{
  "id": 1568716,
  "name": "Ralph A. GUTIERREZ, Mary S. Gutierrez, his wife, and Ruth H. Lucero, aka Aline Lucero, Petitioners, v. RIO RANCHO ESTATES, INC. and Amrep Construction Corporation, Respondents",
  "name_abbreviation": "Gutierrez v. Rio Rancho Estates, Inc.",
  "decision_date": "1980-01-28",
  "docket_number": "No. 12502",
  "first_page": "755",
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  "last_updated": "2023-07-14T15:53:36.909287+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "SOSA, C. J., and EASLEY, PAYNE and FELTER, JJ., concur."
    ],
    "parties": [
      "Ralph A. GUTIERREZ, Mary S. Gutierrez, his wife, and Ruth H. Lucero, aka Aline Lucero, Petitioners, v. RIO RANCHO ESTATES, INC. and Amrep Construction Corporation, Respondents."
    ],
    "opinions": [
      {
        "text": "OPINION\nFEDERICI, Justice.\nPetitioners-Gutierrez are the owners of land which lies adjacent to and below the development of Rio Rancho Estates, the property of respondents \u2014 Rio Rancho Estates, Inc. Respondents constructed retention dams and drainage facilities from which water is discharged onto petitioners\u2019 land, resulting in periodic flooding and silting on petitioners\u2019 property. Among the court\u2019s instructions to the jury were the following:\n7. An upstream or adjacent landowner has a duty to the lower and downstream landowner not to collect in an artificial channel or reservoir or pond, surface water and discharge it upon his neighbor\u2019s land to his injury in a different manner from that which it would naturally flow, if not interferred with, or to cast it in a greater volume or permit it to escape thereon in a more injurious way.\n8. If you find that the Defendants have collected surface water in an artificial channel and allowed it to flow in increased quantities on the land of Plaintiff in a manner different from which it would naturally flow, then the Defendants are strictly liable even in the absence of negligence. (Emphasis added.)\nThe jury returned a verdict for the petitioners. Respondents appealed and the Court of Appeals reversed. The case is before us on a writ of certiorari filed by petitioners. Although we agree with the Court of Appeals that the trial court should be reversed, we do not agree with the reasoning applied by the majority and deem an opinion necessary.\nThe question before us is whether the trial court erred in submitting to the jury an instruction on strict liability. We hold that the trial court erred. The applicable case law governing the question before us is set forth in Little v. Price, 141 N.M. 626, 397 P.2d 15 (1964); Martinez v. Cook, 56 N.M. 343, 244 P.2d 134 (1952); Rix v. Town of Alamogordo, 42 N.M. 325, 77 P.2d 765 (1938); Groff v. Circle K Corporation, 86 N.M. 531, 525 P.2d 891 (Ct.App.1974).\nIn Little, this Court quoted the following language with approval from Canon City & C.C.R. Co. v. Oxtoby, 45 Colo. 214, 100 P. 1127 (1908):\n\u201c * * * In our view of the facts, however, we do not think it makes any difference which rule is to be followed; for whether the relative rights of adjacent landowners as to surface waters is to be determined by the civil-law, or the common-law, or the so-called modified rule, under neither has one owner the right to collect in an artificial channel, or reservoir, or pond, surface water, and discharge it upon his neighbor\u2019s lands to his injury, in a different manner from that in which it would naturally flow, if not interfered with, or to cast it in a greater volume, or permit it to eseape, thereon in a more injurious way, either upon the surface, or under the surface, by the natural law of percolation.\u201d\n74 N.M. at 640, 397 P.2d at 25.\nAs we interpret the law set forth in the above cases, the legal principle applicable to the issue involved is not \u201cordinary negligence\u201d nor \u201cstrict liability\u201d nor \u201cres ipsa loquitur.\u201d Instead, under the above authorities, once the plaintiff proves the elements of liability stated by the rule, no more is required, and plaintiff will have established that the defendant\u2019s activity constitutes negligence. The burden then shifts to defendant, in order to avoid liability, to plead and prove any defense which would have been applicable in any ordinary negligence case.\nSome states apply the doctrine of \u201cstrict liability\u201d to the impounding of waters in artificial channels or reservoirs under the doctrine of \u201cabnormally dangerous activity,\u201d formerly denominated as \u201cultrahazardous activity.\u201d Restatement (Second) of Torts \u00a7\u00a7 519, et seq. (Tent. Draft No. 10, 1964).\nThe doctrine of strict liability has been followed in many jurisdictions where water is stored in large quantities in a dangerous location in cities. On the other hand, the doctrine has not been followed in many jurisdictions where water is stored in rural areas. Restatement (Second) of Torts, Note to the Institute \u00a7 520, comment 3 at 58 (Tent. Draft No. 10, 1964).\nN.M.U.J.I. Civ. 16.1, N.M.S.A.1978, provides an instruction on \u201cultrahazardous activities\u201d and strict or absolute liability. It is restricted to the \u201cuse of explosives.\u201d The Committee Comment under this instruction reads:\nThe rule of absolute liability stated in the foregoing instruction is proper under the case of Thigpen v. Skousen & Hise, 64 N.M. 290, 327 P.2d 802 (1934). There are no New Mexico cases on ultrahazardous activities other than blasting and, therefore, the instruction is limited to blasting situations.\nWe are not at this time prepared to extend the doctrine of strict liability to all impounded waters, and prefer to reaffirm and follow the principle announced in Little, Martinez, Rix and Groff, supra, as interpreted above in this opinion.\nThe trial court erred in giving a strict liability instruction. The trial court is reversed, and the cause remanded for a new trial consistent with the views expressed in this opinion.\nIT IS SO ORDERED.\nSOSA, C. J., and EASLEY, PAYNE and FELTER, JJ., concur.",
        "type": "majority",
        "author": "FEDERICI, Justice."
      }
    ],
    "attorneys": [
      "Mercer & McCash, Joseph H. Mercer, Albuquerque, for petitioners.",
      "Jerrald J. Roehl, Richard A. Winterbottom, Albuquerque, for respondents."
    ],
    "corrections": "",
    "head_matter": "605 P.2d 1154\nRalph A. GUTIERREZ, Mary S. Gutierrez, his wife, and Ruth H. Lucero, aka Aline Lucero, Petitioners, v. RIO RANCHO ESTATES, INC. and Amrep Construction Corporation, Respondents.\nNo. 12502.\nSupreme Court of New Mexico.\nJan. 28, 1980.\nMercer & McCash, Joseph H. Mercer, Albuquerque, for petitioners.\nJerrald J. Roehl, Richard A. Winterbottom, Albuquerque, for respondents."
  },
  "file_name": "0755-01",
  "first_page_order": 801,
  "last_page_order": 803
}