                                                        I attest to the accuracy and
                                                         integrity of this document
                                                           New Mexico Compilation
                                                         Commission, Santa Fe, NM
                                                        '00'04- 13:45:02 2011.08.22

Certiorari Granted, August 5, 2011, Docket No. 33,083

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-082

Filing Date: June 1, 2011

Docket No. 28,661

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.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
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

                                        1
Santa Fe, NM

for Appellants

Cuddy & McCarthy, LLP
M. Karen Kilgore
Evelyn A. Peyton
Santa Fe, NM

for Appellee

                                        OPINION

KENNEDY, Judge.

{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’s and Espinoza’s
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’s 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’s duty to sweep gravel, (3) admitting Espinoza’s toxicology report and drug
paraphernalia, (4) admitting testimony of DOT’s 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’s decisions on these issues and decline to
advise whether the grandparents are permitted to bring a loss of consortium claim for an
unborn grandchild.

I.     BACKGROUND AND PROCEDURAL HISTORY

{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’s and Espinoza’s approximately eight-month-old fetus also died. Sheriff’s deputies
determined that Martinez was not at fault for the accident. Plaintiffs and DOT do not dispute
this fact.


                                             2
{3}     Plaintiffs are the parents of Martinez and Espinoza and paternal grandparents of their
unborn grandchild. As representatives of Martinez’s and Espinoza’s estates, Plaintiffs
pursue wrongful death and loss of consortium claims against DOT. Plaintiffs also bring a
loss of consortium claim for their unborn grandchild.

{4}     At trial, Plaintiffs argued that DOT’s 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’s vehicle. Plaintiffs also argued that DOT had a duty to
erect a concrete barrier separating eastbound and westbound traffic. Plaintiffs asserted that
DOT’s duty arose from notice of NM 502’s 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’ complaints made to DOT
regarding the dangers of NM 502. Plaintiffs argued that if DOT had heeded these notices
of problems with the road’s 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.

{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 41-4-11(B)(1)-(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’s
design, absent other factors involved in those previous incidents, were similar to decedents’
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’s 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’s 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’ 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’s duty to
erect concrete barriers.

{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’s liability for
failure to sweep away gravel in the center turn lane. Plaintiffs’ evidence included facts
relating to prior fatal accidents that occurred in the vicinity of the decedents’ 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’ 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

                                               3
that it was unrelated to DOT’s 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.

{7}     Plaintiffs also contest the district court’s admission of a bag belonging to Espinoza,
containing cash, a gun, a crack pipe, and various prescription and non-prescription drugs
discovered in Martinez’s 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.

{8}     Next, Plaintiffs appeal the district court’s decision to permit the testimony of DOT’s
expert witness, Dr. Stephen Pike, who testified to Griego’s degree of intoxication. Plaintiffs
allege that DOT’s untimely identification of Dr. Pike as a witness should have precluded his
testimony, and the district court abused its discretion in admitting it.

{9}      Plaintiffs also appeal the district court’s 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’s ability
to bring a loss of consortium claim for an unborn grandchild. We first address DOT’s
immunity under the Act and then concern ourselves with the remaining issues that arose at
trial.

II.     DISCUSSION

A.      Immunity

{10} Plaintiffs argue that DOT negligently failed to maintain NM 502 and is not immune
from liability under Section 41-4-11(B)(1) and (2). Whether immunity bars Plaintiffs’ suit
for DOT’s alleged failure to erect concrete barriers is a question of law, which we review
de novo. Rutherford v. Chaves Cnty., 2003-NMSC-010, ¶ 8, 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; Bierner v. City of Truth or
Consequences, 2004-NMCA-093, ¶ 8, 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,
¶ 11; California First Bank v. State Dep’t 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, ¶ 11; Armijo v. Dep’t of Health & Env’t,
108 N.M. 616, 618, 775 P.2d 1333, 1335 (Ct. App. 1989).

{11} Section 41-4-11(B)(1) and (2) preserves state immunity against suits for injuries
caused by “a defect in plan or design of any bridge, culvert, highway, roadway, street, alley,
sidewalk or parking area” or by the state’s “failure to construct or reconstruct any bridge,
culvert, [or] roadway[.]” Section 41-4-11(A) waives state immunity against suit for injuries

                                               4
caused by “the 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.” The legislative purpose of Section 41-4-11
is to ensure highways are kept safe for the public’s use. See Rutherford, 2003-NMSC-010,
¶ 11; see Fireman’s Fund Ins. Co. v. Tucker, 95 N.M. 56, 59, 618 P.2d 894, 897 (Ct. App.
1980) (“[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.”). We have previously recognized a city’s 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, ¶ 7, 125 N.M. 762, 965 P.2d 346 (“We 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.”). In 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. ¶ 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, ¶ 9.

{12} Plaintiffs argue that “design flaws become ‘maintenance’ obligations after repeated
notice to DOT,” stating that their claim originates in a design flaw inherent to NM 502. In
framing their argument, they characterize the placement of “solid traffic[-]control median
barriers” in the center turn lane as performance of a “maintenance” function and the barriers
themselves as “traffic[-]control devices.” Plaintiffs contend that DOT’s duty to maintain
New Mexico’s highways entailed a responsibility to place a concrete barrier, also known as
a “Jersey” barrier, between eastbound and westbound traffic on NM 502 pursuant to a
statutory duty under NMSA 1978, Section 66-7-102(A) (2003) (“The state transportation
commission shall place and maintain such traffic-control devices . . . as it deems necessary
. . . or to regulate, warn or guide traffic.”). 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.

{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.

{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, ¶ 9 (determining that
portable barricades used to prevent motorists from crossing a flooded road was a method of
traffic control); Bierner, 2004-NMCA-093, ¶ 21 (“[E]rected barriers or curbs . . . appear to

                                                 5
involve design [for which] Section 41-4-11(B) grants immunity.”); Pollock v. State Highway
& Transp. Dep’t, 1999-NMCA-083, ¶ 11, 127 N.M. 521, 984 P.2d 768 (determining that the
placement of “Wrong Way” and “Do Not Enter” traffic warning signs were within the Act’s
meaning of maintenance (internal quotation marks and citation omitted)); Villanueva, 1998-
NMCA-138, ¶ 8 (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’t, 1998-NMCA-116, ¶ 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’s original design, have been granted immunity.

{15} From these cases, it appears that a line between maintenance and design is in part
influenced by whether the plaintiffs’ harm was caused by changing conditions that can be
addressed by the use of traffic-control devices, the state’s purported failure to respond to
such conditions of which it had prior notice, or whether the plaintiffs’ 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’s ostensible notice of animal
crossings necessitated a response—placement of signs—to ensure that ordinary care was
taken to protect the public. 1998-NMCA-116, ¶ 12. 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, ¶¶ 9-10.

{16} In Villanueva, this Court rejected the plaintiff’s argument that a failure to construct
wheelchair ramps was maintenance where none were designed to exist. 1998-NMCA-138,
¶ 8. We stated such an addition would be a significant structural change that constituted an
installation or reconstruction and “not a matter of routine maintenance.” 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’s
design, and our statute conferring immunity is outside the purview of other states’ law. See
2003-NMSC-010, ¶ 25 (holding that “identification and remediation of roadway hazards
constitutes highway maintenance”). The district court correctly saw the issue presented by
Plaintiffs’ motion for partial summary judgment as separating the issue of whether immunity
was waived for aspects of the road’s design from factual issues concerning maintenance for
problems of which DOT may have been on notice that maintenance was required.

{17} Plaintiffs attempt to contrast our dicta in Bierner, 2004-NMCA-093, ¶ 21, concerning
curbs and barriers “appear[ing] to involve design” with the Supreme Court’s treatment of
barricades in Rutherford as being a method of traffic control. We believe the contrast is
illustrative of the propriety of granting immunity. Bierner involved the plaintiffs’ 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, ¶ 3. 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

                                               6
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—a transient, yet predictable, condition. See
2003-NMSC-010, ¶ 9. The barricades were placed on the road as needed, not permanently
built into the road for a distance of miles. See id. ¶ 2. Our ruling in Villanueva and comment
in Bierner, even though dicta, both hinged on the difference between guiding traffic and
designing permanent attributes of a road itself. Though our comment in Bierner 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.

{18} The addition of permanent concrete barriers, as Plaintiffs demand in this particular
case, 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, Vol. 63 No. 5
(2000), available at http://fhwicsint01.fhwa.dot.gov/publications/publicroads (“Concrete
barriers appear to be simple and uncomplicated, but in reality, they are sophisticated safety
devices.”). 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’s conferred
waiver of immunity.

{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 “designed an
inherently dangerous stretch of road” and that the road had been “redesigned and
reconstructed” 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’s
changed conditions requiring installation of barriers in the center turn lane: four fatal
accidents over a period of six years, two citizens’ complaints made to DOT, and several
newspaper articles highlighting the dangerousness of the road. In Plaintiffs’ summary
judgment motion, they attribute the accident to a number of factors, but state that the
accident occurred “mostly, because DOT created an inherently dangerous condition when
it designed NM 502.” 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’ proposed change—a concrete barrier—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.

{20} We reiterate that, as yet, the principle of maintenance has not been applied to
describe a responsibility to alter a road’s design. Moreover, it has never been applied to
transcend the immunity that Section 41-4-11(B)(2) restored to the state for design,
construction, or reconstruction of a highway in the event the state’s 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’t, 117 N.M.
782, 784, 877 P.2d 1085, 1087 (1994) (concluding that the state has a duty to exercise

                                                7
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, ¶ 9.
These cases deal with attributes that fall short of design and construction or reconstruction
of the road itself under Section 41-4-11(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.

{21} To the extent that the district court’s 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’s immunity from suit
is not supported by New Mexico law. Our opinion is not affected by the district court’s
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, ¶ 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—and as the summary
judgment reflects—DOT is immune from suit because of Section 41-4-11(B). Thus, we
affirm the district court’s 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.

B.      Evidentiary Issues

{22} Plaintiffs make three evidentiary claims: (1) evidence pertaining to DOT’s 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’s expert testimony was improperly admitted. We address
the claims below in this order.

{23} Under New Mexico’s 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’s evidentiary
decisions are reviewed for abuse of discretion. Santa Fe Custom Shutters & Doors, Inc. v.
Home Depot U.S.A., Inc., 2005-NMCA-051, ¶ 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, ¶ 33, 143 N.M. 668, 180 P.3d 675.
A district court’s decision will not be disturbed unless “the 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.” Heath v. La Mariana Apartments, 2007-NMCA-003, ¶ 18, 141 N.M.

                                               8
131, 151 P.3d 903 (internal quotation marks and citation omitted), aff’d, 2008-NMSC-017,
143 N.M. 657, 180 P.3d 664.

{24} First, Plaintiffs argue that the district court incorrectly excluded evidence
demonstrating a dangerous condition that related to DOT’s duty to sweep gravel in the center
turn lane. Plaintiffs attributed the accident to Griego’s speed, his use of the center turn lane
for passing, the presence of cinders in the center turn lane, and “mostly, DOT[’s creation of]
an inherently dangerous condition when it designed NM 502.” 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 “involve cars hitting guard rails,
barricades, embankments or curbs.” The evidence the district court decided to exclude
included (1) facts from prior fatal accidents that occurred in the vicinity of the decedents’
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’ 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.

{25} In excluding the evidence of prior accidents, 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. Without a connection between the previous
accidents and the decedents’ accident, the district court held that evidence of the prior
accidents was irrelevant to DOT’s duty to sweep gravel.

{26} Similarly, the district court excluded the 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 and was unrelated to DOT’s
duty to sweep gravel in the center turn lane. Plaintiffs argue that the exclusion of this
evidence forced the jury to decide DOT’s negligence in a vacuum. We disagree.

{27} In the cases discussed above that shape DOT’s 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, ¶¶ 8, 12 (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, ¶¶ 9, 25 (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’s
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’s duty to
sweep gravel in the center turn lane, Plaintiffs’ evidence has little, if any, probative value.

                                               9
As a result, we cannot hold that the district court’s decision to exclude this evidence was
“clearly against the logic and effect of the facts and circumstances of the case[.]” Heath,
2007-NMCA-003, ¶ 18 (internal quotation marks and citation omitted).

{28} Second, Plaintiffs argue that the results of Espinoza’s toxicology report, and the
contents of the black bag found in Martinez’s 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’s drug use and possession of drugs at the time of
his death were important factors in assessing Plaintiffs’ 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’s drug use and what the district court considered was relevant to his diminished
life expectancy and earning capacity.

{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’s intoxication. 112 N.M. 332,
333, 815 P.2d 628, 629 (1991), receded from on different grounds by Dunleavy 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’ 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’s decision was completely against logic to assume
that a victim’s drug use does, to some extent, have an affect on his earning capacity. Thus,
we uphold the district court’s admission of this evidence.

{30} Third, Plaintiffs contest the district court’s admission of DOT’s expert witness, Dr.
Pike, whose testimony concerned Griego’s intoxication. A district court’s admission of an
expert witness will not be reversed absent a showing of abuse of discretion. Chavez v. Bd.
of Cnty. Comm’rs, 2001-NMCA-065, ¶ 35, 130 N.M. 753, 31 P.3d 1027. Moreover,
“remedies for the violation of discovery rules or orders are discretionary with the trial court.”
Id. Plaintiffs assert that DOT’s 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.

{31} We conclude that the district court did not abuse its discretion in admitting Dr. Pike’s
testimony. Plaintiffs had notice of DOT’s intent to call a toxicologist to testify concerning
Griego’s 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, ¶¶ 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’s
remedy).


                                               10
{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 & Guarantee 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,
“find that Plaintiffs were unfairly prejudiced by the belated identification of Dr. Pike.” In
Khalsa, a child custody case, we reversed the district court’s decision in part because the
father had no opportunity to interview the witnesses or call a rebuttal witness after the
mother’s surprise witness testified. 107 N.M. at 34-35, 751 P.2d 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.

{33} Additionally, in Shamalon Bird Farm, the Supreme Court upheld the district court’s
decision to exclude the plaintiff’s 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 plaintiff’s witness was
surprise testimony because the factual basis for the witness’s 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’s testimony would be based on Griego’s
toxicology report. Thus, we decline to reverse on grounds that Plaintiffs suffered prejudice
from the testimony of Dr. Pike because of unfair surprise.

{34} Lastly, Plaintiffs contend that Dr. Pike’s testimony was cumulative as a state police
officer had already testified on Griego’s impairment. However, at the time of that officer’s
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’s medical and
professional opinions on Griego’s impairment provided what the officer could not, but we
see no cause for reversal. Furthermore, Dr. Pike’s testimony was not cumulative because
it was offered as a scientific interpretation of Griego’s toxicology report.

{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’s late identification.
Moreover, Plaintiffs knew the factual basis of Dr. Pike’s testimony, and his testimony was
not cumulative.

C.     Jury Instructions

{36} Plaintiffs contend that the district court’s 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’s obligation to protect the public from foreseeable negligence,
and (2) notice was not required where DOT created the dangerous condition. “The propriety
of denying a jury instruction is a mixed question of law and fact that we review de novo.”
Akins v. United Steelworkers of Am., 2009-NMCA-051, ¶ 42, 146 N.M. 237, 208 P.3d 457
(internal quotation marks and citation omitted), aff’d, 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, ¶ 19, 141 N.M. 212, 153 P.3d 46, aff’d, 2008-NMSC-022, 143 N.M. 740, 182

                                              11
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).

{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’s
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’ claim
that jury instructions were improper.

D.     Loss of Consortium

{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’ request to
provide guidance on this issue.

III.   CONCLUSION

{39} We affirm the district court’s 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’s evidentiary decisions and the district court’s exclusion of
Plaintiffs’ proposed jury instructions. We refrain from providing guidance on whether
grandparents can bring a loss of consortium claim for an unborn grandchild.

{40}   IT IS SO ORDERED.

                                               ______________________________________
                                               RODERICK T. KENNEDY, Judge

WE CONCUR:

_________________________________
CELIA FOY CASTILLO, Chief Judge

_________________________________
JONATHAN B. SUTIN, Judge

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Topic Index for Martinez v. N.M. Dep't of Transp., Docket No. 28,661

AE                  APPEAL AND ERROR
AE-SR               Standard of Review

CP                  CIVIL PROCEDURE
CP-SJ               Summary Judgment

EV                  EVIDENCE
EV-AE               Admissibility of Evidence
EV-DR               Drug Testing
EV-EW               Expert Witness
EV-PJ               Prejudicial Evidence
EV-PB               Probative Value vs. Prejudicial Effect

JI                  JURY INSTRUCTIONS
JI-CI               Civil Jury Instructions
JI-IJ               Improper Jury Instructions

ST                  STATUTES
ST-AP               Applicability
ST-CS               Conflicting Statutes
ST-CN               Constitutionality
ST-IP               Interpretation
ST-LI               Legislative Intent

TR                  TORTS
TR-IM               Immunity
TR-LC               Loss of Consortium
TR-NG               Negligence
TR-TA               Tort Claims Act
TR-WD               Wrongful Death




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