 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: ______________

 3 Filing Date: April 6, 2009

 4 NO. 28,063

 5   GEOFFREY R. ROMERO, ESQ., as Personal
 6   Representative of the Estate of Nathaniel Maestas,
 7   deceased DYVINE MARTINEZ, as Mother of
 8   Nathaniel Maestas, deceased; FRANCINE and
 9   ROBERT MARTINEZ, as Parents and Next Friends
10   of Cassandra Martinez, a minor; and ROSE VALDEZ,
11   Individually and as Representative of the Estate of Eric
12   Tollardo, deceased; and FRANK TOLLARDO
13   and DOLORES SILVA,


14         Plaintiffs-Appellants,

15 v.

16   GIANT STOP-N-GO OF NEW MEXICO, INC.,
17   d/b/a MUSTANG #7297; MUSTANG FUEL
18   CORPORATION, an Oklahoma corporation;
19   GIANT INDUSTRIES, a Delaware corporation,
20   and JASON PEREA,

21         Defendants-Appellees.


22 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
23 William F. Lang, District Judge

24 Law Offices of Bruce S. McDonald
25 Bruce S. McDonald
26 Albuquerque, NM
 1 Corbin Hildebrandt, P.C.
 2 Corbin Hildebrandt
 3 Albuquerque, NM

 4 Zangara Law Office
 5 Kevin A. Zangara
 6 Taos, NM

 7 for Appellants

 8   Rodey, Dickason, Sloan, Akin & Robb, P.A.
 9   Lisa Ortega
10   Jocelyn Drennan
11   Edward Ricco
12   Albuquerque, NM

13 for Appellees
 1                                        OPINION

 2 VIGIL, Judge.

 3   {1}   This case arises out of a shooting that took place at a Mustang convenience

 4 store and gas station in which three people were killed and one person was injured.

 5 Plaintiffs filed a premises liability case against the owner and operator of the business

 6 (Defendant) alleging wrongful death and personal injury. The district court concluded

 7 that Defendant had no duty to prevent the episode, and granted summary judgment.

 8 We affirm.

 9 BACKGROUND

10   {2}   The fatal incident was the product of an ongoing drug trafficking dispute. The

11 escalating hostilities came to head when Eric Tollardo entered Jason Perea’s

12 apartment, put a gun to Perea’s head, and then departed, threatening that he was going

13 to return. After a brief period of reflection, Perea armed himself with two loaded

14 Glock pistols and went looking for Tollardo. Perea drove around Taos for two or

15 three hours, searching for Tollardo without success. Perea decided to abandon the

16 search and was heading home when, by chance, he spotted Tollardo’s car in

17 Defendant’s parking lot. Perea came to a rapid stop, jumping the curb and colliding

18 with a pole. He then climbed out of his vehicle and advanced on Tollardo’s car with

19 a loaded gun in each hand. Believing that one of the occupants had fired a shot at
 1 him, Perea “just lost it” and opened fire. Perea shot through the open windows of

 2 Tollardo’s car until he ran out of bullets, killing three of the occupants and injuring

 3 a fourth occupant in the process. Perea then fled the scene.

 4   {3}   Plaintiffs filed the instant lawsuit in their various capacities as personal

 5 representatives of the estates of two of the decedents and as parents and next friends

 6 of the surviving occupant. Plaintiffs’ claims are grounded on their assertion that

 7 Defendant negligently failed to provide security on its premises.

 8   {4}   Defendant moved for summary judgment, contending that Plaintiffs could not

 9 establish either that Defendant had a duty to protect the victims from the attack, or that

10 Defendant’s conduct was a proximate cause of their injuries. The district court agreed

11 with Defendant’s argument on the question of duty, and granted the motion on that

12 basis. This appeal followed.

13 DISCUSSION

14   {5}   It is axiomatic that a negligence action requires that there be a duty owed from

15 the defendant to the plaintiff; that based on a standard of reasonable care under the

16 circumstances, the defendant breached that duty; and that the breach was a cause in

17 fact and proximate cause of the plaintiff’s damages. See Herrera v. Quality Pontiac,

18 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181. Since the absence of any of these

19 elements is fatal to a negligence claim, we first examine whether Defendant owed a
                                               2
 1 duty to Plaintiffs.

 2 1.      Duty

 3   {6}   “Whether a duty exists is a question of law for the courts to decide.” Id.

 4 (internal quotation marks and citation omitted). We therefore apply de novo review.

 5 See, e.g., Blake v. Pub. Serv. Co. of N.M., 2004-NMCA-002, ¶ 5, 134 N.M. 789, 82

 6 P.3d 960 (reviewing de novo an award of summary judgment, based on a purely legal

 7 determination on the threshold issue of duty).

 8   {7}   “As a general rule, a person does not have a duty to protect another from harm

 9 caused by the criminal acts of third persons[.]” Ciup v. Chevron U.S.A., Inc.,

10 1996-NMSC-062, ¶ 5, 122 N.M. 537, 928 P.2d 263. One exception to the general rule

11 is that a duty may arise out of a special relationship. Id.; Rummel v. Edgemont Realty

12 Partners, Ltd., 116 N.M. 23, 26, 859 P.2d 491, 494 (Ct. App. 1993) (stating that,

13 absent a special relationship, there is no duty to protect others from harm caused by

14 criminal acts of third persons). See generally Restatement (Second) of Torts § 314A

15 (1965). One such special relationship exists between businesses and their patrons.

16 See Reichert v. Atler, 117 N.M. 623, 624, 875 P.2d 379, 380 (1994) (recognizing the

17 duty of business establishments to protect customers against the criminal conduct of

18 third parties); Rummel, 116 N.M. at 26, 859 P.2d at 494 (same). In this case the

19 occupants of Tollardo’s car were customers of Defendant, who were hanging out in
                                              3
 1 the parking lot and talking with other customers. Therefore, Defendant had a duty to

 2 protect business patrons such as the victims from harm caused by third-party criminal

 3 conduct. However, this duty extends only to foreseeable conduct and resultant harm.

 4 See UJI 13-1320 NMRA (stating in part that the duty of an owner or operator to

 5 protect a visitor “arises from a foreseeable risk that a third person will injure a

 6 visitor”); Reichert, 117 N.M. at 626, 875 P.2d at 382 (recognizing that the “duty of

 7 the owner or operator of a place of business to prevent the harmful conduct of a third

 8 party” extends to foreseeable acts and foreseeable harm).

 9   {8}   The New Mexico Supreme Court has observed, “[f]oreseeability is a critical and

10 essential component of New Mexico’s duty analysis because no one is bound to guard

11 against or take measures to avert that which he or she would not reasonably anticipate

12 as likely to happen.” Herrera, 2003-NMSC-018, ¶ 20 (alteration omitted) (internal

13 quotation marks and citation omitted). Therefore, we assess foreseeability by

14 reference to “what one might objectively and reasonably expect, not merely what

15 might conceivably occur.” Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 8,

16 140 N.M. 596, 145 P.3d 76 (internal quotation marks and citation omitted). In

17 evaluating foreseeability, we consider both the status of the plaintiff and the type of

18 harm involved. See Chavez v. Desert Eagle Distrib. Co., 2007-NMCA-018, ¶ 16, 141

19 N.M. 116, 151 P.3d 77 (“The initial step in a common law duty analysis is to

                                              4
 1 determine whether a particular plaintiff and a particular harm are foreseeable.”).

 2   {9}    Although Plaintiffs urge us to approach the foreseeability issue in a more

 3 generalized or abstract fashion, we do not proceed without reference to the specific

 4 circumstances actually presented. See, e.g., Chavez, 2007-NMCA-018, ¶¶ 17-24

 5 (approaching the foreseeability issue by reference to the specific allegedly negligent

 6 conduct of the business proprietor, and by reference to the specific criminal activity

 7 that allegedly ensued); Herrera, 2003-NMSC-018, ¶¶ 7, 19-25 (same). See generally

 8 Madrid v. Lincoln County Med. Ctr., 121 N.M. 133, 139, 909 P.2d 14, 20 (Ct. App.

 9 1995) (observing that the existence of a duty depends on “whether a particular

10 plaintiff, a particular event, and a particular injury are foreseeable,” aff’d,

11 1996-NMSC-049, 122 N.M. 269, 923 P.2d 1154. We therefore frame the critical

12 question in this case to be: whether the proprietor of a convenience store and gas

13 station who fails to employ security measures should foresee that a targeted homicidal

14 attack on its patrons is likely to result.

15   {10}   Plaintiffs contend that the attack in this case was foreseeable due to the

16 character and history of Defendant’s service station, which Plaintiffs describe as “a

17 magnet for crime and the criminal element.” In support of this characterization

18 Plaintiffs rely on a police incident log and the depositions of two former employees.

19 Because the employee depositions and the incident log provide so little specific

                                                5
 1 information about actual events, we hesitate to draw inferences from these materials.

 2 However, viewing the depositions and the log in the most fashionable light, they

 3 indicate prior reports of theft of gasoline and alcohol, physical altercations involving

 4 loiterers, domestic violence, harassment, traffic accidents, vandalism, trespassing,

 5 suspicious persons, and wild and stray animals at the service station. Reports of

 6 commercial robberies and incidents involving narcotics also appear.

 7   {11}   The history of reported criminal activity at Defendant’s service station may

 8 have rendered future events of a similar character foreseeable. If this case involved

 9 injuries suffered in the course of a criminal incident for which there was some

10 previous similarity, such as shoplifting, loitering, or commercial robbery, the event

11 and the resultant injuries might have been sufficiently foreseeable to give rise to a

12 duty. However, the victims in this case were not injured in the course of a similar

13 subsequent event. To the contrary, there is no evidence of anything remotely similar

14 to the deliberate, targeted shootings in this case. We acknowledge that crime is a

15 distressingly common feature of modern life. We further acknowledge that certain

16 types of criminal misconduct may occur with sufficient frequency that business

17 proprietors should anticipate them. However, we do not believe the type of crime

18 which is at issue in this case, specifically a sudden deliberate and targeted shooting,

19 is sufficiently commonplace that business proprietors should be categorically required

                                              6
 1 to foresee such occurrences. See Restatement (Second) of Torts § 314A cmt. e

 2 (observing that the duty in any case is circumscribed by foreseeable risks, and as such,

 3 a defendant “is not required to take precautions against a sudden attack from a third

 4 person which he has no reason to anticipate”).

 5   {12}   Plaintiffs have not pointed us to any case in which a court concluded that a

 6 business operator had a duty to prevent a sudden, deliberately targeted assassination

 7 of customers on its premises. In our research we have failed to find such a case, and

 8 to the extent there is authority, it holds that there is no such duty. See generally

 9 Wiener v. Southcoast Childcare Ctrs., Inc., 12 Cal. Rptr. 3d 615, 624 (Cal. 2004)

10 (holding that the day care center and lessor had no duty to prevent a driver from

11 deliberately driving his car through a chain link fence and striking children in a

12 playground because the “brutal criminal act” was unforeseeable); Toscano Lopez v.

13 McDonald’s Corp., 238 Cal. Rptr. 436, 445 (Cal. Ct. App. 1987) (holding that there

14 was no duty to prevent a random, mass murderous assault upon customers in a

15 McDonald’s located in a high crime area because such an event was not foreseeable).

16   {13}   We first examine whether existing case law supports a conclusion that

17 Defendant owed a duty to Tollardo, the person that Perea specifically targeted for

18 assassination. In Jones v. Williams, 408 N.W.2d 426 (Mich. Ct. App. 1987) (per

19 curiam), a customer was shot in a parking lot adjacent to a restaurant after buying

                                              7
 1 takeout food from the restaurant. Id. at 427. The record established that the shooter

 2 specifically targeted the customer. Id. at 428. Affirming the summary judgment

 3 granted to the restaurant, the court concluded that the restaurant did not owe a duty to

 4 protect the customer from “an unforeseeable assassination attempt.” Id. “Even the

 5 presence of guards could not prevent assassination attempts.” Id. at 429. In Faheen

 6 ex rel. Hebron v. City Parking Corp., 734 S.W.2d 270 (Mo. Ct. App. 1987), the victim

 7 was assassinated in a car bombing that took place in the parking garage of the

 8 apartment complex where he lived. Id. at 271. Prior to the bombing, crimes were

 9 committed on the premises of the apartment complex or in close proximity, which

10 consisted of arson, robbery, burglary, stealing, and various misdemeanors. Id. The

11 court said that “a homicide or injury caused by a car bombing is significantly different

12 from the reported crimes,” and concluded that the property owner had no duty to

13 protect against the assassination. Id. at 274 “[The deceased] was the victim of an

14 assassin[ation]. There is nothing in [the] plaintiffs’ petition that would put a

15 reasonable man on notice that he should take precautions to protect his invitees against

16 such a misdeed.” Id. In Guerrero v. Memorial Medical Center, 938 S.W.2d 789 (Tex.

17 App. 1997), the victim died after her husband went to her workplace and shot her. Id.

18 at 790. The court concluded that the crime was not foreseeable because no evidence

19 was presented that the employer knew, or had a reason to know, that the husband had

                                              8
 1 been physically abusing the victim and was about to murder her. Id. at 795. Summary

 2 judgment in favor of the employer was therefore affirmed. Id.; see also Gragg v.

 3 Wichita State Univ., 934 P.2d 121, 135 (Kan. 1997) (holding it was not foreseeable

 4 by the sponsor of Fourth of July fireworks display that a gang member intended to

 5 shoot anyone at the fireworks display).

 6   {14}   We also examine whether existing case law supports a conclusion that

 7 Defendant owed a duty to the victims who were with Tollardo when Perea attacked

 8 Tollardo. In Hillcrest Foods, Inc. v. Kiritsy, 489 S.E.2d 547 (Ga. Ct. App. 1997), a

 9 witness testified that a man drove by the Waffle House where his wife was working

10 and fired three or four shots into the Waffle House in an attempt to kill her. Id. at 549.

11 Two of the bullets struck the victim who was a patron in the Waffle House, and he

12 was paralyzed from the waist down. Id. The plaintiff presented evidence that several

13 prior crimes against persons had occurred on the premises prior to the drive-by

14 shooting. Id. However, the drive-by shooting itself was not a foreseeable act. Id. at

15 551. Because its reasoning is particularly applicable to the facts before us in this case,

16 we quote:

17          It was an act of terrorism that could have occurred anywhere that the
18          intended victim happened to be. [The defendant] had no basis to foresee
19          such event, and there was no effective action which it could reasonably
20          have taken to prevent said act under the circumstances. . . . The shooting
21          was a transitory act that could have been carried out at any time and

                                                9
 1          place that the intended victim happened to be.

 2 Id. In Thai v. Stang, 263 Cal. Rptr. 202 (Cal. App. 1989), the victim was shot twice

 3 when he and a companion were standing outside the entrance to a roller skating rink.

 4 Id. at 203. The victim’s companion, who was a rival gang leader, was the intended

 5 target, when a car drove by, spraying the entrance with bullets fired from an automatic

 6 rifle. Id. Summary judgment was granted to the premises owner and operator of the

 7 skating rink on the basis that it had no duty to prevent the shooting because the drive-

 8 by shooting was unforeseeable, even though prior to the shooting, there had been

 9 automobile break-ins, fist-fights between teenagers, and a burglary on the premises.

10 Id. at 203-04. The California Court of Appeal affirmed, noting in particular that given

11 the random nature of drive-by shootings, the landowner could not have prevented the

12 shooting in that case. Id. at 206-07.

13   {15}   Plaintiffs further contend that the affidavit of their expert creates a factual issue

14 for the jury to decide. Although we acknowledge that expert testimony may be

15 considered in this context, see, e.g., Herrera, 2003-NMSC-018, ¶¶ 3, 22, 24, the

16 ultimate issue remains a question of law upon which expert testimony is in no sense

17 determinative. See Romero v. City of Santa Fe, 2006-NMCA-055, ¶ 26, 139 N.M.

18 440, 134 P.3d 131 (observing that questions of law are “not subject to conclusive

19 proof by expert testimony”). Moreover, the opinion of Plaintiffs’ expert is based on

                                                 10
 1 the prior reports of criminal activity. As stated above, fundamentally dissimilar prior

 2 incidents do not render the type of crime which occurred in this case reasonably

 3 foreseeable.

 4 2.       Proximate Cause

 5   {16}   The parties also dispute whether Defendant’s alleged negligence in failing to

 6 provide security could be regarded as a proximate cause of Plaintiffs’ injuries. As

 7 previously stated, the district court did not rely on any analysis of proximate cause to

 8 support the award of summary judgment. Because our assessment of the duty issue

 9 supplies a sufficient independent basis for affirmance, it is not necessary for us to

10 undertake a separate analysis of the element of proximate causation at this time.

11 3.       Discovery

12   {17}   Finally, Plaintiffs contend that the award of summary judgment was improper

13 because they should have been afforded a greater opportunity to engage in discovery.

14 It is generally inadvisable to grant summary judgment before discovery has been

15 completed. Sun Country Sav. Bank v. McDowell, 108 N.M. 528, 534, 775 P.2d 730,

16 736 (1989). However, this is not universally the case.

17   {18}   Our Rules of Civil Procedure provide that a party faced with a motion for

18 summary judgment may ask the district court to stay its determination so that the

19 non-movant can conduct discovery needed to rebut the motion. See Rule 1-056(F)
                                              11
 1 NMRA. If such a stay is sought, the party must submit an affidavit explaining why

 2 additional time and discovery are needed. Id. In this regard, vague assertions are

 3 insufficient; rather, the party “must specifically demonstrate how postponement of a

 4 ruling on the motion will enable him, by discovery or other means, to rebut the

 5 movant’s showing of the absence of a genuine issue of fact.” Butler v. Deutsche

 6 Morgan Grenfell, Inc., 2006-NMCA-084, ¶ 38, 140 N.M. 111, 140 P.3d 532 (internal

 7 quotation marks and citation omitted).



 8   {19}   In this case, Plaintiffs never made any specific allegations regarding what they

 9 hoped to find in discovery. Under such circumstances, the district court was at liberty

10 to proceed with the award of summary judgment, notwithstanding Plaintiffs’ cursory

11 assertions about the need for further discovery. See id. ¶¶ 38-39 (arriving at a similar

12 conclusion under similar circumstances).

13 CONCLUSION

14   {20}   For the reasons stated, we conclude that Defendant had no duty to prevent the

15 deliberate, targeted shooting at issue in this case.

16   {21}   IT IS SO ORDERED.


17                                                  ________________________________
18                                                  MICHAEL E. VIGIL, Judge
                                               12
1 WE CONCUR:


2 _________________________________
3 CYNTHIA A. FRY, Chief Judge


4 _________________________________
5 TIMOTHY L. GARCIA, Judge




                                  13
