Rodriguez v. Del Sol Shopping Center Associates presented New Mexico's appellate court with the sort of facts that makes judging hard. A mother, her young child and a health clinic receptionist were killed when a pickup truck crashed through the clinic's glass wall and into its reception area. The truck had been known by its driver to have a bad throttle and worse brakes. Its driver had a seizure disorder and had been told by her physician not to drive. She drove the old pickup anyway.

The pedal stuck, the brakes failed, the driver seized and the truck careened at just the wrong time and just the wrong place. Two sets of plaintiffs sued. They sued, among others, the shopping center which rented space to the health clinic. Their claims were of negligence. Specifically, that the accident was foreseeable and that the shopping center had breached its duty to the patrons of its lessees by not erecting barriers and installing signage that might somehow have prevented the tragedy.

Summary judgments were granted to the owner of the shopping center by each of the two trial courts in which the claims had been filed. The courts reasoned that since "foreseeability is a critical and essential component of New Mexico's duty analysis" and since "a finding of foreseeability would require anticipation of a remarkable confluence of events", the shopping center owed no duty to its tenant's customers to guard against runaway pickup trucks. The cases were combined on appeal.

We knew things were going to get interesting when the Court of Appeals began its analysis with: "the now-combined cases serve to illustrate the fallibility of an overly foreseeability-dependent analysis by district courts tasked with determining order in a convoluted area of law". Things got more interesting still when the court, citing Edward C. v. City of Albuquerque, announced that New Mexico had adopted an approach "more consistent with the Restatement (Third) of Torts: Liability for Physical and Emotional Harm section 7, cmt. j (2010)". So would New Mexico decide, hindsight bias be damned, to let juries impose liability whenever 20/20 foresight would have prevented a loss?


Instead, as have all courts thus far seeking to escape the absurd consequences of a literal application of the Restatement (Third), the court bolted for the public policy escape hatch. But instead of saying simply that there's a good such and so reason to exempt shopping center owners, the court dove into Palsgraf and that state's highest court's interpretation of it. For a moment we thought they were about to do something amazing.

The appellate court looked back on Solon v. WEK Drilling Co. and quoted approvingly the following: "Chief Judge Cardozo held in Palsgraf that there can be no duty in relation to another person absent foreseeability ..., it does not  follow that duty necessarily is present if risk of injury to that other person is foreseeable from one's acts and omission ..." So mere foreseeability isn't enough! Some foreseeable risks cannot be the foundation for liability! And then the court went on to recount that for 20 years some 26,000 vehicles had daily traversed the Del Sol parking lot each and yet only one, the one that killed the plaintiffs, had ever penetrated the building.

So is this it? Will the New Mexico court of appeals be the one to finally say that as a matter of public policy some foreseeable risks are too remote to permit the imposition of liability? Will it say that when risk can be quantified and is vanishingly small that there ought not be a duty to avoid it?

Alas, no.

At the last moment the New Mexico court swerved and chose the path of others trying to avoid the impact of the new Restatement. It decided as a matter of public policy that premises owners ought not have a duty to anticipate activities outside of, and thus not inherent to, their own. Why foreseeability ought to be left to the jury while "the disastrous consequences of remote mechanical and human fallibility" should not escapes us. Why not draw some lines?

Why not say that a 1 in 5 million risk of death is just too remote; and that forcing every shop owner to turn her store into a fortress to avoid such a possibility would overall do more harm than good? Why not just say that public policy recognizes we live in a world of inevitable risk? Why not indeed.