{ "id": 4241417, "name": "MONICA LUJAN, as Personal Representative of the Estate of PEGGY LUJAN-SILVA, Decedent, Plaintiff-Appellant, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee", "name_abbreviation": "Lujan v. New Mexico Department of Transportation", "decision_date": "2014-11-21", "docket_number": "No. 34,910; Docket No. 31,883", "first_page": "159", "last_page": "169", "citations": [ { "type": "official", "cite": "2015-NMCA-005" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "85 N.M. 42", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770207 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0042-01" ] }, { "cite": "1973-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "2005-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2550125 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0189-01" ] }, { "cite": "759 N.E.2d 482", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1999, "pin_cites": [ { "page": "484" }, { "page": "484" }, { "page": "485" }, { "page": "486" }, { "page": "485-86" }, { "page": "486" } ], "opinion_index": 0 }, { "cite": "114 Ohio Misc.2d 38", "category": "reporters:state", "reporter": "Ohio Misc. 2d", "case_ids": [ 6709986 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ohio-misc-2d/114/0038-01" ] }, { "cite": "628 N.E.2d 1044", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1048" } ], "opinion_index": 0 }, { "cite": "36 P.3d 11", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "13" } ], "opinion_index": 0 }, { "cite": "2003-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77160 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 33" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0043-01" ] }, { "cite": "2009 WL 3495006", "category": "reporters:specialty_west", "reporter": "WL", "year": 2009, "pin_cites": [ { "page": "* 5", "parenthetical": "\"Constructive notice of a defective condition can be imputed to a defendant when the plaintiff presents evidence establishing that the defect could or should have been discovered.\"" } ], "opinion_index": 0 }, { "cite": "594 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "255-56" } ], "opinion_index": 0 }, { "cite": "684 S.E.2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "731", "parenthetical": "stating that constructive notice \"is defined as information or knowledge of a fact imputed by law to a person (although he may not actually have it" } ], "opinion_index": 0 }, { "cite": "1999-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257731 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0521-01" ] }, { "cite": "296 P.3d 468", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4191385 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 41-50" }, { "page": "\u00b6 18" }, { "page": "\u00b6 21" }, { "page": "\u00b6 41" }, { "page": "\u00b6 42" }, { "page": "\u00b6 47" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0448-01" ] }, { "cite": "98 N.M. 34", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582595 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0034-01" ] }, { "cite": "1982-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "weight": 3, "pin_cites": [ { "page": "\u00b6 32" }, { "page": "\u00b6\u00b6 17, 32" }, { "page": "\u00b6 17" } ], "opinion_index": 0 }, { "cite": "125 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 834368 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 8" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0588-01" ] }, { "cite": "117 N.M. 782", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552611 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/117/0782-01" ] }, { "cite": "1994-NMSC-069", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0 }, { "cite": "2014-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239434 ], "weight": 2, "year": 2014, "pin_cites": [ { "page": "\u00b6\u00b6 1, 3, 11" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0050-01" ] }, { "cite": "2009-NMCA-059", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243602 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0520-01" ] }, { "cite": "116 N.M. 616", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727660 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/116/0616-01" ] }, { "cite": "1993-NMSC-079", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0 }, { "cite": "106 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707986 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0472-01" ] }, { "cite": "1987-NMSC-107", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 47" } ], "opinion_index": 0 }, { "cite": "95 N.M. 329", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575588 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0329-01" ] }, { "cite": "1980-NMSC-145", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0 }, { "cite": "2004-NMCA-003", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428078 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0068-01" ] }, { "cite": "2003-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15692 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "\u00b6 12" }, { "page": "\u00b6 12" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0756-01" ] }, { "cite": "2010-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246569 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0713-01" ] }, { "cite": "2007-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3691419 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0209-01" ] }, { "cite": "2000-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106508 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 42" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0648-01" ] }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] }, { "cite": "150 N.M. 123", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4250407 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/150/0123-01" ] } ], "analysis": { "cardinality": 1263, "char_count": 33198, "ocr_confidence": 0.774, "pagerank": { "raw": 6.814030061742326e-08, "percentile": 0.4162845015288536 }, "sha256": "e647048dc7cbebf5239d5f6bd44e0f28366d58afa2113f81bfd2326d137e4636", "simhash": "1:5b705daee6f72dfc", "word_count": 5425 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL E. VIGIL, Judge", "MICHAEL D. BUSTAMANTE, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "MONICA LUJAN, as Personal Representative of the Estate of PEGGY LUJAN-SILVA, Decedent, Plaintiff-Appellant, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\nMonica Lujan (Plaintiff), as personal representative of Peggy Lujan-Silva (Decedent), sued the New Mexico Department of Transportation (the Department) for wrongful death arising from a single-car accident, alleging that the Department\u2019s negligent failure to keep the roadway clear of dangerous debris caused the accident. The district court granted the Department\u2019s motion for summary judgment. We reverse.\nBACKGROUND\nOn October 29, 2004, Decedent was driving south on Interstate-25 (1-25) adjacent to the exit ramp for the St. Francis Road exit at approximately 2:00 p.m. when she encountered pieces of semi-truck tire debris on the roadway, and either struck the debris or swerved to avoid it. Decedent lost control of her vehicle, and it went into an uncontrolled slide and flipped four times, ej ecting Decedent from the vehicle. Decedent died at the scene. The roadway at the location of the accident is straight and level, and at the time of the accident the weather was clear, the pavement was dry, and the center and the edge lines, were clearly marked. There is no evidence of precisely how long the tire debris was on the roadway, and the Department had no actual notice of the tire debris at that location prior to the accident.\nThe Department moved for summary judgment, asserting that the undisputed material facts demonstrate that the Department had no actual notice or constructive notice of the tire debris. It being undisputed that the Department had no actual notice, the Department contended that it had no constructive notice of the debris because Plaintiff was unable to pinpoint how long the debris was on the road where the accident took place. Plaintiff s response centered on its contention that the Department was negligent in failing to identify debris on the highway in a timely manner and that the Department\u2019s inspection protocols are unreasonably lax and not complied with.\nThe district court granted summary judgment in favor of the Department on the grounds that the Department did not have actual or constructive notice of the tire debris and that Plaintiffs argument that the Department\u2019s failure to have a stronger or more consistent policy for the removal of debris was too speculative to prove proximate cause. Plaintiff appeals, asserting that the summary judgment order must be reversed because: (1) there are factual issues about whether the Department breached its duty to locate the tire debris on the roadway, and (2) there are factual issues regarding proximate cause.\nSTANDARD OF REVIEW\nOn appeal, our review of an order granting summary judgment is de novo. Summers v. Ardent Health Servs., L.L.C., 201 l-NMSC-017, \u00b6 10, 150 N.M. 123, 257 P.3d 943. We affirm an order granting summary judgment when there is no evidence raising a reasonable doubt about any genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Self v. United Parcel Serv., Inc., 1998-NMSC-046, \u00b6 6, 126 N.M. 396, 970 P.2d 582. Thus, \u201cthe movant has the burden of showing a complete absence of any genuine material issue of fact and that such party is entitled to judgment as a matter of law.\u201d Durham v. Sw. Developers Joint Venture, 2000-NMCA-010, \u00b6 42, 128 N.M. 648, 996 P.2d 911. \u201c[Ojnce the movant makes a prima facie showing that he is entitled to summary judgment, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits.\u201d Cain v. Champion Window Co. of Albuquerque, LLC, 2007-NMCA-085, \u00b6 7, 142 N.M. 209, 164 P.3d 90 (internal quotation marks and citation omitted). In our de novo review of the summary judgment record, \u201c[w]e resolve all reasonable inferences in favor of the nonmovant and view the pleadings, affidavits, depositions, answers to interrogatories, and admissions in a light most favorable to a trial on the merits.\u201d Id. \u00b6 6. We do so because New Mexico courts \u201cview summary judgment with disfavor, preferring a trial on the merits.\u201d Romero v. Philip Morris, Inc., 2010-NMSC-035, \u00b6 8, 148 N.M. 713, 242 P.3d 280.\nDISCUSSION\nPlaintiffs complaint against the Department is for negligence under the roadway maintenance exception of the Tort Claims Act, NMSA 1978, \u00a7 41-4-11(A) (1991), which waives sovereign immunity for damages caused by the government\u2019s negligent maintenance of highways. Plaintiffs negligence action falls under this exception because \u201cthe identification and remediation of roadway hazards constitutes maintenance under Section 41-4-11.\u201d Rutherford v. Chaves Cnty., 2003-NMSC-010, \u00b6 25, 133 N.M. 756, 69 P.3d 1199.\nNMSA 1978, Section 41-4-2(B) (1976) of the Tort Claims Act provides in part that liability under the Act \u201cshall be based upon the traditional tort concepts of duty and the reasonably prudent person\u2019s standard of care in the performance of that duty.\u201d Thus, liability under the Act is \u201cpremised on traditional concepts of negligence.\u201d Brenneman v. Bd. of Regents of Univ. of N.M., 2004-NMCA-003, \u00b6 10, 135 N.M. 68, 84 P.3d 685 (quoting Methola v. Cnty. of Eddy, 1980-NMSC-145, \u00b6 19, 95 N.M. 329, 622 P.2d 234 ). See Silva v. State, 1987-NMSC-107, \u00b6 47, 106 N.M. 472, 745 P.2d 380 (Stowers, J., dissenting) (\u201cThe phrase \u2018traditional concepts of duty and the reasonably prudent person\u2019s standard of care, . . . refers to theories of negligence.\u201d), limited on other grounds by Archibeque v. Moya, 1993-NMSC-079, \u00b6 14, 116 N.M. 616, 866 P.2d 344. \u201cIt is axiomatic that a negligence action requires that there be a duty owed from the defendant to the plaintiff; that based on a standard of reasonable care under the circumstances, the defendant breached that duty; and that the breach was a cause in fact and proximate cause of the plaintiffs damages.\u201d Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, \u00b6 5, 146 N.M. 520, 212 P.3d 408. The absence of any of these elements is fatal to a plaintiffs claim. Id. We address each of these elements in turn.\n1. Duty\nWhether the defendant owes, a duty to the plaintiff, is a legal question for the courts to decide. Id. \u00b6\u00b6 5-6. In Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014-NMSC-014,___ P.3d ___ (Nos. 33,896 and 33,949, May 8, 2014), our Supreme Court recently corrected inconsistences in New Mexico case law on how courts are to determine whether a legal duty \u25a0 is owed. The Court held that \u201c[f]oreseeability is not a factor for courts to consider when determining the existence of a duty[.]\u201d Id. \u00b6 1. We follow that holding in this case.\nIn Lerma v. State Highway Department of New Mexico, our Supreme Court stated that \u201cthe Department has a duty to exercise ordinary care in the maintenance of its highways.\u201d 1994-NMSC-069, \u00b6 11, 117 N.M. 782, 877 P.2d 1085. However, the Lerma Court framed, the duty inquiry around protecting the public from \u201cforeseeable harm\u201d on New Mexico\u2019s roadways. Id. \u00b6 8. Our appellate courts have continued to use Lerma\u2019s foreseeability of harm language in negligent roadway maintenance cases. See, e.g., Rutherford, 2003-NMSC-010, \u00b6 12 (\u201c[The government entity] has the common law duty to exercise ordinary care to protect the general public from foreseeable harm on its roadways.\u201d); accord Ryan v. N.M. State Highway & Transp. Dep't, 1998-NMCA-l 16, \u00b6 12, 125 N.M. 588, 964 P.2d 149.\nFurthermore, in cases where the government did not itself create the condition, New Mexico\u2019s negligent highway maintenance case law was developed to examine not just whether harm was generally foreseeable, but also whether the government had notice of the particular dangerous condition at issue. See Blackburn v. State, 1982-NMCA-073, \u00b6 32, 98 N.M. 34, 644 P.2d 548 (\u201c[Wjhere the State has not created the dangerous condition, no duty to remedy the dangerous condition arises until actual or constructive notice is present.\u201d). Thus, the inquiry into the government\u2019s duty to exercise ordinary care in the maintenance of its roadways has been fact-intensive, focusing on whether the government entity had actual or constructive notice under the specific circumstances of the case. See, e.g., Martinez v. N.M. Dep't of Transp., 2013-NMSC-005, \u00b6\u00b6 41-50, 296 P.3d 468 (determining that the Department\u2019s duty to erect barriers depended upon whether it had notice that collisions occurred along the stretch of highway where the collision at issue occurred); Ryan, 1998-NMCA-116, \u00b6 7 (determining that the Department\u2019s duty depended upon whether it had actual or constructive notice of wild animal crossings creating a dangerous condition on a particular stretch of highway).\nIn Rodriguez, our Supreme Court rejected such a fact-intensive inquiry to determine whether a duty exists. See Rodriguez, 2014-NMSC-014, \u00b6\u00b6 1, 3, 11 (holding that \u201c[fjoreseeability is a fact-in tensive inquiry relevant only to breach of duty and legal cause considerations.... not [to] whether a duty exists\u201d and overruling prior cases insofar as they conflict with the appropriate duty analysis). The Court also warned that foreseeability can mask itself behind other terms. See id. \u00b6\u00b6 12-13 (explaining that considering the \u201cremoteness\u201d of a potential harm, by inviting a discussion of the particularized facts in the case, is essentially a foreseeability driven analysis). Thus, we do not consider \u201cactual or constructive notice\u201d of the tire debris Decedent encountered as determinative of the Department\u2019s duty to Decedent.\nNevertheless, the Department\u2019s duty in this case is settled: the government has \u201cthe duty to maintain roadways in a safe condition for the benefit of the public.\u201d Martinez, 2013-NMSC-005, \u00b6 18. This includes a duty to conduct reasonable inspections of roadways, of which identification and removal of dangerous debris from roadways are necessary corollaries. See Blackburn, 1982-NMCA-073, \u00b6\u00b6 17, 32 (stating that liability for a dangerous condition on a roadway involves situations \u201cin which the State did not create the dangerous condition, but knew or should have known about it, and corrected it\u201d); see also Rutherford, 2003-NMSC-010, \u00b6 12 (\u201cThe identification of hazards on roadways is essential if governmental entities are to fulfill their responsibilities of keeping the highways safe for the motoring public.\u201d). We therefore conclude that the Department owed a duty to Decedent to identify and remove dangerous debris from the highway.\n2. Breach\n\u201cThe responsibility for determining whether the defendant has breached a duty owed to the plaintiff entails a determination of what a reasonably prudent person would foresee, what an unreasonable risk of injury would be, and what would constitute an exercise of ordinary care in light of all the surrounding circumstances.\u201d Pollock v. State Highway & Transp. Dep't, 1999-NMCA-083, \u00b6 11, 127 N.M. 521, 984 P.2d 768 (alteration, internal quotation marks, and citation omitted). One can be negligent by either acting or failing \u201cto do an act which one is under a duty to do and which a reasonably p'rudent person, in the exercise of ordinary care, would do in order to prevent injury.\u201d UJI 13-1601 NMRA. Ordinary care is \u201cthat care which a reasonably prudent person would use in the conduct of the person\u2019s own affairs.\u201d UJI 13-1603 NMRA. What constitutes ordinary care will vary under the circumstances. Id. \u201cAs the risk of danger that should reasonably be foreseen increases, the amount of care required also increases.\u201d Id. All of the surrounding circumstances should be considered when evaluating whether ordinary care was used. Id.\nThe Department argued that it owed Decedent no duty to clear the debris because it had no actual or constructive knowledge of its presence at the particular location and the particular time that the accident occurred. Following Rodriguez, and having concluded that the D epartment had a duty in this case, we consider notice to determine whether there is a question of fact as to whether the Department breached its duty of reasonable inspection. See Martinez, 2013-NMSC-005, \u00b6 21 (\u201c[T]he term maintenance requires a reasonable response to a known dangerous condition on a roadway.\u201d (emphasis added)); Blackburn, 1982-NMCA-073, \u00b6 17 (stating the plaintiff must prove that the defendant \u201chad actual or constructive notice of the dangerous condition a sufficient time prior to the time of the accident so that measures could have been taken to protect against the dangerous condition\u201d).\nHere, although it is undisputed that the Department had no actual notice of the particular debris at issue, the Department does not argue that it was not aware of the risk to motorists that roadway debris creates generally. Indeed, in the Department\u2019s motion for summary judgment, it acknowledged that its maintenance responsibilities include identifying and removing hazardous litter from roadways. Thus, the issue before us in this case is whether there are material issues of fact about whether the Department can be charged with constructive notice of the tire debris. See Phillips v. N.C. Dep't of Transp., 684 S.E.2d 725, 731 (N.C. Ct. App. 2009) (stating that constructive notice \u201cis defined as information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring about it.\u201d (quoting State v. Poteat, 594 S.E.2d 253, 255-56 (N.C. Ct. App. 2004)); Kemer v. Ohio Dep't of Transp., No. 09AP-248, 2009 WL 3495006, at * 5 (Ohio Ct. App. Oct. 29, 2009) (\u201cConstructive notice of a defective condition can be imputed to a defendant when the plaintiff presents evidence establishing that the defect could or should have been discovered.\u201d).\nThe depositions of the Department\u2019s employees who were responsible for maintaining the stretch of road where the accident occurred are sufficient for us to determine whether summary judgment was properly granted to the Department. Edward Martinez is the Department\u2019s maintenance supervisor for the Santa Fe area. He reports to Mark Anaya, the area maintenance supervisor which includes Santa Fe County. Mark Anaya\u2019s supervisor in turn is Miguel Gabaldon, the maintenance engineer, and Mr. Gabaldon in turn reports to John McElroy, the District 5 engineer.\nMr. Martinez is in charge of all maintenance of state highways in the area where the accident occurred. His responsibilities include litter pickup as well as repair of potholes, signs, guardrails, fences, snow removal, and traffic control at accidents. However, he has received no training regarding procedures for removal of litter or debris from state highways and, before this accident, to his knowledge, no members of his crew received training on removal of debris or litter from roadways.\nHis crew members are responsible for removing debris from the highway within a \u201creasonable amount of time\u201d \u2014 within two hours \u2014 once they are notified of debris on the highway. In addition, his crew is told to remove debris, such as a tire tread, from the highway when they actually see it, whether or not they are performing their duties at the time. On the day of the accident, two crew members passed the scene of the accident on their way to work, sometime before 7:30 a.m. when their shift started, and they did not report seeing any debris on the highway at the accident scene.\nAccording to Mr. Martinez, the Department has an obligation to patrol highways with enough frequency to locate debris on the highway that is not reported in a call to the Department. Thus, the Highway Maintenance Management System (HMMS) Handbook requires \u201clitter pick up\u201d which \u201cmeans to go out there and pick up litter in right of way fences of New Mexico DOT.\u201d However, there is no specification in the HMMS Handbook as to how often to conduct \u201clitter pick up.\u201d Moreover, although Mr. Martinez recognizes that a highway with dangerous debris on it has a greater chance for an accident than a highway with less traffic, he has not made a set schedule for doing litter pick up, and it is performed randomly at his discretion.\nThe HMMS Handbook also requires that \u201croad patrols\u201d be conducted, and if tire tread is encountered during a road patrol, it is to be picked up. However, the HMMS Handbook.in effect on the day of the accident did not specify how often a road patrol should be conducted, even on a heavily traveled road such as 1-25. The daily work reports which he or his assistant prepares every day show that between October 25 and October 29,2004, his crew performed no work in the area around 1-25 and the St. Francis exit. He also cannot tell from the daily work reports when a road patrol was last performed by the Department where the accident occurred before October 29, 2004. In fact, Mr. Martinez did nothing to identify and remove debris from the highway, other than to remove debris actually reported to the Department, although he recognizes that the Department also has an obligation, at some point, to remove dangerous debris from the highway that is not reported.\nMr. Martinez\u2019s supervisor is Mark Anaya, the area maintenance supervisor for the Santa Fe area. Mr. Anaya agrees that the Department is responsible for keeping highways safe for the motoring public, and this includes removing hazards from the highway. Its responsibility notwithstanding, Mr. Anaya is unaware of any administrative directives put out by the Department that outline a policy for dealing with debris in roadways that create hazards to the motoring public.\nMr. Anaya testified that the Department has a duty to remove hazards that are reported to exist in the highway. The Department also has an obligation to conduct road patrols to go out and discover unreported road hazards. At some point, the Department should discover an unreported hazard, but he cannot state how long- \u2014 one hour, one day, one week, or one month \u2014 before it is unacceptable for the hazard to remain undiscovered.\nThese duties notwithstanding, he has never considered requiring an employee to drive every day in both directions of the area of 1-25 under his supervision to make sure there are no hazards or dangerous conditions in the highway due to the volume of traffic it handles. Furthermore, he cannot say that Mr. Martinez\u2019s crew performs daily visual inspections of 1-25 where the accident occurred, and he cannot tell when, before October 29, 2004, Mr. Martinez\u2019s crew last performed a road patrol on 1-25 in the area of the accident. The only documented litter pick up done in the area was by an inmate crew on October 28, 2004.\nMiguel Gabaldon is the Department maintenance engineer for the area where the accident occurred. He said there is no written standard of care in the HMMS Handbook regarding removal of debris from state highways. However, he testified the Department satisfies its obligation to remove debris from the highways, such as the tire debris in this case, by requiring the Department workers to remove it if they see it while performing their duties, and by removing it as soon as possible upon being notified of such debris. As to unreported debris, such as the tire debris in this case, Mr. Gabaldon stated that the Department should find it \u201c[w]ithin a reasonable time frame\u201d if the Department employees are doing their patrols. In this regard, while the Department has no criteria for how often a highway maintenance crew worker should drive the highways, the HMMS Handbook does specify that the supervisor (Mr. Martinez) is to drive or patrol all of the roads he is responsible for once per week, if possible. Mr. Gabaldon said that according to the HMMS Handbook, the last documented patrol of the accident scene should have been the week before the accident by Mr. Martinez, the supervisor.\nJohn McElroy was the District 5 engineer for the Department. Before October 2004, the means for identifying road debris in District 5 consisted of road patrols by the D epartment personnel going to work sites, and notification to the Department by a member of the public or a police agency. Mr. McElroy believes there are signs placed on the highway with a 1-800 number to call, although he does not know where such signs are placed.\nMr. McElroy testified that before October, 2004, there was a big problem with a lot of debris on this stretch of 1-25 where the accident occurred. Because of this problem, the area should have been given a lot of priority in terms of where maintenance crews were performing their patrols. From his perspective, the Santa Fe patrol crew should have been conducting litter pickup on this stretch of 1-25 on a regular basis, probably twice per week. However, before October 2004, the patrol supervisor was not required to travel on 1-25 where the accident occurred to survey the roadway for debris that might present a hazard or danger.\nMr. McElroy testified that if the Department has actual notice that semi-truck debris is on the highway, it is \u201cprobably not\u201d acceptable for the debris to remain on the highway for one hour. If the Department has no actual notice of such debris, it is not acceptable, according to Mr. McElroy, for it to remain on the roadway for one day, twelve hours, or even six hours before the Department identifies and removes it. It is unknown how long the tire debris was on the highway in this case before the accident.\nThe foregoing evidence notwithstanding, the Department points to daily work reports, which it asserts show that between January 1, 2004, and the date of the accident on October 29,2004, six hundred and seventy-six \u201cseparate activities\u201d were logged and that one hundred fifty-seven \u201cseparate litter pickup activities\u201d were performed on I-25 \u201cbetween Glorieta and La Bajada Hill,\u201d which includes the area where the accident occurred. Moreover, according to the Department, these same daily work reports show that in the twenty-nine days prior to the accident, the Santa Fe Patrol performed ten litter pickup activities \u201cwithin a few miles of the accident location\u201d and five road patrols between Glorieta and La Bajada Hill. These included \u201cfive separate litter pickup activities, all within five miles of the accident location\u201d between October 25, 2004, and the date of the accident. In addition to the foregoing, the Department states that under contract with the Department of Corrections, inmate crews performed litter pickup \u201cat or near the accident location\u201d on thirty-five separate locations between January 17, 2003, and November 10, 2005, and that \u201cone of these events\u201d was the day before the accident.\nWe conclude that the foregoing evidence raises issues of fact as to whether the Department had constructive notice of the tire debris and whether the Department breached its duty to Decedent to timely identify it and remove it. Specifically, the evidence presents issues of fact about whether the Department failed to exercise ordinary care in its duty to perform reasonable inspections of the roadway and remove dangerous tire debris from it by: (1) failing to provide its employees and supervisors with adequate training to remove litter or debris from the highway; (2) failing to patrol the highway with sufficient frequency to locate and remove dangerous debris from the highway; (3) failing to comply with its own standards on how often the highway should be patrolled; (4) failing to locate and remove the tire debris in a timely manner; (5) failing to have an adequate system by which it can be notified of debris on the highway. Thus, whether the Department had constructive notice of the tire debris is a question of fact for the jury to decide. See Rutherford, 2003-NMSC-010, \u00b6 15 (\u201cWhether a governmental entity exercises ordinary care in the identification of the hazard is a question of fact for the jury.\u201d); Herrera v. Quality Pontiac, 2003-NMSC-018, \u00b6 33, 134 N.M. 43, 73 P.3d 181 (refusing to address whether the defendant breached the duty of ordinary care because it is a question of fact for the jury); Ryan, 1998-NMCA-116, \u00b6 8 (stating constructive notice is a question of fact); cf. Martinez, 2013-NMSC-005, \u00b6 41 (\u201cNotice becomes a question of law only if no room for ordinary minds to differ exists.\u201d (internal quotation marks and citation omitted)).\nThe Department nevertheless argues that because it is unknown how long the tire debris was actually on the road before the accident occurred, and imputing constructive notice of a danger depends on how long the dangerous hazard was present, it is entitled to summary judgment. We disagree. Ortega v. Kmart Corp., 36 P.3d 11, 13 (Cal. 2001), acknowledged that in a premises liability case, a plaintiff has the burden of proving that the business owner had actual or constructive notice of the defect in sufficient time to correct it. In light of this requirement, the question presented in that case was:\nIf the plaintiff has no evidence of the source of the dangerous condition or the length of time it existed, may the plaintiff rely solely on the owner\u2019s failure to inspect the premises within a reasonable period of time in order to establish an inference that the defective condition existed long enough for a reasonable person exercising ordinary care to have discovered it?\nId. The court held: \u201c[E]vidence of the owner\u2019s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition [existed] long enough to give the owner the opportunity to discover and remedy it.\u201d Id. We agree. When there is a duty to inspect, evidence showing that there was a failure to inspect within a reasonable period of time under the circumstances is evidence that the dangerous condition could or should have been discovered but for the untimely inspection. \u201cWhere a condition has existed for such a length of time that the public entity might have known of the condition by the exercise of reasonable care and diligence, constructive notice exists.\u201d Mtengule v. City of Chicago, 628 N.E.2d 1044, 1048 (Ill. App. Ct. 1993).\nThe foregoing principles were applied in Imburgia v. Ohio Department of Transportation, 114 Ohio Misc.2d 38, 759 N.E.2d 482 (Ohio Ct. Cl. 1999), a \u201cDecision of Liability\u201d made by a trial judge sitting on the Ohio Court of Claims. After the car in which the plaintiff was a passenger pulled over onto a highway median with a flat tire, she got out of the car and stepped into an electrical junction box, severely injuring her left foot, ankle, and calf. Id. at 40-41, 759 N.E. at 484. These boxes are cylindrical in shape and recessed into the ground in the median next to roadway lights with underground lighting circuit cable splices. Id. at 40, 759 N.E.2d at 484. They are normally covered with a concrete lid, but the concrete lid on this box was broken and had partially fallen into the junction box, which was cluttered with additional debris. Id. at 40-41, 759 N.E.2d at 484. The court first determined that the Ohio Department of Transportation (ODOT) had a duty to maintain the electrical boxes as part of its duty to maintain the roadways in a reasonably safe condition. Id. at 41, 759 N.E.2d at 485. The ODOT had no actual notice that the concrete lid covering the box was damaged, and the case turned on whether the ODOT -was charged with constructive notice of the damage. Id. at 42, 759 N.E.2d at 486. The ODOT had no policy regarding routine inspection of the boxes, but it had actual notice that mowers had previously damaged such boxes in other locations, and upon becoming aware that a concrete lid was broken, it would make the necessary repairs. Id. at 4, 759 N.E.2d at 485-86. Given the condition of the box, and its concrete lid, and the apparent length of time that the debris had accumulated in the box, the court concluded, as a fact finder, that the ODOT had constructive notice of the dangerous condition of the box. Id. at 42, 759 N.E.2d at 486. See City of Jackson v. Internal Engine Parts Grp., Inc., 2003-CA-02772-SCT (\u00b6 10) (Miss. 2005) (affirming the .trial court finding that the defendant city had either actual or constructive notice of debris obstructions in a drainage ditch by its negligent failure to inspect and maintain the drainage ditch). We find these cases and their reasoning persuasive and consistent with'New Mexico jurisprudence. See Pollock, 1999-NMCA-083, \u00b6 13 (rejecting the Department\u2019s argument that the plaintiff needed to show where a wrong-way driver entered the highway and how long she had been driving the wrong way to establish notice); Martinez, 2013-NMSC-005, \u00b6 42 (rejecting the defendant\u2019s argument that it needed notice of a recurring accident problem at the particular accident site and concluding \u201cmore latitude\u201d was appropriate to decide the question of notice). This case presents no basis for modifying our existing precedent. We therefore do not require Plaintiff to supply evidence demonstrating precisely how long the tire debris was on the highway to overcome summary judgment.\nWe emphasize that the length of time which must pass before constructive notice may be found varies with each specific situation, and the fact that a dangerous condition exists is not sufficient, by itself, to conclude that a duty to inspect was breached. Furthermore, nothing we have said herein is meant to imply that the Department is an insurer of the safety of the highways in New Mexico. However, when the Department has actual or constructive knowledge of a dangerous condition on the highways, it has a duty to exercise ordinary care under the circumstances to prevent injury to the motoring public.\nThe jury must decide whether the Department\u2019s system for identifying and removing specific pieces of debris is so lacking as to impute notice of this particular debris on the Department or if the Department\u2019s actions were reasonable under the circumstances. Reasonable minds could diff\u00e9r in answering that question. A reasonable juror could agree with Plaintiff that the Department\u2019s policies of identifying and removing dangerous debris were inadequate; or the jury could conclude thatthe Department acted reasonably and that any additional policies would be unreasonable. \u201cQuestions of \u2018reasonableness\u2019 are quintessential issues for a jury to resolve. In our system of justice, we place special confidence in juries to sort through conflicting evidence and come to a reasonable conclusion.\u201d Martinez, 2013-NMSC-005, \u00b6 47.\n3. Proximate Cause\nThe Department argues that even if it owed Decedent a duty and breached that duty, her death was not the proximate result of its negligence.\nThis element concerns \u201cwhether and to what extent the defendant\u2019s conduct foreseeably and substantially caused the specific injury that actually occurred.\u201d Herrera, 2003-NMSC-018, \u00b6 8. \u201cAn act or omission may be deemed a \u2018proximate cause\u2019 of an injury if it contributes to bringing about the injury, if the injury would not have occurred without it, and if it is reasonably connected as a significant link to the injury.\u201d Talbott v. Roswell Hosp. Corp., 2005-NMCA-109, \u00b6 34, 138 N.M. 189, 118 P.3d 194; see UJI 13-305 NMRA (defining causation); Galvan v. City of Albuquerque, 1973-NMCA-049, \u00b6 18, 85 N.M. 42, 508 P.2d 1339 (\u201cProximate cause is that which, in a natural or continuous sequence, produces the injury and without which the injury would not have occurred.\u201d). Determining proximate cause is a question of fact for the jury. Id. \u00b6 12. Only when the facts are undisputed \u201cand the reasonable inferences from those facts are plain and consistent,\u201d does proximate cause become an issue of law. Id.\nThe Department argues that even if Plaintiff shows that the Department breached its duty by failing to provide more litter patrols, without being able to show that the tire debris was on the road for an unreasonable length of time, Plaintiff cannot prove that the Department\u2019s failure to actproximately caused the accident. The Department insists that since the \u201ctire debris could have been deposited mere seconds before the accident[,]\u201d no reasonable juror could find that the Department\u2019s negligence caused the accident. (Emphasis added.) This argument is too speculative to decide as a matter of law. The jury must decide whether remedies could have prevented this accident. See Ryan, 1998-NMCA-116, \u00b6 17 (deciding that the jury must decide between the parties\u2019 disputing theories about whether animal crossing warning signs could have prevented the plaintiffs collision with an elk). We are therefore unpersuaded that no reasonable juror could find proximate cause under the facts before us.\nCONCLUSION\nThe district court order granting summary judgment in favor of the Department is reversed.\nIT IS SO ORDERED.\nMICHAEL E. VIGIL, Judge\nWE CONCUR:\nMICHAEL D. BUSTAMANTE, Judge\nJ. MILES HANISEE, Judge", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Maestas & Suggett, P.C. Paul Maestas Albuquerque, NM for Appellant", "Basham & Basham, P.C. Katherine A. Basham Santa Fe, NM Peter J. Gould Santa Fe, NM for Appellee" ], "corrections": "", "head_matter": "Certiorari Denied, November 21, 2014,\nNo. 34,910\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-005\nFiling Date: August 4, 2014\nDocket No. 31,883\nMONICA LUJAN, as Personal Representative of the Estate of PEGGY LUJAN-SILVA, Decedent, Plaintiff-Appellant, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.\nMaestas & Suggett, P.C. Paul Maestas Albuquerque, NM for Appellant\nBasham & Basham, P.C. Katherine A. Basham Santa Fe, NM Peter J. Gould Santa Fe, NM for Appellee" }, "file_name": "0159-01", "first_page_order": 175, "last_page_order": 185 }