Romero v. Byers
| Citation | 1994 NMSC 31,117 N.M. 422,872 P.2d 840 |
| Decision Date | 16 March 1994 |
| Docket Number | Nos. 20441,20640 and 20794,s. 20441 |
| Parties | Kenneth E. ROMERO, as personal representative of the estate of Eloy R. Romero, deceased, Victoria Romero, individually, and Helen Romero, individually and as surviving spouse of Eloy E. Romero, Plaintiffs-Petitioners, v. Ernest F. BYERS and Lilly A. Abraham, Defendants-Respondents. Kenneth E. ROMERO, personal representative of the estate of Eloy Romero, deceased, Victoria Romero, individually, and Helen Romero, individually and as surviving spouse of Eloy E. Romero, Petitioners-Appellants, v. Ernest F. BYERS and Lilly A. Abraham, Respondents-Appellees. Marina M. SEARS, individually and as personal representative of the estate of Jeffrey Sears, deceased, Plaintiff, v. NISSAN MOTOR COMPANY, LTD., and Nissan Motor Corporation in USA, Defendants. |
| Court | Supreme Court of New Mexico |
This is a consolidated appeal arising from our grant of certiorari (No. 20,441), and acceptance of a related question certified from the Court of Appeals (No. 20,640), in the case of Romero v. Byers; and our acceptance of two questions certified to us from the United States District Court, District of New Mexico, in Sears v. Nissan (No. 20,794).
In Romero, we consider whether New Mexico should recognize a claim for loss of spousal consortium. We hold that the time has come for New Mexico to recognize that claim. On certiorari in No. 20,441, we reverse the Court of Appeals' holding that the surviving spouse could not recover damages for loss of consortium in her own right.
With regard to the related question certified from the Court of Appeals, the trial court, in ruling on a motion in limine, found that loss of consortium damages may not be awarded for spousal loss of consortium under the New Mexico Wrongful Death Act, NMSA 1978, Sections 41-2-1 to 2-4 (Repl.Pamp.1989) ("Act"). We affirm the trial court's grant of the motion in limine. The loss of consortium claim is a separate cause of action to be brought by the spouse. We note that Mrs. Romero is now deceased and hold that the action may continue through her personal representative.
In the first question from Sears, we consider two issues: First, whether the Act and Uniform Jury Instruction SCRA 1986, 13-1830 (Repl.Pamp.1991) permit the award of damages for the non-pecuniary value of the decedent's life itself. The other issue is whether expert testimony by an economist is admissible to establish such a value. We hold that the value of life itself is compensable under our Act. Whether or not expert testimony is admitted for the purpose of proving this value is a matter best left to the rules of evidence of the applicable court.
The second question in Sears, regarding the loss to minor children from the wrongful death of a parent, also raises two issues: what is the proper measure of damages, and whether a claim for such recovery is possible under the present New Mexico law on loss of consortium. In response to the first issue, we hold that loss of guidance and counseling by a minor child is a pecuniary injury under the Act. A jury is free to consider the "loss to the beneficiaries of expected benefits that have a monetary value" in awarding fair and just damages. The jury may also consider guidance and counseling as part of the "monetary worth of the life of the deceased." As to the second issue, SCRA 13-1830 does not bar recovery.
The Romero case arises out of an auto collision causing injuries subsequently resulting in the death of Eloy Romero. The personal representative of Romero's estate, his surviving spouse, Helen Romero ("Mrs. Romero"), and their daughter, filed an action seeking damages against the driver and owner of the other vehicle involved in the accident. The complaint included a count in which the spouse, Mrs. Romero, personally sought damages for loss of consortium and household services. The trial court dismissed that count, and the Court of Appeals summarily affirmed. We granted certiorari for the purpose of answering the question of whether a claim should be recognized for loss of spousal consortium.
In the last three decades, this Court has had two occasions to consider whether to allow such a common- law action. In 1963, we ruled that wives have no common-law claim to consortium. Roseberry v. Starkovitch, 73 N.M. 211, 387 P.2d 321 (1963). Twenty-two years later, relying on Roseberry, we held that neither spouse may have a claim for loss of consortium as a result of the negligent injury of a spouse. Tondre v. Thurmond-Hollis-Thurmond, Inc., 103 N.M. 292, 293, 706 P.2d 156, 157 (1985). In Roseberry, the Court noted five justifications for not recognizing the common-law cause of action. Those justifications no longer bear the same validity today. In the first justification, we reasoned that, "It is readily apparent that the majority [of jurisdictions] adhere to the rule denying the wife a recovery." Roseberry, 73 N.M. at 214, 387 P.2d at 324. Indeed that was the case at that time. Since that time, however, there has been an evolution of the law across the country. New Mexico is now the only state whose common law bars actions for spousal consortium.1
In the second justification, we were concerned because of "the uncertain and indefinite nature of a wife's claim for ... consortium." Roseberry, 73 N.M. at 218, 387 P.2d at 326. Ironically, Black's cites Roseberry in its definition of "consortium": "Conjugal fellowship of husband and wife, and the right of each to the company, society, co-operation, affection, and aid of the other in every conjugal relation." Black's Law Dictionary 309 (6th ed. 1990) (citing Roseberry, 73 N.M. at 211, 387 P.2d at 322). Black's goes on to state that "[l]oss of 'consortium' consists of several elements, encompassing not only material services but such intangibles as society, guidance, companionship, and sexual relations." Id. Viewed from the perspective of this and other courts' more recent cases analyzing the nature of non-physical harms, consortium no longer suffers from lack of clarity. Loss of consortium is simply the emotional distress suffered by one spouse who loses the normal company of his or her mate when the mate is physically injured due to the tortious conduct of another.
The third justification relied upon the "logic and reasoning" of New Mexico precedent and other authorities. Roseberry, 73 N.M. at 218, 387 P.2d at 326-27. While New Mexico tort law was not well-developed when Roseberry was written, there is now a basis for incorporating the claim for negligently caused loss of spousal consortium into the fabric of New Mexico common law. The core issue is one of duty: Does a negligent actor owe a duty not only to the spouse whom the actor physically injures, but also to the other spouse who thereby suffers the loss of consortium and the accompanying emotional distress? In a series of New Mexico cases culminating in Solon v. WEK Drilling Co., 113 N.M. 566, 829 P.2d 645 (1992), this Court set out the test for determining whether a duty is owed to a plaintiff.
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.
Solon, 113 N.M. at 569, 829 P.2d at 648 (quoting Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983)) (emphasis added by Solon ).
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.
Id. (quoting Calkins v. Cox Estates, 110 N.M. 59, 61-62, 792 P.2d 36, 38-39 (1990)) (emphasis in original). Application of this modern test in this case demonstrates that post-Roseberry New Mexico common law imposes a duty upon the defendant toward the surviving spouse, Mrs. Romero, who is thus entitled to damages for emotional distress resulting from loss of spousal consortium.
In the fourth justification, we feared ...
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