April 06, 2009 – Geoffrey R. Romero, as Personal Representative of the Estate of Nathaniel Maestas, deceased Dyvine Martinez, as Mother of Nathaniel Maestas, deceased; Francine and Robert Martinez, as Parents and Next Friends of Cassandra Martinez, a minor; and Rose Valdez, Individually and as Representative of the Estate of Erric Tollardo, deceased; and Frank Tollardo and Dolores Silva v. Giant Stop-N-Go of New Mexico, Inc., d/b/a Mustang # 7297; Mustang Fuel Corporation, an Oklahoma corporation; Giant Industries, a Delaware Corporation, and Jason Perea, No. 28,063

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 6, 2009
NO. 28,063

GEOFFREY R. ROMERO, ESO.., as Personal
Representative of the Estate of Nathaniel Maestas,
deceased DY VINE MARTINEZ, as Mother of
Nathaniel Maestas, deceased; FRANCINE and
ROBERT MARTINEZ, as Parents and Next Friends
of Cassandra Martinez, a minor; and ROSE VALDEZ,
Individually and as Representative of the Estate of Eric
Tollardo, deceased; and FRANK TOLLARDO

and DOLORES SILVA,

Plaintiffs-A ppellants,
V.

GIANT STOP-N-GO OF NEW MEXICO, INC.,
d/b/a MUSTANG #7297; MUSTANG FUEL
CORPORATION, an Oklahoma corporation;
GIANT INDUSTRIES, a Delaware corporation,
and JASON PEREA,

Defendants-A ppellees.
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
William F. Lang, District Judge

Law Offices of Bruce S. McDonald
Bruce S. McDonald

Albuquerque, NM

Corbin Hildebrandt, P.C.
Corbin Hildebrandt
Albuquerque, NM
Zangara Law Office
Kevin A. Zangara
Taos, NM
for Appellants
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Lisa Ortega
Jocelyn Drennan
Edward Ricco
Albuquerque, NM
for Appellees

OPINION
VIGIL, Judge.
{1} 	This case arises out of a shooting that took place at a Mustang convenience
store and gas station in which three people were killed and one person was injured.
Plaintiffs filed a premises liability case against the owner and operator of the business
(Defendant) alleging wrongful death and personal injury. The district court concluded
that Defendant had no duty to prevent the episode, and granted summary judgment.
We affirm.
BACKGROUND
{2} 	The fatal incident was the product of an ongoing drug trafficking dispute. The
escalating hostilities came to head when Eric Tollardo entered Jason Perea’s
apartment, put a gun to Perea’s head, and then departed, threatening that he was going
to return. 	After a brief period of reflection, Perea armed himself with two loaded
Glock pistols and went looking for Tollardo. 	Perea drove around Taos for two or
three hours, searching for Tollardo without success. Perea decided to abandon the
search and was heading home when, by chance, he spotted Tollardo’s car in
Defendant’s parking lot. Perea came to a rapid stop, jumping the curb and colliding
with a pole. He then climbed out of his vehicle and advanced on Tollardo’s car with
a loaded gun in each hand. Believing that one of the occupants had fired a shot at

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him, Perea “just lost it” and opened fire. Perea shot through the open windows of
Tollardo’s car until he ran out of bullets, killing three of the occupants and injuring
a fourth occupant in the process. Perea then fled the scene.
{3} 	Plaintiffs filed the instant lawsuit in their various capacities as personal
representatives of the estates of two of the decedents and as parents and next friends
of the surviving occupant. 	Plaintiffs’ claims are grounded on their assertion that
Defendant negligently failed to provide security on its premises.
{4} 	Defendant moved for summary judgment, contending that Plaintiffs could not
establish either that Defendant had a duty to protect the victims from the attack, or that
Defendant’s conduct was a proximate cause of their injuries. The district court agreed
with Defendant’s argument on the question of duty, and granted the motion on that
basis. This appeal followed.
DISCUSSION
{5} 	It is axiomatic that a negligence action requires that there be a duty owed from
the defendant to the plaintiff; that based on a standard of reasonable care under the
circumstances, the defendant breached that duty; and that the breach was a cause in
fact and proximate cause of the plaintiff’s damages. See Herrera v. Quality Pontiac,
2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181. Since the absence of any of these
elements is fatal to a negligence claim, we first examine whether Defendant owed a

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duty to Plaintiffs.
1. 	Duty
{6} 	“Whether a duty exists is a question of law for the courts to decide.” 	Id.
(internal quotation marks and citation omitted). We therefore apply de novo review.
See, e.g., Blake v. Pub. Serv. Co. of N.M., 2004-NMCA-002, ¶ 5, 134 N.M. 789, 82
P.3d 960 (reviewing de novo an award of summary judgment, based on a purely legal
determination on the threshold issue of duty).
{7} 	“As a general rule, a person does not have a duty to protect another from harm
caused by the criminal acts of third persons[.]” 	Ciup v. Chevron U.S.A., Inc.,
1996-NMSC-062, ¶ 5, 122 N.M. 537, 928 P.2d 263. One exception to the general rule
is that a duty may arise out of a special relationship. Id.; Rummel v. Edgemont Realty
Partners, Ltd., 116 N.M. 23, 26, 859 P.2d 491, 494 (Ct. App. 1993) (stating that,
absent a special relationship, there is no duty to protect others from harm caused by
criminal acts of third persons). See generally Restatement (Second) of Torts § 314A
(1965). One such special relationship exists between businesses and their patrons.
See Reichert v. Atler, 117 N.M. 623, 624, 875 P.2d 379, 380 (1994) (recognizing the
duty of business establishments to protect customers against the criminal conduct of
third parties); Rummel, 116 N.M. at 26, 859 P.2d at 494 (same). 	In this case the
occupants of Tollardo’s car were customers of Defendant, who were hanging out in

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the parking lot and talking with other customers. Therefore, Defendant had a duty to
protect business patrons such as the victims from harm caused by third-party criminal
conduct. However, this duty extends only to foreseeable conduct and resultant harm.
See UJI 13-1320 NMRA (stating in part that the duty of an owner or operator to
protect a visitor “arises from a foreseeable risk that a third person will injure a
visitor”); Reichert, 117 N.M. at 626, 875 P.2d at 382 (recognizing that the “duty of
the owner or operator of a place of business to prevent the harmful conduct of a third
party” extends to foreseeable acts and foreseeable harm).
{8} 	The New Mexico Supreme Court has observed, “[f]oreseeability is a critical and
essential component of New Mexico’s duty analysis because no one is bound to guard
against or take measures to avert that which he or she would not reasonably anticipate
as likely to happen.” Herrera, 2003-NMSC-018, ¶ 20 (alteration omitted) (internal
quotation marks and citation omitted). 	Therefore, we assess foreseeability by
reference to “what one might objectively and reasonably expect, not merely what
might conceivably occur.” Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 8,
140 N.M. 596, 145 P.3d 76 (internal quotation marks and citation omitted). 	In
evaluating foreseeability, we consider both the status of the plaintiff and the type of
harm involved. See Chavez v. Desert Eagle Distrib. Co., 2007-NMCA-018, ¶ 16, 141
N.M. 116, 151 P.3d 77 (“The initial step in a common law duty analysis is to

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determine whether a particular plaintiff and a particular harm are foreseeable.”).
{9} 	Although Plaintiffs urge us to approach the foreseeability issue in a more
generalized or abstract fashion, we do not proceed without reference to the specific
circumstances actually presented. 	See, e.g., Chavez, 2007-NMCA-018, ¶¶ 17-24
(approaching the foreseeability issue by reference to the specific allegedly negligent
conduct of the business proprietor, and by reference to the specific criminal activity
that allegedly ensued); Herrera, 2003-NMSC-018, ¶¶ 7, 19-25 (same). See generally
Madrid v. Lincoln County Med. Ctr., 121 N.M. 133, 139, 909 P.2d 14, 20 (Ct. App.
1995) (observing that the existence of a duty depends on “whether a particular
plaintiff, 	a 	particular 	event, 	and 	a 	particular 	injury 	are 	foreseeable,” 	aff’d,
1996-NMSC-049, 122 N.M. 269, 923 P.2d 1154. 	We therefore frame the critical
question in this case to be: 	whether the proprietor of a convenience store and gas
station who fails to employ security measures should foresee that a targeted homicidal
attack on its patrons is likely to result.
{10} 	Plaintiffs contend that the attack in this case was foreseeable due to the
character and history of Defendant’s service station, which Plaintiffs describe as “a
magnet for crime and the criminal element.” 	In support of this characterization
Plaintiffs rely on a police incident log and the depositions of two former employees.
Because the employee depositions and the incident log provide so little specific

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information about actual events, we hesitate to draw inferences from these materials.
However, viewing the depositions and the log in the most fashionable light, they
indicate prior reports of theft of gasoline and alcohol, physical altercations involving
loiterers, domestic violence, harassment, traffic accidents, vandalism, trespassing,
suspicious persons, and wild and stray animals at the service station. 	Reports of
commercial robberies and incidents involving narcotics also appear.
{11} 	The history of reported criminal activity at Defendant’s service station may
have rendered future events of a similar character foreseeable. If this case involved
injuries suffered in the course of a criminal incident for which there was some
previous similarity, such as shoplifting, loitering, or commercial robbery, the event
and the resultant injuries might have been sufficiently foreseeable to give rise to a
duty. However, the victims in this case were not injured in the course of a similar
subsequent event. To the contrary, there is no evidence of anything remotely similar
to the deliberate, targeted shootings in this case. 	We acknowledge that crime is a
distressingly common feature of modern life. We further acknowledge that certain
types of criminal misconduct may occur with sufficient frequency that business
proprietors should anticipate them. 	However, we do not believe the type of crime
which is at issue in this case, specifically a sudden deliberate and targeted shooting,
is sufficiently commonplace that business proprietors should be categorically required

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to foresee such occurrences. 	See Restatement (Second) of Torts § 314A cmt. e
(observing that the duty in any case is circumscribed by foreseeable risks, and as such,
a defendant “is not required to take precautions against a sudden attack from a third
person which he has no reason to anticipate”).
{12} 	Plaintiffs have not pointed us to any case in which a court concluded that a
business operator had a duty to prevent a sudden, deliberately targeted assassination
of customers on its premises. In our research we have failed to find such a case, and
to the extent there is authority, it holds that there is no such duty. 	See generally
Wiener v. Southcoast Childcare Ctrs., Inc., 12 Cal. Rptr. 3d 615, 624 (Cal. 2004)
(holding that the day care center and lessor had no duty to prevent a driver from
deliberately driving his car through a chain link fence and striking children in a
playground because the “brutal criminal act” was unforeseeable); Toscano Lopez v.
McDonald’s Corp., 238 Cal. Rptr. 436, 445 (Cal. Ct. App. 1987) (holding that there
was no duty to prevent a random, mass murderous assault upon customers in a
McDonald’s located in a high crime area because such an event was not foreseeable).
{13} 	We first examine whether existing case law supports a conclusion that
Defendant owed a duty to Tollardo, the person that Perea specifically targeted for
assassination. 	In Jones v. Williams, 408 N.W.2d 426 (Mich. Ct. App. 1987) (per
curiam), a customer was shot in a parking lot adjacent to a restaurant after buying

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takeout food from the restaurant. Id. at 427. The record established that the shooter
specifically targeted the customer. 	Id. at 428. 	Affirming the summary judgment
granted to the restaurant, the court concluded that the restaurant did not owe a duty to
protect the customer from “an unforeseeable assassination attempt.” Id. “Even the
presence of guards could not prevent assassination attempts.” Id. at 429. In Faheen
ex rel. Hebron v. City Parking Corp., 734 S.W.2d 270 (Mo. Ct. App. 1987), the victim
was assassinated in a car bombing that took place in the parking garage of the
apartment complex where he lived. 	Id. at 271. Prior to the bombing, crimes were
committed on the premises of the apartment complex or in close proximity, which
consisted of arson, robbery, burglary, stealing, and various misdemeanors. Id. The
court said that “a homicide or injury caused by a car bombing is significantly different
from the reported crimes,” and concluded that the property owner had no duty to
protect against the assassination. 	Id. at 274 “[The deceased] was the victim of an
assassin[ation]. 	There is nothing in [the] plaintiffs’ petition that would put a
reasonable man on notice that he should take precautions to protect his invitees against
such a misdeed.” Id. In Guerrero v. Memorial Medical Center, 938 S.W.2d 789 (Tex.
App. 1997), the victim died after her husband went to her workplace and shot her. Id.
at 790. The court concluded that the crime was not foreseeable because no evidence
was presented that the employer knew, or had a reason to know, that the husband had

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been physically abusing the victim and was about to murder her. Id. at 795. Summary
judgment in favor of the employer was therefore affirmed. 	Id.; see also Gragg v.
Wichita State Univ., 934 P.2d 121, 135 (Kan. 1997) (holding it was not foreseeable
by the sponsor of Fourth of July fireworks display that a gang member intended to
shoot anyone at the fireworks display).
{14} 	We also examine whether existing case law supports a conclusion that
Defendant owed a duty to the victims who were with Tollardo when Perea attacked
Tollardo. In Hillcrest Foods, Inc. v. Kiritsy, 489 S.E.2d 547 (Ga. Ct. App. 1997), a
witness testified that a man drove by the Waffle House where his wife was working
and fired three or four shots into the Waffle House in an attempt to kill her. Id. at 549.
Two of the bullets struck the victim who was a patron in the Waffle House, and he
was paralyzed from the waist down. Id. The plaintiff presented evidence that several
prior crimes against persons had occurred on the premises prior to the drive-by
shooting. Id. However, the drive-by shooting itself was not a foreseeable act. Id. at
551. Because its reasoning is particularly applicable to the facts before us in this case,
we quote:
It was an act of terrorism that could have occurred anywhere that the
intended victim happened to be. [The defendant] had no basis to foresee
such event, and there was no effective action which it could reasonably
have taken to prevent said act under the circumstances. . . . The shooting
was a transitory act that could have been carried out at any time and

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place that the intended victim happened to be.
Id. In Thai v. Stang, 263 Cal. Rptr. 202 (Cal. App. 1989), the victim was shot twice
when he and a companion were standing outside the entrance to a roller skating rink.
Id. at 203. The victim’s companion, who was a rival gang leader, was the intended
target, when a car drove by, spraying the entrance with bullets fired from an automatic
rifle. Id. Summary judgment was granted to the premises owner and operator of the
skating rink on the basis that it had no duty to prevent the shooting because the drive-
by shooting was unforeseeable, even though prior to the shooting, there had been
automobile break-ins, fist-fights between teenagers, and a burglary on the premises.
Id. at 203-04. The California Court of Appeal affirmed, noting in particular that given
the random nature of drive-by shootings, the landowner could not have prevented the
shooting in that case. Id. at 206-07.
{15} 	Plaintiffs further contend that the affidavit of their expert creates a factual issue
for the jury to decide. 	Although we acknowledge that expert testimony may be
considered in this context, see, e.g., Herrera, 2003-NMSC-018, ¶¶ 3, 22, 24, the
ultimate issue remains a question of law upon which expert testimony is in no sense
determinative. 	See Romero v. City of Santa Fe, 2006-NMCA-055, ¶ 26, 139 N.M.
440, 134 P.3d 131 (observing that questions of law are “not subject to conclusive
proof by expert testimony”). Moreover, the opinion of Plaintiffs’ expert is based on

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the prior reports of criminal activity. As stated above, fundamentally dissimilar prior
incidents do not render the type of crime which occurred in this case reasonably
foreseeable.
2. 	Proximate Cause
{16} 	The parties also dispute whether Defendant’s alleged negligence in failing to
provide security could be regarded as a proximate cause of Plaintiffs’ injuries. As
previously stated, the district court did not rely on any analysis of proximate cause to
support the award of summary judgment. Because our assessment of the duty issue
supplies a sufficient independent basis for affirmance, it is not necessary for us to
undertake a separate analysis of the element of proximate causation at this time.
3. 	Discovery
{17} 	Finally, Plaintiffs contend that the award of summary judgment was improper
because they should have been afforded a greater opportunity to engage in discovery.
It is generally inadvisable to grant summary judgment before discovery has been
completed. Sun Country Sav. Bank v. McDowell, 108 N.M. 528, 534, 775 P.2d 730,
736 (1989). However, this is not universally the case.
{18} 	Our Rules of Civil Procedure provide that a party faced with a motion for
summary judgment may ask the district court to stay its determination so that the
non-movant can conduct discovery needed to rebut the motion. 	See Rule 1-056(F)

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NMRA. If such a stay is sought, the party must submit an affidavit explaining why
additional time and discovery are needed. 	Id. 	In this regard, vague assertions are
insufficient; rather, the party “must specifically demonstrate how postponement of a
ruling on the motion will enable him, by discovery or other means, to rebut the
movant’s showing of the absence of a genuine issue of fact.” 	Butler v. Deutsche
Morgan Grenfell, Inc., 2006-NMCA-084, ¶ 38, 140 N.M. 111, 140 P.3d 532 (internal
quotation marks and citation omitted).
{19} 	In this case, Plaintiffs never made any specific allegations regarding what they
hoped to find in discovery. Under such circumstances, the district court was at liberty
to proceed with the award of summary judgment, notwithstanding Plaintiffs’ cursory
assertions about the need for further discovery. See id. ¶¶ 38-39 (arriving at a similar
conclusion under similar circumstances).
CONCLUSION
{20} 	For the reasons stated, we conclude that Defendant had no duty to prevent the
deliberate, targeted shooting at issue in this case.
{21} 	IT IS SO ORDERED.
________________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

CYNTHIA A. FRY, Chief Judge

GTIMOTHY L. GARCIA, Judge

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