Davis v. BOARD OF COUNTY COM'RS

• Decision Date: 13 July 1999
• Docket Number: No. 19,176.,19,176.
• Parties: Mariah C. DAVIS, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF DOÑA ANA COUNTY, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

987 P.2d 1172

127 N.M. 785

Mariah C. DAVIS, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF DOÑA ANA COUNTY, Defendant-Appellee.

No. 19,176.

Court of Appeals of New Mexico.

July 13, 1999.

Paul Bardacke, Kerry Kiernan, Peter S. Kierst, Eaves, Bardacke & Baugh, P.A., Albuquerque, for Appellant.

Thomas A. Sandenaw Jr., Leonard J. Piazza, Law Office of T.A. Sandenaw, Las Cruces, for Appellee.

William H. Carpenter, Cynthia A. Fry, Albuquerque, for Amicus Curiae New Mexico Trial Lawyers Association.

Henry F. Narvaez, William D. Slease, Danny W. Jarrett, Narvaez, Slease & Schamban, P.A., Albuquerque, for Amicus Curiae New Mexico Defense Lawyers Association.

OPINION

BOSSON, J.

{1} As a matter of first impression under New Mexico common law, we decide whether an employer owes prospective employers and foreseeable third persons a duty of reasonable care not to misrepresent material facts in the course of making an employment recommendation about a present or former employee, when a substantial risk of physical harm to third persons by the employee is foreseeable. If such a duty exists, we further address and decide whether law enforcement officers can be liable for a breach thereof under the New Mexico Tort Claims Act, NMSA 1978, § 41-4-12 (1976) (the "Act"). Upon our review of these questions, we reverse, in part, both the district court's entry of summary judgment for the Board of County Commissioners (the County) and its denial of summary judgment for Plaintiff, and we remand for further proceedings.

BACKGROUND

{2} The following recitation of facts is taken from the cross-motions for summary judgment that include allegations set forth in the pleadings, as supplemented by excerpts from depositions and affidavits. Mesilla Valley Hospital (MVH), a psychiatric hospital in Doña Ana County, employs mental health technicians for a variety of patient-care functions, such as restraining patients, taking patients on walks, and providing staff coverage at night. MVH hired Joseph "Tinie" Herrera (Herrera) as a mental health technician on January 20, 1995. Plaintiff, a young woman undergoing psychiatric therapy, was admitted to MVH as a patient on February 26 of that same year, and Herrera was assigned to work with her. Plaintiff asserts that Herrera initially managed to ingratiate himself into her confidence, and then, over a period of about two weeks, Herrera subjected Plaintiff to escalating incidents of sexual harassment, sexual assault, and other physical abuse committed under the guise of psychiatric therapy.

{3} Herrera had Plaintiff's sleeping quarters moved from her assigned room to a semi-isolation room where access was easier for him. Herrera also directed Plaintiff to go to an isolation room that shielded Herrera from detection and allowed Herrera, through a small window, to monitor other employees. While Herrera had Plaintiff isolated and under his control, Plaintiff alleges that he sexually assaulted her and committed repeated acts of sexual harassment and battery upon her.

{4} Prior to working at MVH, Herrera was employed for some time as a detention sergeant and classification officer at the Doña Ana County Detention Center (Detention Center). According to Plaintiff, MVH's decision to hire Herrera was based in part on unqualified, favorable recommendations from Herrera's supervisors at the Detention Center, Frank Steele and Al Mochen. Steele was the director and Mochen was the captain and assistant director of the Detention Center, both of whom had supervisory authority over Herrera. The accuracy of these favorable recommendations goes to the heart of Plaintiff's suit against the County.

{5} Of particular importance to the accuracy of the recommendations is a report authored by Steele after Herrera was investigated for allegedly sexually harassing female inmates under his authority at the Detention Center. The Detention Center first became aware of sexual complaints against Herrera in 1993, when a female inmate alleged that Herrera had sexually harassed her. Steele gave Herrera a written reprimand based on the 1993 allegation which also indicated that an additional complaint of this nature may result in Herrera's termination. Thereafter, on February 4, 1994, another female inmate filed a sexual harassment grievance against Herrera for incidents that had occurred between 1990 and 1992. She alleged that Herrera had helped her in exchange for demanding and receiving sexual favors. Although Herrera denied the allegations, he was placed on administrative leave on February 8, 1994. Steele then had the County Sheriff's Department conduct an investigation of Herrera, and on April 5, 1994, Steele authored a report of the results of that investigation.

{6} According to Steele's report, Herrera was accused of inappropriate sexual behavior with female inmates that took various forms. The accusations included making statements with sexual overtones, and stating his desire for sex. Reportedly, Herrera received sexual favors from inmates in return for helping them. On more than one occasion, he was observed taking female inmates to his office and closing the door, allegedly for the purpose of conducting interviews. Steele's report also made specific reference to a pornographic video and condoms which were found in Herrera's desk, and he was observed with underwear belonging to a juvenile.

{7} While not all the allegations against Herrera could be confirmed, the report concluded that Herrera's conduct and performance of duty had been "questionable" and "suspect." Accordingly, Steele recommended disciplinary action against Herrera seeking to have him suspended without pay as well as demoted and reassigned. On April 5, 1994, Steele informed Herrera that he intended to seek disciplinary action at a hearing scheduled for April 12, 1994.

{8} On April 8, 1994, Herrera resigned rather than proceed with the scheduled hearing. Upon his resignation, Herrera asked Steele for a letter of recommendation for prospective employment. On April 11, 1994, only six days after recommending discipline, Steele wrote a positive endorsement of Herrera that omitted any reference to either the reprimand, the subsequent allegations of sexual harassment, the results of the investigation, or the recommended discipline. The letter was written on county letterhead, which Steele signed as the Detention Center administrator, and stated:

To Whom It May Concern:

This letter will introduce to you, Joseph V. Herrera. I have had the distinct pleasure of working with Tinie Herrera for the past two years. In my opinion he is an excellent employee and supervisor for the Dona Ana County Detention Center. In developing social programs for the inmate population, he displayed considerable initiative and imagination. Tinie was instrumental in the Department's maintenance program and was involved in remodeling projects.

I know that this Department will suffer for his leaving. Employees of his caliber are difficult to find. I am confident that you would find Tinie to be an excellent employee. Should you need verbal confirmation of his ability, I would deem it a pleasure to respond to any inquiries that you may have.

Sincerely [Signed] Frank A. Steele Detention Administrator DACDC

{9} On December 5, 1994, Herrera applied for employment with MVH and included Steele's letter of recommendation. According to Plaintiff, MVH called the Detention Center seeking further information about Herrera, and Mochen told MVH that Herrera was a good person and a hard worker whom he would definitely rehire. Mochen was aware of Herrera's past when he allegedly gave this verbal recommendation. Mochen denies talking to MVH. According to Plaintiff, MVH's decision to hire Herrera was based in part on these unqualified, favorable recommendations from Steele and Mochen, an allegation which, as yet, remains unproven, and as with other causation issues, remains part of Plaintiff's burden to prove at trial.

{10} Plaintiff sued the County for negligent misrepresentation alleging that the misinformation supplied by the Detention Center employees, Steele and Mochen, proximately caused Herrera to be hired at MVH and Plaintiff to be assaulted. After discovery was partially completed, Plaintiff requested partial summary judgment in her favor based on the legal contentions that: (1) Steele and Mochen were law enforcement officers under the Act; (2) the allegations of negligent misrepresentation against them stated a claim under the Act; and (3) Steele and Mochen were acting within the scope of their duties as law enforcement officers when they made the written and oral recommendations of Herrera. The County filed a cross-motion for summary judgment based on the following contentions: (1) the Act did not waive immunity for these alleged acts by these individuals, Steele and Mochen; (2) the County and its employees owed no legal duty to Plaintiff; (3) employment references enjoyed a statutory immunity from suit under state law; and (4) the acts of Steele and Mochen, as alleged were outside the scope of their duties under the Act. The district court denied Plaintiff's motion but granted the County's cross-motion, ruling that the County owed no duty of care to Plaintiff and was immune from suit under the Act for the acts of Steele and Mochen. Plaintiff appeals from both decisions of the district court.

STANDARD OF REVIEW

{11} Summary judgment is warranted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Design Prof'ls Ins. Cos. v. St. Paul Fire & Marine Ins. Co., 1997-NMCA-049, ¶ 8, 123 N.M. 398, 940 P.2d 1193. The district court's denial of Plaintiff's motion for summary judgment, contained in the same formal written order granting the County's motion, is a final, appealable order. See id. ¶ 24. We review whether there was sufficient support for the denial of Plaintiff's motion. See id. ¶ 26. The existence of a...