Stark-Romero v. National Railroad Passenger Co. (805 F. Supp. 2d 1145, 2011)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant City of Las Vegas’s Motion for Summary Judgment, filed March 1, 2011 (Doc. 63); (ii) Defendant City of Las Vegas’s Motion to Strike Supplemental Rule 56(d) Affidavit of Marie [sic] Touchet, filed July 5, 2011 (Doc. 116); and (iii) Defendant Board of County Commissioners of the County of San Miguel’s Motion for Summary Judgment, filed May 25, 2011 (Doc. 86). The Court held hearings on July 6, 2011 and on July 14, 2011. The primary issues are: (i) whether the Court should strike the supplemental rule affidavit Plaintiffs Emilio J. Esquibel’s and Helen G. Esquibel’s counsel, Maria Touchet, filed pursuant to rule 56(d) of the Federal Rules of Civil Procedure; (ii) whether the Court should grant the City of Las Vegas’ motion for summary judgment, because the City of Las Vegas did not construct Arriba Road, the road in San Miguel County, New Mexico on which the accident at issue in this matter occurred, and does not own, maintain, or operate Arriba Road or the railroad crossing in San Miguel County where the accident occurred, and because it did not have a duty to ensure safe ingress and engress to invitees over property not owned or controlled by it; (iii) whether the Court should grant San Miguel County’s motion for summary judgment, because it did not owe the Esquibels or the decedent, Michael S. Esquibel, a duty, as it did not construct, own, or maintain Arriba Road; (iv) whether the Court should grant the Esquibels’ request that it dismiss Defendant City of Las Vegas, New Mexico’s motion for summary judgment as premature and allow more time for discovery; and (v) whether the Court should grant the Esquibels’ request and dismiss Defendant San Miguel County’s motion for summary judgment as premature and allow more time for discovery. The Court will deny the City of Las Vegas’ motion to strike and will deal with the substance of Ms. Touchet’s original rule 56(d) affidavit and supplemental rule 56(d) affidavit regarding the City of Las Vegas in the legal analysis of its Memorandum Opinion and Order. The Court will grant the City of Las Vegas’ motion for summary judgment, because it did not have a duty to maintain the roadway where the collision occurred, and because it did not have a duty to ensure M. Esquibel’s safe ingress and egress to and from its waste transfer facility. The Court will deny the Esquibels’ request that it dismiss the City of Las Vegas’ motion as premature and allow discovery against the City of Las Vegas to continue, because the Ms. Touchet’s rule 56(d) affidavits do not identify with specificity probable facts which are not available and which are relevant to the motion. The Court will deny San Miguel County’s request for summary judgment, because it does not find, as a matter of law, that San Miguel County did not owe a duty to the Esquibels or to M. Esquibel. Because the Court will deny San Miguel County’s request for summary judgment, it need not address the Esquibels’ request that it find the motion for summary judgment premature and allow discovery to continue.

FACTUAL BACKGROUND

In 1988, the San Miguel Board of County Commissioners held a meeting in which closing Arriba Road was discussed. See Minutes From September 10, 1988 Regular Meeting of the Board of Commissioners of San Miguel County at 1, filed June 10, 2011 (Doc. 91-2); Plaintiffs Response in Opposition to Defendant San Miguel County’s Motion for Summary Judgment ¶ 4, at 7, filed June 10, 2011 (Doc. 91) (“Response to San Miguel County’s Memo.”) (setting forth this fact). See Reply to Plaintiff’s [sic] Response in Opposition to Defendant San Miguel County’s Motion for Summary Judgment at 10, filed July 12, 2011 (Doc. 125) (“San Miguel County’s Reply”) (not controverting this fact).

The Esquibels are the parents of M. Esquibel. See, e.g., Complaint in Intervention for Wrongful Death and Negligence ¶ 2, at 2, filed August 19, 2010 (Doc. 1-2) (“Complaint”); Memorandum of Points and Authorities in Support of Defendant Board of County Commissioners of the County of San Miguel’s Motion for Summary Judgment ¶ 1, at 2, filed May 25, 2011 (Doc. 87) (“San Miguel County’s Memo.”) (setting forth this fact); Response to San Miguel County’s Memo. ¶ 1, at 4 (not controverting this fact). On January 15, 2009, M. Esquibel, was traveling east on a road leading to railroad crossing DOT NO. 013655C in San Miguel County. See, e.g., Complaint ¶ 8, at 3; Defendant City of Las Vegas’ Motion for Summary Judgment ¶ 1, at 3, filed March 1, 2011 (Doc. 63) (“City of Las Vegas’ Motion”) (setting forth this fact); Plaintiffs’ Response in Opposition to Defendant City of Las Vegas’ Motion for Summary Judgment at 6, filed March 14, 2011 (Doc. 69) (“Response to City of Las Vegas’ Motion”) (not controverting this fact); San Miguel County’s Memo. ¶ 2, at 2 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 2, at 4 (not controverting this fact). M. Esquibel was on his way to the waste transfer station that the City of Las Vegas owned. See, e.g., Complaint ¶¶ 11, 13-14, at 3; City of Las Vegas’ Motion ¶ 2, at 3 (setting forth this fact); Response to City of Las Vegas’ Motion at 6 (not controverting this fact). At approximately 3:51 p.m. on January 15, 2009, a train owned by Defendant The National Railroad Passenger Company (Amtrak), traveling north on railroad tracks that Defendant Burlington Northern Santa Fe Railway Company (BNSF) owned, collided with the vehicle that M. Esquibel drove. See, e.g., Complaint ¶¶ 8-10, 15-16, 20-21, at 3, 4; City of Las Vegas’ Motion ¶3, at 3 (setting forth this fact); Response to City of Las Vegas’ Motion at 6 (not controverting this fact); San Miguel County’s Memo. ¶ 3, at 2 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 3, at 4 (not controverting this fact). This collision resulted in M. Esquibel’s death. See, e.g., Complaint ¶¶ 9, 20, at 3, 4; City of Las Vegas’ Motion ¶ 4, at 3 (setting forth this fact); Response to City of Las Vegas’ Motion at 6 (not controverting this fact); San Miguel County’s Memo. ¶ 3, at 2 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 3, at 4 (not controverting this fact). The collision occurred at the railroad crossing at Arriba Road, which leads directly to the City of Las Vegas’ waste transfer station. See Complaint ¶ 9, at 3; Application at 12, Ex. F; San Miguel County’s Memo. ¶ 4, at 3 (setting forth this fact); Response to San Miguel County’s

judgment. Hearsay testimony cannot be considered because [a] third party's description of [a witness'] supposed testimony is not suitable grist for the summary judgment mill.” (internal quotations and citations omitted)). The Application states:

All collection vehicles use City, County or State maintained roads. Also the vehicles use city maintained alleys for collection of solid waste. The transport trucks will use City and State maintained roads to deliver the solid waste to a [New Mexico Environment Department] permitted landfill facility. The majority of time the transport trucks will be on Interstate Highway 25. Attachment F shows primary and alternate routes and contains a copy of a road suitability letter from the NMSHTD.

Application at 12. The application includes, as exhibit F, a map of the transportation plan for the waste transfer station. The map shows the railroad crossing leading to the waste transfer station. This evidence is not offered to prove the truth of the matter asserted — that "transport trucks will use City and State maintained roads to deliver the solid waste” to the facility, see Application at 12; instead, it is offered to show that the railroad crossing leads directly to the waste transfer station. See United States v. Emmons, 24 F.3d 1210, 1216-17 (10th Cir.1994) (addressing the argument that "the alleged map should have been excluded as inadmissible hearsay” and stating that, because the evidence was not offered to prove the truth of the matter asserted — "that marijuana was indeed growing on Roger’s property” — "the map was plainly admissible for the non-hearsay purpose of demonstrating that Roger had knowledge of the location and quantity of the marijuana plants and of the efforts to treat the ground for their cultivation”). The evidence thus is not hearsay. See Fed.R.Evid. 801. Because the evidence is not hearsay, and because the City of Las Vegas has not directed the Court’s attention to evidence controverting the asserted fact, the Court will deem the asserted fact admitted. See D.N.M.LR-Civ. 56.1(b).

The Esquibels also assert: "There can be high volumes of traffic going to and coming from the solid waste transfer station.” Response to City of Las Vegas’ Motion ¶ 2, at 8 (citing Electronic Mail Transmission From Henry R. Gonzales to Paul W. Gray (dated January 16, 2009), filed March 14, 2011 (Doc. 69-6) ("Jan. 16, 2009 Electronic Mail Transmission”)). The City of Las Vegas asserts that the Jan. 16, 2009 Electronic Mail Transmission is hearsay. See City of Las Vegas’ Reply at 11-12. The Jan. 16, 2009 Electronic Mail Transmission states: “You are correct, this is the second accident that has occurred at this crossing in the last four months; this crossing leads to the Dump where there can be high volumes of traffic at times.” Gonzales Electronic Mail Transmission at 1. Because this evidence is offered to prove the truth of the matter asserted, it is hearsay, and the Court cannot consider it in its Memorandum Opinion and Order. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006) ("Thus, for example, at summary judgment courts should disregard inadmissible hearsay statements ... as those statements could not be presented at trial in any form.”). The Court thus will not deem this asserted fact admitted.

The Esquibels assert: "The City's solid waste transfer station is the primary traffic generator for the public using the crossing.” Response to City of Las Vegas’ Motion ¶ 3, at 8 (citing Electronic Mail Transmission from Paul W. Gray to lyn.hartley@bnsf.com (dated February 6, 2009), filed March 14, 2011 (Doc. 69-7) ("Feb. 6, 2009 Electronic Mail Transmission”). The City of Las Vegas objects to the Feb. 6, 2009 Electronic Mail Transmission as hearsay. See City of Las Vegas' Reply at 11-12. The Feb. 6, 2009 Electronic Mail Transmission states:

Part of the problem is that there does not seem to be a clear cut answer as to who is responsible for the cross road easement. Our records indicate that Arriba Road belongs to San Miguel County but they have indicated that they vacated the road many years ago. The City of Las Vegas has their Solid Waste Transfer Station "on the other side of the tracks” and is the primary traffic generator for folks using the crossing.

Feb. 6, 2009 Electronic Mail Transmission at 1. Because this evidence is offered to prove the truth of the matter asserted, it is hearsay, and the Court will not deem the asserted fact admitted. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d at 1199.

Memo. ¶ 4, at 4-5 (not controverting this fact).

The portion of the road upon which M. Esquibel was traveling when the collision occurred was not located in the City of Las Vegas. See, e.g., Complaint ¶¶ 8, 16, at 3; Affidavit of Carlos Ortiz ¶ 5, at 2 (executed March 1, 2011), filed March 1, 2011 (Doc. 63-1, Ex. A). The portion of the road upon which M. Esquibel was traveling when the collision occurred was not constructed by the City of Las Vegas. See Ortiz Aff. ¶ 5, at 2; Affidavit of Paul W. Gray ¶ 7, at 4 (executed July 14, 2010), filed March 1, 2011 (Doc. 63-1, Ex. B). The portion of the road upon which M. Esquibel was traveling when the collision occurred was not owned, maintained, or operated by the City of Las Vegas. See Complaint ¶ 12, at 3; Ortiz Aff. ¶¶ 5-6, at 2; Gray Aff. ¶¶ 6-7, at 2. The portion of the road upon which M. Esquibel was traveling when the collision occurred is owned by Defendant New Mexico Department of Transportation (“NMDOT”). See Gray Aff. ¶ 7, at 2. The City of Las Vegas has never had an agreement with the New Mexico State Highway Department or NMDOT to participate in maintenance of the portion of the road upon which M. Esquibel was traveling when the collision occurred. See Ortiz Aff. ¶ 6, at 2. The City of Las Vegas has never received any funding from the New Mexico State Highway Department or NMDOT to maintain the portion of the road upon which M. Esquibel was traveling when the collision occurred. See Ortiz Aff. ¶ 7, at 2.

In deciding where to place the waste transfer station, City of Las Vegas councilors acknowledged a detriment about the “Franken site,” because the City of Las Vegas “would have an elevated water tank and the railroad crossing,” and noted that at the “Industrial Park all utilities are in place ... and there is immediate access that would not cause liability.” Minutes at 6.

In applying to the State for a permit for the waste transfer station, the City of Las Vegas had to certify that the routes used to gain access to the waste transfer station were suitable. See Application at 12. The City of Las Vegas, in its Application, stated that it was attaching a road suitability letter from the New Mexico State Highway and Transportation Department, yet no such letter was attached. See Application, Ex. F. The map attached to the Application shows that the only access to and from the facility is over the railroad tracks. See Application, Ex. F. The City of Las Vegas acknowledged that the facility would be bordered by the railroad tracks. See Application at 18.

The Esquibels allege that the portion of Arriba Road, as it approaches the railroad tracks, was owned by either San Miguel County or the State. See, e.g., Complaint ¶¶ 12, 15, at 3; San Miguel County’s Memo. ¶ 5, at 3 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 5, at 5 (not controverting this fact). The Esquibels further allege that San Miguel County had a duty to maintain Arriba Road in a safe manner. See, e.g., Complaint ¶ 52, at 9; San Miguel County’s Memo. ¶ 6, at 3 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 6, at 5 (not controverting this fact). The Esquibels also allege that San Miguel County failed to maintain Arriba Road in a safe manner, by failing to install and to place a stop sign on eastbound Arriba Road at a point where vehicles, and M. Esquibel specifically, would have a clear view of the tracks. See, e.g., Complaint ¶ 53, at 9; San Miguel County’s Memo. ¶ 7, at 3 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 7, at 5 (not controverting this fact). San Miguel County failed to remove or cause to be removed sight distance obstructions to vehicles approaching the railroad crossing on Arriba Road. See, e.g., Complaint ¶ 54, at 9; San Miguel County’s Memo. ¶ 8, at 3 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 8, at 5 (not controverting this fact). San Miguel County failed to close Arriba Road, even though it approached an unreasonably and extra hazardous crossing. See, e.g., Complaint ¶ 55, at 9; San Miguel County’s Memo. ¶ 9, at 3 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 9, at 5 (not controverting this fact). San Miguel County failed to install adequate active signals, warnings, and cross arms at the railroad crossing at Arriba Road and the railroad tracks that BNSF Railway owns. See, e.g., Complaint ¶ 56, at 10; San Miguel County’s Memo. ¶ 10, at 3 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 10, at 5 (not controverting this fact). M. Esquibel’s line of sight in the direction of the oncoming Amtrak train was blocked by vegetation emanating from the property immediately adjacent to the rail bed, such that he began to approach and cross the tracks without knowing that the Amtrak train was approaching the railroad crossing at a high rate of speed. See Complaint ¶ 17, at 4; San Miguel County’s Memo. ¶ 11, at 3-4 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 11, at 5 (not controverting this fact). The Esquibels allege that M. Esquibel’s death and their loss of consortium was a direct and proximate result of San Miguel County’s failure to maintain the road. See Complaint ¶¶ 57-58, at 10; San Miguel County’s Memo. ¶ 12, at 4 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 12, at 5 (not controverting this fact).

H. Esquibel does not know whether San Miguel County owned or operated Arriba Road at the time of the January 15, 2009 accident. See Deposition of Helen Esquibel at 154:5-20 (taken May 18, 2011), filed May 25, 2011 (Doc. 87-3); San Miguel County’s Memo. ¶ 13, at 4 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 13, at 6 (not controverting this fact). H. Esquibel does not know whether San Miguel County had a duty to maintain Arriba Road; she knows only that someone had to be responsible for maintaining the road. See H. Esquibel Depo. at 155:1-7; San Miguel County’s Memo. ¶ 14, at 4 (setting forth this fact); Response to San Miguel County’s Memo. ¶ 14, at 6 (not controverting this fact).

At the time of the accident involving M. Esquibel, there was no agreement between San Miguel County and NMDOT, or any other entity, whereby San Miguel County had assumed the responsibility to maintain Arriba Road. See Affidavit of Les Montoya ¶ 6, at 1 (sworn May 18, 2011), filed May 25, 2011 (Doc. 87-2). At the time of the accident, San Miguel County was not in receipt of monies from NMDOT, or from any other entity for the purpose of maintaining Arriba Road. See Montoya Aff. ¶ 7, at 2.

On February 4, 2009, the NMDOT sent a letter to State Senator Pete Campos of District 8, which covers Guadalupe County, Mora County, San Miguel County, Santa Fe County, and Torrance County, explaining that NMDOT believed that Arriba Road was county owned. See Feb. 4, 2009 Letter at l. A February 5, 2009 NMDOT electronic mail transmission explains that Paul Montoya informed NMDOT that Arriba Road was county owned. See Electronic Mail Transmission From John R. Whatley to Paul W. Gray (dated February 5, 2003), filed June 10, 2011 (Doc. 91 — 4).

In its answers to interrogatories, San Miguel County states: “San Miguel ... abandoned Arriba Road in 1988. No employee or agent of San Miguel, therefore has been responsible for inspecting or maintaining Arriba Road since 1988.” Defendant San Miguel County’s Supplemental Answers to Plaintiffs First Set of Interrogatories and Requests for Production of Documents, Answer to Interrogatory No. 4, at 4, filed June 10, 2011 (Doc. 91-6). San Miguel County abandoned Arriba Road in 1988. See Defendant San Miguel County’s Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, at 4; Response to San Miguel County’s Memo. ¶ 10, at 8 (setting forth this fact); San Miguel County’s Reply (not controverting this fact).

San Miguel County can produce no evidence of what was done to ensure that the public was safe during its abandonment. See Electronic Mail Transmission From Les Montoya to Paul W. Gray (February 12, 2009), filed June 10, 2011 (Doc. 91-5); Defendant San Miguel County’s Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, at 4. San Miguel County can produce no evidence to whom this road was abandoned, and can produce no evidence to show if the road was abandoned in favor of any person or entity. See Defendant San Miguel County’s Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, at 4; Response to San Miguel County’s Memo. ¶ 12, at 8 (setting forth this fact); San Miguel County’s Reply at 14 (not controverting this fact).

No employee or agent of San Miguel ... has been responsible for inspecting or maintaining Arriba Road since 1988.... San Miguel conducted no traffic counts, speed surveys or hazard evaluations for Arriba road between 1988 and the present. San Miguel has no record demonstrating it conducted any traffic counts, speed surveys or hazard evaluations between 186 and 1988.

Defendant San Miguel County’s Supplemental Answers to Interrogatories, Answer to Interrogatory No. 4, 7, at 4, 6.

In February 2009, after M. Esquibel’s death, the County wrote the NMDOT and informed them that they “would not object to the state following up to place stop signs and markings at the Arriba Road.” Electronic Mail Transmission From Les Montoya to Paul W. Gray at 1 (dated February 12, 2009), filed June 10, 2011 (Doc. 91-5); Response to San Miguel County’s Memo. ¶ 19, at 9 (setting forth this fact); San Miguel County’s Reply (not controverting this fact).

PROCEDURAL BACKGROUND

On February 12, 2009, Plaintiff Victoria Stark-Romero filed a Complaint for Wrongful Death and Negligence against BNSF Railway and Defendants National Railroad Passenger Company d/b/a Amtrak, BNSF, City of Las Vegas, San Miguel County, the New Mexico Department of Transportation, and Ride to Pride at the Barn, LLC, in the Fourth Judicial District Court in San Miguel County, New Mexico. See Starkr-Romero v. Nat’l R.R. Passenger Co., No. CIV 09-0295 MV/RLP, Complaint for Wrongful Death and Negligence, filed March 26, 2009 (Doc. 1-1). On March 26, 2009, the Defendants in that action re-

moved Starkr-Romero v. National Railroad Passenger Co. to the United States District Court for the District of New Mexico. See Starkr-Romero v. Nat’l R.R. Passenger Co., No. CIV 09-0295 MV/RLP, Notice of Removal, filed March 26, 2009 (Doc. 1) (“First Notice of Removal”). Stark-Romero filed a Motion to Remand on April 20, 2009, alleging that the First Notice of Removal was procedurally defective, because it did not establish that all Defendants served at the time of removal consented to the removal, given that San Miguel County did not sign the notice of removal or file an independent consent to removal. See Starkr-Romero v. Nat’l R.R. Passenger Co., No. 09-cv-0295-MV-RLP, Motion to Remand and Memorandum in Support Thereof at 4-5, filed April 20, 2009 (Doc. 14) (“Stark-Romero’s Motion to Remand”). On March 31, 2010, the Honorable Martha Vázquez, then-Chief Judge, issued a Memorandum Opinion and Order, granting Stark-Romero’s Motion to Remand. See Starkr-Romero v. Nat’l R.R. Passenger Co., No. CIV 09-0295 MV/RLP, Memorandum Opinion and Order Granting Motion to Remand, filed March 31, 2010 (Doc. 96) (“Mar. 31, 2010 MOO”).

On July 19, 2010, E. Esquibel and H. Esquibel filed their Complaint in Intervention for Wrongful Death and Negligence in the Fourth Judicial District, County of San Miguel, in which they intervened in the action Stark-Romero filed. See Complaint in Intervention for Wrongful Death and Negligence in the Fourth Judicial District, filed August 19, 2010 (Doc. 1-2). On August 19, 2010, BNSF Railway and Amtrak removed the action. See Doc. 1.

Stark-Romero and the Esquibels filed the Plaintiffs’ Motion to Remand and Memorandum in Support Thereof, filed September 9, 2010 (Doc. 19), and the Motion Requesting that this Matter be Returned to the Previously Assigned Judge, filed October 10, 2010 (Doc. 32), which requested the Court to transfer the matter to Judge Vázquez. On January 12, 2011, 763 F.Supp.2d 1231 (D.N.M.2011) the Court filed a Memorandum Opinion and Order, denying the request to transfer the case to Judge Vázquez, remanding Stark-Romero’s claims, but denying the Esquibels’ request that the Court remand their claims. See Doc. 53.

On March 1, 2011, the City of Las Vegas filed Defendant City of Las Vegas’ Motion for Summary Judgment. See Doc. 63. The City of Las Vegas argues that it is entitled to judgment on the Esquibels’ Complaint against it, because it did not construct, and does not own, maintain, or operate, the road or the railroad crossing where the accident occurred, and because business owners and proprietors do not, as a matter of law, have a duty to ensure safe ingress and egress to their invitees over property not owned or controlled by the owner or proprietor. The City of Las Vegas argues that it is immune from liability pursuant to the New Mexico Tort Claims Act, (“NMTCA”), NMSA 1978, §§ 41-4-2 through 41-4-30.

On March 14, 2011, the Esquibels filed the Plaintiffs’ Response in Opposition to Defendant City of Las Vegas’ Motion for Summary Judgment. See Doc. 69. The Esquibels argue that the City of Las Vegas had a duty to provide its business invitees with a safe means of ingress and egress. The Esquibels also argue that the City of Las Vegas exercised control over maintenance of the road leading up to the crossing. The Esquibels further assert that they have presented more than sufficient evidence with which to overcome a motion for summary judgment; however, they state that, should the Court seek additional evidence, the Court should dismiss the City of Las Vegas’ motion as premature. They argue that the facts necessary to refute the City of Las Vegas’ claims are in the City of Las Vegas’ sole possession. The Esquibels thus ask the Court to deny the City of Las Vegas’ motion or, in the alternative, to continue the motion until the parties have had a reasonable opportunity to conduct discovery.

On March 14, 2011, the Esquibels filed the Rule 56F Affidavit of Maria E. Touchet (executed March 14, 2011) (Doc. 70). In her affidavit, Ms. Touchet states that facts necessary to refute the City of Las Vegas’ motion are in its sole possession, and that the Esquibels have sent written discovery requests and have requested depositions of the City of Las Vegas’ employees, but, as of that date, the City of Las Vegas had not responded to the written discovery and had not allowed any of the requested depositions. She states that the Esquibels intend to use discovery tools to reveal information necessary to fully oppose the City of Las Vegas’ motion, such as when the waste transfer station was first considered, what consideration was given to ingress and egress to the facility from the time it was first considered, and whether the City of Las Vegas developed the waste transfer facility in conjunction with another entity.

On March 28, 2011, the City of Las Vegas filed Defendant City of Las Vegas’s Reply in Further Support of Motion for Summary Judgment. See Doc. 73. The City of Las Vegas argues that it has established that it does not own Rio Arriba Road. The City of Las Vegas also argues that it is immune from liability under NMTCA. The City of Las Vegas asserts that the Esquibels’ allegedly disputed facts are not material. It states that the Court should deny the Esquibels’ request that it allow them to continue discovery.

On May 25, 2011, San Miguel County filed Defendant Board of County Commissioners of the County of San Miguel’s Motion for Summary Judgment. See Doc. 86. The same day, San Miguel County filed its Memorandum of Points and Authorities in Support of Defendant Board of County Commissioners of the County of San Miguel’s Motion for Summary Judgment. See Doc. 87. San Miguel County argues that the undisputed material facts are that it neither owned, constructed, or maintained the road on which M. Esquibel was traveling as he approached the railroad crossing where the collision occurred. It argues that it thus owed no duty to M. Esquibel to maintain the road and that, because it owed no duty, the Esquibels’ claim that it was negligent fails.

On June 10, 2011, the Esquibels filed the Plaintiffs Response in Opposition to Defendant San Miguel County’s Motion for Summary Judgment. See Doc. 91. The Esquibels argue that San Miguel County had a duty to construct, maintain, or regulate Arriba Road in such a manner as to protect the traveling public from foreseeable harm. They also argue that they have presented more than sufficient evidence with which to overcome a motion for summary judgment, but state that, should the Court seek additional evidence, the Esquibels ask the Court to dismiss San Miguel County’s motion as premature under rule 56(d).

Also on June 10, 2011, the Esquibels filed the Rule 56(d) Affidavit of Maria E. Touchet. See Doc. 92. Ms. Touchet states that the stage of discovery in this case renders a determination of whether facts are undisputed premature, because the Esquibels have not had the opportunity to discover information essential to their opposition. She states that the Esquibels have presented sufficient evidence with which to overcome a motion for summary judgment, but states that, should the Court seek additional evidence, the Esquibels ask the Court to dismiss San Miguel County’s motion as premature. She states that San Miguel County has prevented the Esquibels from conducting necessary and essential discovery, and thus they will have been denied to opportunity in which to fully respond to San Miguel County’s motion.

On July 5, 2011, the Esquibels filed the Supplemental Rule 56(d) Affidavit of Maria E. Touchet (sworn July 5, 2011). See Doc. Ill (“Supplemental Affidavit”). In her affidavit, Ms. Touchet reiterates the information contained in her earlier affidavit regarding the City of Las Vegas. She also adds the statement: “Additionally, Plaintiffs are entitled to inspect the entire ‘Arriba Road Railroad Crossing File’ identified in the ‘xc’ line of the February 12, 2009 letter from Mayor Marquez produced in this case as NMDOT 00021-22, attached hereto as Exhibit A.” Supplemental Affidavit ¶ 11, at 4. Ms. Touchet also states that the “Plaintiffs have requested production of this file, but as of today’s date, the file has not yet been produced.” Supplemental Affidavit ¶ 12, at 4.

On July 5, 2011, the City of Las Vegas filed the Defendant City of Las Vegas’s Motion to Strike Supplemental Rule 56(d) Affidavit of Maria Touchet. See Doc. 116. The City of Las Vegas argues that there is nothing in the Federal Rules of Civil Procedure that would permit, without prior consent of the Court, the filing of “supplemental” affidavits under rule 56(d) after the briefing on the underlying motion for summary judgment has been completed. The City of Las Vegas argues that the Court should strike the affidavit, because it was neither filed on time nor approved by the Court. The City of Las Vegas argues that the Esquibels now have the file in question and state that its existence provides no support for delaying a decision on its motion for summary judgment.

On July 12, 2011, San Miguel County filed its Reply to Plaintiffs Response in Opposition to Defendant San Miguel County’s Motion for Summary Judgment. See Doc. 125. San Miguel County argues that it has carried its burden of establishing a prima-facie case that there is no genuine issue of material fact and that it is entitled to the entry of summary judgment in its favor, as a matter of law. It argues that the Esquibels have not demonstrated that there is a genuine issue of material fact. It also argues that the additional discovery the Esquibels seek will not create a genuine issue of material fact.

At the hearing on July 6, 2011, the Esquibels stated that the purpose of the supplemental affidavit was to point out that there was another file, which they had requested. They stated that they believe that the Federal Rules of Civil Procedure allow the Court to consider evidence up until the time of a hearing on a summary judgment motion and thus argue that the supplemental affidavit was not untimely. They state, however, that, for all intents and purposes, the supplemental affidavit is moot, because the City of Las Vegas has produced the file. The Esquibels stated that they did not wish to file a written response to the motion and that they did not oppose the Court ruling on the motion based on oral arguments.

At the hearing on July 14, 2011, the Court told the Esquibels:

THE COURT: ... It seems to me that your — the motion against the City got a lot worse — excuse me — your defense against the City or your position with the City [of Las Vegas] got a lot worse now with the County coming in and saying what they did. I mean at best for the City you know they’ve been telling us all along we never had anything to do with this road and now we’ve got maybe the County having a little something to do with the road, the State saying we’ve had it all along, they’ve abandoned and all that sort of stuff, but I don’t see the City’s fingerprints on this at all. I hate to be rearguing the motion we had last week, but I do have now a lot more information and I’ve thought about it a little bit longer. What is it — What is it that, other than wanting to do discovery, I’m not seeing any evidence against the City. Your thoughts?

MS. TOUCHET: Well, Your Honor, I was going ... I think you had directed a question to me and we Mr. Ortiz answered it but I will answer it, as well. And we have never alleged an ownership interest in the road by the City. That’s not.

MS. TOUCHET: For the purposes of their motion, in our Complaint we didn’t allege that they had an ownership interest. It is questionable—

THE COURT: Your argument is this other waiver of sovereign immunity that they own a piece of pro[perty] and there’s — there’s a hand guard on that that is either coming from or in the property that it’s the road going to the piece of property? That’s your only theory against the City correct.

MS. TOUCHET: Correct correct and that hasn’t changed since we argued it to you last week. That’s correct.

THE COURT: Okay.

MS. TOUCHET: I think that they are different. I mean, the claim against [San Miguel] County is a roadway maintenance claim. The claim against the City [of Las Vegas] not to reargue that was the building and the roadway. But it has not been alleged and we wouldn’t say that there is any indication that there was any ownership by the City.

Transcript of Hearing at 42:3^13:17 (taken July 14, 2011) (Court, Touchet) (“Tr.”).

The Court asked NMDOT: “So when the City and the County come in and say, the State [of New Mexico] says it’s their property, they own it, whatever liability they have it, you don’t disagree with that? Is that correct....” Tr. at 27:22-25 (Court). NMDOT responded that the Court’s statement was correct. See Tr. at 28:1 (Creecy). The Court asked San Miguel County: “Do you think if I allowed discovery against the County, are you basically telling me there is no institutional memory there, so I’m not going to find out, and neither is Ms. [Touchet] going to find out a lot more about this issue?” Tr. at 21:21-24 (Court) San Miguel County responded: “In terms of ownership of the road, to my knowledge, there may not be a great deal more to learn.” Tr. at 21:25-22:1 (Waters). The Court asked San Miguel County about Arriba Road.

THE COURT: Tell me the procedure for a county to take a road — let me ask this first of all. Do you agree that before 1988 the r[o]ad was yours, that the county owned operated maintained the road before that date?

MS. WATERS: Your Honor, actually, unfortunately, we do not have a clear understanding of that. And at this time I could certainly make further inquiry on that point, but to date I have not been able to make a clear determination as to what, if anything, was happening regarding ownership and maintenance of the road prior to 1988....

THE COURT: The reason I ask and press you on this point, it seems to me difficult for the county to say you abandoned the road if you didn’t ever have the road.

MS. WATERS: I agree, Your Honor. THE COURT: It seems to me if you’re going to come in and say we abandoned that road you also have to concede th[at] you had the road before. You were the person that was responsible for it. What do you think about that sort of as an assumption?

MS. WATERS: Your Honor, I agree completely.

THE COURT: Let me back you up a second before we go to that point. Let me ask you, can for purposes of this motion, your motion, can I assume that — can I assume that the County had — whether it’s a true point or not from a factual standpoint, can I assume for purposes of this motion the County had the road, maintained the road before 1988?

MS. WATERS: For the sake of argument for purposes of this motion, yes, Your Honor.

Tr. at 5:23-6:17 (Court, Waters).

LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Rule 56(c) states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “show[ing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record], together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”) (internal quotation marks omitted). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”) (internal quotation marks omitted).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating eonelusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

To survive summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv. Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

RELEVANT LAW REGARDING THE NMTCA

The NMTCA provides governmental entities with immunity from tort liability unless the NMTCA specifically waives that immunity. See NMSA 1978, § 41-4-4 (“A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act and by Sections 41-4-5 through 41-4-12 NMSA 1978.”); Weinstein v. City of Santa Fe, 121 N.M. 646, 649, 916 P.2d 1313, 1316 (1996); Abalos v. Bernalillo County District Attorney’s Office, 105 N.M. 554, 557, 734 P.2d 794, 797 (Ct.App.), cert. quashed, 106 N.M. 35, 738 P.2d 907 (1987). The NMTCA waives immunity “for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any ... roadway.” NMSA 1978, § 41-4-11 A. The NMTCA also waives immunity for “damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings.” NMSA 1978, § 41-4-6. “Liability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person’s standard of care in the performance of that duty.” NMSA 1978, § 41-4-2A. See Eckhardt v. Charter Hosp. of Albuquerque, Inc., 124 N.M. 549, 559, 953 P.2d 722, 732 (Ct.App.1997) (“Plaintiffs negligence claims must be premised on a duty that Charter owed to Plaintiff, and it is for the court to determine as a matter of law whether such a duty exists.” (internal citation omitted)); Johnson v. Sch. Bd. of Albuquerque Pub. Sch. Sys., 114 N.M. 750, 845 P.2d 844 (Ct.App.1993) (“Duty or responsibility is not provided in the Tort Claim Act; it must be found outside the Act either at common law or by statute.”). “Where there is no duty, there can be no negligence.” Sw. Pub. Serv. Co. v. Artesia Alfalfa Growers’ Ass’n, 67 N.M. 108, 117, 353 P.2d 62, 68 (1960) (citation omitted). See Herrera v. Quality Pontiac, 134 N.M. 43, 47-48, 73 P.3d 181, 185-86 (2003) (“Generally, a negligence claim requires the existence of a duty from a defendant 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 plaintiffs damages.”); Bierner v. City of Truth or Consequences, 136 N.M. 197, 201, 96 P.3d 322, 326 (Ct.App.2004) (“Consequently, the waiver of immunity in Section 41-4-4(A) of the TCA does not apply to the City because it had no duty upon which negligence could be premised.”).

ANALYSIS

The Court will deny the City of Las Vegas’ motion to strike and will deal with the substance of Ms. Touchet’s original rule 56(d) affidavit and supplemental rule 56(d) affidavit regarding the City of Las Vegas in the legal analysis of its Memorandum Opinion and Order. The Court will grant the City of Las Vegas’ motion for summary judgment, because it did not have a duty to maintain the roadway where the collision occurred, and because it did not have a duty to ensure M. Esquibel’s safe ingress and egress to and from its waste transfer facility. The Court will deny the Esquibels’ request that it dismiss the City of Las Vegas’ motion as premature and allow discovery against the City of Las Vegas to continue, because the Ms. Touchet’s rule 56(d) affidavits do not identify with specificity probable facts which are not available and which are relevant to the motion. The Court will deny San Miguel County’s request for summary judgment, because it does not find, as a matter of law, that San Miguel County did not owe a duty to the Esquibels or to M. Esquibel. Because the Court will deny San Miguel County’s request for summary judgment, it need not address the Esquibels’ request that it find the motion for summary judgment premature and allow discovery to continue.

I. THE COURT WILL DENY THE CITY OF LAS VEGAS’ MOTION TO STRIKE.

The Court will deny the City of Las Vegas’ motion to strike the supplemental affidavit. The City of Las Vegas argues that Ms. Touchet’s supplemental rule 56(d) affidavit was neither filed on time nor approved by the Court. The only difference between Ms. Touchet’s original affidavit and supplemental affidavit was the addition of two paragraphs which pertain to an Arriba Road railroad crossing file, which the City of Las Vegas has now located and produced to the Esquibels. Ms. Touchet stated at the hearing on July 6, 2011, that her supplemental affidavit is now moot. “Motions to strike ... are generally a disfavored and drastic remedy.” Begay v. Pub. Serv. Co. of N.M., 710 F.Supp.2d 1161, 1185 (D.N.M.2010) (Browning, J.) (quoting Sierra Club v. TriState Generation & Transmission Ass’n, Inc., 173 F.R.D. 275, 285 (D.Colo.1997)). The Court will deny the City of Las Vegas’ motion to strike the supplemental affidavit, because, although the supplemental affidavit was not timely filed, Ms. Touchet has represented that the additional material in the supplemental affidavit is now moot. The Court will consider the material in the supplemental affidavit and the material in the original affidavit in determining whether it should dismiss the City of Las Vegas’ motion as premature and allow more discovery. Cf. Conagra Trade Group, Inc. v. Fuel Exploration, LLC, 636 F.Supp.2d 1166 (D.Colo.2009) (“The Court denies ConAgra’s request to “strike” the affidavit because, although the affidavit contains some impermissible, self-serving statements, the Court has excluded offending material in making its ruling.” (citation omitted)).

II. THE COURT WILL GRANT THE CITY OF LAS VEGAS’ MOTION FOR SUMMARY JUDGMENT.

The City of Las Vegas argues that, under the NMTCA, it is immune from liability for any tort, except as waived in the NMTCA. It argues that the negligent maintenance waiver in NMSA 1978, § 41-4-11A does not apply to it, because it is undisputed that the portion of the road upon which M. Esquibel was traveling was not in the City of Las Vegas, because the City of Las Vegas did not construct, does not own, maintain or operate that portion of the road, and because the City of Las Vegas does not own or operate the railroad tracks that cross the road where the collision occurred. The City of Las Vegas also argues that it did not have a duty to ensure M. Esquibel’s safe ingress and egress to and from the waste transfer facility. It argues that, because the Esquibels have not alleged that the alleged unsafe condition of the road and crossing arose on or from the waste transfer facility, the NMTCA’s waiver of immunity for the City of Las Vegas’ operation and maintenance of the facility is inapplicable.

The Esquibels argue that the City of Las Vegas had a duty to provide its business invitees with a safe means of ingress and egress. The Esquibels argue that the physical boundaries of the land do not limit a landowner’s duty to avoid creating or permitting an unsafe condition or activity on its premises. The Esquibels argue that M. Esquibel was clearly a foreseeable direct victim and that the City of Las Vegas owed a duty to him. They argue that there are questions of fact whether the City of Las Vegas breached that duty, because it was aware of the safety risk to the public and potential liability exposure related to locating its facility next to the railroad tracks, and because the Esquibels do not have information about what the City of Las Vegas did to investigate and to mitigate the risk to the traveling public. The Esquibels also argue that there are questions of fact whether the City of Las Vegas exercised control over the maintenance of the road leading up to the crossing and of the crossing.

A. THE CITY OF LAS VEGAS DID NOT HAVE A DUTY TO MAINTAIN THE ROADWAY WHERE THE COLLISION OCCURRED, THUS THE WAIVER OF IMMUNITY IN NMSA 1978, § 41-4-11A DOES NOT APPLY.

The NMTCA waives immunity “for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any ... roadway.” NMSA 1978, § 41-4-11A. “Liability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person’s standard of care in the performance of that duty.” NMSA 1978, § 41-4-2A. “Where there is no duty, there can be no negligence.” Sw. Pub. Serv. Co. v. Artesia Alfalfa Growers’ Ass’n, 67 N.M. at 117, 353 P.2d at 68 (citation omitted).

In Bierner v. City of Truth or Consequences, the Court of Appeals of New Mexico addressed “whether the trial court erred in granting summary judgment in favor of Defendant City of Truth or Consequences.” 136 N.M. at 198, 96 P.3d at 323. A Domino’s Pizza delivery truck was parked in a restaurant’s lot on a road in Truth or Consequences, New Mexico. See 136 N.M. at 198, 96 P.3d at 323.

The unattended truck rolled down the lot’s steep incline, crossed the road, entered the property of Cortez Gas Company (gas company), and struck a propane gas storage tank on the property. The tank exploded; the resulting fire damaged residential property in the area. Plaintiffs, who lived in the surrounding area, filed their first amended complaint against the gas company, Domino’s Pizza, the State Highway and Transportation Department (Highway Department), and the City.

136 N.M. at 198, 96 P.3d at 323. The City of Truth of Consequences moved for summary judgment, arguing that it “neither constructed, owned, nor maintained the road; that the City had no agreement with the Highway Department to participate in maintenance of the road; that installation of the barrier was not a maintenance function; and that immunity was not waived under the TCA.” 136 N.M. at 198, 96 P.3d at 323. The district court dismissed all claims against the City of Truth of Consequences. See 136 N.M. at 198, 96 P.3d at 323. The Court of Appeals of New Mexico stated “[wjhether the City had either a statutory or a common law duty to maintain the road is dispositive on the issue of immunity.” 136 N.M. at 200, 96 P.3d at 325.

The City’s position was that it had no duty to maintain the road; therefore, it was the City’s burden to show that no material fact existed regarding this issue. The City met its burden with the following evidence: (1) an affidavit from the superintendent of the City’s Street Department that the road is part of the state highway system and that the City did not construct the road, did not own the road, did not maintain the road, had no agreement with the Highway Department to assume responsibility for maintaining the road, and received no funding from the Highway Department to maintain the road and (2) the Highway Department’s answer to interrogatories, acknowledging that the Highway Department constructed and maintained the road.

The City’s having established its prima facie case, the burden shifted to Plaintiffs to show a material issue of fact existed. In their initial response opposing summary judgment, Plaintiffs reiterated the allegation made in their amended complaint: that the City maintained the road. Plaintiffs, however, failed to provide any evidence to support the claim. Instead, in their supplemental response, Plaintiffs appeared to step away from their allegation that the City actually maintained the road; their sole argument was that the City had a duty to maintain it. This duty to maintain, they asserted, stemmed from the City’s common law duty to protect the public from the alleged dangerous condition the City knew about or from the alleged dangerous condition the City created. Plaintiffs contended that the duty to protect the public from a known dangerous condition created, in turn, a duty for the City to contact the Highway Department engineer about the condition. Citing Fireman’s Fund Insurance Co. v. Tucker, 95 N.M. 56, 58, 618 P.2d 894, 896 (Ct.App.1980), Plaintiffs further suggested that given the broad construction of the term “maintenance,” “there is simply nothing precluding the City from having a duty to maintain [the road].”

The evidence that accompanied Plaintiffs’ supplemental response pertained only to the City’s notice of the alleged dangerous condition. To prove notice, they submitted (1) depositions by two police officers who had investigated two incidents, one in 1997 and one in 2000, of vehicles rolling across the road into the gas company’s property; (2) a deposition by the City’s fire chief, who had temporarily halted development of the gas company’s storage facility, due to his concern that the facility could affect an arroyo, making it difficult to evacuate elderly persons from a nearby trailer park; (3) a deposition by the owner of the gas company, a former city commissioner, who had heard of five to ten incidents of vehicles rolling down the incline; and (4) a deposition by another former commissioner, who admitted he knew of the dangerous condition. The City challenges some of this evidence and denies that it raises an issue of duty in any event.

Plaintiffs did not submit evidence showing that the City created the condition; instead, they merely concluded, without discussion or support, that the evidence of notice implied the creation of the danger. We note that the trial court found that the City does not issue permits for the licensing or placement of propane gas facilities; Plaintiffs did not contest this finding.

136 N.M. at 200-01, 96 P.3d at 325-26 (internal citations omitted). The Court of Appeals of New Mexico disagreed with the plaintiffs that the facts they raised were sufficient to withstand summary judgment. See 136 N.M. at 201, 96 P.3d at 326.

The City provided evidence that it did not construct, own, or maintain the road. Plaintiffs, instead of rebutting that evidence, raised facts based on their argument that the City owed a general duty to protect the public from a known dangerous condition. Yet, they do not cite to any case law in which a duty to maintain another government entity’s road stems from a duty to protect the public from a known dangerous condition. On the contrary, in the cases relied upon by Plaintiffs, the government entities being sued all owned the roads in question.

Plaintiffs provide no facts to support their assertion that the City has jurisdiction to install traffic control devices or otherwise make improvements on the road. Plaintiffs seem to argue that the general duty to protect the public creates the duty to maintain a road. New Mexico law is otherwise. It predicates the responsibility to maintain on jurisdiction, and it is that responsibility that gives rise to the duty to protect the public.

Plaintiffs cite to Moore v. State, 95 N.M. 300, 301, 621 P.2d 517, 518 (Ct. App.1980), and Largo v. Atchison, Topeka and Santa Fe Railway Co., 2002-NMCA-021, ¶¶ 13, 15-16, 131 N.M. 621, 41 P.3d 347, and insist that the City could have shared responsibility with the Highway Department for maintaining the road. Whether or not the City could assist the Highway Department is not the point. In Moore, there was no question that the City of Albuquerque and the Highway Department jointly maintained the highway where the accident occurred; both entities had entered into a memorandum agreement regarding construction on that particular highway. Moore, 95 N.M. at 301, 621 P.2d at 518. Clearly, governmental entities can share maintenance responsibilities by agreement. The undisputed evidence in this case, however, is that the City did not share the responsibility. Moore does not hold that a city is required to share this responsibility. In Largo, we held that the legislature had not abrogated the defendant railroad’s common law duty to place warnings at dangerous railroad crossings, despite a state statute giving authority to government entities to install warning devices. Largo, 2002-NMCA-021, ¶ 15, 131 N.M. 621, 41 P.3d 347. While Largo involved the duty of parties to warn, the defendant was not a governmental entity, and the waiver of government immunity that we discuss later was not at issue. In this case, there is no question that the Highway Department had the sole responsibility to maintain Third Street in the vicinity where the accident occurred. Consequently, the waiver of immunity in Section 41-4-4(A) of the TCA does not apply to the City because it had no duty upon which negligence could be premised.

From this undisputed evidence, we conclude and hold that the City did not have a duty to maintain the road, as contemplated under the waiver of immunity in the statute. The negligent maintenance waiver, therefore, is inapplicable. See Noriega v. Stahmann Farms, Inc., 113 N.M. 441, 444, 827 P.2d 156, 159 (Ct.App.1992) (noting that the plaintiffs evidence did not support a claim that the government entity owned the road and that there was therefore no basis for the negligent maintenance waiver of immunity); Johnson, 114 N.M. at 755, 845 P.2d at 849 (holding that because the government entity had no responsibility for maintaining the crosswalk, the street maintenance waiver was inapplicable). Accordingly, we reject Plaintiffs’ argument that material facts exist as to whether immunity was waived for the City’s actions.

Plaintiffs allege various theories, some not in the context of the actual maintenance of the road, pursuant to which the City should have done one thing or another that Plaintiffs claim would have prevented the accident. Plaintiffs claim that (1) the City’s notice of the alleged dangerous condition gave rise to a duty to notify the Highway Department to remedy the situation, (2) the City was negligent in approving the propane facility, (3) the City could have erected barriers or curbs in the parking lot to prevent vehicles from leaving it or signs in the parking lot to warn motorists to engage their parking brakes, (4) the City could have erected barriers or curbs on either side of the street to prevent vehicles from leaving the parking lot and entering the propane business, and (5) the City could have altered the ingress into and egress from th