Solon v. WEK Drilling Co., Inc., 19532

• Decision Date: 31 March 1992
• Docket Number: No. 19532,19532
• Citation: 113 N.M. 566,829 P.2d 645,1992 NMSC 23
• Parties: Arthur SOLON, as Personal Representative of the Estate of Ivan Ponce on behalf of Ambrosia Ponce, Plaintiff, and Alvino Ponce and Maria Ponce, individually and as next friends of Ivan Ponce, deceased, Applicants in Intervention-Appellants, v. WEK DRILLING COMPANY, INC., Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 645

829 P.2d 645

113 N.M. 566

Arthur SOLON, as Personal Representative of the Estate of

Ivan Ponce on behalf of Ambrosia Ponce,

Plaintiff,

and

Alvino Ponce and Maria Ponce, individually and as next

friends of Ivan Ponce, deceased, Applicants in Intervention-Appellants, v. WEK DRILLING COMPANY, INC., Defendant-Appellee.

No. 19532.

Supreme Court of New Mexico.

March 31, 1992.

[113 NM 566] Taylor, Gaddy, Rakes & Hall, James E. Bierly and Daniel Rakes, Albuquerque, and J.W. Neal, Hobbs, for appellants.

Mark Terrence Sanchez and Gary Don Reagan, Hobbs, for appellee.

OPINION

MONTGOMERY, Justice.

This, as we view it, is a Palsgraf¹ case (though not a particularly good one). The question is whether one who owes a duty to another to provide that other with a safe place to work, and whose negligence in breaching that duty causes the death of the other, also owes a duty to the other's parents so that they may sue the tortfeasor, in their own right, for damages sustained as a result of their son's death. Framing the question in this way, we hold that the parents have no cause of action against the tortfeasor and uphold the district court's ruling denying the parents permission to intervene in a wrongful death action brought by the personal representative of their son's estate against the alleged tortfeasor.

I.

The trial court based its order denying leave to intervene on the legal insufficiency of the parents' proposed complaint in intervention. In reviewing that order, we of course accept as true the allegations in the parents' proposed complaint. It alleges that the defendant in the wrongful death suit, WEK Drilling Co., Inc. ("WEK Drilling"), owned and operated an oil-well drilling rig in Eddy County, New Mexico, where the accident happened. Ivan Ponce, the son of the applicants in intervention, Alvino and Maria Ponce ("the Ponces"), was employed by an independent contractor engaged in certain work in and around the drilling rig. Ivan was killed as a proximate result of WEK Drilling's negligence in failing, in various respects, to maintain the rig in a safe condition and operate it in a safe manner.²

The proposed complaint in intervention further alleges that, as a proximate result of WEK Drilling's negligence, the Ponces suffered certain damages: loss of financial support provided by their son; loss of consortium with their son, including loss of his society, companionship, and affection; and grief, sorrow, and bereavement in various forms. Ivan was 25 years old at the time of his death and had lived with his parents all his life. As developed at a deposition taken in connection with the Ponces' attempt to intervene, it appeared that Ivan and his parents enjoyed a close and loving relationship and that Ivan contributed to his parents' financial well-being by, among other things, performing work around the family home, putting a new roof on the house, pouring a concrete patio at the rear of the home, and otherwise assisting with the household maintenance and upkeep. Ivan had been married (he was divorced at the time of his death) and had a daughter, Ambrosia, who lived with him at his parents' home.

A few months after Ivan's death in February 1990, the personal representative of his estate, Arthur Solon, brought an action in the District Court of Eddy County on behalf of Ambrosia to recover for her father's wrongful death. The action was brought under the New Mexico wrongful death act, NMSA 1978, Sections 41-2-1 to -3 (Repl.Pamp.1989). Soon thereafter, the Ponces moved to intervene, on the grounds that they claimed an interest in the subject of the action and that their claim and the main action had a question of law or fact in common. They moved, in other words, both for intervention of right under SCRA 1986, 1-024(A), and, in the alternative, for permissive intervention under Rule 1-024(B). They attached their proposed complaint in intervention to the motion. The district court held two hearings and, ruling that the proposed complaint did not state a claim upon which relief could be granted, denied the motion. The Ponces appeal from the order denying their motion to intervene.

II.

Although a district court considering a motion to intervene under Rule 24 has discretion under both subsections of the rule, see Apodaca v. Town of Tome Land Grant, 86 N.M. 132, 133, 520 P.2d 552, 553 (1974),³ the court in this case made it clear that it was not denying the motion in the exercise of its discretion. Instead, the court was holding, as a matter of law, that the Ponces' proposed complaint in intervention did not state a cause of action. While a determination that a proposed complaint in intervention is legally sufficient--so as to withstand a motion to dismiss for failure to state a claim under Rule 12(B)(6)--is not required before the trial court may grant an application to intervene, it is certainly permissible for the court to scrutinize the proffered complaint to see whether it states a cause of action. See 3B James Wm. Moore & John E. Kennedy, Moore's Federal Practice p 24.10, at 24-103 (2d ed. 1991) ("Leave [to intervene] should not be granted if the court could not grant intervenor any relief."); id. p 24.14, at 24-144 ("The proposed complaint or answer of the intervenor must state a well-pleaded claim or defense."); 7C Charles A. Wright et al., Federal Practice & Procedure: Civil 2d Sec. 1914, at 416-17 (1986) ("The proposed pleading must state a good claim for relief or a good defense."). The applicants here, the Ponces, do not contend otherwise; and they do not seriously challenge the propriety of the district court's determining at the outset whether their proposed complaint in intervention stated a claim upon which relief could be granted.

Nor do the Ponces seriously contend that they had a claim for relief under the wrongful death act. Although their brief in chief contains numerous references to the act, to cases construing the act, and to the wrongful death statutes in other states--many of which permit a decedent's parents to share in the proceeds of a successfully prosecuted wrongful death claim--their brief makes it fairly clear that they are seeking recognition of a cause of action at common law, outside the wrongful death act, for their "loss of out-of-pocket economic damages and for their loss of consortium with their son." And in their reply brief they expressly state: "Appellants do not seek to intervene in the cause below as beneficiaries under the Wrongful Death Act. Rather they seek to intervene on an independent cause of action which they request this Court to recognize as existing for them outside the Wrongful Death Act * * * * "

The Ponces' request to intervene must therefore rest on Rule 24(B) relating to permissive intervention; they have no basis to intervene as a matter of right under Rule 24(A), for they do not claim "an interest relating to the property or transaction which is the subject of the action * * * * " SCRA 1986, 1-024(A)(2).⁴ Nor could they assert such a claim. Under Section 41-2-3, every action under our wrongful death act is to be brought by the personal representative of the decedent, and the proceeds are to be distributed, where there is no surviving husband or wife but there is a surviving child or children, to such child or children. The parents of the decedent cannot share in the proceeds unless the decedent is survived by neither a spouse, a child, nor a grandchild. The wrongful death act, which we have characterized as a survival statute, provides a cause of action for the benefit of the statutory beneficiaries to sue a tortfeasor for the damages, measured by the value of the decedent's life, which the decedent himself would have been entitled to recover had death not ensued. See Stang v. Hertz Corp., 81 N.M. 348, 350-52, 467 P.2d 14, 16-18 (1970); see also Kilkenny v. Kenney, 68 N.M. 266, 270, 361 P.2d 149, 152 (1961); Natseway v. Jojola, 56 N.M. 793, 800, 251 P.2d 274, 278 (1952). The act therefore furnishes the basis for recovery, by the statutory beneficiaries, of the decedent's damages; but it provides no basis for recovery by the decedent's parents, or anyone else, of their own damages flowing from the loss of the decedent's life.

Thus, as noted above, the Ponces' basis for intervening in this lawsuit must lie, if at all, in the provisions of Rule 24(B) authorizing permissive intervention. Although the Ponces' claim and Solon's wrongful death action "have a question of law or fact in common," SCRA 1986, 1-024(B), the question (answered negatively by the trial court) remains: Does the Ponces' proposed complaint in intervention state a legally sufficient common law claim, independent of the wrongful death act, for the economic loss and loss of consortium they suffered from the death of their son, which was caused by the alleged negligence of defendant WEK Drilling? It is to this dispositive question that we now turn.

III.

In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person * * * *

Duty and foreseeability have been closely integrated concepts in tort law since the court in [Palsgraf ] stated the issue of foreseeability in terms of duty. If it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the defendant.

Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983) (emphasis added). See also Calkins v. Cox Estates, 110 N.M. 59, 61-62, 792 P.2d 36, 38-39 (1990):

In determining duty, it must be determined that the injured party was a foreseeable plaintiff--that he was within the zone of danger created by [the tortfeasor's] actions; in other words, to whom was the duty owed?

* * * A duty to an individual is closely intertwined with the foreseeability of injury to that individual resulting from an activity conducted with less than reasonable care by the alleged tort-feasor. [Citing...