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Szuszalski v. Fields

United States District Court, D. New Mexico

December 11, 2019

SHANNON SZUSZALSKI, as personal representative for the ESTATE OF LINDA BARAGIOLA, and SHANNON SZUSZALSKI, individually, Plaintiff,



         This lawsuit arises out of the tragic death of Ms. Linda Baragiola, who was a close friend and neighbor of Defendant Janet Lopez. At Ms. Lopez's request, Ms. Baragiola went onto Ms. Lopez's property to check on her dogs after her home's security alarm was triggered. Law enforcement officials also arrived at the home and questioned Ms. Baragiola. As Ms. Baragiola was walking home, Defendant Rudy Fields, a law enforcement officer who was preparing to respond to a non-emergency call, backed his police vehicle into Ms. Baragiola and ran her over.

         Ms. Shannon Szuszalski, on behalf of herself and as personal representative of the Estate of Ms. Baragiola (Plaintiffs), have filed a claim against Ms. Lopez based on negligence/premises liability. Ms. Lopez has moved to dismiss the claim. For the reasons discussed herein, the Court will grant Ms. Lopez's motion.

         I. Background

         Ms. Baragiola and Ms. Lopez were friends and neighbors. (Doc. 1-A-3 (Am. Compl.) ¶¶ 16, 22.) Ms. Lopez has a security system installed in her home through a company called The Alarm Store. (Id. ¶ 25.) She gave Ms. Baragiola the key to her home “and designated her as the back-up contact person with . . . The Alarm Store.” (Id.) Whenever the security system was triggered and the alarm company could not reach Ms. Lopez, the company would contact Ms. Baragiola instead. (Id. ¶ 26.)

         Ms. Lopez also owned dogs and frequently asked Ms. Baragiola to check on the dogs when she was not at home. (Id. ¶ 24.) On September 28, 2017, Ms. Lopez's security system was triggered and the Alarm Store contacted Ms. Baragiola. (Id. ¶ 27.) Ms. Lopez also contacted Ms. Baragiola and asked her to go to the residence, enter her home, and check on the dogs. (Id. ¶¶ 27-30.) Ms. Baragiola was on Ms. Lopez's property when law enforcement officers arrived to investigate the alarm. (Id. ¶ 32.) Detective Tomlinson, one of the officers who responded to the alarm, questioned Ms. Baragiola during the investigation. (Id. ¶¶ 32-33.)

         Deputy Fields also responded to the alarm and parked his truck in the U-shaped driveway of Ms. Lopez's “residence, a considerable distance from the street.” (Id. ¶¶ 39, 77.) Deputy Fields's vehicle was equipped with a front camera, the footage of which shows that Detective Tomlinson spoke with Ms. Baragiola in front of the vehicle, then they walked toward the back of the truck. (Id. ¶¶ 132-33.) Deputy Fields was sitting in the vehicle's driver's seat at this time. (Id. ¶¶ 34, 37, 131-33.) Ms. Baragiola walked directly behind the truck and toward her own home across the street. (Id. ¶¶ 67, 79, 141.)

         Deputy “Fields received a call for service from dispatch for a non-emergency matter.” (Id. ¶ 40.) He wanted to tell another officer, Detective Salas, that he was leaving to respond to the matter. (Id. ¶ 43.) Although Deputy Fields could have driven through the U-shaped driveway toward Detective Salas, he instead chose to reverse approximately 50 feet toward the street. (Id. ¶¶ 76-78.) While he was reversing his vehicle “at a relatively slow rate of speed” without his emergency lights or sirens activated, he hit Ms. Baragiola with the rear bumper and tailgate of the truck. (Id. ¶¶ 45, 47, 50.) The tire of the truck then drove over Ms. Baragiola, who was still on Ms. Lopez's driveway, causing her death. (Id. ¶ 53.)

         II. Legal Standard

         In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” In re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015) (citation omitted). “To survive a motion to dismiss, ” the complaint does not need to contain “detailed factual allegations, ” but it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Plausibility does not equate to probability, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556.)

         III. Local Rules

         Before addressing the substance of Ms. Lopez's motion, the Court will consider Plaintiffs' request to deny the motion for failure to comply with Local Rule 7.1(a), which requires the movant to determine whether its motion is opposed. (Doc. 8 at 2-3 (citing D.N.M. LR-Civ. 7.1(a)).) Ms. Lopez notes that she originally filed her motion to dismiss in state court before Defendants removed the case. (Doc. 17 at 2.) “In New Mexico state court, a party is not required to seek . . . concurrence on a dispositive motion . . . .” (Id. (citing NMRA, Rule 1-007.1(C)).) Ms. Lopez amended her motion “[o]nly to cite the Federal Rules of Civil Procedure rather than the state court rules” and refiled the motion in this Court. (Id.) Ms. Lopez assumed that because the removed action represents a continuation of the state action, “the motion was already before the Court” and she did not need to seek concurrence. (Id. (citing Jenkins v. MTGLQ Inv'rs, 218 Fed.Appx. 719, 723 (10th Cir. 2007)).) In an effort to cure any oversight, Ms. Lopez's counsel also sought Plaintiffs' position on the motion and was “informed that had concurrence been sought, concurrence would not have been given.” (Id. (citing Doc. 17-A).)

         The Court has discretion to summarily deny a motion if a party fails to establish that it sought concurrence. D.N.M. LR-Civ. 7.1(a) (“a motion that omits recitation of a good-faith request for concurrence may be summary denied”) (emphasis added); see also United States v. 16 Mounts, Rugs & Horns Protected by the Endangered Species Act, 124 F.Supp.3d 1174, 1176 (D.N.M. 2015). Because Ms. Lopez has attempted to cure her error and it is clear that Plaintiffs would have opposed the motion, the Court prefers to move to the merits of the matter.

         IV. Ms. Lopez has failed to define a policy reason-detached from ...

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