Whether a duty exists is a question of law for the courts to decide. Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958). Our statutes place a duty on law enforcement officers to investigate violations of the criminal law.

"Whether a duty exists is a question of law for the courts to decide." Schear v. Bd. of Cty Comm'rs, 1984-NMSC-079, ¶ 4, 687 P.2d at 729 (citing S. Union Gas Co. v. Briner Rust ProofingCo., 1958-NMSC-123, 331 P.2d 531). Once courts recognize that a duty exists, that duty triggers "a legal obligation to conform to a certain standard of conduct to reduce the risk of harm to an individual or class of persons." Baxter v. Noce, 1988-NMSC-024, ¶ 11, 752 P.2d 240, 243.

29 (7th Cir. 1978) (applying Illinois law); Tenuto v. Lederle Laboratories, 90 N.Y.2d 606, 665 N.Y.S.2d 17, 687 N.E.2d 1300 (1997); Mundy v. Department of Health Human Resources, 620 So.2d 811 (La. 1993); St. Francis Med. Center v. Superior Court, 194 Cal.App.3d 668, 239 Cal.Rptr. 765 (1987); Hayes v. Nagata, 68 Haw. 662, 730 P.2d 914 (1986); Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo. 1980); Stabnick v. Williams Patrol Service, 151 Mich. App. 331, 390 N.W.2d 657 (1986); Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929, 653 P.2d 280 (1982); Delair v. LaMoure County, 326 N.W.2d 55 (N.D. 1982); Dubus v. Dresser Indus., 649 P.2d 198 (Wyo. 1982); Soike v. Evan Matthews Co., 302 N.W.2d 841 (Iowa 1981); McDonald v. Title Ins. Co. of Oregon, 49 Or. App. 1055, 621 P.2d 654 (1980); Producers Grain Corp. v. Lindsay, 603 S.W.2d 326 (Tex.Civ.App. 1980); Dill v. Gamble Asphalt Materials, 594 S.W.2d 719 (Tenn.App. 1979); Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701 (1974); Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958). In the case at bar, the jury was wrongly allowed to determine whether State Farm owed a duty to Katherine Owen. While in submitting the case of the jury, the trial judge referred to the duty, he did not state that the duty was imposed by law; he was merely summarizing Owen's allegation. He further instructed the jury:

It is well established that whether a duty exists under the circumstances of a given case is a pure question of law for the court to determine. Schear v. Board of County Commissioners, 101 N.M. 671, 687 P.2d 728 (1984); Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958). Based upon the record in this case, we find that the Koenigs owed no duty to Perez concerning the alleged dangerous condition claimed to be the cause of injuries to Perez.

In our opinion, plaintiffs have made a prima facie showing that there is no genuine issue as to a material fact; defendant, to defeat a motion for summary judgment, must submit more than a bare assertion that an issue of fact exists. See Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 40, 331 P.2d 531, 536 (1958). Under these circumstances, to permit defendant to terminate the contract, gain title to the property, and retain all payments made, would result in an "unfairness which shocks the conscience of the court."

In a summary judgment proceeding, the burden is on the moving party to show that there is no genuine issue of material fact to submit to the fact finder, and an opposing party may not remain silent in the face of a meritorious showing by the moving party. Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 40, 331 P.2d 531, 536 (1958). We have recently stated:

Under this fundamental principle it has consistently been held that the burden rests upon the party moving for summary judgment to show that there is no genuine issue of material fact to submit to the court before summary judgment may properly be granted. Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958). So long as one issue of material fact remains, summary judgment may not properly be granted.

In order to show that there existed no genuine issue as to any material fact, Air Engineering supported its motion for summary judgment with depositions and affidavits which stated that the air conditioning and heating system was properly designed and installed; the system was functioning properly for the first year of its operation; La Fonda failed to properly maintain the system; and that such failure caused the system to malfunction. As stated in Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 40, 331 P.2d 531, 536 (1958), In summary judgment proceedings the burden rests upon the movant to show there is no genuine issue or material fact to submit to a fact finder, be it a court or jury.

Nevertheless, an opposing party may not remain silent in the face of a meritorious showing by a movant. Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958); Srader v. Pecos Construction Company, Inc., 71 N.M. 320, 378 P.2d 364 (1963); Taylor v. Alston, 79 N.M. 643, 447 P.2d 523 (Ct.App. 1968). The rationale of summary judgment proceedings seems to be that the moving party has the burden of showing that there is no genuine issue as to a material fact, and that he is entitled to judgment as a matter of law; but that when he has made a prima facie showing to this effect, the opposing party cannot defeat a motion for summary judgment and require a trial by a mere contention that an issue of fact exists.

Federal Bldg. Serv. v. Mountain States Tel. Tel. Co., 76 N.M. 524, 417 P.2d 24 (1966). Compare, Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958). It follows that the court erred in dismissing the complaint on motion for summary judgment, and that the judgment appealed from should be reversed, the cause remanded with instructions to set aside the order of dismissal, overrule the motion for summary judgment, and grant plaintiffs a trial on the merits.