73 P.3d 181 (2003) 134 N.M. 43 2003-NMSC-018

Kenneth HERRERA, as personal representative of the Estate of Octavio Ruiz, deceased, and Jose Encinias, Plaintiffs-Appellants,
v.
QUALITY PONTIAC, Defendant-Appellee,
Alma Rosa de Ruiz, Plaintiff-Appellant,
v.
Quality Pontiac, Defendant-Appellee.

No. 26,946.

Supreme Court of New Mexico.

May 16, 2003. Rehearing Denied, July 16, 2003.

*184 Duhigg, Cronin, Spring & Berlin, P.A., David M. Berlin, Helena Gorochow, Albuquerque, NM, for Appellants.

Yenson, Lynn, Allen & Wosick, P.A., Joseph B. Wosick, Albuquerque, NM, for Appellee.

OPINION

SERNA, Justice.

{1} Plaintiffs-Appellants Kenneth Herrera, personal representative of Octavio Ruiz, and Jose Encinias filed a complaint for wrongful death and personal injury against Defendant-Appellee Quality Pontiac, a corporation doing business in Albuquerque, New Mexico, following a traffic accident caused by *185 a thief who stole a car from Defendant's lot. The district court dismissed the case with prejudice for failure to state a claim for which relief can be granted. See Rule 1-012(B)(6) NMRA 2003. The Court of Appeals certified the matter to this Court. See NMSA 1978, § 34-5-14(C) (1972); Rule 12-606 NMRA 2003. We reverse the district court.

I. Facts and Background

{2} "A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint, not the factual allegations of the pleadings which, for purposes of ruling on the motion, the court must accept as true." Coleman v. Eddy Potash, Inc., 120 N.M. 645, 650, 905 P.2d 185, 190 (1995), overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 23 & n. 3, 131 N.M. 272, 34 P.3d 1148. Plaintiffs alleged the following facts in their complaint. On May 27, 1996, an individual took his car to Defendant for repairs. At Defendant's direction, the owner left the keys in the car and the doors unlocked. The lot was fenced, and the gate was unlocked. After 9:00 p.m., Billy Garcia entered the lot, apparently looking inside the cars for something to steal. Garcia stole the vehicle in question. The following day, at approximately 11:00 a.m., a Bernalillo County deputy sheriff observed Garcia driving quickly through a school zone and pursued him, engaging his emergency lights and sirens. Garcia drove at a speed of up to ninety miles per hour and collided head on with Plaintiffs' car, which had pulled over onto the shoulder after hearing the sirens. One occupant was killed and the other seriously injured.

{3} Plaintiffs presented an affidavit of a sociologist to the district court that asserted that "[t]he Albuquerque metropolitan area's motor vehicle theft rate of 1,345.5 per 100,000 residents was the second highest rate in the nation in 1997."^[1] The expert estimated that between forty-five and eighty percent of stolen cars had been left unlocked and that between nineteen and forty-seven percent of stolen cars had the ignition keys left inside. The expert claimed that a high proportion of thefts were for the purpose of joyriding and short term transportation. The expert estimated that there is a high probability that a stolen car will be involved in traffic accidents, relying on a study which "found that nearly [seventeen percent] of all stolen cars are involved in accidents in a matter of hours or days after their theft," and another study which found "the accident rate for stolen cars [to be] approximately 200 times the accident rate for cars that have not been stolen." The expert relied on a study which found that "police pursuit was involved in [thirty-seven] percent of the motor vehicle theft cases examined [in a] national sample."

{4} As a result of Plaintiffs' inclusion of this affidavit, we treat the motion to dismiss as a motion for summary judgment. See Rule 1-012(B) ("If ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment."). However, the standard of review effectively remains the same; this Court accepts as true the facts as alleged by Plaintiffs in their complaint as well as those in their affidavit to determine whether, as a matter of law, Defendant is entitled to judgment. See GCM, Inc. v. Ky. Cent. Life Ins. Co., 1997-NMSC-052, ¶ 13, 124 N.M. 186, 947 P.2d 143.

{5} Defendant, relying on a series of New Mexico cases, argued that there is no liability on its part in this situation. New Mexico precedent clearly supports Defendant's position in this case. Plaintiffs ask this Court to overrule our prior cases and follow the minority position of other jurisdictions. For the reasons that follow, we agree with Plaintiffs' position.

II. Discussion

A. Duty

1. Introduction

{6} Generally, a negligence claim requires the existence of a duty from a defendant *186 to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiff's damages. "In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person." Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983), overruled on other grounds by Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990); accord Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990). "Negligence is generally a question of fact for the jury. A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant. Whether a duty exists is a question of law for the courts to decide." Schear v. Bd. of County Comm'rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984) (citations omitted); accord Solon v. WEK Drilling Co., 113 N.M. 566, 571, 829 P.2d 645, 650 (1992) ("It is thoroughly settled in New Mexico, of course, that whether the defendant owes a duty to the plaintiff is a question of law."); Calkins, 110 N.M. at 61, 792 P.2d at 38 (stating that the question of duty "must be decided as a matter of law by the judge, using established legal policy").

{7} Thus, we analyze whether one in possession of a vehicle owes a duty to an individual injured as the result of an accident caused by the negligent or criminal acts of a third party who stole the car as a threshold question of law. See Lester ex rel. Mavrogenis v. Hall, 1998-NMSC-047, ¶ 9, 126 N.M. 404, 970 P.2d 590; Leyba v. Whitley, 120 N.M. 768, 771, 907 P.2d 172, 175 (1995) ("Whether [defendant attorneys] owed a duty to [a plaintiff] is a question of law and is based upon policy considerations.") (citations omitted). "If it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the defendant." Ramirez, 100 N.M. at 541, 673 P.2d at 825. Foreseeability of a plaintiff alone, however, does "not end the inquiry for the imposition of a duty." Lester, 1998-NMSC-047, ¶ 9, 126 N.M. 404, 970 P.2d 590; see also Leyba, 120 N.M. at 771, 907 P.2d at 175. "Policy determines duty." Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995). "The existence of a tort duty is a policy question that is answered by reference to legal precedent, statutes, and other principles of law." Ruiz v. Garcia, 115 N.M. 269, 272, 850 P.2d 972, 975 (1993); accord Leyba, 120 N.M. at 771, 907 P.2d at 175; Calkins, 110 N.M. at 62, 792 P.2d at 39.

{8} On the other hand, proximate cause is generally a question of fact for the jury. Calkins, 110 N.M. at 61, 792 P.2d at 38 (noting that proximate cause is a question of fact). As this Court has frequently noted, questions of both proximate cause and duty are related to the concept of foreseeability. "Integral to both [duty and proximate cause] is a question of foreseeability." Id. "Both questions of foreseeability are distinct; the first must be decided as a matter of law by the judge, using established legal policy in determining whether a duty was owed petitioner, and the second, proximate cause, is a question of fact." Calkins, 110 N.M. at 61, 792 P.2d at 38. "Duty and foreseeability have been closely integrated concepts in tort law since the court in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928) stated the issue of foreseeability in terms of duty." Ramirez, 100 N.M. at 541, 673 P.2d at 825.

The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader "zone of risk" that poses a general threat of harm to others. The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred. In other words, the former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open.

McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992) (citation and footnote omitted); see Calkins, 110 N.M. at 61, 792 P.2d at 38.

{9} We have expressed that "there is nothing sacred about `duty,' which is nothing more than a word, and a very indefinite one, with which we state our conclusion." *187 Ramirez, 100 N.M. at 541, 673 P.2d at 825 (quoted authority and quotation marks omitted). Ultimately, a duty exists only if "the obligation of the defendant [is] one to which the law will give recognition and effect." Id. In other words, a duty "establishes the legally recognized obligation of the defendant to the plaintiff." Id. The Court of Appeals has similarly recognized that duty requires analysis of both foreseeability and policy.

Our Supreme Court has long recognized, however, that the question of duty is not merely a matter of determining whether a particular plaintiff, a particular event, and a particular injury are foreseeable. In Ramirez, for example, the Supreme Court focused on foreseeability and whether the obligation of the defendant is one to which the law will give recognition and effect.

Madrid v. Lincoln County Med. Ctr., 121 N.M. 133, 139, 909 P.2d 14, 20 (Ct.App.1995) (quotation marks and quoted authority omitted), aff'd, 1996-NMSC-049, ¶ 31, 122 N.M. 269, 923 P.2d 1154 (affirming on the ground of "[s]ound public policy").

{10} In the present case, we determine whether, as a threshold question of law, one who leaves an unattended and unlocked vehicle with its ignition keys inside foreseeably creates a zone of risk and a general unreasonable threat of harm and thus owes a duty of ordinary care to others injured in a resulting automobile accident caused by the criminal or negligent actions of a third party. For our duty analysis, "it must be determined that the injured party was a foreseeable plaintiff—that he [or she] was within the zone of danger created by [the defendant's] actions[—] ... as a matter of law by the judge, using established legal policy ...." Calkins, 110 N.M. at 61, 792 P.2d at 38. We must analyze whether, as a matter of policy as well as foreseeability, one in such circumstances has an obligation to the injured party for which we will give legal effect and recognition.

2. Whether Defendant Owed Plaintiffs a Statutory Duty

{11} In analyzing whether Defendant owed a duty to Plaintiffs, we first address Plaintiffs' assertion that Defendant owed them a statutory duty. See Ruiz, 115 N.M. at 272, 850 P.2d at 975 (stating duty in terms of a policy question based upon statutes, precedent, or other principles of law). "With deference always to constitutional principles, it is the particular domain of the [L]egislature, as the voice of the people, to make public policy." Torres, 119 N.M. at 612, 894 P.2d at 389. Our Legislature has directed that

[n]o person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key and effectively setting the brake, or placing the transmission in parking position, thereon and, when standing upon any grade, turning the front wheels in such manner that the vehicle will be held by the curb or will leave the highway if the brake fails. A violation of this section shall not mitigate the offense of stealing a motor vehicle, nor shall the provisions of this section or any violation thereof be admissible as evidence in a civil action for the recovery of a stolen vehicle, or in any other civil action arising out of the theft of a motor vehicle.

NMSA 1978, § 66-7-353 (1978).

{12} The purpose of Section 66-7-353 is to protect the welfare and safety of the public by requiring owners of cars to take reasonable measures "to prevent acts which could lead to an automobile inadvertently moving without intention that it should," Bouldin v. Sategna, 71 N.M. 329, 332, 378 P.2d 370, 372 (1963), and we believe that the provision, by requiring that one in possession of an automobile take reasonable measures to avoid leaving the keys in the ignition, implicitly contains a policy to deter theft. See Richardson v. Carnegie Library Rest., Inc., 107 N.M. 688, 701, 763 P.2d 1153, 1166 (1988) (recognizing that preventing the theft of automobiles left unlocked and unattended with the keys in the ignition "would be conducive to promoting public safety"), limited on other grounds by Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶¶ 19-30, 36, 125 N.M. 721, 965 P.2d 305 (limiting Richardson's application of intermediate scrutiny to non-governmental defendants). However, because, as Defendant asserts, violation *188 of Section 66-7-353 is inadmissible as evidence in any civil action arising out of the theft of a vehicle, we cannot conclude that the statute demonstrates a legislative intent to create a duty. Further, the Legislature has explicitly limited application of this provision to the "operation of vehicles upon highways," NMSA 1978, § 66-7-2 (2001), and the thief stole the vehicle at issue in the present case from a fenced lot, not a highway.

{13} Although, as Plaintiffs note, a few jurisdictions have held that statutes similar to Section 66-7-353 create a duty, see, e.g., Vining v. Avis Rent-A-Car Sys., Inc., 354 So.2d 54, 56 (Fla.1977) (noting that "[t]he legislature recognized that an automobile placed in the hands of an unauthorized person was more likely to be operated in a manner hazardous to the well being of the general public"), the majority of jurisdictions have rejected the notion that this type of provision creates a statutory duty. E.g., Kim v. Budget Rent A Car Sys., Inc., 143 Wash.2d 190, 15 P.3d 1283, 1287-88 (2001) (en banc). We agree with the majority position on this issue and thus reject Plaintiffs' reliance on the statute as the source of a duty in this case. Nevertheless, we do not believe that the absence of a duty in Section 66-7-353 resolves the question in this case.

3. Whether Defendant Owed Plaintiffs a Common Law Duty

{14} Because we conclude that the Legislature has not articulated a statutory duty, we next determine whether a common law duty extends from Defendant to Plaintiffs. "Courts should make policy in order to determine duty only when the body politic has not spoken and only with the understanding that any misperception of the public mind may be corrected shortly by the [L]egislature." Torres, 119 N.M. at 612, 894 P.2d at 389.

(a) Stare Decisis

{15} As noted above, New Mexico precedent resolves this issue in Defendant's favor. See Bouldin, 71 N.M. at 333, 378 P.2d at 373. Plaintiffs ask this Court to overrule Bouldin.

Stare decisis is the judicial obligation to follow precedent, and it lies at the very core of the judicial process of interpreting and announcing law. It promotes very important principles in the maintenance of a sound judicial system: 1) stability of the law; 2) fairness in assuring that like cases are treated similarly; and 3) judicial economy.

However, the principle of stare decisis does not require that we always follow precedent and may never overrule it.

Trujillo, 1998-NMSC-031, ¶¶ 33-34, 125 N.M. 721, 965 P.2d 305 (citations omitted). We require special justification in order to depart from precedent. Id. ¶ 34.

Particular questions must be considered before overturning precedent: 1) whether the precedent is so unworkable as to be intolerable; 2) whether parties justifiably relied on the precedent so that reversing it would create an undue hardship; 3) whether the principles of law have developed to such an extent as to leave the old rule "no more than a remnant of abandoned doctrine;" and 4) whether the facts have changed in the interval from the old rule to reconsideration so as to have "robbed the old rule" of justification.

Id. (quoting Planned Parenthood v. Casey, 505 U.S. 833, 855, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)).

This Court always demonstrates the highest regard for stare decisis, but when one of the aforementioned circumstances convincingly demonstrates that a past decision is wrong, the Court has not hesitated to overrule even recent precedent. Furthermore, the application of stare decisis is less compelling in tort cases than in property or contract settings.

Id. ¶ 35 (citation omitted). As discussed below, we conclude that both the third and fourth Trujillo considerations are present in this case. The adoption of comparative fault is a significant development in the law that leaves the analysis in Bouldin a mere remnant of an abandoned doctrine. The fact that there is a high rate of automobile theft and that stolen vehicles are more frequently involved in accidents are factual changes in the interval from the old rule which have *189 robbed the old rule of justification. We believe that these considerations merit departure from stare decisis.

(b) Bouldin

{16} In Bouldin, the plaintiff alleged that the defendant parked his vehicle at a lounge, left it unattended, "and negligently failed to remove the ignition keys" from the vehicle. Bouldin, 71 N.M. at 330, 378 P.2d at 371. An unknown individual or group of people "borrowed or stole the truck and later abandoned it in the middle of the highway," and the plaintiff collided with it. Id. In Bouldin, this Court addressed the question of whether "the owner of a car who leaves it unattended and without removing the key ... [is] liable for injuries to persons and property suffered when the car is hit after its having been abandoned on the highway by a thief who stole it." Id. at 331, 378 P.2d at 371.

{17} As an initial matter, we note that although Bouldin specifically addressed proximate cause in its analysis, 71 N.M. at 332, 378 P.2d at 372, it also addressed the concept of duty. As discussed above, it would be an unusual case which purely addressed duty or proximate cause. See Calkins, 110 N.M. at 61, 792 P.2d at 38 ("This case raises issues of duty and proximate cause."). Further, tort law in New Mexico has developed a finer distinction between foreseeability as the concept relates to duty and as it relates to proximate cause, which we do not believe was as clear in earlier cases such as Bouldin. Thus, despite the nomenclature used in Bouldin, the context of the entire case reveals that it addressed both what we now more specifically designate as duty and proximate cause. Bouldin addressed and rejected policy arguments advanced by the plaintiff:

Plaintiff argues that with the transition from the horse and buggy age to that of the highspeed car and jet airplanes, and from the period of steam and gas powered energy to that of atom propulsion, we should keep pace with the times and apply new and modern principles, better suited for our changed and changing world. We answer the argument by pointing out that we are not convinced that the rule we are urged to adopt would better serve the legal needs of this new day, and even if we were we would be most hesitant to promulgate such rules to replace doctrine long established. This would seem to be more properly for the [L]egislature.

Id. at 334, 378 P.2d at 373-74. This is a classic example of a policy discussion, global and general in nature directed at a legal duty, rather than a proximate cause discussion of the specific facts of the case. See Leyba, 120 N.M. at 771, 907 P.2d at 175 (recognizing that policy determines duty); Torres, 119 N.M. at 612, 894 P.2d at 389 (same); Ruiz, 115 N.M. at 272, 850 P.2d at 975 (same). Bouldin also reviewed the plaintiffs' appeal of a judgment which sustained the defendant's motion to dismiss for failure to state a claim for which relief could be granted. 71 N.M. at 330, 378 P.2d at 371. "A motion to dismiss ... merely tests the legal sufficiency of the complaint and is infrequently granted because its purpose is to test the law of the claim, not the facts that support it." Envtl. Improvement Div. of N.M. Health & Env't Dep't v. Aguayo, 99 N.M. 497, 499, 660 P.2d 587, 589 (1983) (emphasis added). Further, Bouldin addressed the same statute as we did above. 71 N.M. at 332, 378 P.2d at 372. Analysis of a statute in this context goes to duty, or possibly breach of duty, but not to proximate cause. See Torres, 119 N.M. at 612, 894 P.2d at 389 (concluding that, by statute, the Legislature imposed a duty upon police officers).

{18} Bouldin additionally quoted a commentator's proposition which "suggests that the problem is not in fact one of causation, and to so treat it is to avoid the real issue.... [A] conclusion that the act complained of was not the proximate cause of the injury really means that the actor was not negligent at all or that his [or her] negligence, if any, does not cover such a risk." 71 N.M. at 333, 378 P.2d at 373 (quoted authority and quotation marks omitted). "It is only where such misconduct was to be anticipated, and the risk of it was unreasonable, that liability will be imposed for such intervening acts." Id. at 333-34, 378 P.2d at 373 (quoted authority and quotation marks omitted). The Court apparently accepted this reasoning, concluding, "in our view, that theft of the *190 defendant's car was not to be anticipated and that such theft and the subsequent negligent leaving of the car in the road was such a remote risk that liability should not be imposed." Id. at 334, 378 P.2d at 373. The concept of remoteness in this context is connected to duty. As noted above, the Court then concluded its discussion by expressing an unwillingness to adopt a new rule despite the plaintiffs' suggestion that it "should keep pace with the times and apply new and modern principles, better suited for our changed and changing world." Id. at 334, 378 P.2d at 374. Our review of Bouldin indicates that the Court was hesitant to hold that a defendant who leaves his or her keys in an unattended car owes a duty to a plaintiff injured by the acts of a thief because, as a matter of policy, the theft and subsequent accident are too remote a risk. "The question is essentially one of the scope of the defendant's obligation, and far removed from causation." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44, at 305 (5th ed.1984). In other words, the question is "one of the policy as to imposing legal responsibility," which is a matter of duty, not proximate cause. Id. § 44, at 301. Thus, we believe it is clear that Bouldin involved both duty and proximate cause and focused principally on duty. As discussed below, we conclude that we must overrule Bouldin on its holding that there is no duty in such a case and that there is no proximate cause as a matter of law between leaving ignition keys in an unattended vehicle and an accident precipitated by a thief.

(c) The Foreseeability Component of Duty

{19} As an initial step in the establishment of a common law duty, along with the required component of policy, "a potential plaintiff must be reasonably foreseeable to the defendant because of defendant's actions." Klopp v. Wackenhut Corp., 113 N.M. 153, 158, 824 P.2d 293, 298 (1992) (quoting Calkins, 110 N.M. at 62, 792 P.2d at 39). "If the harm was not willful, [the plaintiff] must show th