                                               I attest to the accuracy and
                                                integrity of this document
                                                  New Mexico Compilation
                                                Commission, Santa Fe, NM
                                               '00'05- 09:48:24 2013.03.08
         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-005

Filing Date: January 31, 2013

Docket No. 33,083

ESTELA MARTINEZ and LILA SALAZAR, individually
and as co-personal representatives of the ESTATE OF
NATALIE MARTINEZ ESPINOZA, ISAAC MARTINEZ,
and ESTELA 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 ESTATES OF DONALD D. ESPINOZA,
TONY ESPINOZA, and EDNA ESPINOZA, and ANTHONY
MARK ESPINOZA, individually,

       Plaintiffs-Petitioners,

v.

NEW MEXICO DEPARTMENT OF TRANSPORTATION,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Timothy L. Garcia, District Judge

Hemphill & Grace, P.C.
Linda G. Hemphill
Paul W. Grace
Santa Fe, NM

The Okon Law Firm
Christa M. Okon
Santa Fe, NM

for Petitioners

Cuddy & McCarthy, L.L.P.
Mary Karen Kilgore
Evelyn Anne Peyton
Santa Fe, NM

                                  1
for Respondent

Michael B. Browde
Albuquerque, NM

for Amicus Curiae New Mexico Trial Lawyers Association

Gary K. King, Attorney General
Matthew Eric Jackson, Assistant Attorney General
Santa Fe, NM

for Amicus Curiae New Mexico Attorney General Gary K. King

                                         OPINION

BOSSON, Justice

{1}     New Mexico State Road 502 (NM 502), a winding mountainous roadway leading to
and from Los Alamos, New Mexico, was designed partially with and partially without center
lane barriers to prevent cross-over collisions. Barriers were not installed at the site of the
cross-over collision in this case. The New Mexico Department of Transportation (DOT),
which has legal responsibility to maintain NM 502, was sued for negligently failing to
remedy a dangerous condition when it chose not to replace the open center lane with cross-
over barriers, after it was allegedly put on notice of that risk by post-construction accidents
and other events. Our Court of Appeals held as a matter of law that DOT was immune from
suit for such negligence, a decision which we reverse as being at odds with our
jurisprudence. We also hold that the district court unduly restricted the evidence offered to
show that DOT had received notice of the danger at this location and the need for remedial
action. Accordingly, we reverse and remand for a new trial.

BACKGROUND

{2}     On December 9, 2004, Amelia Martinez and Donald Espinoza were driving west on
NM 502 toward Los Alamos to buy a car. Amelia, eight and a half months pregnant at the
time, was driving and Donald was in the passenger seat. Tragically, they did not make their
destination.

{3}     At the same time, Anthony Griego was driving east on NM 502 away from Los
Alamos. Griego was weaving in and out of traffic, passing cars in both the left- and right-
hand lanes. In an attempt to pass another car, Griego entered the center turn lane, a two-way,
turn-only lane near mile marker 9. Griego lost control of his vehicle in the center turn lane,
which was covered in red crushed cinder commonly used in New Mexico during snow-
clearing operations. He skidded into oncoming traffic, colliding head-on with Amelia’s
vehicle. No one from either vehicle survived the crash. A toxicology report later showed

                                              2
that Griego had both drugs and alcohol in his system at the time of the collision.

{4}     The parents of both Amelia and Donald, as well as Donald’s grandparents,
(Plaintiffs) filed the present suit against DOT, claiming wrongful death and loss of
consortium. Plaintiffs alleged that the failure to construct a center barrier on this section of
NM 502 “created or permitted a dangerous condition to exist, [and] constitutes a failure to
maintain a road in a reasonably safe condition for which immunity has been waived under
the Tort Claims Act.” In addition, DOT “permitted a dangerous condition by allowing sand
or gravel to remain in the [center lane].”

{5}     DOT had redesigned NM 502 in the late 1980s. The redesign was necessary to
accommodate increased traffic flow and to make the road safer “due to the sensitive
materials which may be taken to and from the Los Alamos National Laboratory,”
presumably a reference to transporting nuclear waste. As part of the redesign, an additional
lane of travel was added in each direction. The redesign included a center turn lane between
mile markers 8 and 10 where the cross-over collision occurred, although with the exception
of a gas station, there are no developed roadways upon which to turn. West of mile marker
8, the eastbound and westbound lanes of traffic are divided by a concrete median barrier
known as a “Jersey barrier.” Between mile markers 8 and 10, including the collision site,
there is no Jersey barrier.

{6}      Before trial, DOT filed a motion for partial summary judgment regarding waiver of
immunity under the New Mexico Tort Claims Act (the Act). As will be discussed in more
detail, the Act permits suits against DOT for negligent “maintenance” of a roadway, but not
for negligent “design.” NMSA 1978, § 41-4-11 (1991). The summary-judgment motion
asked the district court to rule as a matter of law that DOT’s decision not to install a center
barrier in the area where this collision occurred was one of design, not maintenance. The
district court granted the motion and, as such, prevented Plaintiffs from going to trial under
their theory that a failure to install a center barrier on this particular stretch of roadway
constituted negligent maintenance. The ruling thus limited Plaintiffs’ claim at trial to
proving that DOT was negligent for failing to remove the red cinder left from snow-clearing
operations that had accumulated in the center turn lane, a proximate cause of the collision.

{7}     At trial, Plaintiffs sought to introduce evidence of other cross-median, fatal collisions
that had occurred between mile markers 8 and 10, the stretch of road with the center turn
lane at issue in this case. Between 1998 and the time of this collision, five other motorists
had died in four separate incidents involving cross-median collisions between mile markers
8 and 10. The district court excluded evidence of these fatalities.

{8}     In addition to evidence of other collisions, Plaintiffs attempted unsuccessfully to
introduce two types of evidence: one, that citizens had previously filed complaints with
DOT regarding the lack of a center barrier, and two, that DOT had installed a center barrier
on other sections of the road. The court limited the evidence at trial to the scene of the
collision and evidence regarding red cinder in the center turn lane.

                                               3
{9}    So restricted, Plaintiffs proceeded to trial where the jury returned a verdict for DOT.
The Court of Appeals affirmed the district court in total. Martinez v. N.M. Dep’t of Transp.,
2011-NMCA-082, 150 N.M. 204, 258 P.3d 483. The Court of Appeals focused on the
permanent nature of Jersey barriers, describing them as “concrete, dense structures, the
placement of which is not simple or uncomplicated.” Id. ¶ 18. According to the Court of
Appeals, New Mexico jurisprudence “hinged on the difference between guiding traffic and
designing permanent attributes of a road itself.” Id. ¶ 17. Ultimately, the Court of Appeals
held “that erection of permanent barriers as part of a road constitutes a matter of road
design” and not maintenance. Id. We granted certiorari to consider important legal
issues—both for the motoring public and for DOT in discharging its responsibility to ensure
the safety of New Mexico’s highways—that arise from a proper interpretation and
application of the Tort Claims Act.

DISCUSSION

Standard of Review

{10} As we interpret the Act, we are reminded that statutory construction is a matter of
law which is our responsibility to review de novo. See Rutherford v. Chaves Cnty., 2003-
NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199 (“The standard of review for determining
whether governmental immunity under the [Act] bars a tort claim is a question of law which
we review de novo.”).

Tort Claims Act

{11} The Tort Claims Act, passed by the Legislature in 1976, affirmed the sovereign
immunity of the State from tort claims generally, subject to certain frequently discussed
exceptions. NMSA 1978, § 41-4-2 (1976). The Act was intended to balance “the inherently
unfair and inequitable results which occur in the strict application of the doctrine of
sovereign immunity” with the observation that “the area within which the government has
the power to act for the public good is almost without limit, and therefore government should
not have the duty to do everything that might be done.” Section 41-4-2(A). Accordingly,
the Legislature declared it “to be the public policy of New Mexico that governmental entities
and public employees shall only be liable within the limitations of the Tort Claims Act and
in accordance with the principles established in that act.” Id.

{12} Of the exceptions explicitly enumerated in the Act, Section 41-4-11 waives immunity
for certain actions regarding highways. The statute reads as follows:

               A. The immunity granted pursuant to Subsection A of Section 41-4-4
       NMSA 1978 does not apply to liability for damages resulting from bodily
       injury, wrongful death or property damage caused by the negligence of
       public employees while acting within the scope of their duties during the

                                              4
       construction, and in subsequent maintenance of any bridge, culvert, highway,
       roadway, street, alley, sidewalk or parking area.

              B.     The liability for which immunity has been waived pursuant to
       Subsection A of this section shall not include liability for damages caused by:


                     (1)    a defect in plan or design of any bridge, culvert,
               highway, roadway, street, alley, sidewalk or parking area;

                       (2)    the failure to construct or reconstruct any bridge,
               culvert, highway, roadway, street, alley, sidewalk or parking area . .
               ..

Id. (emphasis added). The central issue in this case is whether DOT’s decision not to install
a post-construction center barrier at mile marker 9 on NM 502, after being alerted of a
potentially dangerous condition at that general location, is a matter envisioned by the Act
as highway “maintenance,” for which sovereign immunity is waived, or highway “design,”
for which it is not.

The Court of Appeals’ Narrow Definition of Maintenance

{13} When the Act was originally passed in 1976, it did not define the term
“maintenance.” See 1976 N.M. Laws, ch. 58, § 3. Thus, it was up to New Mexico courts
to determine what the Legislature intended that term to mean. Through the years,
maintenance has been interpreted very broadly. Romero v. State, 112 N.M. 291, 296, 814
P.2d 1019, 1024 (Ct. App. 1991), rev’d in part on other grounds by Romero v. State, 112
N.M. 332, 333, 335, 815 P.2d 628, 629, 631 (1991), abrogated on other grounds by
Dunleavy v. Miller, 116 N.M. 353, 356 n.1, 862 P.3d 1212, 1215 n.1 (1993).

{14} Perhaps the broadest interpretation of the term is found in this Court’s opinion in
Miller v. New Mexico Department of Transportation, 106 N.M. 253, 741 P.2d 1374 (1987),
superseded by statute, NMSA 1978, Section 41-4-3(E)(1) (1995) (pursuant to 1991
amendment, 1991 N.M. Laws, ch. 205, § 1). In Miller, this Court held that the issuance of
oversize vehicle permits could constitute highway maintenance for which DOT could be
sued under the Act. Id. at 255, 741 P.2d at 1376. The Legislature responded by amending
the Act, providing its first definition of maintenance and effectively overruling Miller. See
Rutherford, 2003-NMSC-010, ¶ 21.

{15} Though the Legislature repudiated our holding in Miller, it did so narrowly.
Rutherford, 2003-NMSC-010, ¶ 21. The Legislature added a definition of what should not
be considered maintenance:

       “maintenance” does not include:

                                             5
                        (1) conduct involved in the issuance of a permit, driver’s
       license or other official authorization to use the roads or highways of the
       state in a particular manner; or

                     (2) an activity or event relating to a public building or
       housing project that was not foreseeable.

NMSA 1978, § 41-4-3(E) (2009). Thirteen years later, when this Court analyzed the Miller
amendment in Rutherford, we concluded that “the legislative amendment was narrow,
calculated, and [it] addressed the particular legal conclusion in Miller.” 2003-NMSC-010,
¶ 21. Because the matter before us does not pertain to permits or anything else discussed in
the Miller amendment, that statutory definition of maintenance offers little help in this
particular case.

{16} The Rutherford opinion was our last occasion to interpret the meaning of
maintenance; the importance of its holding should not be underestimated. There, the
plaintiff sued DOT after attempting to drive his vehicle across a flooded arroyo. Id. ¶ 3. The
road was designed to pass through the arroyo instead of passing over it by bridge, and signs
were posted at the crossing warning motorists to “‘WATCH FOR WATER.’” Id. ¶ 2.
Normally, when the arroyo flooded, the Chaves County Road Department would close the
crossing using portable barricades which prevented motorists from driving into the flood
waters. Id. Before the barricades could be put in place, however, Rutherford attempted to
cross the flooded arroyo, and as a result his wife, their two children, and another child
drowned. Id. ¶ 3.

{17} This Court had to decide whether placing barricades to stop motorists from crossing
the arroyo—and more importantly the County’s lack of a prompt response to adverse
weather conditions that threatened the motoring public—constituted roadway maintenance
under the Act. Id. ¶ 10. In analyzing a long line of New Mexico cases, we reaffirmed “that
traffic controls constitute maintenance activities under the [Act].” Id. ¶ 9. See, e.g., Pollock
v. State Highway & Transp. Dep’t, 1999-NMCA-083, 127 N.M. 521, 984 P.2d 768 (holding
that placing a “Do Not Enter” sign was maintenance); Rickerson v. State of N.M. & City of
Roswell, 94 N.M. 473, 612 P.2d 703 (Ct. App. 1980) (holding that replacing a stop sign with
a traffic signal was maintenance).

{18} Much as DOT does today, Chaves County argued for a narrower, more restrictive
definition of maintenance based on the Miller amendment. 2003-NMSC-010, ¶ 18. We
recognized that the Legislature repudiated Miller’s holding. Id. ¶ 21. But, we concluded
that the Legislature did nothing to narrow the definition of maintenance outside of the
context of our opinion in Miller. Id. Accordingly, we rejected then, as we do today, any
suggestion that the State’s duty to maintain roadways in a safe condition for the benefit of
the public has been diluted or narrowed beyond the text of the 1991 legislative amendment.
Id.


                                               6
{19} Specifically, we said in Rutherford that maintenance was not confined to mere
“‘upkeep and repair,’” which is vital to our review of the Court of Appeals’ opinion in the
instant case. Id. We stated, “In 1991, when considering the definition of ‘maintenance,’ the
Legislature chose not to limit the meaning of the term ‘maintenance’ to ‘upkeep and repair.’
Notably, the Legislature also did not define maintenance to exclude traffic control.” Id.

{20} Despite what we said in Rutherford, the Court of Appeals’ opinion in the present case
closely aligned the meaning of maintenance with upkeep and repair. Martinez, 2011-
NMCA-082, ¶ 11. Relying on one of its prior opinions, the Court of Appeals observed that
“[i]n Villanueva, we reaffirmed that ‘maintenance’ of a road involves ‘upkeep and repair,’
and our view that installations of structural elements are matters for which design immunity
is conferred.” Id. (alteration omitted) (quoting Villanueva v. City of Tucumcari, 1998-
NMCA-138, ¶ 8, 125 N.M. 762, 965 P.2d 346). The proper scope of the term maintenance
in a case such as this was previously articulated by the Court of Appeals in Jacobo v. City
of Albuquerque, 2005-NMCA-105, 138 N.M. 184, 118 P.3d 189, where the Court accurately
quoted our specific holding from Rutherford—“New Mexico cases have held that the term
‘maintenance’ is not limited to ‘upkeep and repair’ but that ‘the identification and
remediation of roadway hazards constitutes highway maintenance under Section 41-4-11 of
the [Act].’” Id. ¶ 15 (quoting Rutherford, 2003-NMSC-010, ¶¶ 21, 25). We reject, as we
did in Rutherford, any statutory construction that would limit the word maintenance to
upkeep and repair.

{21} We emphasize, as we will discuss again in the coming paragraphs, that the term
maintenance requires a reasonable response to a known dangerous condition on a roadway.
When the reasonableness of that response pertains to traffic controls, it is not measured just
by size or weight, permanence or mobility, whether the defect is a structural element or is
more transitory in nature.

Remediation Measures Are Maintenance

{22} In this case, the Court of Appeals noted that “[e]rected Jersey barriers are concrete,
dense structures, the placement of which is not simple or uncomplicated,” and distinguished
the barriers at issue in Rutherford because they could be “placed on and removed from the
road as needed.” Martinez, 2011-NMCA-082, ¶ 18. In so doing, the Court of Appeals was
led astray by DOT.

{23} The fallacy of this argument is straightforward. A traffic signal is also a permanent
and substantial feature on a roadway. Once placed, a traffic signal is generally not removed
and becomes a permanent fixture of the intersection. The placement of a traffic signal “is
not simple or uncomplicated.” Id. Traffic studies must be conducted over a period of time
to determine the appropriateness of such a change, not to mention the construction which
ultimately results in a permanent “concrete, dense structure[].” Id. Yet the Court of Appeals
acknowledged that installing a traffic signal constitutes maintenance under the Act. Id. ¶ 15.


                                              7
{24} Plaintiffs further argued that other, less substantial remedial measures could have
prevented the collision in this case. In addition to Jersey barriers, Plaintiffs argued that the
collision could have been prevented “by installing cable barriers or by erecting a concrete
or grassy island.” The Court of Appeals opinion does not address these additional remedial
measures. With the opinion focused, at least in part, on substantiality, we are left to wonder
whether cable barriers are substantial enough to be considered design under the Court of
Appeals’ analysis.

{25} Rather than focusing on what DOT was being asked to do—remedy a dangerous
condition—the Court of Appeals was distracted by the sheer size or weight of the proposed
remedy, a distinction absent from the text of the Act. The Court focused more on the
distinguishing characteristics of a center barrier versus a stoplight versus a sign warning of
animals crossing, rather than the overarching principle enunciated in both the Act and in our
case law—the need for action to remedy a dangerous condition on a roadway.

{26} The duty to maintain a roadway subsumes within it a duty to remediate a known,
dangerous condition, regardless of whether the source of that danger can be traced back to
a design feature. If not our specific holding in Rutherford, it is at the very least a strong
inference from what we said in that opinion. Its roots in New Mexico jurisprudence can be
traced back as far back as 1980. Although these prior cases do not have the same explicit
holding as Rutherford, implicit in them is the legal conclusion that the duty to remedy a
dangerous condition falls within the intended meaning of maintenance under the Act. We
discuss a selection of these cases to illustrate the point.

{27} Rickerson was the earliest of these cases. The plaintiff argued that a particular
intersection was dangerous due to a lack of sufficient traffic controls, such as a stoplight.
94 N.M. at 475, 612 P.2d at 705. The State argued that it was immune from suit because the
layout of the intersection was a design issue; the intersection as designed did not call for a
stoplight. Id. The Court of Appeals held that immunity was waived under both Section 41-
4-11(A) and NMSA 1978, Section 41-4-6 (2007) (waiving immunity for negligent operation
of equipment), and accordingly, the question of the State’s negligence should go to a jury.
Rickerson, 94 N.M. at 475-76, 612 P.2d at 705-06. More important to our analysis in this
case than the holding is Judge Sutin’s special concurrence.

{28} In his special concurrence, Judge Sutin makes clear that the duty to correct a
dangerous condition, even if it resulted from the original design, falls under the maintenance
waiver of the Act. Specifically, he notes that the original design of the road, in that case
“[t]he presence of stop signs [rather than a stop light] to control traffic on a street before
entering an intersection does not absolve a government entity of liability where a dangerous
condition has been created.” Id. at 477, 612 P.2d at 707 (Sutin, J., specially concurring).
In addition, Judge Sutin opined,

       What is meant by “maintenance of a street”? To me, it is logical to conclude
       that, since “defect in plan or design of a street” appears in the same section

                                               8
       with “maintenance of a street,” “maintenance of a street” includes within its
       perimeter or scope, an improvement of the “plan or design.”

Id. at 479, 612 P.2d at 709 (Sutin, J., specially concurring). We agree.

{29} Two years later, a unanimous panel of the Court of Appeals endorsed Judge Sutin’s
belief that the duty to mitigate a dangerous condition falls under the state’s maintenance
obligations for the purposes of the Act. In a case very similar to Rickerson, the Court of
Appeals once again ruled that the state was not immune under the Act for failing to install
traffic signals and signs. See Blackburn v. State, 98 N.M. 34, 36, 644 P.2d 548, 550 (Ct.
App. 1982).

{30} In Blackburn, the discussion of “dangerous conditions” arose in the context of a
dispute over jury instructions. The plaintiff complained of the following jury instruction:

              Plaintiff’s cause of action against defendants, State of New Mexico,
       State Highway Department and State Engineer, is based upon and must meet
       the requirements of the law relating to the liability of a public entity for a
       dangerous condition of public property.

               Before the plaintiff may be entitled to your verdict under this law,
       against defendants, State of New Mexico, State Highway Department and
       State Engineer, you must find from a preponderance of the evidence:

            First: That Intersection at State Road 85, State Road 6 in Los Lunas,
       New Mexico was in a dangerous condition on April 14, 1979;

              Second: That the injury of which plaintiff complains was proximately
       caused by the dangerous condition;

              Third: That the injury occurred in a way which was reasonably
       foreseeable as a consequence of the dangerous condition of the property; and

               Fourth: That either:

               (a) The dangerous condition was created by a negligent or wrongful
       act or omission of an employee of the defendants, State of New Mexico,
       State Highway Department and State Engineer, acting within the scope of his
       employment, or

              (b) The defendants, State of New Mexico, State Highway Department
       and State Engineer, had actual or constructive notice of the dangerous
       condition a sufficient time prior to the time of the accident so that measures
       could have been taken to protect against the dangerous condition.

                                             9
Id. at 37, 644 P.2d at 551.

{31} The jury instruction explicitly defines the duty owed by the state as the duty to
remedy a dangerous condition. The Court of Appeals concluded that this instruction “fairly
present[s] the applicable law” and that the instruction “was a correct statement of New
Mexico law.” Id. Implicit in this reasoning is that a duty to remedy a dangerous condition
is a maintenance obligation for which immunity is waived under the Act.

{32} Subsequently, in Ryan v. New Mexico State Highway & Transportation Department,
the Court of Appeals held that the failure to install a sign warning of animal crossings fell
under the state’s maintenance obligations, and therefore immunity was waived. See 1998-
NMCA-116, ¶ 5, 125 N.M. 588, 964 P.2d 149. It was the duty to mitigate the dangerous
condition—warn motorists of the possibility of animals in the roadway—that triggered the
need for maintenance and thus the waiver of sovereign immunity. Id.

{33} Thus, the duty to remedy a dangerous condition on New Mexico highways is nothing
new under New Mexico law generally and under the Tort Claims Act specifically. See
Castillo v. Cnty. of Santa Fe, 107 N.M. 204, 206-07, 755 P.2d 48, 50-51 (1988) (recognizing
that the duty to remedy a dangerous situation constitutes maintenance under Section 41-4-6,
which waives immunity for operation or maintenance of buildings). A dangerous condition
can result from the original design of the highway as long as the state has sufficient notice
of the danger and the need for remediation. Rickerson, 94 N.M. at 475, 612 P.2d at 705 (the
dangerous condition resulted from the failure to replace a stop sign with a traffic signal). It
can be the result of a failure to maintain safety devices already in place. Lerma ex rel.
Lerma v. State Highway Dep’t, 117 N.M. 782, 784, 877 P.2d 1085, 1087 (1994) (the
dangerous condition arose from the failure to properly construct and maintain a fence along
a highway). The dangerous condition can also result from an inherent feature of the
roadway. Ryan, 1998-NMCA-116, ¶ 16 (the dangerous condition was the result of animals
migrating across the roadway). In each of these situations, the result is the same. As we
held in Rutherford, “procedures for identifying hazards on roadways and the timeliness of
minimizing or eliminating the risk of injury to the motoring public from those hazards
constitute maintenance activities for which immunity is waived under the [Act].” 2003-
NMSC-010, ¶ 7.

{34} Plaintiffs make the same argument in this case. Despite DOT’s immunity for the
initial design or redesign of NM 502, notice of a dangerous condition—whether based on
the original design or some other intervening characteristic—triggers a maintenance
obligation for which DOT can be held legally responsible under the Act. Whether this
obligation requires a permanent solution, such as a traffic signal or a center barrier, or a
temporary one, such as the moveable barriers in Rutherford, the maintenance obligation of
reasonable care remains the same. And the reasonableness of that response to a known
danger—whether with a temporary barrier or a permanent one—remains in the good hands
of the jury to resolve.


                                              10
An Endless Immunity for Design, Ignoring Intervening Circumstances, Frustrates
Legislative Purpose and Undermines Public Safety

{35} Although we acknowledge textual differences between our state statutes, we are
persuaded by the basic premise espoused in cases from California and Kansas—that our
Legislature did not intend design immunity to continue in perpetuity. See Mirzada v. Dep’t
of Transp., 4 Cal. Rptr. 3d 205, 208 (Ct. App. 2003) (“Design immunity does not necessarily
continue in perpetuity.” (internal quotation marks and citation omitted)); Dunn v. Unified
Sch. Dist. No. 367, 40 P.3d 315, 325 (Kan. Ct. App. 2002) (“We do not believe the
legislature intended governmental entities to be perpetually immune from design or planning
flaws . . . .”). Allowing design immunity to continue into perpetuity would not further the
purpose of design immunity, while frustrating the overall purpose of encouraging safe
highway maintenance.

{36} As stated by the California Court of Appeals, “[t]he rationale for design immunity
is to prevent a jury from second-guessing the decision of a public entity regarding a
particular plan or design of a public construction or improvement.” Cornette v. Dep’t of
Transp., 95 Cal. Rptr. 2d 733, 738 (Ct. App. 2000), superceded and aff’d by Cornette v.
Dep’t of Transp., 26 P.3d 332, 336 (Cal. 2001). Another California decision stated that
legislatures do not want juries to “be allowed to second-guess the discretionary
determinations of public officials by reviewing the identical questions of risk that had
previously been considered by the government officers who adopted or approved the plan.”
Baldwin v. State of California, 491 P.2d 1121, 1128 (Cal. 1971), superceded in part by Cal.
Gov’t Code § 830.6.

{37} Plausibly, initial roadway design decisions may be based on weighing potential risks,
looking to the future, without the benefit of an accident history or other empirical evidence
demonstrating how the design works in practice. See id. at 1122, 1128 (“[W]e are convinced
that the [l]egislature did not intend that public entities should be permitted to shut their eyes
to the operation of a plan or design once it has been transferred from blueprint to blacktop.”).
Once a design has been put into operation, however, “there will then be objective evidence
arising out of the actual operation of the plan—matters which, of necessity, could not have
been contemplated by the government agency or employee who approved the design.” Id.
at 1128.

{38} In instances involving highways, actual traffic flow can be monitored, as opposed to
potential traffic flow based on models. Actual collisions can be studied, along with ways
to mitigate such occurrences in the future, based on what is actually happening on the
ground. This is in contrast to what might happen in theory, should a highway be built in a
particular manner. In such instances, a jury would not simply be re-weighing the same
potential risks as the original designer of the roadway, but instead would be balancing
inaction on the part of the governmental entity with actual facts as to how the roadway has
functioned under operation. “No threat of undue interference with discretionary decision-
making exists in this situation.” Id.

                                               11
{39} We find this reasoning persuasive. Perpetual design immunity, if broadly construed,
would thwart the overarching purpose of ensuring highway safety and protecting the
motoring public. As we stated in Rutherford, “[t]he sole purpose of waiver in Section 41-4-
11(A) is to ensure that highways are made and kept safe for the traveling public.” 2003-
NMSC-010, ¶ 24 (internal quotation marks and citation omitted). This “sole purpose” would
be frustrated if DOT could simply throw its hands up and claim immunity based on design,
despite knowing, based on empirical evidence, that what was designed in theory proved fatal
in fact. Taken to an extreme, perpetual design immunity would allow DOT to ignore reality
and escape accountability even if a particular stretch of highway were to cause fatalities on
a regular basis. We will not assume such short-sightedness in our Legislature when public
safety is our mutual concern. “Having approved the plan or design, the governmental entity
may not, ostrich-like, hide its head in the blueprints, blithely ignoring the actual operation
of the plan.” Baldwin, 491 P.2d at 1127.

Evidence of Events Putting DOT on Notice of a Dangerous Condition

{40} While acknowledging the import of Rutherford and DOT’s maintenance obligations
under the Act, the district court nonetheless excluded all evidence of a history of cross-
median collisions on NM 502. The court ruled that such evidence, to be relevant and
admissible, “would have to show a defect in the location of the accident.” As the Court of
Appeals stated, “the district court determined that the previous accidents occurred too far
from the location of decedents’ accident to prove that the same defect or dangerous condition
was present.” Martinez, 2011-NMCA-082, ¶ 25. In addition, “the district court excluded
. . . newspaper articles, citizen complaints, testimony by Plaintiffs’ expert, and evidence
pertaining to the configuration of the road on the basis that this evidence dealt with the
design of the road . . . .” Id. ¶ 26. These rulings were affirmed by the Court of Appeals. Id.
¶ 27.

{41} With this evidence, Plaintiffs intended to show that DOT had notice—that it knew
or should have known—of a dangerous condition along NM 502, including the collision site,
sufficient to trigger a duty to take remedial measures. Whether DOT had notice is a question
of fact for the jury to determine. Ryan, 1998-NMCA-116, ¶ 8. Notice “becomes a question
of law only if no room for ordinary minds to differ exists.” Hull v. S. Coast Catamarans,
L.P., 365 S.W.3d 35, 45 (Tex. Ct. App. 2011). By excluding this evidence, the district court
essentially determined that no reasonable juror could conclude from such evidence that DOT
either knew or reasonably should have known of the risk at the collision site and the need
for reasonable efforts to remedy that risk. In our view, the district court took an
unnecessarily narrow view of what might reasonably persuade a jury on the question of
notice.

{42} Rather than requiring all evidence of notice to relate to the exact site of the collision,
we believe that more latitude was appropriate. See Romero, 112 N.M. at 334, 815 P.2d at
630 (cautioning against imposing “an unduly restrictive interpretation [of] both [the]
admissibility of relevant evidence and on the term ‘maintenance.’”). In Ryan, the Court of

                                              12
Appeals noted that the plaintiffs “presented affidavit evidence that a series of accidents
occurred on that particular stretch of highway as a result of wild-animal crossings.” 1998-
NMCA-116, ¶ 10 (emphasis added). This is a more appropriate view of relevancy when
determining whether DOT had notice of a dangerous condition along a highway.

{43} Depending on the particular characteristics of the road, evidence of other collisions
occurring in the general area of the particular collision or in other areas with similar
characteristics, may be relevant to notice. Taking a static, rigid view of the “location” of the
accident takes from the jury the opportunity to decide whether DOT acted reasonably under
the circumstances. Particularly when the Legislature has spoken in such broad terms, courts
should be wary of preempting the role of the jury.

{44} The Ryan Court found that an issue of fact existed as to whether DOT had notice of
a dangerous condition, precluding summary judgment. Id. ¶ 9. As noted above, the
plaintiffs introduced affidavit evidence of a series of collisions with wild animals on the
particular “stretch” of highway at issue. Id. ¶ 10. DOT countered by pointing out that there
was no evidence that any such collisions had occurred in the last five years. Id. This was
sufficient to create a question of fact for the jury to resolve. Id. In short, reasonable minds
could differ on whether such facts were sufficient to provide DOT with adequate notice.

{45} The parties in this case also offered conflicting evidence. Attached to its motion for
partial summary judgment, DOT offered two different expert affidavits containing the
identical conclusion that “[t]he topography, terrain and curvature of NM 502 changes
constantly along its 18-mile length such that the conditions of any one mile stretch are not
the same as any other.” A DOT assistant district engineer stated that “[b]ecause geometric
design and traffic operational characteristics vary along NM 502, it is unreasonable to
compare or contrast crash frequency or characteristics near milepost 9 with other sites along
this route.” As a result, DOT argued that other collisions occurring near mile markers 8 and
10 were not relevant to the collision in this case that occurred near mile marker 9.

{46} Plaintiffs countered with the affidavit of an expert which observed that “[i]n the
absence of a fixed central barrier, cross-median accidents are particularly dangerous,” and
concluded:

       [t]he roadway, between the end of the solid barrier and the SR30 overpass at
       MM10, is not that different from the section of SR502 with the barrier. The
       road continues to have a relatively steep downhill grade, with continuous
       curves to the right and left in a serpentine fashion, until some distance below
       (to the east of) MM10. It is hard to see why all of the roadway, down to
       MM10 and below, should not have a solid barrier, separating the eastbound
       and westbound lanes.

{47} Based on these conflicting affidavits, it would appear that reasonable minds could
differ over whether DOT should or should not have been on notice of the need to take

                                              13
remedial action. DOT’s engineer stated that it would be “unreasonable” to compare crash
sites, while Plaintiff’s expert essentially concluded the opposite. Questions of
“reasonableness” are quintessential issues for a jury to resolve. In our system of justice, we
place special confidence in juries to sort through conflicting evidence and come to a
reasonable conclusion.

{48} By skillful cross-examination of Plaintiff’s expert and use of its own experts, DOT
would have been able to defend its position before the jury. DOT was free to persuade the
jury how each section of NM 502 was so different that notice of a cross-over collision in one
location could not reasonably put its engineers on notice of the need to prevent cross-over
collisions in some other location. The court should have allowed the normal fact-finding
process to proceed.

{49} The question of notice is not a technical one. Simply put, it requires the fact-finder
to decide whether the evidence presented would alert a reasonable person of a particular fact.
See Ambassador E. Apts, Investors v. Ambassador E. Invs., 106 N.M. 534, 537, 746 P.2d
163, 166 (Ct. App. 1987) (applying a reasonable person standard to the issue of constructive
notice). We agree with the following description from our Court of Appeals:

       In jury trials, reasonable minds are a cross-section of a community called for
       jury service. Each trial judge believes he has a reasonable mind, and knows
       what reasonable minds are, but he cannot know whether reasonable minds
       will differ. Where an issue of negligence is involved, ordinarily the trial
       court should allow a jury to determine whether “reasonable minds” can
       differ.

Tapia v. McKenzie, 83 N.M. 116, 120, 489 P.2d 181, 185 (Ct. App. 1971) (Sutin, J.,
specially concurring).

{50} It is undisputed that DOT knew of these previous collisions. NMSA 1978, Section
66-7-207(C) (2007) requires law enforcement officers to forward a written report of all
accidents that result in death to DOT within 24 hours of the completion of the investigation.
DOT’s own affidavits concede as much. Thus, the dispute here centered around whether the
fatal cross-over collisions that occurred elsewhere on NM 502 should have put DOT on
notice of a potentially dangerous condition at and around mile marker 9, and the need to
prevent cross-overs from occurring at that location as well. We hold that when the district
court took this issue away from the jury, it committed reversible error.

Remaining Issues

{51} Plaintiffs also raise other evidentiary issues involving the admissibility of Donald
Espinoza’s toxicology report as well as various items found in Amelia Martinez’s vehicle
after the crash. The Court of Appeals discussed these evidentiary rulings in sufficient detail,
which we find persuasive. See Martinez, 2011-NMCA-082, ¶¶ 28, 29. We affirm the Court

                                              14
of Appeals on these issues.

{52} Finally, Plaintiffs argue that they, as grandparents of Amelia’s unborn child, have a
valid claim to the loss of consortium of their unborn grandchild, a fatality of this accident.
The district court granted judgment as a matter of law on this issue in favor of DOT and the
Court of Appeals declined to address it. Plaintiffs admit that they “could not find any law
directly on point in any jurisdiction” that would uphold such a claim. They instead ask this
Court to extend New Mexico law to allow the claim under these circumstances. We decline
to make such an extension at this time.

CONCLUSION

{53} For these reasons, we reverse the Court of Appeals on the issues discussed in this
opinion, and remand to the district court for a new trial consistent herewith.

{54}   IT IS SO ORDERED.

                                              ____________________________________
                                              RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Chief Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice
Topic Index for Martinez v. N.M. Dep't of Transp., No. 33,083;

APPEAL AND ERROR
Remand
Standard of Review

CIVIL PROCEDURE
Summary Judgment

GOVERNMENT
Highways

                                             15
STATUTES
Interpretation
Legislative Intent

TORTS
Immunity
Loss of Consortium
Negligence
Tort Claims Act
Wrongful Death




                     16
