Baldonado v. El Paso Natural Gas Co.

• Decision Date: 29 June 2006
• Docket Number: No. 24,821.,24,821.
• Parties: Christopher Lee BALDONADO, Winston E. Brasher, Jr., Lupe C. Corona, Charles K. Crouch, Gladys Crouch, John P. Darcy, Steve Dorado, Deborah Ham, David L. Harkness, Kevin R. Harkness, Cameron Kelly Hicks, David R. Looney, Javier R. Lopez, Ronald R. Macaluso, Mark A. Olivo, Francisco M. Orozco, Dennis Osborne, Kay Otero, Richard W. Riddle, Saul Ray Sanchez, Marvin Keith Uptergrove, Tracy L. Uptergrove, Kenneth Urquidez, and Willie Maxie Wilson, Schrock, Michael D. Shannon, Jason E. Jr., Plaintiffs-Appellants, v. EL PASO NATURAL GAS COMPANY, a foreign corporation, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

176 P.3d 286

2008 NMCA 010

Christopher Lee BALDONADO, Winston E. Brasher, Jr., Lupe C. Corona, Charles K. Crouch, Gladys Crouch, John P. Darcy, Steve Dorado, Deborah Ham, David L. Harkness, Kevin R. Harkness, Cameron Kelly Hicks, David R. Looney, Javier R. Lopez, Ronald R. Macaluso, Mark A. Olivo, Francisco M. Orozco, Dennis Osborne, Kay Otero, Richard W. Riddle, Saul Ray Sanchez, Marvin Keith Uptergrove, Tracy L. Uptergrove, Kenneth Urquidez, and Willie Maxie Wilson, Schrock, Michael D. Shannon, Jason E. Jr., Plaintiffs-Appellants, v. EL PASO NATURAL GAS COMPANY, a foreign corporation, Defendant-Appellee.

No. 24,821.

Court of Appeals of New Mexico.

June 29, 2006.

Certiorari Granted, No. 29,941, September 13, 2006.

Robert P. Schuster, P.C., Robert P. Schuster, Jackson, WY, Murdock Law Firm, LLC, J. Nicholas Murdock, Casper, WY, Martin & Lara, LLP, Wilfred T. Martin, Jr., Lane T. Martin, Carlsbad, NM, The Blenden Law Firm, Dick A. Blenden, Phil Blenden, Carlsbad, NM, for Appellants.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., R.E. Thompson, Albuquerque, NM, Montgomery & Andrews, Sarah M. Singleton, Santa Fe, NM, Greenberg Traurig, LLP, Brian L. Duffy, Naomi G. Beer, Denver, CO, McCormick, Caraway, Taylor & Riley, LLP, John M. Caraway, Carlsbad, NM, El Paso Natural Gas Company, Michael S. Yauch, Tekell, Book, Matthews & Limmer, Kenneth Tekell, Houston, TX, for Appellee.

OPINION

ALARID, Judge.

{1} This case presents us with an opportunity to reconsider our decision in Moreno v. Marrs, 102 N.M. 373, 695 P.2d 1322 (Ct.App. 1984) in which we adopted the "fireman's rule." We disavow Moreno to the extent it created an exception to generally applicable rules for determining the persons to whom an actor owes a duty of care. We also consider and reject Plaintiffs' attempt to expand the scope of the tort of negligent infliction of emotional distress. We consider and reject Defendant's attempt to engraft additional elements onto the tort of intentional infliction of emotional distress. Lastly, we conclude that the count of Plaintiffs' complaint asserting intentional infliction of emotional distress adequately pleads the element of outrageous conduct. We affirm the district court's dismissal of Plaintiffs' negligent infliction of' emotional distress claim and reverse the dismissal of Plaintiffs' intentional infliction of emotional distress claim.

BACKGROUND

{2} In the early morning hours of August 19, 2000, a fifty-year-old, thirty-inch-diameter, high-pressure¹ natural gas pipeline owned and operated by Defendant-Appellee, El Paso Natural Gas Company, ruptured near the Pecos River south of Carlsbad, New Mexico. At the time of the rupture, twelve members of an extended family were camped in the vicinity of the pipeline. The escaping natural gas ignited, creating an enormous fireball that engulfed the campsite. All twelve family members, including young children, either were killed outright or died later from severe burns. The burns suffered by the victims were undeniably horrific. The survivors who were conscious were visibly in excruciating physical and emotional agony. The following description of one victim's condition gives a sense of the scene as alleged in the complaint.

[She] [said] her babies were dead but that she wanted to go look for them. Her face was burned; her hair was gone—melted; her ears were burned.... [She] [said] "the babies aren't there, that her babies are dead."

[Her] hair clips were melted onto her head. She had no hair and parts of her skin were peeling from her head. The skin on her hands was coming off. [You] could tell [she] was suffering because of her moaning and crying.

[One witness] ... saw [her] and she took his breath away. Her lips had pulled back and her teeth were exposed. There was no hair on the right side of her head and her right eye was swollen shut. She had charred tissue all over her face and swelling to her neck . [S]he kept asking for her babies. [Her husband, himself fatally burned] told her they were dead, that he had watched them die . . . [Y]ou could not tell she had a right ear; her nose was probably two-thirds gone . Her left pupil was reactive to light but was disfigured. You could see she was in pain and hurting. Her right eye was completely swollen shut and could not be pried open; there was no palpable mass underneath it; if there was an eye, you could not tell. Her clothes, including her underwear, had melted to her.... He administered pain medications, but ... did not believe it touched her pain level.

(References to the record omitted).

{3} Plaintiffs are professional or volunteer members of local fire departments who responded to the explosion. Plaintiffs were not involved in putting out the fire and they do not allege that they suffered physical injuries at the time; rather each Plaintiff alleges that, as a result of witnessing severe injuries in the course of rendering assistance to the surviving victims of the explosion, he or she has suffered severe, debilitating emotional distress.

{4} Plaintiffs brought suit against Defendant. Plaintiffs' complaint asserted eight claims for relief, including the two claims that are the subject of this appeal: negligent infliction of emotional distress and reckless or intentional infliction of emotional distress. Defendant filed a motion to dismiss pursuant to Rule 1-012(B)(6) NMRA. Defendant argued that all of Plaintiffs' claims were barred by the fireman's rule as adopted by this Court in Moreno, 102 N.M. at 373, 695 P.2d at 1322. In addition, Defendant argued that Plaintiffs failed to state a claim for negligent infliction of emotional distress because they did not allege that they contemporaneously witnessed the injuries to the victims and because the victims were not members of Plaintiffs' families. Defendant further argued that Plaintiffs failed to state a claim for intentional infliction of emotional distress because Defendant's conduct as alleged by Plaintiffs was not outrageous and was not directed at the victims or Plaintiffs either with the intent to cause emotional harm or in reckless disregard of the likelihood of emotional harm.

{5} The district court granted Defendant's motion, dismissing all counts of Plaintiffs' complaint.

DISCUSSION

The Fireman's Rule

{6} In New Mexico, the class of persons to whom a defendant owes a duty of care is determined by application of the principle of foreseeability. Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 20, 134 N.M. 43, 73 P.3d 181 (discussing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928)). In general, an actor owes a duty of care to those persons whose injuries are a foreseeable consequence of the actor's unreasonable conduct. Id. However, even when a class of persons are foreseeable victims of an actor's negligence, the courts, for policy reasons, may insulate the actor from liability by declaring that the actor did not owe a duty to that class of victims. Id. ¶ 26; Lozoya v. Sanchez, 2003-NMSC-009, ¶ 15, 133 N.M. 579, 66 P.3d 948.

{7} The fireman's rule states the limited duty owed by owners and occupiers of land to firemen² responding to an emergency on the owner's or occupier's premises. Moreno, 102 N.M. at 376, 695 P.2d at 1325. Under the fireman's rule, an owner or occupier of a premises does not owe a general duty of reasonable care to firemen who foreseeably may be called to respond to a fire on the owner's or occupier's premises; instead, the owner or occupier owes the limited duty to warn firemen of "hidden perils, where the owner or [occupier] knows of the peril and has the opportunity to give warning of it," Id. at 378, 695 P.2d at 1327 (quoting Clark v. Corby, 75 Wis.2d 292, 249 N.W.2d 567, 570 (1977)) (quotation marks omitted), and to refrain from misrepresenting to firemen the nature of the hazard presented by the condition of the premises, id., (citing Lipson v. Superior Court of Orange County, 31 Cal.3d 362, 182 Cal.Rptr. 629, 644 P.2d 822, 828-29 (1982)).

{8} The fireman's rule is an exception to the general rules that determine the persons to whom a defendant owes a duty of ordinary care. See 5 Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The Law of Torts § 27.14 at 266 (2d ed.1986) (observing that "if recovery is to be denied to the firefighters in all cases, it must be on some basis other than the absence of probable harm, proximate cause, or the other elements of an ordinary negligence action"). More particularly, the fireman's rule is an exception to the rescuer's doctrine as set out in Govich v. North American Systems, Inc., 112 N.M. 226, 814 P.2d 94 (1991). In Govich, our Supreme Court held that a "person or entity creating [a] peril owes an independent duty of care to the rescuer, which arises from a policy, deeply imbedded in our social, fabric, that fosters rescue attempts." Id. at 232, 814 P.2d at 100. As a leading commentator has observed, "states that apply the firefighters' rule are in effect saying that the rescue doctrine is inapplicable" to firefighters. 1 Dan B. Dobbs, The Law of Torts § 287 at 777-78 (2000); Neighbarger v. Irwin Indus., Inc., 8 Cal.4th 532, 34 Cal.Rptr.2d 630, 882 P.2d 347, 351 n. 2 (1994). "The firefighter's rule evolved as an exception to the rescue doctrine: A rescuer who could otherwise recover cannot do so if she is performing her duties as a professional firefighter." Espinoza v. Schulenburg, 212 Ariz. 215, 129 P.3d 937, 939 (2006) (emphasis added).

{9} The fireman's rule began as a particular application by American³ courts of the common law premises liability categories of invitee, licensee, and trespasser. Firemen were held to be licensees, to whom the owner of premises owed a limited duty of care—to "refrain from affirmative or willful acts that work an injury." Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182, 184 (1892) overruled in part, Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 886 (1960). Negligence in causing the fire does not breach the...