June 01, 2011 – Estella Martinez and Lila Salazar, individually and as Co-Personal Representaives of the Estate of Natalie Martinez Espinoza; Isaac Martinez and Estella 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 Estate of Donald D. Espinoza, Tony Espinoza, and Edna Espinoza; and Anthony Mark Espinoza, individually v. New Mexico Department of Transportation, No. 28,661

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OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June 1, 2011

NO. 28,661

ESTELLA MARTINEZ and LILA
SALAZAR, individually and as
Co-Personal Representatives of the
ESTATE OF NATALIE MARTINEZ
ESPINOZA; ISAAC MARTINEZ and
ESTELLA 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
ESTATE OF DONALD D. ESPINOZA;
TONY ESPINOZA and EDNA ESPINOZA;
and ANTHONY MARK ESPINOZA,

individually,
Plaintiffs-A ppellants,

V.

NEW MEXICO DEPARTMENT
OF TRANSPORTATION,

Defendant- Appellee.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Timothy L. Garda, 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 Appellants
Cuddy & McCarthy, LLP
M. Karen Kilgore
Evelyn A. Peyton
Santa Fe, NM
for Appellee

OPINION
KENNEDY, Judge.
{1} 	This case stems from a head-on collision between a vehicle driven by Amelia
Martinez, in which Donald Espinoza was a passenger, and another vehicle driven by
Anthony Griego. 	All involved died. 	Plaintiffs, representatives of Martinez’s and
Espinoza’s estates, pursue wrongful death and loss of consortium claims against the
New Mexico Department of Transportation (DOT) for negligent failure to maintain
the road. The district court granted DOT partial summary judgment on the grounds
that DOT’s alleged failure to install a concrete barrier separating traffic constituted a
design issue, which insulates DOT from liability under the New Mexico Tort Claims
Act (Act), NMSA 1978, Sections 41-4-1 to -30 (1976, as amended through 2010). At
trial, the jury found for DOT on the remaining claims, and Plaintiffs now appeal.
Plaintiffs argue the district court erred by (1) granting partial summary judgment to
DOT on the issue of design immunity, (2) excluding evidence relating to DOT’s duty
to sweep gravel, (3) admitting Espinoza’s toxicology report and drug paraphernalia,
(4) admitting testimony of DOT’s expert witness, and (5) providing inaccurate jury
instructions. Additionally, Plaintiffs request that this Court should provide guidance
on whether the grandparents are permitted to bring a loss of consortium claim for an
unborn grandchild. We affirm all of the district court’s decisions on these issues and

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decline to advise whether the grandparents are permitted to bring a loss of consortium
claim for an unborn grandchild.
I. 	BACKGROUND AND PROCEDURAL HISTORY
{2} 	On December 9, 2004, Griego drove eastbound on NM 502 in Santa Fe County,
using the center turn lane to pass another driver. Around mile marker nine, Griego
lost control and collided with the vehicle occupied by Martinez and Espinoza. Griego
was intoxicated and driving above the speed limit. Griego, Martinez, and Espinoza
died. 	Martinez’s and Espinoza’s approximately eight-month-old fetus also died.
Sheriff’s deputies determined that Martinez was not at fault for the accident. Plaintiffs
and DOT do not dispute this fact.
{3} 	Plaintiffs are the parents of Martinez and Espinoza and paternal grandparents
of their unborn grandchild. As representatives of Martinez’s and Espinoza’s estates,
Plaintiffs pursue wrongful death and loss of consortium claims against DOT.
Plaintiffs also bring a loss of consortium claim for their unborn grandchild.
{4} 	At trial, Plaintiffs argued that DOT’s negligent failure to sweep away crushed
red cinder from the center turn lane in part caused Griego to skid into oncoming traffic
and collide into Martinez and Espinoza’s vehicle. Plaintiffs also argued that DOT had
a duty to erect a concrete barrier separating eastbound and westbound traffic.
Plaintiffs asserted that DOT’s duty arose from notice of NM 502’s dangerous

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condition. Plaintiffs contended that DOT had notice of (1) previous fatal accidents
occurring on NM 502, (2) newspaper articles discussing the dangerousness of the
road, and (3) two citizens’ complaints made to DOT regarding the dangers of NM
502. 	Plaintiffs argued that if DOT had heeded these notices of problems with the
road’s design and exercised its duty to erect concrete barriers, Griego would not have
crossed the center turn lane and struck and killed Martinez and Espinoza.
{5} 	The court granted partial summary judgment to DOT on this issue prior to trial
and explained its decision on the record. The district court held that the erection of
barriers in this case was a matter of road design and within the scope of preserved
state immunity under the Act. Section 41-4-11(B)(1)-(2). In reaching its conclusion,
the district court acknowledged that defects in the road design, if known to DOT as
a cause of accidents, could give rise to a duty on the part of DOT to change the design
to make the road safer. 	The district court stated that it had considered the prior
accidents cited by Plaintiffs on that road, and they did not sufficiently demonstrate
that road conditions resulting from the road’s design, absent other factors involved in
those previous incidents, were similar to decedents’ accident. The district court stated
that absent an ability to make such a showing, Plaintiffs could not demonstrate that
DOT was on notice of the danger of such accidents occurring as a result of the road’s
design. Plaintiffs could not show that DOT had notice of an ongoing defect of design

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in that part of the road, so as to give rise to a duty on DOT’s part to correct it. To the
extent that Plaintiffs failed to establish that there was a hazardous road design that
gave rise to a duty to correct it, the district court concluded that it would not be proper
to waive sovereign immunity for Plaintiffs’ allegation that the design of the road
contributed to the conditions causing the accident in this case. On appeal, Plaintiffs
contend that the district court improperly granted partial summary judgment on the
issue of DOT’s duty to erect concrete barriers.
{6} 	After granting partial summary judgment to DOT on the issue of road design,
the district court excluded other evidence that Plaintiffs argue demonstrated DOT’s
liability for failure to sweep away gravel in the center turn lane. Plaintiffs’ evidence
included facts relating to prior fatal accidents that occurred in the vicinity of the
decedents’ accident: (1) newspaper articles describing these prior accidents and the
dangerousness of NM 502, (2) testimony by two citizens who expressed concern to
DOT regarding the alleged unsafe conditions of NM 502, (3) testimony by Plaintiffs’
expert that center turn lane barriers could have prevented the deaths of Espinoza and
Martinez, and (4) other information pertaining to the configuration of NM 502. Apart
from testimony by one citizen that related to an observation of gravel build-up, the
district court excluded all of the evidence on the basis that it was unrelated to DOT’s
duty to sweep away gravel. Left to decide whether DOT negligently failed to sweep

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away crushed cinders in the center turn lane, the jury found for DOT. 	On appeal,
Plaintiffs argue that the district court abused its discretion in excluding this evidence.
{7} 	Plaintiffs also contest the district court’s admission of a bag belonging to
Espinoza, containing cash, a gun, a crack pipe, and various prescription and non-
prescription drugs discovered in Martinez’s vehicle, as well as the results from an
autopsy report indicating that Espinoza tested positive for drugs. The district court
admitted the contents of the bag and toxicology report on the basis that it went to the
issue of damages. Plaintiffs argue that the admission of this evidence was extremely
prejudicial, and the district court abused its discretion in admitting it.
{8} 	Next, Plaintiffs appeal the district court’s decision to permit the testimony of
DOT’s expert witness, Dr. Stephen Pike, who testified to Griego’s degree of
intoxication. 	Plaintiffs allege that DOT’s untimely identification of Dr. Pike as a
witness should have precluded his testimony, and the district court abused its
discretion in admitting it.
{9} 	Plaintiffs also appeal the district court’s jury instructions. Plaintiffs argue that
the district court improperly denied them the right to submit two additional jury
instructions. Lastly, Plaintiffs assert that this Court should give guidance regarding
a grandparent’s ability to bring a loss of consortium claim for an unborn grandchild.

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We first address DOT’s immunity under the Act and then concern ourselves with the
remaining issues that arose at trial.
II. 	DISCUSSION
A. 	Immunity
{10} 	Plaintiffs argue that DOT negligently failed to maintain NM 502 and is not
immune from liability under Section 41-4-11(B)(1) and (2). Whether immunity bars
Plaintiffs’ suit for DOT’s alleged failure to erect concrete barriers is a question of law,
which we review de novo. Rutherford v. Chaves Cnty., 2003-NMSC-010, ¶ 8, 133
N.M. 756, 69 P.3d 1199. 	Summary judgment is proper if material facts are
undisputed, and the movant is entitled to judgment as a matter of law. 	See Rule 1-
056(C) NMRA; Bierner v. City of Truth or Consequences, 2004-NMCA-093, ¶ 8, 136
N.M. 197, 96 P.3d 322. In interpreting the meaning of a statute, we seek to effectuate
legislative intent. Rutherford, 2003-NMSC-010, ¶ 11; California First Bank v. State
Dep’t of Alcohol Beverage Control, 111 N.M. 64, 68, 801 P.2d 646, 650 (1990).
Statutory provisions that waive governmental immunity are strictly construed.
Rutherford, 2003-NMSC-010, ¶ 11; Armijo v. Dep’t of Health & Env’t, 108 N.M. 616,
618, 775 P.2d 1333, 1335 (Ct. App. 1989).
{11} 	Section 41-4-11(B)(1) and (2) preserves state immunity against suits for injuries
caused by “a defect in plan or design of any bridge, culvert, highway, roadway, street,

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alley, sidewalk or parking area” or by the state’s “failure to construct or reconstruct
any bridge, culvert, [or] roadway[.]” 	Section 41-4-11(A) waives state immunity
against suit for injuries caused by “the negligence of public employees while acting
within 	the 	scope 	of 	their 	duties 	during 	the 	construction, 	and 	in 	subsequent
maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or
parking area.” The legislative purpose of Section 41-4-11 is to ensure highways are
kept safe for the public’s use. See Rutherford, 2003-NMSC-010, ¶ 11; see Fireman’s
Fund Ins. Co. v. Tucker, 95 N.M. 56, 59, 618 P.2d 894, 897 (Ct. App. 1980) (“[T]he
New Mexico Legislature intended to protect the general public from injury by
imposing liability upon governmental agencies when they fail to maintain safe public
highways.”). We have previously recognized a city’s immunity from a suit resulting
from its alleged failure to make structural changes to a roadway in Villanueva v. City
of Tucumcari. 1998-NMCA-138, ¶ 7, 125 N.M. 762, 965 P.2d 346 (“We need not
decide whether the City had a duty to install [wheelchair] ramps. . . . [T]he . . . Act
immunized the City from liability for breach of any such duty.”). In 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. ¶ 8 (internal quotation marks and citation omitted). In carrying out the
legislative objective of the Act, it has been well established that installing and

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maintaining 	traffic 	controls 	constitute 	maintenance 	activities 	under 	the 	Act.
Rutherford, 2003-NMSC-010, ¶ 9.
{12} 	Plaintiffs argue that “design flaws become ‘maintenance’ obligations after
repeated notice to DOT,” stating that their claim originates in a design flaw inherent
to NM 502. 	In framing their argument, they characterize the placement of “solid
traffic[-]control median barriers” in the center turn lane as performance of a
“maintenance” function and the barriers themselves as “traffic[-]control devices.”
Plaintiffs contend that DOT’s duty to maintain New Mexico’s highways entailed a
responsibility to place a concrete barrier, also known as a “Jersey” barrier, between
eastbound and westbound traffic on NM 502 pursuant to a statutory duty under
NMSA 1978, Section 66-7-102(A) (2003) (“The state transportation commission shall
place and maintain such traffic-control devices . . . as it deems necessary . . . or to
regulate, warn or guide traffic.”). Plaintiffs urge that concrete barriers in the center
turn lane would be traffic-control devices that come under the purview of maintenance
and, thus, DOT is not immune from suit for its failure to install such barriers.
{13} 	During argument on the motions for summary judgment, Plaintiffs recognized
that immunity had not been waived for design of roadways. However, they pointed
to Rutherford as representing an erosion of our rule in Villanueva. 	As such, they
argued that we should impose a waiver of immunity in this case. We recognize that

9
the addition and changing of traffic-control devices has been increasingly litigated
under the waiver of immunity, but decline to erode the rule where New Mexico has
not abrogated sovereign immunity for injuries caused by the design of a roadway. For
the reasons given in this Opinion, we are unpersuaded.
{14} 	In determining whether concrete barriers constitute a traffic-control device in
this case, we draw on cases in which our appellate courts have examined the
difference between maintenance and design. Changing signage and erecting portable
barriers has come under the rubric of maintenance thus far. 	See Rutherford, 2003-
NMSC-010, ¶ 9 (determining that portable barricades used to prevent motorists from
crossing a flooded road was a method of traffic control); Bierner, 2004-NMCA-093,
¶ 21 (“[E]rected barriers or curbs . . . appear to involve design [for which] Section 41-
4-11(B) grants immunity.”); Pollock v. State Highway & Transp. Dep’t, 1999-NMCA-
083, ¶ 11, 127 N.M. 521, 984 P.2d 768 (determining that the placement of “Wrong
Way” and “Do Not Enter” traffic warning signs were within the Act’s meaning of
maintenance (internal quotation marks and citation omitted)); Villanueva, 1998-
NMCA-138, ¶ 8 (deciding that the addition of wheelchair ramps was not maintenance
because it involved a structural change to the sidewalk); Ryan v. N.M. State Highway
& Transp. Dep’t, 1998-NMCA-116, ¶ 8, 125 N.M. 588, 964 P.2d 149 (declaring that
the defendant had a duty to put up warning signs if the defendant had notice of a

10
dangerous condition created by wild animal crossings). 	In contrast, structural
changes, resulting in permanent alterations to a road’s original design, have been
granted immunity.
{15} 	From these cases, it appears that a line between maintenance and design is in
part influenced by whether the plaintiffs’ harm was caused by changing conditions
that can be addressed by the use of traffic-control devices, the state’s purported failure
to respond to such conditions of which it had prior notice, or whether the plaintiffs’
harm was caused by the inherent nature of the road itself as designed. For example,
with regard to a duty to place traffic signs, this Court in Ryan concluded that the
state’s ostensible notice of animal crossings necessitated a response—placement of
signs—to ensure that ordinary care was taken to protect the public. 1998-NMCA-116,
¶ 12. Similarly, in Rickerson v. State, light signals were required because of increased
traffic flow. 94 N.M. 473, 475, 612 P.2d 703, 705 (Ct. App. 1980). In Rutherford,
the Supreme Court held that dangerously high flood waters, as a predictable result of
occasional storms upstream, changed road conditions such that they required the
county to quickly respond with temporary barricades. 2003-NMSC-010, ¶¶ 9-10.
{16} 	In Villanueva, this Court rejected the plaintiff’s argument that a failure to
construct wheelchair ramps was maintenance where none were designed to exist.
1998-NMCA-138, ¶ 8. We stated such an addition would be a significant structural

11
change that constituted an installation or reconstruction and “not a matter of routine
maintenance.” Id. Plaintiffs rely on Rutherford and cases from other jurisdictions to
support their claim that installing barriers is maintenance. We disagree, as Rutherford
does not address permanent changes to a road’s design, and our statute conferring
immunity is outside the purview of other states’ law. 	See 2003-NMSC-010, ¶ 25
(holding that “identification and remediation of roadway hazards constitutes highway
maintenance”). 	The district court correctly saw the issue presented by Plaintiffs’
motion for partial summary judgment as separating the issue of whether immunity was
waived for aspects of the road’s design from factual issues concerning maintenance
for problems of which DOT may have been on notice that maintenance was required.
{17} 	Plaintiffs attempt to contrast our dicta in Bierner, 2004-NMCA-093, ¶ 21,
concerning curbs and barriers “appear[ing] to involve design” with the Supreme
Court’s treatment of barricades in Rutherford as being a method of traffic control. We
believe the contrast is illustrative of the propriety of granting immunity. 	Bierner
involved the plaintiffs’ argument that a road in Truth or Consequences should have
had permanent barriers and curbs to prevent vehicles from rolling across a street and
into a business. 2004-NMCA-093, ¶ 3. In contrast, the barricades in Rutherford were
described by the Supreme Court as temporary traffic-control devices that fit within the
meaning of maintenance because they were not designed to be permanent, but would

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come and go as needed to prevent the public from driving into the rushing waters of
a flash flood—a transient, yet predictable, condition. See 2003-NMSC-010, ¶ 9. The
barricades were placed on the road as needed, not permanently built into the road for
a distance of miles. See id. ¶ 2. Our ruling in Villanueva and comment in Bierner,
even though dicta, both hinged on the difference between guiding traffic and
designing permanent attributes of a road itself. Though our comment in Bierner might
have been dicta for that case, we now conclude that erection of permanent barriers as
part of a road constitutes a matter of road design.
{18} 	The addition of permanent concrete barriers, as Plaintiffs demand in this
particular case, is not a method of traffic control within the meaning of maintenance
under the Act. Erected Jersey barriers are concrete, dense structures, the placement
of which is not simple or uncomplicated. See Charles F. McDevitt, Basics of Concrete
B a r r i e r s , 	V o l . 	6 3 	N o . 	5 	( 2 0 0 0 ) , 	a v a i l a b l e 	a t
http://fhwicsint01.fhwa.dot.gov/publications/publicroads (“Concrete barriers appear
to be simple and uncomplicated, but in reality, they are sophisticated safety devices.”).
The barricades in Rutherford were placed on and removed from the road as needed.
They would not change the design or structure of the road on which they appeared.
The road would then be returned to its original state after the floodwaters resided.
Such is not the case with the structural changes proposed by Plaintiffs, which are not

13
a matter of upkeep and repair or routine maintenance and, thus, reside outside the
Act’s conferred waiver of immunity.
{19} 	In addition, Plaintiffs also contend that DOT had a duty to place barriers in the
road upon learning about its dangerous design. 	Plaintiffs asserted that DOT had
“designed an inherently dangerous stretch of road” and that the road had been
“redesigned and reconstructed” to its current configuration without barriers in the
center turn lane. 	Plaintiffs allege that following the redesign of NM 502 in 1993,
there was evidence of the road’s changed conditions requiring installation of barriers
in the center turn lane: four fatal accidents over a period of six years, two citizens’
complaints 	made 	to 	DOT, 	and 	several 	newspaper 	articles 	highlighting 	the
dangerousness of the road. In Plaintiffs’ summary judgment motion, they attribute the
accident to a number of factors, but state that the accident occurred “mostly, because
DOT created an inherently dangerous condition when it designed NM 502.” Their
exhibits mentioned accidents over an eleven-and-a-half-mile stretch of road. 	Yet,
their motion for summary judgment asserted fault within a barrier-free, two-mile-long
stretch of road. Plaintiffs’ proposed change—a concrete barrier—is also relevant to
our analysis. They contend that upon receiving notice of the dangers created by the
redesign, DOT had a maintenance duty to place a barrier in the road. {20} 	W 	e
reiterate that, as yet, the principle of maintenance has not been applied to describe a

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responsibility to alter a road’s design. 	Moreover, it has never been applied to
transcend the immunity that Section 41-4-11(B)(2) restored to the state for design,
construction, or reconstruction of a highway in the event the state’s design for that
construction was somehow faulty. 	For instance, when the highway department
erected a fence, it had a duty to maintain it and, failing to do so, invoked its duty to
carry out its proper maintenance responsibilities. 	See Lerma ex rel. Lerma v. State
Highway Dep’t, 117 N.M. 782, 784, 877 P.2d 1085, 1087 (1994) (concluding that the
state has a duty to exercise ordinary care to protect the public from foreseeable harm
resulting from its maintenance of roads). Similarly, in Rutherford, the design of the
road itself was not at issue when the court held that the county had a duty to use
temporary barricades to halt traffic during storms in order to protect the public from
the known danger of flash floods. 	2003-NMSC-010, ¶ 9. 	These cases deal with
attributes that fall short of design and construction or reconstruction of the road itself
under Section 41-4-11(B). Thus, we will not apply them in this instance to give rise
to a duty for DOT to alter the design of NM 502.
{21} 	To the extent that the district court’s statements from the bench indicate that,
at some point, DOT might acquire notice of a dangerous condition sufficient to require
it to redesign or reconstruct a highway, we make two observations. 	First, such
considerations are outside the purview of the immunity retained for DOT concerning

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the design and construction of NM 502. The district court granted summary judgment
to DOT, finding it immune as to the issue of design of the road, leaving only the issue
concerning the accumulation or effect of the cinders at the location of the accident.
Secondly, any indication that a notice-based obligation to redesign or reconstruct a
road might fall outside the state’s immunity from suit is not supported by New Mexico
law. 	Our opinion is not affected by the district court’s possible reliance on this
statement in granting the partial summary judgment because we are empowered to
affirm the district court in those instances where the court was right for the wrong
reasons. Capco Acquisub, Inc. v. Greka Energy Corp., 2008-NMCA-153, ¶ 35, 145
N.M. 328, 198 P.3d 354. We affirm because the lack of permanent barriers in the
center turn lane was an attribute of the design of NM 502 and, as a result—and as the
summary judgment reflects—DOT is immune from suit because of Section 41-4-
11(B). Thus, we affirm the district court’s holding that DOT is, as a matter of law,
immune from suit for its alleged failure to install concrete barriers. 	We must now
address the remaining issues from the trial concerning evidentiary matters and jury
instructions.
B. 	Evidentiary Issues
{22} 	Plaintiffs make three evidentiary claims: 	(1) evidence pertaining to DOT’s
failure to sweep gravel in the center turn lane was incorrectly excluded, (2) a

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toxicology report concerning Espinoza and evidence that he possessed a gun and drug
paraphernalia were improperly admitted, and (3) DOT’s expert testimony was
improperly admitted. We address the claims below in this order.
{23} 	Under New Mexico’s Rules of Evidence, relevant evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. 	Rule 11-403 NMRA. 	A district
court’s evidentiary decisions are reviewed for abuse of discretion. Santa Fe Custom
Shutters & Doors, Inc. v. Home Depot U.S.A., Inc., 2005-NMCA-051, ¶ 19, 137 N.M.
524, 113 P.3d 347. A district court is given great discretion in determining whether
the probative value of evidence is substantially outweighed by the risk of unfair
prejudice, confusion of the issues, or misleading the jury. 	State v. Dombos, 2008-
NMCA-035, ¶ 33, 143 N.M. 668, 180 P.3d 675. A district court’s decision will not
be disturbed unless “the ruling is clearly against the logic and effect of the facts and
circumstances of the case [and] is clearly untenable or is not justified by reason.”
Heath v. La Mariana Apartments, 2007-NMCA-003, ¶ 18, 141 N.M. 131, 151 P.3d
903 (internal quotation marks and citation omitted), aff’d, 2008-NMSC-017, 143 N.M.
657, 180 P.3d 664.
{24} 	First, Plaintiffs argue that the district court incorrectly excluded evidence
demonstrating a dangerous condition that related to DOT’s duty to sweep gravel in the

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center turn lane. Plaintiffs attributed the accident to Griego’s speed, his use of the
center turn lane for passing, the presence of cinders in the center turn lane, and
“mostly, DOT[’s creation of] an inherently dangerous condition when it designed NM
502.” The supporting exhibits tendered by Plaintiffs provided evidence of cross-over
accidents attributed to a possible heart attack, drowsy drivers, possibly drunk drivers,
unknown causes excluding wet and snowy conditions, and one article stating that most
accidents “involve cars hitting guard rails, barricades, embankments or curbs.” The
evidence the district court decided to exclude included (1) facts from prior fatal
accidents that occurred in the vicinity of the decedents’ accident, (2) newspaper
articles describing these prior accidents and the dangerousness of NM 502, (3)
testimony from two citizens who expressed their concern to DOT about unsafe
conditions on NM 502, (4) testimony from Plaintiffs’ expert that center turn lane
barriers could have prevented the deaths of Espinoza and Martinez, and (5) other
information pertaining to the configuration of NM 502.
{25} 	In excluding the evidence of prior accidents, 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. Without a connection
between the previous accidents and the decedents’ accident, the district court held that
evidence of the prior accidents was irrelevant to DOT’s duty to sweep gravel.

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{26} 	Similarly, the district court excluded the 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 and was unrelated
to DOT’s duty to sweep gravel in the center turn lane. 	Plaintiffs argue that the
exclusion of this evidence forced the jury to decide DOT’s negligence in a vacuum.
We disagree.
{27} 	In the cases discussed above that shape DOT’s liability for failing to maintain
the road to prevent or ameliorate known conditions, the duty for the governmental
entity to act was determined based on its knowledge of specific risks requiring
maintenance on its part. This connection was demonstrated in Rickerson, 94 N.M. at
476, 612 P.2d at 706 (holding that the state had a duty to install traffic signals at a
place in the road known to be confusing), in Villanueva, 1998-NMCA-138, ¶¶ 8, 12
(stating that the state is not liable for failing to construct wheelchair ramps, but it has
a duty to keep sidewalks in a safe condition) and, in Rutherford, 2003-NMSC-010, ¶¶
9, 25 (concluding that temporary barriers were required when the state had knowledge
of the nature of the road during flash floods). 	These accidents also occurred in
different places on NM 502 than the location of the present accident. Thus, viewing
the factual disparities involved, the district court could determine that their probative
value was insufficient to allow their admission. In view of DOT’s immunity for the

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design and construction of the center turn lane, and the absence of a direct connection
between the evidence of previous complaints and accidents to DOT’s duty to sweep
gravel in the center turn lane, Plaintiffs’ evidence has little, if any, probative value.
As a result, we cannot hold that the district court’s decision to exclude this evidence
was “clearly against the logic and effect of the facts and circumstances of the case[.]”
Heath, 2007-NMCA-003, ¶ 18 (internal quotation marks and citation omitted).
{28} 	Second, Plaintiffs argue that the results of Espinoza’s toxicology report, and the
contents of the black bag found in Martinez’s vehicle, were improperly admitted. The
district court admitted this evidence on the basis that it went to the issue of damages.
According to the district court, Espinoza’s drug use and possession of drugs at the
time of his death were important factors in assessing Plaintiffs’ request for lost wages
and loss of consortium damages. Plaintiffs insist that the admission of this evidence
was highly prejudicial and without probative value, and DOT failed to present a link
between Espinoza’s drug use and what the district court considered was relevant to
his diminished life expectancy and earning capacity.
{29} 	Plaintiffs rely on Romero v. State, in which the Court found that a district court
did not abuse its discretion in excluding evidence of a passenger’s intoxication. 112
N.M. 332, 333, 815 P.2d 628, 629 (1991), receded from on different grounds by
Dunleavy v. Miller, 116 N.M. 353, 862 P.2d 1212 (1993). While Romero is relevant

20
in that it demonstrates that the exclusion of such evidence is not an abuse of
discretion, it is silent as to whether the inclusion of such evidence is an abuse of
discretion. While we are not unsympathetic to Plaintiffs’ argument, we also recognize
that jury instructions were given to limit the potential prejudicial effect on jurors, and
Plaintiffs were free to argue the weight of the evidence. Thus, we cannot declare the
district court’s decision was completely against logic to assume that a victim’s drug
use does, to some extent, have an affect on his earning capacity. Thus, we uphold the
district court’s admission of this evidence.
{30} 	Third, Plaintiffs contest the district court’s admission of DOT’s expert witness,
Dr. Pike, whose testimony concerned Griego’s intoxication. 	A district court’s
admission of an expert witness will not be reversed absent a showing of abuse of
discretion. Chavez v. Bd. of Cnty. Comm’rs, 2001-NMCA-065, ¶ 35, 130 N.M. 753,
31 P.3d 1027. Moreover, “remedies for the violation of discovery rules or orders are
discretionary with the trial court.” Id. Plaintiffs assert that DOT’s late disclosure of
Dr. Pike as a witness violated the trial scheduling order, as the doctor was only
identified a few days before trial was to begin. 	To remedy the late disclosure, the
district court gave Plaintiffs a one-hour telephone interview and permitted them to
submit a rebuttal witness.

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{31} 	We conclude that the district court did not abuse its discretion in admitting Dr.
Pike’s testimony. Plaintiffs had notice of DOT’s intent to call a toxicologist to testify
concerning Griego’s impairment weeks in advance. Moreover, the court remedied the
situation by giving Plaintiffs the opportunity to interview Dr. Pike and to call a
rebuttal witness. 	These were appropriate remedies even when a witness is not
disclosed until after the trial begins. See State v. Ruiz, 2007-NMCA-014, ¶¶ 50-54,
141 N.M. 53, 150 P.3d 1003 (stating the district court did not abuse its discretion by
admitting a surprise rebuttal witness because the opposing party failed to show
materiality, prejudice, and the inadequacy of the court’s remedy).
{32} 	In demonstrating that the district court abused its discretion, Plaintiffs rely on
Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (Ct. App. 1988), and Shamalon Bird
Farm, Ltd. v. U.S. Fidelity & Guarantee Co., 111 N.M. 713, 809 P.2d 627 (1991).
Plaintiffs argue that this Court should, like this Court in Khalsa and the Supreme
Court in Shamalon Bird Farm, “find that Plaintiffs were unfairly prejudiced by the
belated identification of Dr. Pike.” In Khalsa, a child custody case, we reversed the
district court’s decision in part because the father had no opportunity to interview the
witnesses or call a rebuttal witness after the mother’s surprise witness testified. 107
N.M. at 34-35, 751 P.2d 718-19. 	Yet, in the case at hand, Plaintiffs had the

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opportunity to both interview Dr. Pike and call a rebuttal witness. Thus, Plaintiffs did
not suffer the prejudice that occurred in Khalsa.
{33} 	Additionally, in Shamalon Bird Farm, the Supreme Court upheld the district
court’s decision to exclude the plaintiff’s witness at trial in a case where the plaintiff
brought suit against its insurer for bad faith failure to pay insurance benefits. 	111
N.M. at 716, 809 P.2d at 630. The Supreme Court reasoned that the testimony of the
plaintiff’s witness was surprise testimony because the factual basis for the witness’s
opinions was virtually unknown to the defendant the night before the trial. Id. at 715,
809 P.2d at 629. In contrast, Plaintiffs in this case were well aware that Dr. Pike’s
testimony would be based on Griego’s toxicology report. Thus, we decline to reverse
on grounds that Plaintiffs suffered prejudice from the testimony of Dr. Pike because
of unfair surprise.
{34} 	Lastly, Plaintiffs contend that Dr. Pike’s testimony was cumulative as a state
police officer had already testified on Griego’s impairment. However, at the time of
that officer’s testimony, Plaintiffs objected to his opinion on the issue, citing that he
did not have the technical or medical expertise to make such judgments. Admitting
Dr. Pike’s medical and professional opinions on Griego’s impairment provided what
the officer could not, but we see no cause for reversal. 	Furthermore, Dr. Pike’s

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testimony was not cumulative because it was offered as a scientific interpretation of
Griego’s toxicology report.
{35} 	We conclude the district court did not abuse its discretion by permitting Dr.
Pike to testify. 	The district court provided Plaintiffs a remedy to DOT’s late
identification. Moreover, Plaintiffs knew the factual basis of Dr. Pike’s testimony,
and his testimony was not cumulative.
C. 	Jury Instructions
{36} 	Plaintiffs contend that the district court’s jury instructions were improper
because they were denied the right to submit two additional instructions: (1) an open
and obvious danger does not lessen DOT’s obligation to protect the public from
foreseeable negligence, and (2) notice was not required where DOT created the
dangerous condition. “The propriety of denying a jury instruction is a mixed question
of law and fact that we review de novo.” Akins v. United Steelworkers of Am., 2009-
NMCA-051, ¶ 42, 146 N.M. 237, 208 P.3d 457 (internal quotation marks and citation
omitted), aff’d, 2010-NMSC-031, 148 N.M. 442, 237 P.3d 744. However, a case will
not be reversed on the basis of an error in jury instructions unless the result is
fundamentally unjust. McNeill v. Burlington Res. Oil & Gas Co., 2007-NMCA-024,
¶ 19, 141 N.M. 212, 153 P.3d 46, aff’d, 2008-NMSC-022, 143 N.M. 740, 182 P.3d
121. The party complaining of jury instructions must show prejudice before reversal

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is granted. Blackburn v. State, 98 N.M. 34, 37, 644 P.2d 548, 551 (Ct. App. 1982).
Moreover, there is no error in jury instructions when the instructions given adequately
cover the law to be applied. Kirk Co. v. Ashcraft, 101 N.M. 462, 466, 684 P.2d 1127,
1131 (1984).
{37} 	In this case, Plaintiffs have not shown how the refusal to include these
instructions prejudiced their case. 	Plaintiffs simply allege that the extensive
questioning of one of DOT’s witnesses, Raymond Helmer, was so significant in that
the jury requested clarification of his testimony. It is unclear how this is related to the
alleged deficiency of jury instructions in any way. Additionally, it appears that the
jury instructions provided by the court fairly presented the issues and laws applicable
to this case. We therefore reject Plaintiffs’ claim that jury instructions were improper.
D. 	Loss of Consortium
{38} 	Plaintiffs ask this Court to provide guidance on the issue of whether
grandparents should be permitted to bring a loss of consortium claim for an unborn
grandchild. 	Plaintiffs admit that there is no law on this issue. Nevertheless, they
contend that other New Mexico consortium cases could extend this right to
grandparents. It is unnecessary for us to decide this issue. As DOT correctly points
out, our decision on this issue will not affect the disposition of the case because any
hypothetical additional loss of consortium claim is moot since the jury found that

25
DOT was not negligent. Thus, we deny Plaintiffs’ request to provide guidance on this
issue.
III. 	CONCLUSION
{39} 	We affirm the district court’s order of partial summary judgment to DOT as the
use of concrete barriers in this case is an issue of design for which DOT is afforded
immunity. We also affirm the district court’s evidentiary decisions and the district
court’s exclusion of Plaintiffs’ proposed jury instructions. We refrain from providing
guidance on whether grandparents can bring a loss of consortium claim for an unborn
grandchild.
{40} 	IT IS SO ORDERED.
______________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

CELIA FOY CASTILLO, Chief Judge

JONATHANB. SUTIN, Judge

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