Baldonado v. El Paso Natural Gas Company

• Decision Date: 10 December 2007
• Docket Number: No. 29,941.,29,941.
• Citation: 2008 NMSC 005,176 P.3d 277
• Parties: Christopher Lee BALDONADO, et al., Plaintiffs-Respondents, v. EL PASO NATURAL GAS COMPANY, a foreign corporation, Defendant-Petitioner.
• Court: New Mexico Supreme Court

176 P.3d 277

2008 NMSC 005

Christopher Lee BALDONADO, et al., Plaintiffs-Respondents, v. EL PASO NATURAL GAS COMPANY, a foreign corporation, Defendant-Petitioner.

No. 29,941.

Supreme Court of New Mexico.

December 10, 2007.

Rehearing Denied, No. 29,941, January 10, 2008.

Montgomery & Andrews, P.A., Sarah M. Singleton, Santa Fe, NM, Modrall, Sperling, Roehl, Harris & Sisk, P.A., R.E. Thompson, Albuquerque, NM, Greenberg Traurig, LLP, Brian L. Duffy, Naomi G. Beer, Denver, CO, for Petitioner.

The Blenden Law Firm, Dick A. Blenden, James Phillip Blenden, Martin Law Firm, Wilfred T. Martin, Jr., Lane T. Martin, Kenneth D. Dugan, Carlsbad, NM, Robert P. Schuster, P.C., Robert P. Schuster, Jackson, WY, Blazer Carman Murdock, P.C., J. Nicholas Murdock, Casper, WY, for Respondents.

OPINION

CHÁVEZ, Chief Justice.

{1} On motion for rehearing, the opinion filed December 4, 2007, is withdrawn, and the following opinion is substituted in its place. The motion for rehearing is otherwise denied.

{2} The issue in this case is whether firefighters may recover damages for intentional infliction of emotional distress sustained in the course of responding to a fire. The answer to this question initially turns on whether the firefighter's rule, as adopted in Moreno v. Marrs, 102 N.M. 373, 695 P.2d 1322 (Ct.App.1984), should continue as a part of New Mexico jurisprudence. The rule, which prohibits firefighters from suing for damages sustained while responding to a fire except where the owner or occupier of the land fails to warn of a known danger or misrepresents the nature of the hazards being confronted, was overruled by the Court of Appeals. In that opinion, one judge would abolish the rule entirely and two judges would prohibit firefighter litigation involving negligence claims. See Baldonado v. El Paso Natural Gas Co., No. 24,821, ___ N.M. ___, 176 P.3d 286 (N.M.Ct.App. June 29, 2006). We adopt a policy-based approach to the firefighter's rule and hold that a firefighter may recover damages if such damages were proximately caused by (1) intentional conduct; or (2) reckless conduct, provided the harm to the firefighters exceeded the scope of risks inherent in the firefighters' professional duties. Applying this rule to the case before us, we conclude that the firefighters have properly pled a claim for intentional infliction of emotional distress.

I. BACKGROUND

{3} On August 19, 2000, in the early morning hours, a high-pressure natural gas pipeline¹ operated by El Paso Natural Gas Company ruptured near the Pecos River south of Carlsbad, New Mexico. Baldonado, No. 24,821, ___ N.M. ____,___, 176 P.3d 286, 289, 2006 WL 53589.66, ¶ 2. At that time, twelve members of an extended family were camped in the area of the pipeline. The escaping gas ignited, creating a fireball that engulfed the campsite. All twelve family members, including young children, either were killed during the fire or died later from severe burns. The survivors were conscious but in obvious physical pain and mental anguish. The record and the Court of Appeals opinion depict the horror of the scene, which we do not duplicate here. See id.

{4} Plaintiffs are paid or volunteer members of the local fire departments who responded to the explosion. Plaintiffs did not assist in putting out the fire, nor do they claim to have suffered any physical injuries from the fire or explosion. Rather, Plaintiffs assert that they suffered extreme emotional distress in witnessing the severe injuries suffered by the victims when Plaintiffs assisted them after the explosion.

{5} Plaintiffs brought suit against Defendant for negligent infliction of emotional distress, intentional infliction of emotional distress, and other counts. Defendant filed a motion to dismiss pursuant to Rule 1-012(B)(6) NMRA, claiming that Plaintiffs' claims were barred by the firefighter's rule. The district court granted Defendant's motion and dismissed Plaintiffs' complaint. Plaintiffs appealed to the Court of Appeals, which affirmed the district court with respect to the negligent infliction of emotional distress claim, but reversed with respect to the intentional infliction of emotional distress claim. Baldonado, No. 24,821, ___ N.M. ___, ___, 176 P.3d 286, 297, 2006 WL 5358966, ¶ 35. Defendant filed a petition for writ of certiorari with this Court, contending that the firefighter's rule bars a claim in this case, and that Plaintiffs failed to properly plead a claim for reckless or intentional infliction of emotional distress. Baldonado v. El Paso Natural Gas Co., 2006-NMCERT-009, 140 N.M. 543, 144 P.3d 102. We granted certiorari on the question of intentional infliction of emotional distress.²

II. DISCUSSION

{6} "A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint, not the factual allegations of the pleadings which, for purposes of ruling on the motion, the court must accept as true." Coleman v. Eddy Potash, Inc., 120 N.M. 645, 650, 905 P.2d 185, 190 (1995), overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148. "[T]he motion may be granted only when it appears the plaintiff cannot be entitled to relief under any state of facts provable under the claim." Runyan v. Jaramillo, 90 N.M. 629, 632, 567 P.2d 478, 481 (1977).

{7} Defendant asserts two reasons why the Court of Appeals erred in holding that Plaintiffs' complaint for intentional infliction of emotional distress is legally sufficient. First, Defendant argues that the firefighter's rule in New Mexico has no exception for reckless or intentional conduct, thereby barring Plaintiffs' lawsuit. Second, Defendant argues that New Mexico has adopted the definition of intentional infliction of emotional distress from Restatement (Second) of Torts § 46 (1965), and Plaintiffs cannot prove that Defendant's conduct was "directed at" Plaintiffs as required by the Restatement. Id. § 46(2).

{8} Plaintiffs urge this Court to abolish the firefighter's rule, contending that the rule is outdated, as evidenced by the several jurisdictions that have abolished the rule or created exceptions for intentional torts that would otherwise be excluded by the rule. Plaintiffs also argue that they have stated a cause of action for intentional infliction of emotional distress as defined in Trujillo v. Northern Rio Arriba Electric Cooperative, Inc., 2002-NMSC-004, ¶ 25, 131 N.M. 607, 41 P.3d 333.

A. The Firefighter's Rule

{9} A firefighter's rule bars a firefighter, and possibly other professional rescuers, from suing the party whose actions caused the event to which the firefighter responded. Robert H. Heidt, When Plaintiffs Are Premium Planners for Their Injuries: A Fresh Look at the Fireman's Rule, 82 Ind. L.J. 745, 745 (Summer 2007). Although most states have adopted a firefighter's rule, they "disagree considerably about the exceptions to and the scope of the rule, and in many states the exceptions threaten to swallow the rule. Id. at 753. Thus, when deciding to adopt a firefighter's rule, it is necessary to choose among formulations. Moreno, 102 N.M. at 377, 695 P.2d at 1326.

{10} States that have adopted a firefighter's rule generally base it on one of three legal theories: (1) duties of landowner to invitees; (2) assumption of risk; or (3) public policy. The original firefighter's rule was based on the duties of a landowner or occupier of the land to invitees or licensees. Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182, 183 (1892), overruled in part by Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 886 (1960). Some courts have since rejected this theory of the firefighter's rule. See, e.g., Hass v. Chicago & Nw. Ry. Co., 48 Wis.2d 321, 179 N.W.2d 885, 887 (1970). The rule can also be based on assumption of risk, although this theory is also falling out of favor. See, e.g., Fordham v. Oldroyd, 171 P.3d 411, 414 (Utah 2007).

{11} Most modern decisions base the firefighter's rule on a public policy rationale. Id. at 417 (Wilkins, Assoc. C.J, concurring and dissenting). Utah, the most recent state to adopt the firefighter's rule, chose this approach. Id. at 415. Public policy provides a number of rationales for the firefighter's rule. The rule encourages the public to summon assistance when they need help and recognizes that firefighters "have a relationship with the public that calls on them to confront certain hazards as part of their professional responsibilities." Id. at 413. The rule also spreads the costs of injury among taxpayers and avoids charging taxpayers twice—once when they pay their taxes for public services, and again when they are sued by those same service providers. Heidt, supra, at 760-61. Some courts, however, reject the public policy rationale, arguing that the sounder policy is to allow firefighters to sue for injuries the same as any other injured party. Fordham, 171 P.3d at 417 (Wilkins, Assoc. C.J., concurring and dissenting).

{12} In Moreno, the Court of Appeals adopted a firefighter's rule for New Mexico based on the California case of Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609 (1977), superseded by statute Cal. Civ. § 1714.9 (West 2001) (codifying California's firefighter's rule). Moreno, 102 N.M. at 376, 695 P.2d at 1325. The California Supreme Court based its rule on both assumption of risk theories and public policy rationales. Walters, 142 Cal.Rptr. 152, 571 P.2d at 612-13.

{13} We agree with the Court of Appeals in Moreno that "there should be a fireman's rule." 102 N.M. at 376, 695 P.2d at 1325. We take this opportunity, however, to clarify the rule's definition and scope. In doing so we hope to avoid the necessity for myriad exceptions that other states have faced.

{14} We begin by recognizing that a policy-based firefighter's rule follows naturally from our version of the rescue doctrine. Traditionally, the rescue doctrine "prevented] a rescuer from being barred from recovery because of a finding...