better tools for shaping duty, and we should leave the foreseeable plaintiff for the
jury.” Id. ¶ 41.
8
State Fair, 111 N.M. 644, 649, 808 P.2d 614, 619 (1991) (“[O]nce a duty is
established, the foreseeability of harm governs the scope of that duty.” (internal
quotation marks and citation omitted)); Monett, 114 N.M. at 459, 840 P.2d at 606
(“[T]he issue of duty . . . turn[s] on the question of foreseeability.”); Reichert v. Atler,
117 N.M. 623, 626, 875 P.2d 379, 382 (1994) (“The owner’s duty to protect patrons
extends to all foreseeable harm . . . .” (emphasis added));
(2) as a necessary element alongside policy considerations, see, e.g., Quality
Pontiac, 2003-NMSC-018, ¶ 9, 134 N.M. 43, 73 P.3d 181 (2003) (“The Court of
Appeals has similarly recognized that duty requires analysis of both foreseeability and
policy.”) 1; Blake v. Pub. Serv. Co. of N.M., 2004-NMCA-002, ¶ 7, 134 N.M. 789, 82
P.3d 960 (“Determination of duty is based in part on whether the injury to the plaintiff
was foreseeable. . . . [Yet], policy also determines duty.”); Chavez v. Desert Eagle
Distrib. Co. of N.M., LLC, 2007-NMCA-018, ¶ 16, 141 N.M. 116, 151 P.3d 77 (“The
initial step in a common law duty analysis is to determine whether a particular

9
plaintiff and a particular harm are foreseeable[;] . . . we then determine whether policy
considerations preclude the imposition of a common law duty in a particular case.”);
and
(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, 119 N.M. 609, 612-13, 894 P.2d
386, 389-90 (1995) (declaring for the first time—with Justice Ransom at last having
the opportunity to serve as author for the majority—that “policy determines duty”).
{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., 2009-NMCA-
059, ¶¶ 7-8, 146 N.M. 520, 212 P.3d 408 (alteration, internal quotation marks, and
citation omitted) (holding that purposeful, targeted criminal behavior in the parking
lot of a convenience store was unforeseeable as a matter of law). In applying Romero,
both district courts in the instant case concluded that this accident “was not
foreseeable” as a matter of law and therefore no duty existed. The district court judge
to first consider the question of duty in these parallel cases explained in his

2 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.”).
3 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.
10
memorandum opinion and order that
[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 her 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 basis3 , the now-combined cases serve to illustrate the fallibility of an
overly foreseeability-dependent analysis by district courts tasked with determining
order in a convoluted area of law, as Justice Bosson warned in his special concurrence
in Quality Pontiac. 2003-NMSC-018, ¶ 42 (“When we attempt to define legal duty
in terms of a foreseeable plaintiff, it is all too tempting to use ‘foreseeability’ as a

11
surrogate for result-oriented conclusions.”); accord Marquez v. Gomez, 116 N.M. 626,
631, 866 P.2d 354, 359 (Ct. App. 1991) (“The existence and scope of duty, as
questions of law, should not be scrutinized with such specificity that the factual issue
of negligence is subsumed.”). This dilemma is readily apparent in this case, where
minutia-specific foreseeability analysis overwhelms the ascertainability of legal duty.
For “if we look into the past of any given event, there is an infinite number of events,
each of which is a necessary condition of the given event . . . .” See H. L. A. Hart &
A. M. Honoré, Causation and Responsibility, in Philosophy of Law: Classic and
Contemporary Readings 307, 309 (Larry May & Jeff Brown, eds., 2009) (emphasis
added); see also, Edward N. Lorenz, The Essence of Chaos 181 (1995) (“If a single
flap of a butterfly’s wings can be instrumental in generating a tornado, so also can all
the previous and subsequent flaps of its wings, as can the flaps of the wings of
millions of other butterflies, not to mention the activities of innumerable more
powerful creatures, including our own species.”).
{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., 2010-NMSC-043. In reversing the Court
of Appeals’ judgment—“that ordinary care was the applicable standard [of duty]

12
because [the plaintiff] and his injury were foreseeable”—our Supreme Court
unanimously, and for the first time, adopted an approach more consistent with the
Restatement (Third) of Torts than with Palsgraf, and that “disapprov[es] the use of
foreseeability to limit liability.” 	Edward C., 2010-NMSC-043, ¶ 18 (alteration
omitted) (citing Restatement (Third) of Torts: Liability for Physical and Emotional
Harm § 7 cmt. j (2010)). The ensuing legal duty test as articulated in Edward C. now
reads as follows:
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 precedent, statutes, and other
principles comprising the law.
2010-NMSC-043, ¶ 14 (internal quotation marks and citation omitted).
{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

4 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.
13
need for clarity in what has become an increasingly complex area of law.4 We
recognize that it is not the job of an intermediate appellate court to cement or dismiss
legal nuances that a higher tribunal has oft employed. 	Rather, it is the job of the
authoring 	court 	to 	discount 	antiquated 	legal 	relics 	within 	its 	own 	body 	of
jurisprudence, when it sees fit to do so. But, despite the lack of an express dismissal
of the historic application of foreseeability to the question of legal duty in New
Mexico by the Edward C. Court, we believe its import is plain enough:
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
“articulat[ing] polic[ies] or principle[s] . . . 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

14
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.”
2010-NMSC-043, ¶¶ 18, 21 (alterations in original) (internal citations omitted).
Incidentally, the subjugation of foreseeability into a mere factor in the analysis of
legal duty, and the concomitant shift toward a policy-driven duty analysis, seems to
have finally adopted the approach articulated by Justices Ransom and Bosson. We
also trumpet the impact of Edward C. to promote uniformity of analysis to the legal
question of duty frequently encountered by this Court and the district courts around
our State, which have even since Edward C. continued to diverge based on conflicting
precedent. 	Compare Bowen v. Mescalero Apache Tribe, No. 29,625, slip op. at 6
(N.M. Ct. App. Jan. 27, 2011) (“[D]etermining whether a duty exists requires two
steps: the first step is to consider whether there was foreseeability as to a particular
plaintiff and a particular harm, and the second step is to examine whether public
policy reasons support the imposition of a duty.” (citing Lessard v. Coronado Paint
& Decorating Ctr., Inc., 2007-NMCA-122, ¶ 30, 142 N.M. 583, 168 P.3d 155)), cert.
granted, 2011-NMCERT-004, 150 N.M. 649, 264 P.3d 1172, with Vargas v. Cruz,
No. 30,884, slip op. at 1 (N.M. Ct. App. June 19, 2012) (“Foreseeability is one factor

15
to consider when determining duty, however, ‘[p]olicy is the principal factor in
determining whether a duty is owed and the scope of that duty.’” (alteration in
original) (citing Edward C., 2010-NMSC-043, ¶¶ 14, 18)). Moreover, in cases such
as these currently at bar, a definitive framework could best advance the consistent and
transparent application of law to sudden and unimaginable tragedies, to the benefit of
litigants, businesses seeking clear canons for responsible behavior, and judicial
efficiency alike.
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 2010-NMSC-043, ¶ 14 (“What duty should owner/occupants of
a baseball stadium in New Mexico have to protect spectators from projectiles that
leave the field of play?”). We note the wisdom of defining and analyzing the duty
broadly within context, rather than as manifested by specific conduct, such as a duty
to erect bollards, barriers, speed bumps, concrete walls, etc.:

16
[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, 111 N.M. at 649, 808 P.2d at 619 (second alteration in original) (citation
omitted).
{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, 118 N.M. 134, 139, 879
P.2d 766, 771 (1994) (“A landowner or occupier of premises must act as a reasonable
man in maintaining his property in a reasonably safe condition in view of all the
circumstances, including the likelihood of injury to another, the seriousness of the
injury, and the burden of avoiding the risk.”); see also UJI 13-1309 NMRA (“An
[owner] [occupant] owes a visitor the duty to use ordinary care to keep the premises
safe for use by the visitor [, whether or not a dangerous condition is obvious].”).
Ordinary care is that “which a reasonably prudent person would use in the conduct of
the person’s own affairs . . . [and] varies with the nature of what is being done.” UJI
13-1603 NMRA. The duty of an owner/occupant to exercise ordinary care can even

17
include the protection of visitors against acts of third parties in circumstances where
knowledge of a specific danger is apparent. But whether an established duty in such
an instance has been breached is a question of fact that juries are asked to resolve by
considering the following instruction:
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] [occupant] 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.” 117 N.M. at 626, 875 P.2d
at 382. 	In the Reichert case, Justice Ransom was careful to note that the “duty to
protect visitors arises from the likelihood that a third party will injure a visitor . . .
regardless of whether that harm results from intentional or negligent conduct.” 	Id.
(emphasis added).
{14} 	The question here, however, is not whether Defendants bore a general duty of

18
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 adjacent parking lots. 	See Provencio v.
Wenrich, 2011-NMSC-036, ¶ 16, 150 N.M. 457, 261 P.3d 1089 (“In a negligence
action, . . . the court must first find an actionable duty of care and then define the
nature and scope of that duty.”). In answering that query, we consider (1) “the nature
of the . . . activity in question,” (2) “the parties’ general relationship to the activity,”
and (3) “public policy.” See Edward C., 2010-NMSC-043, ¶ 14.
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 Defendants—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

19
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., 2010-NMSC-043, ¶ 41 (acknowledging that flying
projectiles 	from 	the 	field 	of 	play 	are 	an 	inherent 	risk 	of 	baseball 	to 	be
anticipated—even desired—by the spectator).
{16} 	The absence of apparent and inherent 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 reflect 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, 190 S.E.2d 490, 492

20
(Ga. Ct. App. 1972) (holding that the alleged act of negligence—that “defendant
should have [taken precautions in] anticipat[ion] that some negligent motorist would
attempt to drive through his store”—was “so remote and improbable as not reasonably
to be anticipated by a merchant in the exercise of ordinary care”); Mack v. McGrath,
150 N.W.2d 681, 686 (Minn. 1967) (“We agree that liability cannot be predicated on
the fact that out of the many thousands of vehicles which use parking areas in a
normal way, one or two may occasionally jump the curb and expose pedestrians as
well as tenants to the remote possibility of injury.”).
{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

21
by Defendants to Plaintiffs. 2010-NMSC-043, ¶ 14. “The existence of a duty is a
question of policy to be determined with reference to legal precedent, statutes, and
other principles comprising the law.” 	Calkins, 110 N.M. at 62, 792 P.2d at 39.
Because “it is the particular domain of the [L]egislature, as the voice of the people, to
make public policy,” we would normally begin our analysis by construing any
applicable statutes and regulations that may apply to shopping center design and
maintenance. 	Torres, 119 N.M. at 612, 894 P.2d at 389. Defendants contend and
Plaintiffs do not refute, however, that “[i]n this instance, there are no laws, codes or
ordinances promulgated by the legislature, nor any governing body, that mandate the
placement of barriers sufficient to prevent vehicles that leave the designated roadway
from crashing through businesses in a strip mall.” Similarly, nothing in the record
presented by any plaintiff indicates that Defendants’ parking lot was not in full
compliance with applicable state and local building codes. And finally, no party cites
any passage of law indicating the Legislature’s stance, if it exists, with respect to
liability in this instance.
{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

22
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 straightaway”;
(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 store-front 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 bollards or additional barriers at short intervals from

23
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 employ 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, 2006-NMSC-033, ¶ 8, 140 N.M. 16, 139 P.3d 176 (“The predominant
voice behind the declaration of public policy of the state must come from the
[L]egislature . . . .”).
{21} 	More compellingly, based on the briefs and the record developed before the

24
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
code, 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, 119 N.M. at 612, 894 P.2d at 389 (“Courts should
make policy . . . only when the body politic has not spoken and only with the
understanding that any misperception of the public mind may be corrected shortly by
the [L]egislature.”).
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:

25
[T]he 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, 71 N.M. 186, 189, 376 P.2d 970, 973 (1962). 	We have, however,
recognized such a “duty to protect” in only two contexts: (1) for bar owner/occupiers
to their patrons who are injured by the intentional violent conduct of other patrons, see
id.; Reichert, 117 N.M. at 626, 875 P.2d at 382; Barth v. Coleman, 118 N.M. 1, 878
P.2d 319 (1994), and (2) for private homeowners whose visitors are injured by the
foreseeable criminal conduct of a third party, Chavez v. Torres, 1999-NMCA-133, 128
N.M. 171, 991 P.2d 1.
{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, Coca, Reichert, and Barth recognized predictable
dangers when serving alcohol to patrons involved in known personal disputes. See
Coca, 71 N.M. at 188, 376 P.2d at 972 (barroom attack with glass bottle by patron
known to have insulted and argued with another patron earlier that evening); Reichert,
117 N.M. at 624, 875 P.2d at 380 (barroom shooting by patron known to be violent,
armed, and arguing with another patron); Barth, 118 N.M. at 2, 878 P.2d at 320

26
(barroom attack following previous altercation and manager’s assurance to the victim
that he “would monitor the situation”). Similarly, in Chavez this Court recognized a
“duty to protect” owed by residential homeowners who were present and “knew or
should have known of the ability to control persons causing injury to a visitor and the
necessity and opportunity to exercise such control.” 1999-NMCA-133, ¶ 20.
{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, 280 S.E.2d 202, 203 (S.C. 1981) (“[N]o liability results from lack
of a safety barrier unless that condition contributed to the loss of control.”). Rather,
the prior incidents at Del Sol were minor mishaps caused by common driver error.

27
Thus, we can discern no basis on the facts of these cases to legally extend a “duty to
protect” visitors from runaway vehicles into the responsiblility of ordinary care
applicable to Defendants.
{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.
2009-NMCA-059, ¶ 14 (alteration in original) (citation omitted). Although Romero
excluded from the construct of ordinary care an obligation to protect from intentional
criminal acts, its reasoning is analogous. Ms. Ruiz’s truck could have collided with
an object or a person anywhere she chose to drive that day; the actual location and the
persons struck were products of happenstance. And short of erecting a substantial
barrier in front of all its business-front windows, there was no definitively
prophylactic action Del Sol could have undertaken to ensure it was not the location
at which tragedy struck. All cars cannot point away from a given inhabited building

28
at all times, and all storefronts with roadway access cannot be expected to erect
concrete barriers to guarantee the prevention of such lightning strikes of misfortune.
We perceive no basis within our caselaw on which to expand liability to this category
of accidents as a matter of policy, absent some guidance or directive from our
Legislature.
{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., 71
N.M. 377, 382, 378 P.2d 613, 617 (1963), overruled in part on other grounds by
Proctor v. Waxler, 84 N.M. 361, 503 P.2d 644 (1972); UJI 13-1318 NMRA (prior to
1996 amendment). And while we have since deleted that language from the UJI itself,
the principle remains intact within New Mexico law. 	Brooks v. K-Mart Corp.,
1998-NMSC-028, ¶ 10, 125 N.M. 537, 964 P.2d 98. 	The second principle that
provides guidance is our recognition that “New Mexico has already determined where
much of the burden of tort liability should lie when a motor vehicle is involved in an
accident” by mandating “that all residents who own and operate motor vehicles be

29
financially responsible for damages as a result of motor vehicle accidents.” 	Blake,
2004-NMCA-002, ¶ 23; cf. Ziemba v. Mierzwa, 566 N.E.2d 1365, 1369 (Ill. 1991)
(“The underlying rationale for holding a landowner liable for injuries occurring as a
result of conditions on his land is that the landowner is in the best position to prevent
the injury. However, in this case, we find that the truck driver was in the best position
to prevent the injury. Thus the usual justification for imposing landowner liability is
not present . . . .”).
{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

30
traffic and impose on the owners a burden completely out of proportion to the
anticipated risk.” 	Mack, 150 N.W.2d at 686. We believe it particularly unwise to
impose such a wide reaching duty in the absence of clear guidance from our
Legislature or our precedent. See Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶
19, 122 N.M. 537, 928 P.2d 263 (noting that “[u]nder these circumstances, we have
no basis for expanding liability by recognizing a duty other than that arising under
existing case law”). It is not the business of the judiciary to so burden facilities across
the state with accountability for conduct they cannot reasonably regulate.
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., 618 N.E.2d 10,
13 (Ind. Ct. App. 1993) (“The majority of cases from other jurisdictions have likewise
concluded that a store owner owes no duty to invitees to protect them from runaway
vehicles in parking lots, since this kind of occurrence is not sufficiently foreseeable
for a store owner to be required to protect against it.”). Most have done so based on
a foreseeability-driven duty analysis. Albert v. Hsu, 602 So.2d 895, 896 (Ala. 1992)
(no duty to protect 10-year-old decedent from car that backed through restaurant from

31
adjacent parking lot because “harm was not reasonably foreseeable”); Howe v. Stubbs,
570 A.2d 1203, 1203 (Me. 1990) (no duty to protect patron standing inside store from
vehicles, despite store’s location at base of hill and three previous similar accidents);
Glick v. Prince Italian Foods of Saugus, Inc., 514 N.E.2d 100, 101 (Mass. App. Ct.
1987) (no duty to protect from out-of-control automobile that crashed into restaurant
from adjacent road “because the harm was not reasonably foreseeable”); (Carpenter
v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708, 709 (Miss. 1987) (“no duty
owed by a convenience store owner, to persons inside the store, to erect barriers in
order to prevent vehicles from driving through the store’s plate glass window”);
Carter v. Gambulous, 748 P.2d 1008, 1009 (Okla. Civ. App. 1987) (“While [the
a]ppellee is indeed under a duty to use reasonable care with respect to his customers,
the accident herein was not foreseeable, and [the a]ppellee is not an absolute insurer
of his customers’ safety.”); Watkins v. Davis, 308 S.W.2d 906, 909 (Tex. App. 1957)
(“doctrine of unforeseeable consequences is likewise deemed applicable here”); but
see, e.g., Marshall v. Burger King Corp., 856 N.E.2d 1048, 1059-60 (Ill. 2006) (duty
of ordinary care includes the duty to protect patrons inside buildings from runaway
vehicles).
One of the seminal cases on this issue is often quoted as stating:

32
[I]t 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 all 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., 128 So.2d 901, 904 (Fla. Dist. Ct. App. 1961). No matter the
methodology employed, the result reached by the majority of courts addressing this
issue is consistent, if not expressly referenced therein, with the sound determination
of policy.
III. 	CONCLUSION
{29} 	No one can deny the inexorable finality of what occurred at the Del Sol
Shopping Center on March 17, 2006. 	That the most fundamental characteristic of
time is its unidirectional progression is never more apparent than when our collective

33
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., 121 N.M. 133, 139, 909 P.2d 14, 20 (Ct. App. 1995). Today, we hold as a matter
of policy that the owners and operators of Del Sol were not assigned the duty to
prevent the tragedy that occurred on its premises, or to protect its patrons from the
extraordinary events arising from pervasive modern-day risks. 	Accordingly, we
affirm the ruling of the district courts that dismissed Plaintiffs’ claims against
Defendants as a matter of law.
{30} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

RODERICK T. KENNEDY, J udge