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Certiorari Denied, No. 31,683, May 22, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-059

Filing Date: April 6, 2009

Docket No. 28,063

GEOFFREY R. ROMERO, ESQ., as Personal

Representative of the Estate of Nathaniel Maestas,

deceased DYVINE MARTINEZ, as Mother of 

Nathaniel Maestas, deceased; FRANCINE and

ROBERT MARTINEZ, as Parents and Next Friends

of Cassandra Martinez, a minor; and ROSE VALDEZ,

Individually and as Representative of the Estate of Eric 

Tollardo, deceased; and FRANK TOLLARDO 

and DOLORES SILVA, 

Plaintiffs-Appellants,

v.

GIANT STOP-N-GO OF NEW MEXICO, INC.,

d/b/a MUSTANG #7297; MUSTANG FUEL

CORPORATION, an Oklahoma corporation; 

GIANT INDUSTRIES, a Delaware corporation,

and JASON PEREA,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY

William F. Lang, District Judge

Law Offices of Bruce S. McDonald

Bruce S. McDonald

Albuquerque, NM

Corbin Hildebrandt, P.C.

Corbin Hildebrandt

Albuquerque, NM
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Zangara Law Office

Kevin A. Zangara

Taos, NM

for Appellants

Rodey, Dickason, Sloan, Akin & Robb, P.A.

Lisa Ortega

Jocelyn Drennan

Edward Ricco

Albuquerque, NM

for Appellees

OPINION

VIGIL, Judge.

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

gas station in which three people were killed and one person was injured. Plaintiffs filed a

premises liability case against the owner and operator of the business (Defendant) alleging

wrongful death and personal injury. The district court concluded that Defendant had no duty

to prevent the episode, and granted summary judgment. We affirm. 

BACKGROUND

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

escalating hostilities came to head when Eric Tollardo entered Jason Perea’s apartment, put

a gun to Perea’s head, and then departed, threatening that he was going to return. After a

brief period of reflection, Perea armed himself with two loaded Glock pistols and went

looking for Tollardo. Perea drove around Taos for two or three hours, searching for Tollardo

without success. Perea decided to abandon the search and was heading home when, by

chance, he spotted Tollardo’s car in Defendant’s parking lot. Perea came to a rapid stop,

jumping the curb and colliding with a pole. He then climbed out of his vehicle and advanced

on Tollardo’s car with a loaded gun in each hand. Believing that one of the occupants had

fired a shot at him, Perea “just lost it” and opened fire. Perea shot through the open windows

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

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

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

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

surviving occupant. Plaintiffs’ claims are grounded on their assertion that Defendant

negligently failed to provide security on its premises.
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{4} Defendant moved for summary judgment, contending that Plaintiffs could not

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

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

Defendant’s argument on the question of duty, and granted the motion on that basis. This

appeal followed.

DISCUSSION

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

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

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

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

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

elements is fatal to a negligence claim, we first examine whether Defendant owed a duty to

Plaintiffs.

1. Duty

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

quotation marks and citation omitted). We therefore apply de novo review. See, e.g., Blake

v. Pub. Serv. Co. of N.M., 2004-NMCA-002, ¶ 5, 134 N.M. 789, 82 P.3d 960 (reviewing de

novo an award of summary judgment, based on a purely legal determination on the threshold

issue of duty).

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

by the criminal acts of third persons[.]” Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶

5, 122 N.M. 537, 928 P.2d 263. One exception to the general rule is that a duty may arise

out of a special relationship. Id.; Rummel v. Edgemont Realty Partners, Ltd., 116 N.M. 23,

26, 859 P.2d 491, 494 (Ct. App. 1993) (stating that, absent a special relationship, there is no

duty to protect others from harm caused by criminal acts of third persons). See generally

Restatement (Second) of Torts § 314A (1965). One such special relationship exists between

businesses and their patrons. See Reichert v. Atler, 117 N.M. 623, 624, 875 P.2d 379, 380

(1994) (recognizing the duty of business establishments to protect customers against the

criminal conduct of third parties); Rummel, 116 N.M. at 26, 859 P.2d at 494 (same). In this

case the occupants of Tollardo’s car were customers of Defendant, who were hanging out

in the parking lot and talking with other customers. Therefore, Defendant had a duty to

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

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

UJI 13-1320 NMRA (stating in part that the duty of an owner or operator to protect a visitor

“arises from a foreseeable risk that a third person will injure a visitor”); Reichert, 117 N.M.

at 626, 875 P.2d at 382 (recognizing that the “duty of the owner or operator of a place of

business to prevent the harmful conduct of a third party” extends to foreseeable acts and

foreseeable harm).

{8} The New Mexico Supreme Court has observed, “[f]oreseeability is a critical and
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essential component of New Mexico’s duty analysis because no one is bound to guard

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

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

marks and citation omitted). Therefore, we assess foreseeability by reference to “what one

might objectively and reasonably expect, not merely what might conceivably occur.”

Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 8, 140 N.M. 596, 145 P.3d 76

(internal quotation marks and citation omitted). In evaluating foreseeability, we consider

both the status of the plaintiff and the type of harm involved. See Chavez v. Desert Eagle

Distrib. Co., 2007-NMCA-018, ¶ 16, 141 N.M. 116, 151 P.3d 77 (“The initial step in a

common law duty analysis is to determine whether a particular plaintiff and a particular

harm are foreseeable.”). 

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

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

actually presented. See, e.g., Chavez, 2007-NMCA-018, ¶¶ 17-24 (approaching the

foreseeability issue by reference to the specific allegedly negligent conduct of the business

proprietor, and by reference to the specific criminal activity that allegedly ensued); Herrera,

2003-NMSC-018, ¶¶ 7, 19-25 (same). See generally Madrid v. Lincoln County Med. Ctr.,

121 N.M. 133, 139, 909 P.2d 14, 20 (Ct. App. 1995) (observing that the existence of a duty

depends on “whether a particular plaintiff, a particular event, and a particular injury are

foreseeable,” aff’d, 1996-NMSC-049, 122 N.M. 269, 923 P.2d 1154. We therefore frame

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

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

on its patrons is likely to result.

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

history of Defendant’s service station, which Plaintiffs describe as “a magnet for crime and

the criminal element.” In support of this characterization Plaintiffs rely on a police incident

log and the depositions of two former employees. Because the employee depositions and the

incident log provide so little specific information about actual events, we hesitate to draw

inferences from these materials. However, viewing the depositions and the log in the most

fashionable light, they indicate prior reports of theft of gasoline and alcohol, physical

altercations involving loiterers, domestic violence, harassment, traffic accidents, vandalism,

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

of commercial robberies and incidents involving narcotics also appear.

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

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

suffered in the course of a criminal incident for which there was some previous similarity,

such as shoplifting, loitering, or commercial robbery, the event and the resultant injuries

might have been sufficiently foreseeable to give rise to a duty. However, the victims in this

case were not injured in the course of a similar subsequent event. To the contrary, there is

no evidence of anything remotely similar to the deliberate, targeted shootings in this case.

We acknowledge that crime is a distressingly common feature of modern life. We further
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acknowledge that certain types of criminal misconduct may occur with sufficient frequency

that business proprietors should anticipate them. However, we do not believe the type of

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

is sufficiently commonplace that business proprietors should be categorically required to

foresee such occurrences. See Restatement (Second) of Torts § 314A cmt. e (observing that

the duty in any case is circumscribed by foreseeable risks, and as such, a defendant “is not

required to take precautions against a sudden attack from a third person which he has no

reason to anticipate”).

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

operator had a duty to prevent a sudden, deliberately targeted assassination of customers on

its premises. In our research we have failed to find such a case, and to the extent there is

authority, it holds that there is no such duty. See generally Wiener v. Southcoast Childcare

Ctrs., Inc., 12 Cal. Rptr. 3d 615, 624 (Cal. 2004) (holding that the day care center and lessor

had no duty to prevent a driver from deliberately driving his car through a chain link fence

and striking children in a playground because the “brutal criminal act” was unforeseeable);

Toscano Lopez v. McDonald’s Corp., 238 Cal. Rptr. 436, 445 (Cal. Ct. App. 1987) (holding

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

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

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

owed a duty to Tollardo, the person that Perea specifically targeted for assassination. In

Jones v. Williams, 408 N.W.2d 426 (Mich. Ct. App. 1987) (per curiam), a customer was shot

in a parking lot adjacent to a restaurant after buying takeout food from the restaurant. Id. at

427. The record established that the shooter specifically targeted the customer. Id. at 428.

Affirming the summary judgment granted to the restaurant, the court concluded that the

restaurant did not owe a duty to protect the customer from “an unforeseeable assassination

attempt.” Id. “Even the presence of guards could not prevent assassination attempts.” Id.

at 429. In Faheen ex rel. Hebron v. City Parking Corp., 734 S.W.2d 270 (Mo. Ct. App.

1987), the victim was assassinated in a car bombing that took place in the parking garage of

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

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

of arson, robbery, burglary, stealing, and various misdemeanors. Id. The court said that “a

homicide or injury caused by a car bombing is significantly different from the reported

crimes,” and concluded that the property owner had no duty to protect against the

assassination. Id. at 274 “[The deceased] was the victim of an assassin[ation]. There is

nothing in [the] plaintiffs’ petition that would put a reasonable man on notice that he should

take precautions to protect his invitees against such a misdeed.” Id. In Guerrero v.

Memorial Medical Center, 938 S.W.2d 789 (Tex. App. 1997), the victim died after her

husband went to her workplace and shot her. Id. at 790. The court concluded that the crime

was not foreseeable because no evidence was presented that the employer knew, or had a

reason to know, that the husband had been physically abusing the victim and was about to

murder her. Id. at 795. Summary judgment in favor of the employer was therefore affirmed.

Id.; see also Gragg v. Wichita State Univ., 934 P.2d 121, 135 (Kan. 1997) (holding it was
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not foreseeable by the sponsor of Fourth of July fireworks display that a gang member

intended to shoot anyone at the fireworks display). 

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

owed a duty to the victims who were with Tollardo when Perea attacked Tollardo. In

Hillcrest Foods, Inc. v. Kiritsy, 489 S.E.2d 547 (Ga. Ct. App. 1997), a witness testified that

a man drove by the Waffle House where his wife was working and fired three or four shots

into the Waffle House in an attempt to kill her. Id. at 549. Two of the bullets struck the

victim who was a patron in the Waffle House, and he was paralyzed from the waist down.

Id. The plaintiff presented evidence that several prior crimes against persons had occurred

on the premises prior to the drive-by shooting. Id. However, the drive-by shooting itself

was not a foreseeable act. Id. at 551. Because its reasoning is particularly applicable to the

facts before us in this case, we quote:

It was an act of terrorism that could have occurred anywhere that the

intended victim happened to be. [The defendant] had no basis to foresee

such event, and there was no effective action which it could reasonably have

taken to prevent said act under the circumstances. . . . The shooting was a

transitory act that could have been carried out at any time and place that the

intended victim happened to be. 

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

he and a companion were standing outside the entrance to a roller skating rink. Id. at 203.

The victim’s companion, who was a rival gang leader, was the intended target, when a car

drove by, spraying the entrance with bullets fired from an automatic rifle. Id. Summary

judgment was granted to the premises owner and operator of the skating rink on the basis

that it had no duty to prevent the shooting because the drive-by shooting was unforeseeable,

even though prior to the shooting, there had been automobile break-ins, fist-fights between

teenagers, and a burglary on the premises. Id. at 203-04. The California Court of Appeal

affirmed, noting in particular that given the random nature of drive-by shootings, the

landowner could not have prevented the shooting in that case. Id. at 206-07. 

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

the jury to decide. Although we acknowledge that expert testimony may be considered in

this context, see, e.g., Herrera, 2003-NMSC-018, ¶¶ 3, 22, 24, the ultimate issue remains a

question of law upon which expert testimony is in no sense determinative. See Romero v.

City of Santa Fe, 2006-NMCA-055, ¶ 26, 139 N.M. 440, 134 P.3d 131 (observing that

questions of law are “not subject to conclusive proof by expert testimony”). Moreover, the

opinion of Plaintiffs’ expert is based on the prior reports of criminal activity. As stated

above, fundamentally dissimilar prior incidents do not render the type of crime which

occurred in this case reasonably foreseeable.

2. Proximate Cause
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{16} The parties also dispute whether Defendant’s alleged negligence in failing to provide

security could be regarded as a proximate cause of Plaintiffs’ injuries. As previously stated,

the district court did not rely on any analysis of proximate cause to support the award of

summary judgment. Because our assessment of the duty issue supplies a sufficient

independent basis for affirmance, it is not necessary for us to undertake a separate analysis

of the element of proximate causation at this time. 

3. Discovery

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

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

generally inadvisable to grant summary judgment before discovery has been completed. Sun

Country Sav. Bank v. McDowell, 108 N.M. 528, 534, 775 P.2d 730, 736 (1989). However,

this is not universally the case.

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

judgment may ask the district court to stay its determination so that the non-movant can

conduct discovery needed to rebut the motion. See Rule 1-056(F) NMRA. If such a stay is

sought, the party must submit an affidavit explaining why additional time and discovery are

needed. Id. In this regard, vague assertions are insufficient; rather, the party “must

specifically demonstrate how postponement of a ruling on the motion will enable him, by

discovery or other means, to rebut the movant’s showing of the absence of a genuine issue

of fact.” Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, ¶ 38, 140 N.M. 111,

140 P.3d 532 (internal quotation marks and citation omitted).

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

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

with the award of summary judgment, notwithstanding Plaintiffs’ cursory assertions about

the need for further discovery. See id. ¶¶ 38-39 (arriving at a similar conclusion under

similar circumstances).

CONCLUSION

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

deliberate, targeted shooting at issue in this case. 

{21} IT IS SO ORDERED.

MICHAEL E. VIGIL, Judge

WE CONCUR:

CYNTHIA A. FRY, Chief Judge
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TIMOTHY L. GARCIA, Judge

Topic Index for Romero v. Giant Stop-N-Go of NM, Inc., No. 28,063

AE APPEAL AND ERROR

AE-ST Standard of Review

CL CRIMINAL LAW

CL-HO Homicide

CP CIVIL PROCEDURE

CP-DC Discovery

CP-SJ Summary Judgment

TR TORTS

TR-FS Foreseeability

TR-IT Intentional Torts

TR-NG Negligence

TR-PC Proximate Cause

TR-WD Wrongful Death