{ "id": 4250384, "name": "Estella MARTINEZ and Lila Salazar, individually and as Co-Personal Representatives of the Estate of Natalie Martinez Espinoza; Isaac Martinez and Estella Martinez, individually and as Co-Personal Representatives of the Estate of Amelia D. Martinez; Lila Salazar and Donna Salazar, as Co-Personal Representatives of the Estate of Donald D. Espinoza; Tony Espinoza and Edna Espinoza; and Anthony Mark Espinoza, individually, Plaintiffs-Appellants, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee", "name_abbreviation": "Martinez v. New Mexico Department of Transportation", "decision_date": "2011-06-01", "docket_number": "No. 28,661; Docket No. 33,083", "first_page": "204", "last_page": "215", "citations": [ { "type": "official", "cite": "150 N.M. 204" }, { "type": "parallel", "cite": "258 P.3d 483" }, { "type": "parallel", "cite": "2011-NMCA-082" } ], "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": "101 N.M. 462", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586391 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "466" }, { "page": "1131" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0462-01" ] }, { "cite": "98 N.M. 34", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582595 ], "weight": 2, "pin_cites": [ { "page": "37" }, { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0034-01" ] }, { "cite": "2008-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3783982 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/143/0740-01" ] }, { "cite": "2007-NMCA-024", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669284 ], "weight": 3, "pin_cites": [ { "page": "\u00b619" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0212-01" ] }, { "cite": "2010-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246242 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/148/0442-01" ] }, { "cite": "2009-NMCA-051", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243308 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 42" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0237-01" ] }, { "cite": "111 N.M. 713", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715043 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "630" }, { "page": "715" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0713-01" ] }, { "cite": "107 N.M. 31", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597045 ], "weight": 4, "pin_cites": [ { "page": "34-35" }, { "page": "718-19" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0031-01" ] }, { "cite": "2007-NMCA-014", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668297 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 50-54" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0053-01" ] }, { "cite": "2001-NMCA-065", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352405 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 35" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0753-01" ] }, { "cite": "116 N.M. 353", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727639 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/nm/116/0353-01" ] }, { "cite": "112 N.M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720185 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "333" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0332-01" ] }, { "cite": "2008-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3784772 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/143/0657-01" ] }, { "cite": "2007-NMCA-003", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669967 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0131-01" ] }, { "cite": "2008-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784288 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0668-01" ] }, { "cite": "2005-NMCA-051", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929244 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0524-01" ] }, { "cite": "2008-NMCA-153", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242236 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 35" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0328-01" ] }, { "cite": "117 N.M. 782", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552611 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "784", "parenthetical": "concluding that the state has a duty to exercise ordinary care to protect the public from foreseeable harm resulting from its maintenance of roads" }, { "page": "1087", "parenthetical": "concluding that the state has a duty to exercise ordinary care to protect the public from foreseeable harm resulting from its maintenance of roads" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0782-01" ] }, { "cite": "94 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573240 ], "weight": 4, "pin_cites": [ { "page": "475" }, { "page": "705" }, { "page": "476" }, { "page": "706", "parenthetical": "holding that the state had a duty to install traffic signals at a place in the road known to be confusing" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0473-01" ] }, { "cite": "1998-NMCA-116", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834368 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b612" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0588-01" ] }, { "cite": "127 N.M. 521", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 257731 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/127/0521-01" ] }, { "cite": "1998-NMCA-138", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834327 ], "weight": 13, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 8" }, { "page": "\u00b6 8" }, { "page": "\u00b6\u00b6 8, 12" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0762-01" ] }, { "cite": "95 N.M. 56", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575525 ], "weight": 2, "pin_cites": [ { "page": "59" }, { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0056-01" ] }, { "cite": "108 N.M. 616", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592869 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "618" }, { "page": "1335" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0616-01" ] }, { "cite": "111 N.M. 64", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715073 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "68" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0064-01" ] }, { "cite": "2004-NMCA-093", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224631 ], "weight": 12, "year": 1990, "pin_cites": [ { "page": "\u00b68" }, { "page": "\u00b621" }, { "page": "\u00b621" }, { "page": "\u00b6 3" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0197-01" ] }, { "cite": "2003-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15692 ], "weight": 31, "pin_cites": [ { "page": "\u00b68" }, { "page": "\u00b6 11" }, { "page": "\u00b6 11" }, { "page": "\u00b6 11" }, { "page": "\u00b6 9" }, { "page": "\u00b6 9" }, { "page": "\u00b6\u00b6 9-10" }, { "page": "\u00b6 25" }, { "page": "\u00b6 9" }, { "page": "\u00b6 9" }, { "page": "\u00b6\u00b6 9, 25" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0756-01" ] } ], "analysis": { "cardinality": 1444, "char_count": 37919, "ocr_confidence": 0.709, "pagerank": { "raw": 6.119645932871841e-08, "percentile": 0.3814087230568269 }, "sha256": "6e338411e0dbc2c8f8ebf1301467f0662da026a6af717475b0ba050d85efb481", "simhash": "1:5743c82be6c886ea", "word_count": 6052 }, "last_updated": "2023-07-14T21:53:59.243869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CELIA FOY CASTILLO, Chief Judge and JONATHAN B. SUTIN, Judge." ], "parties": [ "Estella MARTINEZ and Lila Salazar, individually and as Co-Personal Representatives of the Estate of Natalie Martinez Espinoza; Isaac Martinez and Estella Martinez, individually and as Co-Personal Representatives of the Estate of Amelia D. Martinez; Lila Salazar and Donna Salazar, as Co-Personal Representatives of the Estate of Donald D. Espinoza; Tony Espinoza and Edna Espinoza; and Anthony Mark Espinoza, individually, Plaintiffs-Appellants, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{1} This case stems from a head-on collision between a vehicle driven by Amelia Martinez, in which Donald Espinoza was a passenger, and another vehicle driven by Anthony Griego. All involved died. Plaintiffs, representatives of Martinez\u2019s and Espinoza\u2019s estates, pursue wrongful death and loss of consortium claims against the New Mexico Department of Transportation (DOT) for negligent failure to maintain the road. The district court granted DOT partial summary judgment on the grounds that DOT\u2019s alleged failure to install a concrete barrier separating traffic constituted a design issue, which insulates DOT from liability under the New Mexico Tort Claims Act (Act), NMSA 1978, Sections 41-4-1 to -30 (1976, as amended through 2010). At trial, the jury found for DOT on the remaining claims, and Plaintiffs now appeal. Plaintiffs argue the district court erred by (1) granting partial summary judgment to DOT on the issue of design immunity, (2) excluding evidence relating to DOT\u2019s duty to sweep gravel, (3) admitting Espinoza\u2019s toxicology report and drug paraphernalia, (4) admitting testimony of DOT\u2019s expert witness, and (5) providing inaccurate jury instructions. Additionally, Plaintiffs request that this Court should provide guidance on whether the grandparents are permitted to bring a loss of consortium claim for an unborn grandchild. We affirm all of the district court\u2019s decisions on these issues and decline to advise whether the grandparents are permitted to bring a loss of consortium claim for an unborn grandchild.\nI. BACKGROUND AND PROCEDURAL HISTORY\n{2} On December 9, 2004, Griego drove eastbound on NM 502 in Santa Fe County, using the center turn lane to pass another driver. Around mile marker nine, Griego lost control and collided with the vehicle occupied by Martinez and Espinoza. Griego was intoxicated and driving above the speed limit. Griego, Martinez, and Espinoza died. Martinez\u2019s and Espinoza\u2019s approximately eight-month-old fetus also died. Sheriffs deputies determined that Martinez was not at fault for the accident. Plaintiffs and DOT do not dispute this fact.\n{3} Plaintiffs are the parents of Martinez and Espinoza and paternal grandparents of their unborn grandchild. As representatives of Martinez\u2019s and Espinoza\u2019s estates, Plaintiffs pursue wrongful death and loss of consortium claims against DOT. Plaintiffs also bring a loss of consortium claim for their unborn grandchild.\n{4} At trial, Plaintiffs argued that DOT\u2019s negligent failure to sweep away crushed red cinder from the center turn lane in part caused Griego to skid into oncoming traffic and collide into Martinez and Espinoza\u2019s vehicle. Plaintiffs also argued that DOT had a duty to erect a concrete barrier separating eastbound and westbound traffic. Plaintiffs asserted that DOT\u2019s duty arose from notice of NM 502\u2019s dangerous condition. Plaintiffs contended that DOT had notice of (1) previous fatal accidents occurring on NM 502, (2) newspaper articles discussing the dangerousness of the road, and (3) two citizens\u2019 complaints made to DOT regarding the dangers of NM 502. Plaintiffs argued that if DOT had heeded these notices of problems with the road\u2019s design and exercised its duty to erect concrete barriers, Griego would not have crossed the center turn lane and struck and killed Martinez and Espinoza.\n{5} The court granted partial summary judgment to DOT on this issue prior to trial and explained its decision on the record. The district court held that the erection of barriers in this case was a matter of road design and within the scope of preserved state immunity under the Act. Section 41^-ll(B)(l)-(2). In reaching its conclusion, the district court acknowledged that defects in the road design, if known to DOT as a cause of accidents, could give rise to a duty on the part of DOT to change the design to make the road safer. The district court stated that it had considered the prior accidents cited by Plaintiffs on that road, and they did not sufficiently demonstrate that road conditions resulting from the road\u2019s design, absent other factors involved in those previous incidents, were similar to decedents\u2019 accident. The district court stated that absent an ability to make such a showing, Plaintiffs could not demonstrate that DOT was on notice of the danger of such accidents occurring as a result of the road\u2019s design. Plaintiffs could not show that DOT had notice of an ongoing defect of design in that part of the road, so as to give rise to a duty on DOT\u2019s part to correct it. To the extent that Plaintiffs failed to establish that there was a hazardous road design that gave rise to a duty to correct it, the district court concluded that it would not be proper to waive sovereign immunity for Plaintiffs\u2019 allegation that the design of the road contributed to the conditions causing the accident in this case. On appeal, Plaintiffs contend that the district court improperly granted partial summary judgment on the issue of DOT\u2019s duty to erect concrete barriers.\n{6} After granting partial summary judgment to DOT on the issue of road design, the district court excluded other evidence that Plaintiffs argue demonstrated DOT\u2019s liability for failure to sweep away gravel in the center turn lane. Plaintiffs\u2019 evidence included facts relating to prior fatal accidents that occurred in the vicinity of the decedents\u2019 accident: (1) newspaper articles describing these prior accidents and the dangerousness of NM 502, (2) testimony by two citizens who expressed concern to DOT regarding the alleged unsafe conditions of NM 502, (3) testimony by Plaintiffs\u2019 expert that center turn lane barriers could have prevented the deaths of Espinoza and Martinez, and (4) other information pertaining to the configuration of NM 502. Apart from testimony by one citizen that related to an observation of gravel build-up, the district court excluded all of the evidence on the basis that it was unrelated to DOT\u2019s duty to sweep away gravel. Left to decide whether DOT negligently failed to sweep away crushed cinders in the center turn lane, the jury found for DOT. On appeal, Plaintiffs argue that the district court abused its discretion in excluding this evidence.\n{7} Plaintiffs also contest the district court\u2019s admission of a bag belonging to Espinoza, containing cash, a gun, a crack pipe, and various prescription and non-prescription drugs discovered in Martinez\u2019s vehicle, as well as the results from an autopsy report indicating that Espinoza tested positive for drugs. The district court admitted the contents of the bag and toxicology report on the basis that it went to the issue of damages. Plaintiffs argue that the admission of this evidence was extremely prejudicial, and the district court abused its discretion in admitting it.\n{8} Next, Plaintiffs appeal the district court\u2019s decision to permit the testimony of DOT\u2019s expert \"witness, Dr. Stephen Pike, who testified to Griego\u2019s degree of intoxication. Plaintiffs allege that DOT\u2019s untimely identification of Dr. Pike as a witness should have precluded his testimony, and the district court abused its discretion in admitting it.\n{9} Plaintiffs also appeal the district court\u2019s jury instructions. Plaintiffs argue that the district court improperly denied them the right to submit two additional jury instructions. Lastly, Plaintiffs assert that this Court should give guidance regarding a grandparent\u2019s ability to bring a loss of consortium claim for an unborn grandchild. We first address DOT\u2019s immunity under the Act and then concern ourselves with the remaining issues that arose at trial.\nII. DISCUSSION\nA. Immunity\n{10} Plaintiffs argue that DOT negligently failed to maintain NM 502 and is not immune from liability under Section 41-4 \u2014 11(B)(1) and (2). Whether immunity bars Plaintiffs\u2019 suit for DOT\u2019s alleged failure to erect concrete barriers is a question of law, which we review de novo. Rutherford v. Chaves Cnty., 2003-NMSC-010, \u00b68, 133 N.M. 756, 69 P.3d 1199. Summary judgment is proper if material facts are undisputed, and the movant is entitled to judgment as a matter of law. See Rule 1-056(C) NMRA; Biemer v. City of Truth or Consequences, 2004-NMCA-093, \u00b68, 136 N.M. 197, 96 P.3d 322. In interpreting the meaning of a statute, we seek to effectuate legislative intent. Rutherford, 2003-NMSC-010, \u00b6 11, 133 N.M. 756, 69 P.3d 1199; California First Bank v. State Dep\u2019t of Alcohol Beverage Control, 111 N.M. 64, 68, 801 P.2d 646, 650 (1990). Statutory provisions that waive governmental immunity are strictly construed. Rutherford, 2003-NMSC-010, \u00b6 11, 133 N.M. 756, 69 P.3d 1199; Armijo v. Dep\u2019t of Health & Env\u2019t, 108 N.M. 616, 618, 775 P.2d 1333, 1335 (Ct.App. 1989).\n{11} Section 41-4-ll(B)(l) and (2) preserves state immunity against suits for injuries caused by \u201ca defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area\u201d or by the state\u2019s \u201cfailure to construct or reconstruct any bridge, culvert, [or] roadwayf.]\u201d Section 41-\u00bfH1(A) waives state immunity against suit for injuries caused by \u201cthe negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.\u201d The legislative purpose of Section 41-4-11 is to ensure highways are kept safe for the public\u2019s use. See Rutherford, 2003-NMSC-010, \u00b6 11, 133 N.M. 756, 69 P.3d 1199; see Fireman\u2019s Fund Ins. Co. v. Tucker, 95 N.M. 56, 59, 618 P.2d 894, 897 (Ct.App.1980) (\u201c[T]he New Mexico Legislature intended to protect the general public from injury by imposing liability upon governmental agencies when they fail to maintain safe public highways.\u201d). We have previously recognized a city\u2019s immunity from a suit resulting from its alleged failure to make structural changes to a roadway in Villanueva v. City of Tucumcari, 1998-NMCA-138, \u00b6 7, 125 N.M. 762, 965 P.2d 346 (\u201cWe need not decide whether the City had a duty to install [wheelchair] ramps____[T]he ... Act immunized the City from liability for breach of any such duty.\u201d). In Villanueva, we reaffirmed that \u201cmaintenance \u201d of a road involves \u201cupkeep and repair[,]\u201d and our view that installations of structural elements are matters for which design immunity is conferred. Id. \u00b6 8 (internal quotation marks and citation omitted). In carrying out the legislative objective of the Act, it has been well established that installing and maintaining traffic controls constitute maintenance activities under the Act. Rutherford, 2003-NMSC-010, \u00b6 9,133 N.M. 756, 69 P.3d 1199.\n{12} Plaintiffs argue that \u201cdesign flaws become \u2018maintenance\u2019 obligations after repeated notice to DOT,\u201d stating that their claim originates in a design flaw inherent to NM 502. In framing their argument, they characterize the placement of \u201csolid traffic Heontrol median barriers\u201d in the center turn lane as performance of a \u201cmaintenance\u201d function and the barriers themselves as \u201ctraffic[-]control devices.\u201d Plaintiffs contend that DOT\u2019s duty to maintain New Mexico\u2019s highways entailed a responsibility to place a concrete barrier, also known as a \u201cJersey\u201d barrier, between eastbound and westbound traffic on NM 502 pursuant to a statutory duty under NMSA 1978, Section 66-7~102(A) (2003) (\u201cThe state transportation commission shall place and maintain such traffic-control devices ... as it deems necessary ... or to regulate, warn or guide traffic.\u201d). Plaintiffs urge that concrete barriers in the center turn lane would be traffic-control devices that come under the purview of maintenance and, thus, DOT is not immune from suit for its failure to install such barriers.\n{13} During argument on the motions for summary judgment, Plaintiffs recognized that immunity had not been waived for design of roadways. However, they pointed to Rutherford as representing an erosion of our rule in Villanueva. As such, they argued that we should impose a waiver of immunity in this case. We recognize that the addition and changing of traffic-control devices has been increasingly litigated under the waiver of immunity, but decline to erode the rule where New Mexico has not abrogated sovereign immunity for injuries caused by the design of a roadway. For the reasons given in this Opinion, we are unpersuaded.\n{14} In determining whether concrete barriers constitute a traffic-control device in this case, we draw on cases in which our appellate courts have examined the difference between maintenance and design. Changing signage and erecting portable barriers has come under the rubric of maintenance thus far. See Rutherford, 2003-NMSC-010, \u00b6 9, 133 N.M. 756, 69 P.3d 1199 (determining that portable barricades used to prevent motorists from crossing a flooded road was a method of traffic control); Bierner, 2004-NMCA-093, \u00b621,136 N.M. 197, 96 P.3d 322 (\u201c[E]reeted barriers or curbs ... appear to involve design [for which] Section 41-4-ll(B) grants immunity.\u201d); Pollock v. State Highway & Transp. Dep% 1999\u2014 NMCA-083, \u00b6 11, 127 N.M. 521, 984 P.2d 768 (determining that the placement of \u201cWrong Way\u201d and \u201cDo Not Enter\u201d traffic warning signs were within the Act\u2019s meaning of maintenance (internal quotation marks and citation omitted)); Villanueva, 1998-NMCA-138, \u00b6 8, 125 N.M. 762, 965 P.2d 346 (deciding that the addition of wheelchair ramps was not maintenance because it involved a structural change to the sidewalk); Ryan v. N.M. State Highway & Transp. Dep\u2019t, 1998-NMCA-116, \u00b6 8, 125 N.M. 588, 964 P.2d 149 (declaring that the defendant had a duty to put up warning signs if the defendant had notice of a dangerous condition created by wild animal crossings). In contrast, structural changes, resulting in permanent alterations to a road\u2019s original design, have been granted immunity.\n{15} From these cases, it appears that a line between maintenance and design is in part influenced by whether the plaintiffs\u2019 harm was caused by changing conditions that can be addressed by the use of traffic-control devices, the state\u2019s purported failure to respond to such conditions of which it had prior notice, or whether the plaintiffs\u2019 harm was caused by the inherent nature of the road itself as designed. For example, with regard to a duty to place traffic signs, this Court in Ryan concluded that the state\u2019s ostensible notice of animal crossings necessitated a response-placement of signs \u2014 to ensure that ordinary care was taken to protect the public. 1998-NMCA-116, \u00b612, 125 N.M. 588, 964 P.2d 149. Similarly, in Rickerson v. State, light signals were required because of increased traffic flow. 94 N.M. 473, 475, 612 P.2d 703, 705 (Ct.App.1980). In Rutherford, the Supreme Court held that dangerously high flood waters, as a predictable result of occasional storms upstream, changed road conditions such that they required the county to quickly respond with temporary barricades. 2003-NMSC-010, \u00b6\u00b6 9-10, 133 N.M. 756, 69 P.3d 1199.\n{16} In Villanueva, this Court rejected the plaintiffs argument that a failure to construct wheelchair ramps was maintenance where none were designed to exist. 1998-NMCA-138, \u00b6 8, 125 N.M. 762, 965 P.2d 346. We stated such an addition would be a significant structural change that constituted an installation or reconstruction and \u201cnot a matter of routine maintenance.\u201d Id. Plaintiffs rely on Rutherford and cases from other jurisdictions to support their claim that installing barriers is maintenance. We disagree, as Rutherford does not address permanent changes to a road\u2019s design, and our statute conferring immunity is outside the purview of other states\u2019 law. See 2003-NMSC-010, \u00b6 25,133 N.M. 756, 69 P.3d 1199 (holding that \u201cidentification and remediation of roadway hazards constitutes highway maintenance\u201d). The district court correctly saw the issue presented by Plaintiffs\u2019 motion for partial summary judgment as separating the issue of whether immunity was waived for aspects of the road\u2019s design from factual issues concerning maintenance for problems of which DOT may have been on notice that maintenance was required.\n{17} Plaintiffs attempt to contrast our dicta in Biemer, 2004-NMCA-093, \u00b621, 136 N.M. 197, 96 P.3d 322, concerning curbs and barriers \u201cappearing] to involve design\u201d with the Supreme Court\u2019s treatment of barricades in Rutherford as being a method of traffic control. We believe the contrast is illustrative of the propriety of granting immunity. Biemer involved the plaintiffs\u2019 argument that a road in Truth or Consequences should have had permanent barriers and curbs to prevent vehicles from rolling across a street and into a business. 2004-NMCA-093, \u00b6 3, 136 N.M. 197, 96 P.3d 322. In contrast, the barricades in Rutherford were described by the Supreme Court as temporary traffic-control devices that fit within the meaning of maintenance because they were not designed to be permanent, but would come and go as needed to prevent the public from driving into the rushing waters of a flash flood \u2014 a transient, yet predictable, condition. See 2003-NMSC-010, \u00b6 9, 133 N.M. 756, 69 P.3d 1199. The barricades were placed on the road as needed, not permanently built into the road for a distance of miles. See id. \u00b6 2. Our ruling in Villanueva and comment in Biemer, even though dicta, both hinged on the difference between guiding traffic and designing permanent attributes of a road itself. Though our comment in Biemer might have been dicta for that case, we now conclude that erection of permanent barriers as part of a road constitutes a matter of road design.\n{18} The addition of permanent concrete barriers, as Plaintiffs demand in this particular ease, is not a method of traffic control within the meaning of maintenance under the Act. Erected Jersey barriers are concrete, dense structures, the placement of which is not simple or uncomplicated. See Charles F. McDevitt, Basics of Concrete Barriers, Yol. 63 No. 5 (2000), available at http:// fhwicsint01.fhwa.dot.gov/publieations/ publieroads (\u201cConcrete barriers appear to be simple and uncomplicated, but in reality, they are sophisticated safety devices.\u201d). The barricades in Rutherford were placed on and removed from the road as needed. They would not change the design or structure of the road on which they appeared. The road would then be returned to its original state after the floodwaters resided. Such is not the case with the structural changes proposed by Plaintiffs, which are not a matter of upkeep and repair or routine maintenance and, thus, reside outside the Act\u2019s conferred waiver of immunity.\n{19} In addition, Plaintiffs also contend that DOT had a duty to place barriers in the road upon learning about its dangerous design. Plaintiffs asserted that DOT had \u201cdesigned an inherently dangerous stretch of road\u201d and that the road had been \u201credesigned and reconstructed\u201d to its current configuration without barriers in the center turn lane. Plaintiffs allege that following the redesign of NM 502 in 1993, there was evidence of the road\u2019s changed conditions requiring installation of barriers in the center turn lane: four fatal accidents over a period of six years, two citizens\u2019 complaints made to DOT, and several newspaper articles highlighting the dangerousness of the road. In Plaintiffs\u2019 summary judgment motion, they attribute the accident to a number of factors, but state that the accident occurred \u201cmostly, because DOT created an inherently dangerous condition when it designed NM 502.\u201d Their exhibits mentioned accidents over an eleven-and-a-half-mile stretch of road. Yet, their motion for summary judgment asserted fault within a barrier-free, two-mile-long stretch of road. Plaintiffs\u2019 proposed change \u2014 a concrete barrier \u2014 is also relevant to our analysis. They contend that upon receiving notice of the dangers created by the redesign, DOT had a maintenance duty to place a barrier in the road.\n{20} We reiterate that, as yet, the principle of maintenance has not been applied to describe a responsibility to alter a road\u2019s design. Moreover, it has never been applied to transcend the immunity that Section 41-4r-11(B)(2) restored to the state for design, construction, or reconstruction of a highway in the event the state\u2019s design for that construction was somehow faulty. For instance, when the highway department erected a fence, it had a duty to maintain it and, failing to do so, invoked its duty to carry out its proper maintenance responsibilities. See Lerma ex rel. Lerma v. State Highway Dep\u2019t, 117 N.M. 782, 784, 877 P.2d 1085, 1087 (1994) (concluding that the state has a duty to exercise ordinary care to protect the public from foreseeable harm resulting from its maintenance of roads). Similarly, in Rutherford, the design of the road itself was not at issue when the court held that the county had a duty to use temporary barricades to halt traffic during storms in order to protect the public from the known danger of flash floods. 2003-NMSC-010, \u00b6 9. These cases deal with attributes that fall short of design and construction or reconstruction of the road itself under Section 4H-11(B). Thus, we will not apply them in this instance to give rise to a duty for DOT to alter the design of NM 502.\n{21} To the extent that the district court\u2019s statements from the bench indicate that, at some point, DOT might acquire notice of a dangerous condition sufficient to require it to redesign or reconstruct a highway, we make two observations. First, such considerations are outside the purview of the immunity retained for DOT concerning the design and construction of NM 502. The district court granted summary judgment to DOT, finding it immune as to the issue of design of the road, leaving only the issue concerning the accumulation or effect of the cinders at the location of the accident. Secondly, any indication that a notice-based obligation to redesign or reconstruct a road might fall outside the state\u2019s immunity from suit is not supported by New Mexico law. Our opinion is not affected by the district court\u2019s possible reliance on this statement in granting the partial summary judgment because we are empowered to affirm the district court in those instances where the court was right for the wrong reasons. Capco Acquisub, Inc. v. Greka Energy Corp., 2008-NMCA-153, \u00b6 35, 145 N.M. 328, 198 P.3d 354. We affirm because the lack of permanent barriers in the center turn lane was an attribute of the design of NM 502 and, as a result \u2014 and as the summary judgment reflects \u2014 DOT is immune from suit because of Section 41^4-11(B). Thus, we affirm the district court\u2019s holding that DOT is, as a matter of law, immune from suit for its alleged failure to install concrete barriers. We must now address the remaining issues from the trial concerning evidentiary matters and jury instructions.\nB. Evidentiary Issues\n{22} Plaintiffs make three evidentiary claims: (1) evidence pertaining to DOT\u2019s failure to sweep gravel in the center turn lane was incorrectly excluded, (2) a toxicology report concerning Espinoza and evidence that he possessed a gun and drug paraphernalia were improperly admitted, and (3) DOT\u2019s expert testimony was improperly admitted. We address the claims below in this order.\n{23} Under New Mexico\u2019s Rules of Evidence, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 11-403 NMRA. A district court\u2019s evidentiary decisions are reviewed for abuse of discretion. Santa Fe Custom Shutters & Doors, Inc. v. Home Depot U.S.A, Inc., 2005-NMCA-051, \u00b6 19, 137 N.M. 524, 113 P.3d 347. A district court is given great discretion in determining whether the probative value of evidence is substantially outweighed by the risk of unfair prejudice, confusion of the issues, or misleading the jury. State v. Dombos, 2008-NMCA-035, \u00b6 33, 143 N.M. 668, 180 P.3d 675. A district court\u2019s decision will not be disturbed unless \u201cthe ruling is clearly against the logic and effect of the facts and circumstances of the case [and] is clearly untenable or is not justified by reason.\u201d Heath v. La Mariana Apartments, 2007-NMCA-003, \u00b6 18, 141 N.M. 131, 151 P.3d 903 (internal quotation marks and citation omitted), affd, 2008-NMSC-017, 143 N.M. 657, 180 P.3d 664.\n{24} First, Plaintiffs argue that the district court incorrectly excluded evidence demonstrating a dangerous condition that related to DOT\u2019s duty to sweep gravel in the center turn lane. Plaintiffs attributed the accident to Griego\u2019s speed, his use of the center turn lane for passing, the presence of cinders in the center turn lane, and \u201cmostly, DOT[\u2019s creation of] an inherently dangerous condition when it designed NM 502.\u201d The supporting exhibits tendered by Plaintiffs provided evidence of cross-over accidents attributed to a possible heart attack, drowsy drivers, possibly drunk drivers, unknown causes excluding wet and snowy conditions, and one article stating that most accidents \u201cinvolve cars hitting guard rails, barricades, embankments or curbs.\u201d The evidence the district court decided to exclude included (1) facts from prior fatal accidents that occurred in the vicinity of the decedents\u2019 accident, (2) newspaper articles describing these prior accidents and the dangerousness of NM 502, (3) testimony from two citizens who expressed their concern to DOT about unsafe conditions on NM 502, (4) testimony from Plaintiffs\u2019 expert that center turn lane barriers could have prevented the deaths of Espinoza and Martinez, and (5) other information pertaining to the configuration of NM 502.\n{25} In excluding the evidence of pri- or accidents, the district court determined that the previous accidents occurred too far from the location of decedents\u2019 accident to prove that the same defect or dangerous condition was present. Without a connection between the previous accidents and the decedents\u2019 accident, the district court held that evidence of the prior accidents was irrelevant to DOT\u2019s duty to sweep gravel.\n{26} Similarly, the district court excluded the newspaper articles, citizen complaints, testimony by Plaintiffs\u2019 expert, and evidence pertaining to the configuration of the road on the basis that this evidence dealt with the design of the road and was unrelated to DOT\u2019s duty to sweep gravel in the center turn lane. Plaintiffs argue that the exclusion of this evidence forced the jury to decide DOT\u2019s negligence in a vacuum. We disagree.\n{27} In the cases discussed above that shape DOT\u2019s liability for failing to maintain the road to prevent or ameliorate known conditions, the duty for the governmental entity to act was determined based on its knowledge of specific risks requiring maintenance on its part. This connection was demonstrated in Rickerson, 94 N.M. at 476, 612 P.2d at 706 (holding that the state had a duty to install traffic signals at a place in the road known to be confusing), in Villanueva, 1998-NMCA-138, \u00b6\u00b6 8, 12, 125 N.M. 762, 965 P.2d 346 (stating that the state is not liable for failing to construct wheelchair ramps, but it has a duty to keep sidewalks in a safe condition) and, in Rutherford, 2003-NMSC-010, \u00b6\u00b6 9, 25, 133 N.M. 756, 69 P.3d 1199 (concluding that temporary barriers were required when the state had knowledge of the nature of the road during flash floods). These accidents also occurred in different places on NM 502 than the location of the present accident. Thus, viewing the factual disparities involved, the district court could determine that their probative value was insufficient to allow their admission. In view of DOT\u2019s immunity for the design and construction of the center turn lane, and the absence of a direct connection between the evidence of previous complaints and accidents to DOT\u2019s duty to sweep gravel in the center turn lane, Plaintiffs\u2019 evidence has little, if any, probative value. As a result, we cannot hold that the district court\u2019s decision to exclude this evidence was \u201cclearly against the logic and effect of the facts and circumstances of the case[.]\u201d Heath, 2007-NMCA-003, \u00b6 18, 141 N.M. 131, 151 P.3d 903 (internal quotation marks and citation omitted).\n{28} Second, Plaintiffs argue that the results of Espinoza\u2019s toxicology report, and the contents of the black bag found in Martinez\u2019s vehicle, were improperly admitted. The district court admitted this evidence on the basis that it went to the issue of damages. According to the district court, Espinoza\u2019s drug use and possession of drugs at the time of his death were important factors in assessing Plaintiffs\u2019 request for lost wages and loss of consortium damages. Plaintiffs insist that the admission of this evidence was highly prejudicial and without probative value, and DOT failed to present a link between Espinoza\u2019s drug use and what the district court considered was relevant to his diminished life expectancy and earning capacity.\n{29} Plaintiffs rely on Romero v. State, in which the Court found that a district court did not abuse its discretion in excluding evidence of a passenger\u2019s intoxication. 112 N.M. 332, 333, 815 P.2d 628, 629 (1991), receded from on different grounds by Dun leavy v. Miller, 116 N.M. 353, 862 P.2d 1212 (1993). While Romero is relevant in that it demonstrates that the exclusion of such evidence is not an abuse of discretion, it is silent as to whether the inclusion of such evidence is an abuse of discretion. While we are not unsympathetic to Plaintiffs\u2019 argument, we also recognize that jury instructions were given to limit the potential prejudicial effect on jurors, and Plaintiffs were free to argue the weight of the evidence. Thus, we cannot declare the district court\u2019s decision was completely against logic to assume that a victim\u2019s drug use does, to some extent, have an affect on his earning capacity. Thus, we uphold the district court\u2019s admission of this evidence.\n{30} Third, Plaintiffs contest the district court\u2019s admission of DOT\u2019s expert witness, Dr. Pike, whose testimony concerned Griego\u2019s intoxication. A district court\u2019s admission of an expert witness will not be reversed absent a showing of abuse of discretion. Chavez v. BA. of Cnty. Comm\u2019rs, 2001-NMCA-065, \u00b6 35, 130 N.M. 753, 31 P.3d 1027. Moreover, \u201cremedies for the violation of discovery rules or orders are discretionary with the trial court.\u201d Id. Plaintiffs assert that DOT\u2019s late disclosure of Dr. Pike as a witness violated the trial scheduling order, as the doctor was only identified a few days before trial was to begin. To remedy the late disclosure, the district court gave Plaintiffs a one-hour telephone interview and permitted them to submit a rebuttal witness.\n{31} We conclude that the district court did not abuse its discretion in admitting Dr. Pike\u2019s testimony. Plaintiffs had notice of DOT\u2019s intent to call a toxicologist to testify concerning Griego\u2019s impairment weeks in advance. Moreover, the court remedied the situation by giving Plaintiffs the opportunity to interview Dr. Pike and to call a rebuttal witness. These were appropriate remedies even when a witness is not disclosed until after the trial begins. See State v. Ruiz, 2007-NMCA-014, \u00b6\u00b6 50-54, 141 N.M. 53, 150 P.3d 1003 (stating the district court did not abuse its discretion by admitting a surprise rebuttal witness because the opposing party failed to show materiality, prejudice, and the inadequacy of the court\u2019s remedy).\n{32} In demonstrating that the district court abused its discretion, Plaintiffs rely on Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (Ct.App.1988), and Shamalon Bird Farm, Ltd. v. U.S. Fidelity & Guaranty Co., 111 N.M. 713, 809 P.2d 627 (1991). Plaintiffs argue that this Court should, like this Court in Khalsa and the Supreme Court in Shamalon Bird Farm, \u201cfind that Plaintiffs were unfairly prejudiced by the belated identification of Dr. Pike.\u201d In Khalsa, a child custody ease, we reversed the district court\u2019s decision in part because the father had no opportunity to interview the witnesses or call a rebuttal witness after the mother\u2019s surprise witness testified. 107 N.M. at 34-35, 751 P.2d at 718-19. Yet, in the case at hand, Plaintiffs had the opportunity to both interview Dr. Pike and call a rebuttal witness. Thus, Plaintiffs did not suffer the prejudice that occurred in Khalsa.\n{33} Additionally, in Shamalon Bird Farm, the Supreme Court upheld the district court\u2019s decision to exclude the plaintiffs witness at trial in a case where the plaintiff brought suit against its insurer for bad faith failure to pay insurance benefits. 111 N.M. at 716, 809 P.2d at 630. The Supreme Court reasoned that the testimony of the plaintiffs witness was surprise testimony because the factual basis for the witness\u2019s opinions was virtually unknown to the defendant the night before the trial. Id. at 715, 809 P.2d at 629. In contrast, Plaintiffs in this case were well aware that Dr. Pike\u2019s testimony would be based on Griego\u2019s toxicology report. Thus, we decline to reverse on grounds that Plaintiffs suffered prejudice from the testimony of Dr. Pike because of unfair surprise.\n{34} Lastly, Plaintiffs contend that Dr. Pike\u2019s testimony was cumulative as a state police officer had already testified on Griego\u2019s impairment. However, at the time of that officer\u2019s testimony, Plaintiffs objected to his opinion on the issue, citing that he did not have the technical or medical expertise to make such judgments. Admitting Dr. Pike\u2019s medical and professional opinions on Griego\u2019s impairment provided what the officer could not, but we see no cause for reversal. Furthermore, Dr. Pike\u2019s testimony was not cumulative because it was offered as a scientific interpretation of Griego\u2019s toxicology report.\n{35} We conclude the district court did not abuse its discretion by permitting Dr. Pike to testify. The district court provided Plaintiffs a remedy to DOT\u2019s late identification. Moreover, Plaintiffs knew the factual basis of Dr. Pike\u2019s testimony, and his testimony was not cumulative.\nC. Jury Instructions\n{36} Plaintiffs contend that the district court\u2019s jury instructions were improper because they were denied the right to submit two additional instructions: (1) an open and obvious danger does not lessen DOT\u2019s obligation to protect the public from foreseeable negligence, and (2) notice was not required where DOT created the dangerous condition. \u201cThe propriety of denying a jury instruction is a mixed question of law and fact that we review de novo.\u201d Akins v. United Steelworkers of Am., 2009-NMCA-051, \u00b6 42, 146 N.M. 237, 208 P.3d 457 (internal quotation marks and citation omitted), affd, 2010-NMSC-031, 148 N.M. 442, 237 P.3d 744. However, a case will not be reversed on the basis of an error in jury instructions unless the result is fundamentally unjust. McNeill v. Burlington Res. Oil & Gas Co., 2007-NMCA-024, \u00b619, 141 N.M. 212, 153 P.3d 46, affd, 2008-NMSC-022, 143 N.M. 740, 182 P.3d 121. The party complaining of jury instructions must show prejudice before reversal is granted. Blackburn v. State, 98 N.M. 34, 37, 644 P.2d 548, 551 (Ct.App.1982). Moreover, there is no error in jury instructions when the instructions given adequately cover the law to be applied. Kirk Co. v. Ashcraft, 101 N.M. 462, 466, 684 P.2d 1127, 1131 (1984).\n{37} In this case, Plaintiffs have not shown how the refusal to include these instructions prejudiced their case. Plaintiffs simply allege that the extensive questioning of one of DOT\u2019s witnesses, Raymond Helmer, was so significant in that the jury requested clarification of his testimony. It is unclear how this is related to the alleged deficiency of jury instructions in any way. Additionally, it appears that the jury instructions provided by the court fairly presented the issues and laws applicable to this case. We therefore reject Plaintiffs\u2019 claim that jury instructions were improper.\nD. Loss of Consortium\n{38} Plaintiffs ask this Court to provide guidance on the issue of whether grandparents should be permitted to bring a loss of consortium claim for an unborn grandchild. Plaintiffs admit that there is no law on this issue. Nevertheless, they contend that other New Mexico consortium cases could extend this right to grandparents. It is unnecessary for us to decide this issue. As DOT correctly points out, our decision on this issue will not affect the disposition of the case because any hypothetical additional loss of consortium claim is moot since the jury found that DOT was not negligent. Thus, we deny Plaintiffs\u2019 request to provide guidance on this issue.\nIII. CONCLUSION\n{39} We affirm the district court\u2019s order of partial summary judgment to DOT as the use of concrete barriers in this case is an issue of design for which DOT is afforded immunity. We also affirm the district court\u2019s evidentiary decisions and the district court\u2019s exclusion of Plaintiffs\u2019 proposed jury instructions. We refrain from providing guidance on whether grandparents can bring a loss of consortium claim for an unborn grandchild.\n{40} IT IS SO ORDERED.\nWE CONCUR: CELIA FOY CASTILLO, Chief Judge and JONATHAN B. SUTIN, Judge.", "type": "majority", "author": "KENNEDY, Judge." } ], "attorneys": [ "Hemphill & Grace, P.C., Linda G. Hemp-hill, Paul W. Grace, The Okon Law Firm, Christa M. Okon, Santa Fe, NM, for Appellants.", "Cuddy & McCarthy, LLP, M. Karen Kilgore, Evelyn A. Peyton, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2011-NMCA-082\n258 P.3d 483\nEstella MARTINEZ and Lila Salazar, individually and as Co-Personal Representatives of the Estate of Natalie Martinez Espinoza; Isaac Martinez and Estella Martinez, individually and as Co-Personal Representatives of the Estate of Amelia D. Martinez; Lila Salazar and Donna Salazar, as Co-Personal Representatives of the Estate of Donald D. Espinoza; Tony Espinoza and Edna Espinoza; and Anthony Mark Espinoza, individually, Plaintiffs-Appellants, v. NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.\nNo. 28,661.\nCourt of Appeals of New Mexico.\nJune 1, 2011.\nCertiorari Granted, Aug. 5, 2011,\nDocket No. 33,083.\nHemphill & Grace, P.C., Linda G. Hemp-hill, Paul W. Grace, The Okon Law Firm, Christa M. Okon, Santa Fe, NM, for Appellants.\nCuddy & McCarthy, LLP, M. Karen Kilgore, Evelyn A. Peyton, Santa Fe, NM, for Appellee." }, "file_name": "0204-01", "first_page_order": 240, "last_page_order": 251 }