Henderson v. Vescovo ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 LORI HENDERSON,
8 Plaintiff-Appellant,
9 v. NO. 30,903
10 PAUL and SUSAN VESCOVO,
11 Defendants-Appellees.
12 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
13 Karen L. Parsons, District Judge
14 Alexander A. Wold, P.C.
15 Alexander A. Wold, Jr.
16 Albuquerque, NM
17 for Appellant
18 Orraj, Anderson & Obrey-Espinoza
19 William R. Anderson
20 Las Cruces, NM
21 for Appellees
22 MEMORANDUM OPINION
23 VIGIL, Judge.
1 Plaintiff appeals from an award of summary judgment to Defendants. We
2 issued a notice of proposed summary disposition, proposing to reverse. Defendants
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1 have filed a memorandum in opposition. After due consideration, we remain
2 unpersuaded. We therefore reverse.
3 This is a premises liability case. Below, the district court awarded summary
4 judgment to Defendants on grounds that they owed no duty to Plaintiff. However, as
5 we described in the notice of proposed summary disposition, Defendants clearly owed
6 a duty of ordinary care. Ford v. Bd. of Cnty. Comm’rs, 118 N.M. 134, 139, 879 P.2d
7 766, 771 (1994); Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 13, 738 P.2d
8 129, 131 (Ct. App. 1987). This duty “includes acting reasonably to inspect the
9 premises to discover possible dangerous conditions of which he does not know, and
10 taking reasonable precautions to protect the invitee from dangers which are
11 foreseeable from the arrangement or use of the property.” Williams v. Cent. Consol.
12 Sch. Dist., 1998-NMCA-006, ¶ 10, 124 N.M. 488, 952 P.2d 978 (alteration omitted)
13 (internal quotation marks and citation omitted); see also of Gourdi v. Berkelo, 1996-
14 NMSC-076, ¶ 8, 122 N.M. 675, 930 P.2d 812 (recognizing that landlords are bound
15 by the duty of ordinary care, “and must, prior to leasing the premises, remedy such
16 dangerous conditions as an inspection conducted with ordinary care would reveal”).
17 In their memorandum in opposition Defendants argue that because they lacked
18 actual notice of facts indicating a need to inspect, they bore no duty to conduct a
19 reasonable inspection. [MIO 4, 6-7] However, as we previously observed, the duty
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1 to inspect is only limited in this fashion if the dangerous condition at issue arose or
2 became discoverable after the landlord relinquished control over the premises to the
3 tenant. Gourdi, 1996-NMSC-076, ¶¶ 7-8, 13-17.
4 We understand Defendants to contend that a fair reading of Gourdi does not
5 support the foregoing generalization, insofar as the Court held that there was no duty
6 to inspect “regardless of when the defect arose.” Id. ¶ 8. [MIO 5] However, the
7 quoted language merely reflects that, under the facts presented in that case, the extent
8 of the landlord’s responsibility was controlled by separate considerations.
9 Ultimately, in Gourdi, the Court upheld an award of summary judgment to the
10 landowner because the parties agreed that the dangerous condition was latent, such
11 that a reasonable inspection would not have revealed its presence prior to the
12 commencement of the lease. See id. ¶¶ 12, 16-17. As we observed in the notice of
13 proposed summary disposition, Plaintiff has not made a similar concession. To the
14 contrary, Plaintiff has taken the position that a reasonable inspection would have
15 revealed the dangerous condition at issue in this case. [RP 63-67] This is ultimately
16 a question for the trier of fact to resolve. Id. ¶ 11.
17 We further understand Defendants to suggest that Gourdi, the Court’s reference
18 to the duty to remedy dangerous conditions “prior to leasing the premises” is
19 somehow inconsistent with our reading of Gourdi. [MIO 5-6] However, the reference
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1 to pre-leasing activities merely reflects that the ability of the landlord to identify and
2 rectify dangerous conditions is dependent upon the extent of the landlord’s control
3 over the premises. Id. ¶¶ 15-17. In recognition of the tenant’s right to the use and
4 enjoyment of the premises, the Court held that a landlord has no continuing duty of
5 inspection after commencement of the lease, unless the landlord has actual notice of
6 facts indicating the need to make such an inspection. Id. ¶ 16. In this case, inspection
7 of the premises after commencement of the lease is not at issue. As a result, the actual
8 notice requirement is inapplicable.
9 Finally, Defendants suggest that in Gourdi, the Court’s reference to out-of-state
10 authority supports the proposition that the duty to inspect arises only when the
11 landowner has actual notice of the possible or probable existence of a dangerous
12 condition. [MIO 7] Once again, we disagree. In the out-of-state case, as in Gourdi,
13 it was undisputed that a reasonable inspection would not have revealed the existence
14 of the dangerous condition in question. Id. ¶¶ 9-12. As a result, the Court held that
15 the landowner could not be charged with knowledge of the dangerous condition, and
16 accordingly, as a matter of law the landlord could not be said to have breached the
17 duty of care. Id. ¶¶ 10, 12. In this case, by contrast, the parties dispute whether a
18 reasonable inspection would have revealed the existence of the allegedly dangerous
19 condition. While Defendants contend that they did not know or have reason to know
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1 of any defect, Plaintiff contends that a reasonable inspection would have revealed the
2 allegedly dangerous condition. [RP 63-67] If the fact finder ultimately agrees with
3 Plaintiff, then Defendants could be charged with knowledge, and accordingly,
4 Defendants could be said to have breached the duty of care. We therefore conclude
5 that this case, unlike Gourdi, is not amenable to summary judgment.
6 Accordingly, for the reasons stated above and in our notice of proposed
7 summary disposition, we reverse and remand for further proceedings.
8 IT IS SO ORDERED.
9 _______________________________
10 MICHAEL E. VIGIL, Judge
11 WE CONCUR:
12 _________________________________
13 JONATHAN B. SUTIN, Judge
14 _________________________________
15 LINDA M. VANZI, Judge
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