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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40676

BETHANY DURLAND,

Plaintiff-Appellant,

v.

BREWER GROCERY, LLC

d/b/a S&S SUPERMARKET,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Fred Van Soelen, District Court Judge

Lindsey Law Firm, L.L.C.

Daniel R. Lindsey

Clovis, NM

for Appellant

David C. Larsen

Albuquerque, NM

for Appellee

MEMORANDUM OPINION

BLACK, Judge Pro Tem.

{1} This case arises out of a trip and fall personal injury claim. Plaintiff Bethany 

Durland filed her complaint on November 17, 2021, but did not request or issue service 

of the complaint until she filed her first amended complaint on February 16, 2022. In the 

first amended complaint, she alleged that “on November 11, 2018, Plaintiff . . . was 

walking into the S&S Supermarket. . . . Just before entering the store, her foot got 

caught in a deep, wide crack in the cement walkway, and she fell forward onto her 

hands and knees, hitting her head on the ground.” 
{2} Defendant Brewer Grocery, LLC d/b/a S&S Supermarket filed its answer to the 

first amended complaint on March 24, 2022. Defendant then filed a motion to dismiss 

the first amended complaint based on the assertion that Plaintiff had failed to file the 

original complaint within the three-year statute of limitations as required under NMSA 

1978, Section 37-1-8 (1976). Plaintiff filed a response contending that the discovery rule 

applied to her causes of action due to repeated misdiagnosis of the cause of her pain by 

her medical providers. After considering the pleadings, briefing, and arguments of the 

parties the district court granted Defendant’s motion to dismiss. We reverse.

DISCUSSION

I. Standard of Review

{3} “In reviewing a district court’s decision to dismiss for failure to state a claim, we 

accept all well-pleaded factual allegations in the complaint as true and resolve all 

doubts in favor of sufficiency of the complaint.” Hovey-Jaramillo v. Liberty Mut. Ins., 

2023-NMCA-068, ¶ 8, 535 P.3d 747 (internal quotation marks and citation omitted). 

“Dismissal is appropriate only if the plaintiff is not entitled to recover under any theory of

the facts alleged in [the] complaint.” Id. (omissions, internal quotation marks, and 

citation omitted).

II. The Complaint Was Improperly Dismissed Because the Discovery Rule May 

Apply to Toll the Statute of Limitations Under the Facts Alleged

{4} Generally, there are two basic standards that trigger the initiation of the statute of 

limitations: the “discovery rule” and the “occurrence rule.” Trubow v. N.M. Real Est. 

Comm’n, 2022-NMCA-044, ¶ 10, 516 P.3d 224; Cummings v. X-Ray Assocs. of N.M., 

P.C., 1996-NMSC-035, ¶ 47, 121 N.M. 821, 918 P.2d 1321. This case turns on the 

proper application of the discovery rule. Under the discovery rule “the cause of action 

accrues when the plaintiff knows or with reasonable diligence should have known of the 

injury and its cause.” Trubow, 2022-NMCA-044, ¶ 15 (internal quotation marks and 

citation omitted); Gerke v Romero, 2010-NMCA-060, ¶ 9, 148 N.M. 367, 237 P.3d 111.

{5} Plaintiff’s first amended complaint alleged that she tripped and fell on the 

defective walkway outside the S&S Supermarket’s premises, owned by Defendant on 

November 11, 2018. Plaintiff further alleged she struck her face, wrists, and knees on 

the pavement, and knew she had suffered minor injuries at that time. About two and a 

half weeks later, she felt pain in her right knee, and went to see a nurse practitioner, 

who diagnosed her with osteoarthritis in the knee joint. Plaintiff was advised to have her 

knee x-rayed, and the x-ray showed no injury other than developing osteoarthritis. 

Plaintiff then met with her primary health care provider, Dr. John Shrader, who viewed 

the x-ray and confirmed the results. He did not recommend any treatment. Plaintiff 

continued to feel minor periodic pain in her knee. 

{6} On April 13, 2021, Plaintiff felt severe pain in her knee and a medical provider 

ordered an MRI. The MRI showed “a full thickness tear of the lateral meniscus,” which 
necessitated surgery. Since she had not had any serious injury other than the fall 

outside of the S&S Supermarket, Plaintiff concluded the torn meniscus must have 

occurred from that accident. Defendant characterizes this allegation as an admission by 

Plaintiff that she knew she had suffered a knee injury on the date of the fall. Plaintiff, 

however, specifically alleged that in April 2021 after the MRI, she connected the newly 

discovered meniscus tear to the fall because “[t]he only time she knew she had suffered 

a traumatic blow to her knee that could cause a torn meniscus was when she fell at 

S&S Supermarket on November 11, 2018.” 

{7} The discovery rule requires a claimant make reasonable efforts to discover any 

injury and its cause as a result of a claimed tort. See Gerke, 2010-NMCA-060, ¶ 8 

(“Depending on the nature of the claims asserted and the context out of which they 

arise, personal injury claims may accrue at the time of the occurrence, the time of injury, 

or the time of discovery.”). Defendant relies on Gerke to argue “that the statute of 

limitations is not tolled because a claimant does not have knowledge of the full extent of 

injury.” Id. ¶ 10. This is different than saying the statute of limitations bars a claimant 

who has been told repeatedly and consistently by medical providers that the cause of 

her injury was a normal degenerative disease. Defendant further quotes Martinez v. 

Showa Denko, K.K., 1998 NMCA-111, ¶ 24, 125 N.M. 615, 964 P2d 176, for the 

proposition that “the mere fact that there is a divergence of medical opinions among 

physicians concerning the cause of an individual’s ailment does not preclude or toll the 

running of the statute of limitations.” The distinction is that in the present case there was 

no “divergence of medical opinions among physicians concerning the cause of” 

Plaintiff’s ailment. All of the medical professionals concurred that her pain was caused 

only by degenerative osteoarthritis, for which Defendant would not be legally 

responsible.

{8} According to the first amended complaint, Plaintiff consulted at least two qualified 

medical providers who concluded her knee pain was a result of normal degenerative 

changes and neither mentioned the possibility that the fall outside of the S&S 

Supermarket was a potential cause. Based on this record, the conclusion of these 

providers could be accepted by a reasonable person until the MRI showed the fall to be 

a possible cause. To the extent that the district court required Plaintiff to demonstrate 

that the discovery rule applied only if “specialized knowledge” was needed to discover 

the injury, a conclusion we do not address, such specialized knowledge, such as an 

MRI, was required to connect the injury to the fall and overcome the consistent advice 

of other medical professionals that her pain resulted from normal degenerative changes. 

Under the discovery rule a claimant only need file their complaint within three years of

the injury when they have reason to know it was caused by the alleged tort. See § 37-1-

8; Trubow, 2022-NMCA-044, ¶ 15; Gerke, 2010-NMCA-060, ¶ 9.

CONCLUSION

{9} The complaint provides a factual basis to support Plaintiff’s contention that the 

claim did not accrue until the April 13, 2021, MRI and therefore the complaint should not 

have been dismissed under Rule 1-012(B)(6) NMRA. See Butler v. Deutsche Morgan 
Grenfell, Inc., 2006-NMCA-084, ¶ 27, 140 N.M. 111, 140 P.3d 532 (“[W]here there are 

disputed facts, it is generally the province of a jury to determine the date on which a 

plaintiff became aware or should have become aware of the facts underlying his or her 

claim[, and i]f such factual disputes exist, granting a motion to dismiss on statute of 

limitations grounds would be improper.” (citation omitted)).

{10} IT IS SO ORDERED.

BRUCE D. BLACK, Judge Pro Tem

WE CONCUR:

KRISTINA BOGARDUS, Judge

KATHERINE A. WRAY, Judge