{ "id": 1224605, "name": "Frances SOLORZANO, acting as Personal Representative of the Estate of Nelda Sue Garrett and as Guardian and Conservator of Christopher West Reed and Amanda Sue Reed, Minors, Plaintiff-Appellant, v. Frankie BRISTOW, Defendant-Appellee", "name_abbreviation": "Solorzano v. Bristow", "decision_date": "2004-09-16", "docket_number": "No. 23,776", "first_page": "658", "last_page": "664", "citations": [ { "type": "official", "cite": "136 N.M. 658" }, { "type": "parallel", "cite": "103 P.3d 582" }, { "type": "parallel", "cite": "2004-NMCA-136" } ], "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": "274 N.J.Super. 257", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 594761 ], "weight": 2, "pin_cites": [ { "page": "1056" } ], "opinion_index": 0, "case_paths": [ "/nj-super/274/0257-01" ] }, { "cite": "701 So.2d 236", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11901459 ], "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/so2d/701/0236-01" ] }, { "cite": "106 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707650 ], "weight": 3, "pin_cites": [ { "page": "13" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0011-01" ] }, { "cite": "78 N.M. 63", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323082 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "65", "parenthetical": "applying duty of ordinary care in favor of car passenger" }, { "page": "39", "parenthetical": "applying duty of ordinary care in favor of car passenger" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0063-01" ] }, { "cite": "101 N.M. 671", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586454 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "672" }, { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0671-01" ] }, { "cite": "2003-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77160 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b620" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0043-01" ] }, { "cite": "596 N.E.2d 1369", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10828656, 10828611 ], "weight": 3, "pin_cites": [ { "page": "1370" }, { "page": "1372-73" } ], "opinion_index": 0, "case_paths": [ "/ne2d/596/1369-02", "/ne2d/596/1369-01" ] }, { "cite": "107 N.M. 707", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597123 ], "weight": 2, "pin_cites": [ { "page": "712" }, { "page": "1177" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0707-01" ] }, { "cite": "42 Wis.2d 42", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8671108 ], "weight": 2, "year": 1969, "pin_cites": [ { "parenthetical": "defining suicide as the \"voluntary and intentional taking of one's own life by a sane person\"" }, { "page": "382", "parenthetical": "defining suicide as the \"voluntary and intentional taking of one's own life by a sane person\"" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/42/0042-01" ] }, { "cite": "121 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "857", "parenthetical": "holding that an \"insane person\" cannot commit the common law crime of attempted suicide" } ], "opinion_index": 0 }, { "cite": "255 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570352 ], "year": 1961, "pin_cites": [ { "parenthetical": "holding that an \"insane person\" cannot commit the common law crime of attempted suicide" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0473-01" ] }, { "cite": "418 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "864-65", "parenthetical": "quoting 5 William Blackstone, Commentaries *189" } ], "opinion_index": 0 }, { "cite": "244 Va. 60", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2085675 ], "year": 1992, "pin_cites": [ { "parenthetical": "quoting 5 William Blackstone, Commentaries *189" } ], "opinion_index": 0, "case_paths": [ "/va/244/0060-01" ] }, { "cite": "381 So.2d 847", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9589269 ], "pin_cites": [ { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/so2d/381/0847-01" ] }, { "cite": "268 Ark. 847", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715516 ], "weight": 2, "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/ark/268/0847-01" ] }, { "cite": "104 N.M. 627", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594966 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "627" }, { "page": "827" }, { "page": "628" }, { "page": "828" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0627-01" ] }, { "cite": "51 N.M. 493", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578136 ], "weight": 2, "year": 1947, "pin_cites": [ { "page": "496", "parenthetical": "suggesting the kind of evidence necessary to rebut the presumption, including \"domestic trouble\" and \"signs of worry\"" }, { "page": "345", "parenthetical": "suggesting the kind of evidence necessary to rebut the presumption, including \"domestic trouble\" and \"signs of worry\"" } ], "opinion_index": 0, "case_paths": [ "/nm/51/0493-01" ] }, { "cite": "105 N.M. 359", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598909 ], "weight": 2, "pin_cites": [ { "page": "361" }, { "page": "1384" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0359-01" ] }, { "cite": "120 N.M. 302", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559001 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "307", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "725", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0302-01" ] }, { "cite": "1999-NMSC-042", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106579 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0255-01" ] }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] } ], "analysis": { "cardinality": 1131, "char_count": 21263, "ocr_confidence": 0.673, "pagerank": { "raw": 8.955768733597542e-08, "percentile": 0.5015041417472602 }, "sha256": "ef4e018b581462129c0e796a6b470dc5520ade85466da3d7b881607b22a82790", "simhash": "1:b33a7e008103b6e0", "word_count": 3535 }, "last_updated": "2023-07-14T15:28:59.278788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD and CELIA FOY CASTILLO, Judges." ], "parties": [ "Frances SOLORZANO, acting as Personal Representative of the Estate of Nelda Sue Garrett and as Guardian and Conservator of Christopher West Reed and Amanda Sue Reed, Minors, Plaintiff-Appellant, v. Frankie BRISTOW, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} Plaintiff appeals the order of the district court granting summary judgment in favor of Defendant. For the reasons that follow, we reverse.\nBACKGROUND\n{2} Plaintiff in this wrongful death action is Frances Solorzano, personal representative of Nelda Sue Garrett\u2019s estate (Garrett) and guardian of Garrett\u2019s minor children. Garrett was Defendant Frankie Bristow\u2019s daughter. Plaintiffs claims arise from a sad incident where Garrett either fell or jumped from a van being driven by Defendant.\n{3} Defendant was the only witness to the events leading to Garrett\u2019s death. The facts in the record come from Defendant\u2019s depositions and statements. Defendant gave Garrett a ride to Las Cruces, New Mexico from Alamogordo, New Mexico for a dentist appointment where Garrett had several teeth extracted. Garrett was \u201cnormal\u201d on the trip to Las Cruces. After the dental procedure, Garrett was confused and disoriented and had a blank look on her face. Garrett did not respond to the receptionist about a follow-up appointment. Garrett was able to get into the van by herself. Part of the time, Garrett did not recognize Defendant. As Defendant drove back to Alamogordo, she became concerned that her daughter \u201cmight have had too much medication\u201d or \u201cwas having a reaction to the medication.\u201d Because of her concerns, Defendant decided to stop at a park \u2014 the Aguirre Springs area located about two miles off the road \u2014 to give Garrett a chance \u201cto walk off whatever it was that the dentist had given her.\u201d They stopped and walked around for about half an hour. While they were in the park, Garrett was \u201clogical\u201d or \u201ccoherent\u201d twice, but, by the time they started back to the van, Garrett reverted to the prior state and did not appear to recognize her mother. Garrett walked \u201creal fast\u201d down the path back to the van, walking by her mother as if she were \u201ca stranger in Hawaii.\u201d Defendant was concerned. When Garrett reached the bottom of the path, it appeared that she did not recognize the van. Defendant recalled that when she unlocked the door and held it open, Garrett \u201cdidn\u2019t know who [Defendant was].\u201d After Garrett got into the van, Defendant had to fasten her seat belt for her. It appeared to Defendant that Garrett did not know what she was doing.\n{4} Defendant then got back on the highway heading toward Alamogordo. She set the cruise control for 60 miles per hour and left it there until Garrett fell out of the van. Garrett was initially quiet and unresponsive to conversation. At some unspecified time after getting underway, Garrett made a loud \u201cgrowling\u201d sound and at the same time made a wide sweeping motion with her right hand. The sound and motion startled Defendant. Defendant asked \u201cWhat\u2019s the matter?\u201d but Garrett did not respond. Within a short time after the sound and motion, Garrett unfastened her seat belt and started toward the back of the van and then sat back down. After sitting back down, Garrett opened the door and leaned out while sitting in the seat. Defendant started yelling, but Garrett did not respond. The van was too wide to allow Defendant to reach Garrett.\n{5} It is unclear from the record what Defendant said or how long this first door-opening lasted. Defendant testified that the door did not shut after Garrett sat back down. After sitting back down, Garrett turned to the door again and this time stood on the step in the van and started \u201cwiggling back and forth trying to get to the back of the door where she would fall out.\u201d Garrett kept bumping against the door until she fell out. Defendant thought throughout that Garrett was getting sick and was trying to vomit outside. Defendant never applied the brakes or otherwise tried to slow the van. When asked why she did not slow down, Defendant stated that she was using the force of the wind to hold the door shut and was concerned that if she hit the brake, the door would open. The road at this point was straight and there was no other traffic.\n{6} Defendant moved for summary judgment, arguing that Garrett had committed suicide and that she had no duty to prevent a suicide. Defendant presented Garrett\u2019s death certificate and the report of the Office of the Medical Investigator as evidence of the suicide. The trial court granted summary judgment finding:\n1. There is no genuine issue as to whether Nelda Sue Garrett committed suicide when she stepped out of the van being driven by Defendant.\n2. There is no duty in law to prevent a suicide outside of a limited number of exceptions that do not apply to this case.\nSTANDARD OF REVIEW\n{7} Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Self v. United Parcel Serv., Inc., 1998-NMSC-046, \u00b6 6, 126 N.M. 396, 970 P.2d 582. We consider the facts in the light most \u201cfavorable to support a trial on the issues because the purpose of summary judgment is not to preclude a trial on the merits if a triable issue of fact exists.\u201d Madsen v. Scott, 1999-NMSC-042, \u00b6 7, 128 N.M. 255, 992 P.2d 268 (internal quotation marks and citation omitted). \u201c[S]ummary judgment is not appropriate when the facts before the court are insufficiently developed or where further factual resolution is essential for determination of the central legal issues involved.\u201d Brown v. Taylor, 120 N.M. 302, 307, 901 P.2d 720, 725 (1995) (internal quotation marks and citation omitted). We review a grant of summary judgment de novo. Self, 1998-NMSC-046, \u00b6 6.\nDISCUSSION\n{8} This case raises several issues: (1) What is the legal standard for determining when a death is a suicide in New Mexico? (2) Is there a question of material fact as to whether Garrett committed suicide? (3) Did Defendant owe a duty of reasonable care to her passenger, under these circumstances? (4) And, if so, are there genuine issues of fact as to whether she breached that duty?\nI. Suicide\n{9} The district court determined there was no question of fact that Garrett committed suicide. It is not possible' to tell from the record what definition or standard the court applied. Defendant\u2019s briefing in this Court and below does not attempt to devise a definition for suicide. Rather, Defendant simply assumes that Garrett\u2019s death constituted suicide. If the district court adopted Defendant\u2019s approach, it erred as we shall explain. In any event, we hold that there are questions of fact precluding summary judgment on the issue.\n{10} New Mexico has not had occasion in the civil personal injury arena to articulate a standard for determining when a death may be labeled a suicide. We have no statutory definition, and the cases that do mention suicide eome from different legal settings. For example, in the workers\u2019 compensation setting, there is a presumption against suicide. Suicide is an affirmative defense which defendants must prove. Neel v. State Distribs., Inc., 105 N.M. 359, 361, 732 P.2d 1382, 1384 (CtApp.1986). \u201cThis presumption, though not conclusive, is sufficient unless rebutted by substantial evidence, to support an award for compensation.\u201d Medina v. N.M. Consol. Mining Co., 51 N.M. 493, 496, 188 P.2d 343, 345 (1947) (suggesting the kind of evidence necessary to rebut the presumption, including \u201cdomestic trouble\u201d and \u201csigns of worry\u201d). In the life insurance contract setting, the language of the policy controls the definition of suicide. Typically, life insurance policies include clauses which specify that if a death is the result of a suicide, the insurer is not liable for the face amount of the policy. Estate of Galloway v. Guar. Income Life Ins. Co., 104 N.M. 627, 627, 725 P.2d 827, 827 (1986). At issue in Estate of Galloway was a life insurance policy that excluded liability \u201c[i]f the insured commits suicide, while sane or insane.\u201d Id. Affirming summary judgment in favor of the insurer, the Court noted the history behind this verbiage.\nMany early cases have held that self-destruction while insane was not suicide within a suicide exclusion clause since it was deemed that there could be no suicide unless the person committing the self-destructive act could form a conscious intention to kill himself and carry out that act, realizing its moral and physical consequences. As a reaction to these holdings, insurers began to add to suicide exclusion clauses the phrase \u201csane or insane.\u201d\nId. at 628, 725 P.2d at 828. The workers\u2019 compensation cases demonstrate that intent is taken into account in distinguishing between accident and suicide,- while the insurance policy eases reveal that insurers have sought to remove knowing intent from the concept of suicide.\n{11} The ease before us, of course, is not a workers\u2019 compensation claim and does not involve an insurance policy definition. These opinions do, however, indicate that absent contractual provisions to the contrary, the deceased person\u2019s state of mind is relevant in deciding whether a death is properly classified as a suicide. Other authorities confirm this view. For example, dictionary definitions require intention on the part of the actor, and awareness of the likely consequences of one\u2019s voluntary acts. Black\u2019s Law Dictionary defines suicide as \u201c[s]elf-destruction; the deliberate termination of one\u2019s own life.\u201d Black\u2019s Law Dictionary 1434 (6th ed. 1990). Webster\u2019s Dictionary elaborates on the definition of suicide: \u201cthe deliberate and intentional destruction of his own life by a person of years of discretion and of sound mind.\u201d Webster\u2019s Unabridged International Dictionary 2286 (3rd ed. 1993).\n{12} Similarly, Corpus Juris Secundum defines suicide in its \u201clegal[ ]sense\u201d to mean \u201cself-destruction by a sane person, and the voluntary and intentional taking of one\u2019s own life by ... a person of sound mind.\u201d 83 C.J.S. Suicide \u00a7 2, at 718-19 (2000) (footnotes omitted). The American Jurisprudence encyclopedia defines suicide as the \u201cvoluntary and intentional taking of one\u2019s own life by a sane person.\u201d 40A Am.Jur.2d Homicide \u00a7 619 (1999).\n{13} The definitions in these secondary authorities comport with eases which have dealt with the issue. Wallin v. Ins. Co. of N. Am., 268 Ark. 847, 596 S.W.2d 716, 718 (Ct. App.1980) (reversing a jury verdict in favor of an insurer because of the admission of improper evidence and noting that \u201c[sjuicide is the intentional taking of one\u2019s own life\u201d); Ray v. Federated Guar. Life Ins. Co., 381 So.2d 847, 848 (La.Ct.App.1980) (holding that death caused by drowning in a bathtub was \u201caccidental\u201d within the meaning of a policy because the deceased was insane at the time of his death and did not \u201cforesee the consequences of his actions\u201d). In turn, these cases reflect the common law rule that to constitute suicide, \u201ca person who takes his own life \u2018must be of years of discretion, and in his senses.\u2019 \u201d Wackwitz v. Roy, 244 Va. 60, 418 S.E.2d 861, 864-65 (1992) (quoting 5 William Blackstone, Commentaries *189); see also State v. Willis, 255 N.C. 473, 121 S.E.2d 854, 857 (1961) (holding that an \u201cinsane person\u201d cannot commit the common law crime of attempted suicide); Bisenius v. Karns, 42 Wis.2d 42, 165 N.W.2d 377, 382 (1969) (defining suicide as the \u201cvoluntary and intentional taking of one\u2019s own life by a sane person\u201d).\n{14} Distilling these strands, we define suicide as a voluntary, deliberate, and intentional self-destruction by someone of sound mind. While we do not believe it is necessary to recognize a presumption against suicide, we do believe that it is best treated as an affirmative defense in cases such as this, placing the burden of proof on the defendant to prove the fact of suicide. Contrary to Plaintiffs argument, Defendant adequately pled and briefed suicide as an affirmative defense.\n{15} On motion for summary judgment, Defendant carried the burden of making a prima facie showing as to each element of the definition. That is, Defendant was required to show there was no question of material fact that Garrett acted voluntarily, deliberately, and intentionally while of sound mind. This she did not do. There was simply no evidence presented which can be deemed to conclusively show that Garrett acted voluntarily, deliberately, and intentionally or that she was even in her right mind. Defendant testified she never heard her daughter threaten or contemplate suicide. Defendant\u2019s description of the events of the day cannot be seen to resolve the factual questions inherent in the definition of suicide. Quite the opposite, the record raises questions of fact concerning the state of Garrett\u2019s mind after the tooth extractions and the extent of her ability to act voluntarily, deliberately, and intentionally, appreciating the potential consequences of her actions.\n{16} To make a prima facie case on these questions, Defendant had the burden of at least presenting evidence explaining what caused Garrett\u2019s behavior and the likely extent of confusion. Defendant did not do so. Defendant essentially asks that we determine Garrett\u2019s actions constituted suicide because she fell from the vehicle without any intervention from anyone else. Just as we will not impose a presumption against suicide, we will not indulge one in favor of suicide as an explanation for Garrett\u2019s behavior. Garrett\u2019s state of mind, motivation, and intent are still subject to proof.\n{17} We, of course, acknowledge that the death certificate listed the manner of death as \u201csuicide.\u201d Plaintiff argues that the death certificate was not properly admissible to prove the \u201cmanner\u201d of death (suicide) as opposed to the \u201ccause\u201d of death (multiple injuries). Corlett v. Smith, 107 N.M. 707, 712, 763 P.2d 1172, 1177 (Ct.App.1988), does express skepticism as to the use of a death certificate as evidence of the manner of a death. We do not need to resolve the issue, however. Even if the certificate was properly considered by the district court, it cannot be deemed conclusive of the issue given the other evidence in the record about Garrett\u2019s behavior. Further, the record does not reveal whether the medical investigator had the correct definition of suicide in mind when she filled in the certificate. As the person with the burden of production and proof on summary judgment, Defendant was required to demonstrate that the finding in the death certificate was based on the correct legal standard.\n{18} Without conclusive evidence of Garrett\u2019s intention or state of mind, Defendant failed to make a prima facie case of suicide, and the ultimate fact of whether Garrett\u2019s death was an accident or suicide is clearly in dispute. The district court erred in granting summary judgment on the ground that Garrett committed suicide.\nII. Duty of Ordinary Care\n{19} On appeal, Defendant primarily argues that summary judgment was proper even if Garrett did commit suicide because Defendant owed no legal duty to her passenger to protect her from harming herself. At the district court level, however, Defendant focused on the legal effect of suicide and made no reference to the duty of ordinary care. Because the argument on appeal is different from that argued to the district court, we hesitate to respond. We choose to do so for the sake of completeness.\n{20} Defendant\u2019s argument is twofold. First, emphasizing the singular nature of the facts, Defendant rhetorically asks \u201cWhat was I to do?\u201d Defendant\u2019s rhetorical response is that there was nothing she could do or be expected to do; therefore, she did not have any duty to do anything. Second, Defendant asks that we adopt a rule absolving drivers of responsibility for a passenger\u2019s actions in a vehicle. Defendant cites Stephenson v. Led-better, 596 N.E.2d 1369 (Ind.1992) as her preferred approach. In Stephenson, a drunk passenger sitting on the side rail of the bed of a pickup traveling about 40 miles per hour fell to his death. Id. at 1370. Over a dissent, the court held as a matter of law that the driver\u2019s failure to \u201cstop or slow the truck and compel [the deceased], a competent (if drunk) adult passenger, to sit in a safer position\u201d did not breach the duty of reasonable care to the passenger. Id. at 1372-73.\n{21} We do not believe that Stephenson accurately represents the law in New Mexico. In this state, a negligence claim requires the existence of a duty from a defendant to a plaintiff, as well as breach of that duty which is the proximate cause and cause in fact of the plaintiffs damages. Herrera v. Quality Pontiac, 2003-NMSC-018, \u00b6 6, 134 N.M. 43, 73 P.3d 181. Whether a duty exists is a question of law for the courts to decide. Schear v. Bd. of County Comm\u2019rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984). Foreseeability is a critical and essential component of New Mexico\u2019s duty analysis because \u201cno one is bound to guard against or take measures to avert that which he [or she] would not reasonably anticipate as likely to happen,\u201d and because \u201c[t]here can be no duty in relation to another person absent foreseeablity.\u201d Herrera, 2003-NMSC-018, \u00b620 (internal quotation marks and citations omitted). In this case, we must decide as a matter of law whether the possibility of harm was foreseeable, so as to impose a duty. Clearly, Defendant knew that Garrett was impaired. When Garrett got up out of her seat and moved around in the van, Defendant was on alert that some harm could come to her passenger. Then, when Garrett opened the door, there was the possibility that she would fall out. This possibility increased as Garrett wiggled back and forth trying to get to the back of the door where she ultimately fell out. Based on these facts, we hold that harm to Garrett was foreseeable and that the general law of reasonable care thus applies.\n{22} In New Mexico, \u201c[e]very person has a duty to exercise ordinary care for the safety of the person and the property of others.\u201d UJI 13-1604 NMRA. In turn, the measure of this duty is ordinary care \u201cin the light of all the surrounding circumstances.\u201d UJI 13-1603 NMRA; see Hughes v. Walker, 78 N.M. 63, 65, 428 P.2d 37, 39 (1967) (applying duty of ordinary care in favor of car passenger). Whether a defendant breached her duty of care is a question of the reasonableness of her conduct. Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 13, 738 P.2d 129, 131 (Ct.App.1987). As such, it is normally a fact question. Id. Rhetorical flourishes aside, we agree with Defendant that this presents a very strange fact pattern. We do not agree, however, that the strangeness of the situation allows us to decide the .case as a matter of law. It might well be that a jury will absolve Defendant of any responsibility. But, we believe that the jury should make the decision.\n{23} Defendant relies on out-of-state cases containing statements indicating that it is unforeseeable as a matter of law that a person would jump out of a moving vehicle, see Turner v. D\u2019Amico, 701 So.2d 236, 238 (La. Ct.App.1997), or that seatbelts are not intended to keep people from jumping out of a car, see DeMarco v. DeMarco, 274 N.J.Super. 257, 643 A.2d 1053, 1056 (Law Div.1992), but we do not believe that these cases are consistent with New Mexico law or appropriate authority under the unique facts of this case. The fact that out-of-state eases exist in which people have unexpectedly jumped from moving vehicles suggests that such events are not unforeseeable as a matter of law. Importantly, in this case, the facts indicate a person in an apparent drug-induced, impaired mental state, who was acting unpredictably, including opening the door of a fast-moving car. As we indicated above, we believe that responsibility on the basis of these strange facts is for the jury to decide.\n{24} The parties have raised arguments concerning the admissibility and relevance of the fact that Garrett removed her seat belt before she fell out of the vehicle. In addition, the parties argue whether Restatement (Second) of Torts \u00a7\u00a7 323 and 324 (1965) applies as a source of Defendant\u2019s duty. We have not addressed these issues because they are premature and not necessary to our decision. The trial court issued its summary judgment on quite narrow grounds. We have dealt with those grounds and a closely related issue. The seat belt and Restatement issues are best dealt with in the first instance by the trial court as the evidence in the case is further developed, in particular with regard to the nature and source of Garrett\u2019s described confused mental state.\nCONCLUSION\n{25} Because there are genuine factual questions regarding Garrett\u2019s death and the performance of Defendant\u2019s duty to exercise reasonable care, we reverse summary judgment and remand to the trial court.\n{26} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD and CELIA FOY CASTILLO, Judges.", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Steven K. Sanders, Steven K. Sanders & Associates, L.L.C., Albuquerque, NM, Mark A. Reeves, Reeves & Associates Alamogordo, NM, for Appellant.", "Stephen M. Williams, Ruth Fuess, Miller Stratvert, P.A., Stratvert, P.A., Albuquerque, NM, for Appellee." ], "corrections": "", "head_matter": "2004-NMCA-136\n103 P.3d 582\nFrances SOLORZANO, acting as Personal Representative of the Estate of Nelda Sue Garrett and as Guardian and Conservator of Christopher West Reed and Amanda Sue Reed, Minors, Plaintiff-Appellant, v. Frankie BRISTOW, Defendant-Appellee.\nNo. 23,776.\nCourt of Appeals of New Mexico.\nSept. 16, 2004.\nCertiorari Granted, No. 28,916, Dec. 6, 2004.\nSteven K. Sanders, Steven K. Sanders & Associates, L.L.C., Albuquerque, NM, Mark A. Reeves, Reeves & Associates Alamogordo, NM, for Appellant.\nStephen M. Williams, Ruth Fuess, Miller Stratvert, P.A., Stratvert, P.A., Albuquerque, NM, for Appellee." }, "file_name": "0658-01", "first_page_order": 684, "last_page_order": 690 }