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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
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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 crossover 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 righthand 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 snowclearing 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
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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. 
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{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
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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: 
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(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.
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{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.
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{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
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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.
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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. 
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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 decisionmaking exists in this situation.” Id.
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{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 crossmedian 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
13

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
14

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
15

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
16

STATUTES

Interpretation

Legislative Intent

TORTS

Immunity

Loss of Consortium

Negligence

Tort Claims Act

Wrongful Death