Celaya v. Hall

• Decision Date: 29 January 2004
• Docket Number: No. 28,076.,28,076.
• Citation: 135 N.M. 115,2004 NMSC 5,85 P.3d 239
• Parties: Jesus CELAYA, Plaintiff-Respondent, v. Lin HALL, Defendant-Petitioner.
• Court: New Mexico Supreme Court

85 P.3d 239

135 N.M. 115

2004 NMSC 5

Jesus CELAYA, Plaintiff-Respondent, v. Lin HALL, Defendant-Petitioner.

No. 28,076.

Supreme Court of New Mexico.

January 29, 2004.

Butt, Thornton & Baehr, P.C., Emily A. Franke, Paul T. Yarbrough, Albuquerque, NM, for Petitioner.

John Wayne Higgins & Associates, John Wayne Higgins, Albuquerque, NM, for Respondent.

OPINION

BOSSON, Justice.

{1} Lin Hall ("Defendant") appeals from an opinion of the Court of Appeals reversing a grant of summary judgment entered in his favor. The Court of Appeals found genuine issues of material fact concerning two issues arising under the Tort Claims Act: (1) whether Defendant, a volunteer chaplain for the Bernalillo County Sheriff's Department ("the Department"), was a public employee, and if so, (2) whether Defendant was acting within the scope of his duties when he ran over the foot of Plaintiff Celaya with his automobile while driving in the parking lot at Wal-Mart. Celaya v. Hall, 2003-NMCA-086, 134 N.M. 19, 71 P.3d 1281. We reverse in part, holding as a matter of law that Defendant was a public employee at the time of the incident. We also affirm in part, agreeing with the Court of Appeals that a genuine issue of fact exists for the fact finder to decide whether Defendant was acting within the scope of his duties at the time of the incident.

BACKGROUND

{2} In November 1996, Plaintiff was a sixteen-year-old, part-time employee at Wal-Mart. Early in the evening of Saturday, November 16, Plaintiff was collecting shopping carts from the parking lot when Defendant drove over his foot, causing Plaintiff to suffer various injuries. Defendant, a volunteer chaplain with the Department, was driving a Department vehicle at the time.

{3} Defendant is an ordained minister and has been a volunteer chaplain with the Department since 1988. His duties as a volunteer chaplain include providing spiritual counseling to crime victims and their families, counseling sheriff's deputies, presiding over ceremonies like weddings and graduations, and providing support services at crime scenes. Defendant does not maintain regular hours, but is on call twenty-four hours a day, seven days a week. The Department has provided Defendant with an unmarked, take-home vehicle equipped with a sheriff's radio. The Department also provided a pager and business cards that identify Defendant as the Department chaplain. Independently, Defendant also maintains a full-time, compensated position as a minister with Teen Challenge of New Mexico.

{4} Defendant concedes that his trip to Wal-Mart. was a personal errand. He frequently shops there because the store is close to his home. Through the course of pre-trial discovery, Defendant has been unable to remember what he was doing just prior to his trip to Wal-Mart., but states under oath that it was his custom to drive the Department vehicle only in connection with his official chaplain duties.

{5} Plaintiff filed a complaint to recover damages in October 1999, 2 years and 11 months after the incident. The complaint named as defendants the County of Bernalillo, the Department, and Defendant. In response, all defendants filed a motion to dismiss due to Plaintiff's failure to comply with the two-year statute of limitations in NMSA 1978, Section 41-4-15 (1977) of the Tort Claims Act ("TCA"). Thereafter, on Plaintiff's motion, the claims against Bernalillo County and the Department were dismissed. Plaintiff filed an amended complaint against Defendant, in his individual capacity, claiming that at the time of the incident Defendant was not acting either as a Department employee or within the scope of his official duties and, therefore, was not protected by the TCA two-year statute of limitations.

{6} Defendant then filed a motion for summary judgment, claiming that the TCA applied because, based upon the undisputed material facts, Defendant was a public employee acting within the scope of his duties at the time of the incident. The district court agreed with Defendant and granted summary judgment in his favor. On Plaintiff's appeal, the Court of Appeals reversed the summary judgment, finding genuine issues of material fact regarding both questions: Defendant's status as an employee and whether he was acting within the scope of his duties at the time of the incident that injured Plaintiff. Celaya, 2003-NMCA-086, ¶ 1, 134 N.M. 19, 71 P.3d 1281. We granted Defendant's petition for certiorari to determine whether either question, or both, should have been decided in Defendant's favor as a matter of law.

DISCUSSION

Standard of Review

{7} We review the grant of summary judgment de novo and construe reasonable inferences from the record in favor of the party opposing the motion. See Rummel v. St. Paul Surplus Lines Ins. Co., 1997-NMSC-042, ¶ 9, 123 N.M. 767, 945 P.2d 985.

Public Employee Status Under the TCA

{8} Liability of public employees acting within their scope of duty is governed by the TCA, NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2003). The TCA delimits the scope of liability for government entities and their employees by: (1) retaining immunity for torts not waived by the TCA, see Section 41-4-2(A) (1976); and (2) waiving immunity and recognizing liability, subject to certain protections, for employees acting within their scope of duty, see § 41-4-4 (1996). The TCA specifically provides that it is "the exclusive remedy ... for any tort for which immunity has been waived." See § 41-4-17(A) (1982). The TCA enumerates who qualifies as a "public employee," and excludes most categories of independent contractors. Section 41-4-3(F)(3) (1995) specifically defines "public employee" as "persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation." Therefore, the TCA explicitly contemplates that volunteers acting on behalf of the government may become public employees, thereby entitled to the protections of the TCA and subject to reliability of the same.

{9} We are struck by the express declaration of legislative intent in including volunteers acting on behalf of a governmental entity within the purview of the TCA. See § 41-4-3(F)(3). The legislature made an express choice to include volunteers in the TCA, presumably in recognition of the important contribution volunteers can provide through government service. In so designating uncompensated persons working on behalf of the government, the legislature took action to protect both the volunteer and the public. The law protects the volunteer by providing immunity for an act not included within the TCA, and by affording the volunteer indemnification and a defense when immunity has been waived. See § 41-4-4. Either way, the TCA treats the volunteer the same as any other employee, thereby encouraging volunteer participation in government. The TCA also protects the public by ensuring that government will be financially accountable when volunteers working within their scope of duty commit certain torts and injure innocent members of the public. Mindful of these purposes to protect both the volunteer and the public, we interpret the TCA so as to give life to legislative intent.

{10} Despite taking a contrary position in his original pleadings, Plaintiff now contends that Defendant was an independent contractor, not a public employee, when the incident occurred. If Defendant was an independent contractor, he would not fall within the purview of the TCA. Potentially, this determination could render Defendant personally liable for the damages resulting from the incident, because the TCA two-year statute of limitations and the provisions for indemnification under the TCA would not apply.

{11} New Mexico courts have employed an agency analysis to determine whether an individual is acting as an independent contractor or as an employee. In Harger v. Structural Services, Inc., 121 N.M. 657, 664, 916 P.2d 1324, 1331 (1996), we adopted the Restatement (Second) of Agency § 220 (1958) to identify an independent contractor for purposes of workers' compensation. Under an agency analysis, the principal's right to control the individual performing the work often distinguishes an employee from an independent contractor. See, e.g., Harger, 121 N.M. at 663, 916 P.2d at 1330; Armijo v. Dep't of Health & Env't, 108 N.M. 616, 620, 775 P.2d 1333, 1337 (Ct. App.1989) (applying the agency right to control test to a TCA claim).

{12} A right to control analysis focuses on whether the principal exercised sufficient control over the agent to hold the principal liable for the acts of the agent. With the right of control, an employer-employee relationship usually exists. Harger, 121 N.M. at 667,916 P.2d at 1334. However, the right to control approach may not always be the most appropriate test, particularly for a professional. In a case concerning whether a hospital was bound by the acts of an emergency room physician, the court observed, "[t]he use of the right to control test in determining whether a professional is an employee has been criticized." Houghland v. Grant, 119 N.M. 422, 426, 891 P.2d 563, 567 (Ct.App. 1995).

{13} In the case before us, the Court of Appeals applied the right to control test by identifying an independent contractor as an individual whose overall work product, but not the details of work performance, is controlled. Celaya, 2003-NMCA-086, ¶ 7, 134 N.M. 19, 71 P.3d 1281. The court then relied upon the affidavits of Ray Gallagher, Bernalillo County Sheriff from 1991 to 1994, and his successor, Joe Bowdich, Bernalillo County Sheriff from 1995 to 2002, to determine whether there was a genuine issue of material fact concerning the Department's exercise of control over the details of Defendant's work performance. Id. ¶ 8. Sheriff Gallagher states in his affidavit that "[t]he Sheriff's Department does not control the manner in which the details of [Defendant] Lin Hall's work is performed." Sheriff Bowdich's...