1999 -NMCA- 11, Medina v. Fuller, 18,070

• Decision Date: 02 November 1998
• Docket Number: No. 18,070,18,070
• Parties: , 1999 -NMCA- 11 Martha MEDINA, Plaintiff-Appellant, v. Kathy FULLER, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 851

971 P.2d 851

126 N.M. 460, 1999 -NMCA- 11

Martha MEDINA, Plaintiff-Appellant, v. Kathy FULLER, Defendant-Appellee.

No. 18,070.

Court of Appeals of New Mexico.

Nov. 2, 1998.

Michael W. Lilley, Michael W. Lilley, P.A., Las Cruces, for Appellant.

Mary T. Torres, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Las Cruces, for Appellee.

OPINION

PICKARD, J.

¶1 The Tort Claims Act defines scope of duties as "performing any duties that a public employee is requested, required or authorized to perform by the governmental entity, regardless of the time and place of performance." NMSA 1978, § 41-4-3(G) (1995). Defendant, a Dona Ana County Deputy Sheriff, was on her way home from work on July 2, 1993, in her sheriff's assigned, unmarked police unit when she was in an accident with Plaintiff. Plaintiff's first attorney (not her current attorney) filed suit more than two years after the accident. If Defendant was in the scope of her duties, then the suit was time barred. See NMSA 1978, § 41-4-15(A) (1977) (Tort Claims Act statute of limitations is two years). The trial court ruled as a matter of law that Defendant was in the scope of her duties and granted summary judgment for Defendant. Plaintiff appeals, and we affirm.

FACTS

¶2 The evidence before the trial court on the motion for summary judgment was largely undisputed. Defendant left work at about 5:00 p .m., and the accident occurred about ten minutes later. The accident occurred before Defendant arrived home for the evening. The precise facts of what Defendant did between 5:00 and 5:10 are disputed, but the trial court ruled that the dispute was immaterial. It is undisputed that Defendant stopped to see her husband at his place of employment and then left to continue home. Before she arrived home, she recalled that she left something at her husband's place of employment and turned around to retrieve it. The item left may have been her department notebook, but it may have been something else. For purposes of this opinion, we assume that it was something else.

¶3 When Defendant was first interviewed, she said that she was "off duty [at the time of the accident] because she had left work." Her later affidavit, however, claimed that she was on duty.

¶4 The Sheriff's Department has a written policy regarding take-home vehicles, which in its entirety states:

Investigators have been entrusted by the Sheriff of this Department with personally assigned, unmarked police units. It will be the responsibility of the Investigators to maintain their respective units in a high state of serviceability as well as cleanliness. These are police vehicles and are to be used only for official departmental business. If the Investigator is ON-CALL after regular working hours, weekends, or holidays, he must be immediately available to respond to any situation anywhere in this County. In order to accomplish this, the ON-CALL Investigator must have his unit immediately available to him. On these occasions, he will be authorized to use his unit for personal business. He must use great discretion when this is done and this privilege must not be abused. He will not be allowed to consume alcoholic beverages when he is ON-CALL and subject to having to drive his police unit.

ON-CALL duty is not intended to be restrictive in nature, and this policy is being adopted to allow the ON-CALL Investigator a certain degree of freedom on his off time. He is being allowed to go about his personal business with the use of the departmental vehicle as long as he is immediately available either by police radio or can be reached by phone. (When an Investigator is not on-call, his family/children are not allowed in the car.)

¶5 The current Sheriff testified that Defendant was a supervisor and, as such, she was on call 24 hours a day. The then Sheriff drew a distinction between office hours, on call or standby, and the hybrid situation of being on the way home. Office hours are 8:00 a.m. to 5:00 p.m. for Defendant. On call or standby is when an officer is subject to being immediately called back to duty. The then Sheriff testified that when an officer is on her way home, "I didn't count her off duty until she pulled up at home and let the dispatch know 'I'm at home.' Then I called her off duty, standby." Further, "She would have been on call after she arrived at her residence initially. But as I explained, the time between the office and her arriving the first time at her residence would have been an extension of her workday."

¶6 Defendant explained in her deposition that, from the time she left her home to go to the Sheriff's office until the time she arrived back home, she had her badge on, she had her gun on, and she had her radio on and was available to respond to calls. Thus, she was on duty. Defendant agreed that being on duty was transacting the County's business, and when asked "Why is going to your house or from your house business pertaining to Dona Ana County?" she answered,

Because if it wasn't, then Dona Ana County would not provide me with a take-home car. I would jump into my own car, drive to the sheriff's department, pick up their car, and then go transact their business. But they obviously have felt that it's important that I have a take-home car in order to be able to quickly transact their business.... [T]he minute you are in that car and turn it on and turn on the radio, you are in a position where you may be transacting business ... [and] are required to turn on the radio, required to be available, and to respond.

¶7 Defendant stated that she reported the accident to the County's insurer, and not to her personal insurer, because "[she] was a sheriff's department employee authorized to be in the sheriff's department car." Plaintiff's first attorney filed a notice of claim under the Tort Claims Act, which Defendant construed to mean that he agreed with her that she was on duty at the time of the accident.

¶8 It is undisputed that Defendant was not on her way to any crime scene and had not been dispatched at the time of the accident. Defendant, as a supervisor, did not receive any extra compensation for being on call.

DISCUSSION

A. Scope of Duties Versus Scope of Employment

¶9 The issue we address is whether Defendant was within the scope of her duties while she was driving the Sheriff's Department car home from work. We addressed a similar issue in Narney v. Daniels, 115 N.M. 41, 846 P.2d 347 (Ct.App.1992). There, although the case was "clearly one arising under the Tort Claims Act," both the trial court's and this Court's decisions were "limited to the common-law concept of course and scope of employment." Id. at 47, 846 P.2d at 353; see also id. at 47-50, 846 P.2d at 353-56. "[N]either party briefed on appeal any issue concerning the Tort Claims Act." Id. at 47, 846 P.2d at 353. In this case, the parties acknowledge that "scope of duties," as that term is defined in Section 41-4-3(G), is the sole issue before us although Plaintiff briefs the issue as though the term carries the same meaning as "course and scope of employment," as that phrase is used in the common law governing vicarious liability.

¶10 We expressly did not decide whether "scope of duties" is coterminous with "course and scope of employment" in either Narney or Rivera v. New Mexico Highway & Transportation Department, 115 N.M. 562, 563, 855 P.2d 136, 137 (Ct.App.1993). We note that our Supreme Court, in a case in which the difference between these two phrases also did not have to be decided, in dicta said, "[T]his requirement ['acting within the scope of their duties'] simply means that an officer must be acting within the scope of employment in order to be sued in his or her capacity as a law enforcement officer [under the Tort Claims Act]." Weinstein v.. City of Santa Fe, 121 N.M. 646, 650, 916 P.2d 1313, 1317 (1996). However, we consider it noteworthy that our legislature chose the phrase "scope of duties" and then further defined that phrase in a particular way. We thus first concentrate on the statutory language and the purpose of our Tort Claims Act. See Milton v. Mitchell, 762 P.2d 372, 377 (Wyo.1988) (explaining that "scope of duties" is different from "scope of employment" and construing former phrase in light of confined purpose of Wyoming tort claims act); Folz v. State, 115 N.M. 639, 643, 857 P.2d 39, 43 (Ct.App.1993) (reading New Mexico's Tort Claims Act liberally to give effect to its remedial intentions). Although we first focus on the statutory language, we take comfort in knowing that the result would be the same under the common law test. Accordingly, we analyze the case under that test as well. We finally discuss the standard of review and whether certain factual issues preclude summary judgment.

B. Scope of Duties

¶11 The definition of scope of duties in the Tort Claims Act is those duties that the "employee is requested, required or authorized to perform ... regardless of the time and place of performance." Section 41-4-3(G). In Candelaria v. Robinson, 93 N.M. 786, 792-93, 606 P.2d 196, 202-03 (Ct.App.1980), we looked to the statutes explaining the duties of the public employees at issue in that case to determine what was "required or authorized." The statutes setting forth the duties of sheriffs include NMSA 1978, § 29-1-1 (1979), which requires deputy sheriffs to "investigate all violations of the criminal laws of the state which are called to the attention of any such officer or of which he is aware...." The written policy regarding take-home vehicles and the testimony of both Defendant and her supervisor established without contradiction that Defendant was authorized or permitted, if not required, to use the vehicle to go to and from work in order to facilitate her investigative duties.

¶12 Not only were Defendant's actions in driving the take-home vehicle home from work within the literal definition of "scope of duties," but also a holding so establishing would be...