1998 -NMCA- 81, Stock v. Grantham (2024)

¶3 A party is entitled to summary judgment if "there is no genuine issue as to any material fact" and the undisputed facts establish the existence or nonexistence of a cause of action. Rule 1-056(C) NMRA 1998. The procedure for presenting facts and authorities to the trial court is set forth in Rule 1-056(D), which states:

(1) Motions for summary judgment will not be considered unless filed within a reasonable time prior to the date of trial to allow sufficient time for the opposing party to file a response and affidavits, depositions or other documentary evidence and to permit the court reasonable time to dispose of the motion.

(2) The moving party shall submit to the court a written memorandum containing a short, concise statement of the reasons in support of the motion with a list of authorities relied upon. A party opposing the motion shall, within fifteen (15) days after service of the motion, submit to the court a written memorandum containing a short, concise statement of the reasons in opposition to the motion with authorities. The moving party may, within fifteen (15) days after the service of such memorandum, submit a written reply memorandum.

The memorandum in support of the motion shall set out a concise statement of all of the material facts as to which the moving party contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which the moving party relies.

A memorandum in opposition to the motion shall contain a concise statement of the material facts as to which the party contends a genuine issue does exist. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and shall state the number of the moving party's fact that is disputed. All material facts set forth in the statement of the moving party shall be deemed admitted unless specifically controverted.

¶4 The district court's scheduling order set trial for February 3, 1997, required that motions for summary judgment be filed at least 60 days before that date, and set a pretrial conference for January 10, 1997. On December 5, 1996 the Granthams filed motions for summary judgment with respect to Stock's claims of negligence, wrongful discharge, and breach of contract. Supporting their motion was a statement of uncontested material facts accompanied by one affidavit and deposition testimony with exhibits. Under Rule 1-056(D)(2) Stock's response was due by December 23, 1996 (assuming service upon her by mail, see Rule 1-006(D) NMRA 1998 (adding three days to prescribed period if service is by mail)). But she filed nothing until January 10, 1997, the date of the scheduled pretrial conference, when she filed a response to the statement of uncontested facts. Her response contested four of the Granthams' alleged uncontested facts. It attached no supporting documents and contained no reference to matters of record except that with respect to one contested fact it said, "See depositions of Michael Grantham and Deposition of Babette Stock." Also on January 10, Stock filed a request for additional time to respond to the Granthams' motions. At the pretrial conference the district court continued the hearing on the Granthams' motions to January 15.

¶5 On January 15 Stock filed a response to the motion for summary judgment on her contract claim and filed another motion for an extension of time to respond to the Granthams' motions for summary judgment. The sole ground for the extension motion was the alleged need to obtain discovery from the state Department of Labor regarding statements made by Mr. Grantham about Stock's claim for unemployment compensation.

¶6 The district court proceeded with the hearing on January 15 and granted the Granthams' motions for summary judgment. At the hearing Stock's attorney repeatedly referred to matters not of record, over the objections of the Granthams' attorney. At the conclusion of the hearing, after the district court had made its oral ruling, Stock's attorney requested leave to supplement the record after the hearing. The court denied the motion, saying that the time to supplement the record had passed. On January 27 Stock moved for reconsideration, attaching her affidavit and other documents. The next day the district court entered judgment for the Granthams. The district court did not rule on the motion for reconsideration prior to Stock's filing her notice of appeal on February 26. The notice of appeal is from the judgment of January 28.

¶7 Stock's First Amended and Supplemental Complaint (the Complaint) contends that the Granthams made her work excessive hours, causing her illness, fatigue, etc.; failed to provide adequate assistance when she was too sick or tired and unable to cope with the stress of lifting and caring for Dodge; failed to have her instructed on the safe manner of lifting Dodge; and failed to provide and enforce rules to give her sufficient rest and to teach her how to lift and care for Dodge. To support their motion for summary judgment, the Granthams recited the uncontested facts that Stock had prior experience in caring for children and that Stock noted this experience as a qualification on her resume.

¶8 An employer owes a duty to employees to provide a reasonably safe work place. Diaz v. McMahon, 112 N.M. 788, 790, 819 P.2d 1346, 1348 (Ct.App.1991). Concomitant with this duty is the "duty to give warning of dangers of which the employee might reasonably be expected to remain in ignorance." Prosser & Keeton on Torts § 80, at 569 (5th ed.1984) (Prosser & Keeton ); accord Hastings v. Mechalske, 336 Md. 663, 650 A.2d 274, 281 n. 8 (1994). This duty encompasses the duty to warn of dangers in work procedures. See Hill v. Metal Reclamation, 348 So.2d 493, 494 (Ala.1977).

¶9 Despite this general duty, the Granthams had no duty to warn Stock of the dangers of lifting their child or the dangers of overwork. Those are dangers well known to every competent adult. No special circ*mstances suggested Stock's ignorance of those dangers; her experience, indeed her very application for the job as nanny, would suggest the contrary to any employer. As previously stated, the duty to warn is limited to those "dangers of which the employee might reasonably be expected to remain in ignorance." Prosser & Keeton, supra, § 80, at 569. We note that nothing in Klopp v. Wackenhut Corp., 113 N.M. 153, 824 P.2d 293 (1992), suggests a duty to warn of obvious dangers. What Klopp held is that an owner or occupier of unsafe premises may be liable to a business visitor even if the unsafe condition is open and obvious. Despite the obviousness of the danger, the occupier has a duty to take reasonable steps to remove or reduce the hazard. Id. at 157-58, 824 P.2d at 297-98. Klopp explicitly distinguished the duty involved in that case from a duty to warn. See id. at 156, 824 P.2d at 296.

¶10 Our holding that the Granthams owed Stock no duty to warn does not, however, dispose of all Stock's claims of negligence. Stock also alleges that the Granthams failed to provide her with adequate help and required her to work excessive hours. The Granthams have not addressed whether they owed Stock a duty in these respects or whether the allegations are supported by the facts of this case. Nevertheless, we also affirm the summary judgment with respect to those allegations; even assuming the existence of a duty and a breach of duty, Stock failed to prove causation.

¶11 The Granthams submitted the affidavit of a gastroenterologist asserting that Stock's ruptured bowel resulted from acute diverticulitis and was not caused by her...