New Mexico blinkers itself to foreseeability

Deborah La Fetra at Pacific Legal on a case that arose against a shopping mall after a runaway car smashed through a floor-to-ceiling glass wall into a medical clinic:

[On May 8,] the New Mexico Supreme Court decided in Rodriguez v. Del Sol Shopping Center that when a court decides whether a property owner has a duty to protect people from harm on the premises, the court must never consider whether the harm was foreseeable. PLF has long argued in premises liability cases that foreseeability cannot be dispositive, because the court must also consider the public policy considerations of imposing a duty to protect. The court’s holding that foreseeability must never be even a factor, however, sets it apart from every other court in the nation, to the detriment of New Mexican property owners and businesses….

This approach means that, as a practical matter, New Mexico courts can never dismiss a case on the grounds that the defendant owed no duty to the plaintiff. …This is a shocking departure from standard tort doctrine that squarely places upon courts the responsibility to determine the nature and extent of tort duties. All property owners and businesses in the state should be on notice that any accident, no matter how bizarre or unlikely, that occurs on their premises will almost certainly go to a jury – or settle.

Whole post here.


  • The question of “duty owed” seems to be the most misunderstood part of the duty, breach, proximate cause, and damage analysis. Duties owed—and foreseeability—should be questions of law and not fact. These set precedents and give people expectations of behavior. In the case at hand, one jury could easily determine the accident was foreseeable while another might fail to see it that broadly and decline to find fault because it was not foreseeable. How are people supposed to react, other than overreact to everything—or more likely—do only what is reasonable and get sued anyway?

    Also as the amicus brief notes, if the particular issue was that concerning the legislature could pass a law or the municipal code could be amended to prohibit certain structures from vehicle thoroughfares which do not have proper traffic calming techniques. Surely there is a duty to build to code, and that is written down and published in advance so at least you know what rules to follow, which is far preferable to allowing a trial to proceed on you having breached some fantastic, speculative duty which was virtually inconceivable at the time you set up shop.

  • I know when I drive to a mall. Or a supermarket. There are concrete blocks preventing trucks with explosive to “just drive in.”

    At Target, they do one better. There are barriers up high, so if the bed of your truck came up more than 8 feet high … the barriers would rip the top of your truck off.

    Sure. After 9/11. But parking lots (here in California) are assuming that terrorists could use trucks containing explosives to do harm. Especially because they’d know they could get on TV.

    Perhaps that’s what the New Mexico court is pointing out?

  • This seems to remind me of New York’s scaffolding law

  • I think it was WWII general Freddie de Guingand who said “one must remember: one can’t be strong everywhere.”

    Good leadership often involves doing something that can, theoretically, fail – due to circumstances which you foresee perfectly well and happen to notice are not present. For example, the Germans did this all the time in WWII; the attack on France in 1940 could have been stopped a number of different ways, and the Germans conducted the attack the way they did precisely because the Allies happened to not be doing those things. Had they been doing those things, the Germans would not necessarily have been stopped, because they would have changed the attack plan and done something else.

    This case does nothing less than put the Maginot Spirit into law. Rather than make decisions which are appropriate to the situation, you’re now supposed to build The Perfect Edifice that does everything. Your time is not important. The fact that agility is often the only advantage a small business has over a larger one is also not important, to these people.

    How about this for a test: “unless I told you to do it, I’m not liable for what happens when you do.”