Ortiz v. New Mexico State Police

• Decision Date: 28 March 1991
• Docket Number: No. 12707,12707
• Citation: 112 N.M. 249,1991 NMCA 31,814 P.2d 117
• Parties: John E. ORTIZ, Plaintiff-Appellee, v. NEW MEXICO STATE POLICE; Gerald E. Anderson, II, individually and in his official capacity; Richard Madrid, individually and in his official capacity; Harold P. Zuni, individually and in his official capacity; Neil Curran, individually and in his official capacity; Joe Tarazon, individually and in his official capacity; Defendants-Appellants, Robert Seeds, d/b/a Robert Seeds Towing Service, Defendant.
• Court: Court of Appeals of New Mexico

Page 117

814 P.2d 117

112 N.M. 249

John E. ORTIZ, Plaintiff-Appellee, v. NEW MEXICO STATE POLICE; Gerald E. Anderson, II individually and in his official capacity; Richard Madrid individually and in his official capacity; Harold P. Zuni individually and in his official capacity; Neil Curran individually and in his official capacity; Joe Tarazon, individually and in his official capacity; Defendants-Appellants, Robert Seeds, d/b/a Robert Seeds Towing Service, Defendant.

No. 12707.

Court of Appeals of New Mexico.

March 28, 1991.

Certiorari Granted May 2, 1991.

[112 NM 250] Mariana G. Geer, Carol J. Ritchie, Felker & Ish, P.A., Santa Fe, for defendants-appellants.

William S. Keller, Richard Rosenstock, Santa Fe, for plaintiff-appellee.

OPINION

HARTZ, Judge.

We granted this interlocutory appeal to consider whether the New Mexico Tort Claims Act provides immunity to law enforcement officers whose negligent supervision and training of their subordinates proximately causes the commission by those subordinates of the torts of assault, battery, false arrest, and malicious prosecution. We hold that it does not.

BACKGROUND

This case comes before us on a motion to dismiss for failure to state a claim upon which relief may be granted. SCRA 1986, 1-012(B)(6). Therefore, we "accept as true all facts well pleaded." Gomez v. Board of Educ., 85 N.M. 708, 710, 516 P.2d 679, 681 (1973). The complaint alleges that state police officers falsely arrested plaintiff for careless driving and disorderly conduct, assaulted and battered him in the course of his arrest, and then maliciously prosecuted him. He has sued state police supervisory officers on the theory that their negligent hiring, training, and supervision of their subordinates caused the misconduct.¹ See Gonzales v. Southwest Sec. & Protection Agency, Inc., 100 N.M. 54, 665 P.2d 810 (Ct.App.1983) (claim of negligent supervision and training against employer of security guards). He seeks relief under the New Mexico Tort Claims Act, NMSA 1978, Sections 41-4-1 through -27 (Repl.Pamp.1989).

DISCUSSION

The Tort Claims Act provides:

A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by Sections 41-4-5 through 41-4-12[.]

Sec. 41-4-4(A). The waiver applicable to law enforcement conduct is found in Section 41-4-12, which states:

The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties. [Emphasis added.]

Section 41-4-12 lists several specific torts for which immunity is waived. Defendants rely on the absence from that list of any mention of negligent supervision or training. That reliance is misplaced. Plaintiff alleges that he was injured by four of the listed torts: assault, battery, false arrest, and malicious prosecution. Several decisions by the New Mexico Supreme Court make clear that a law enforcement officer need not personally commit a listed tort for the officer's conduct to come within the waiver of Section 41-4-12. It suffices that the law enforcement officer, while acting within the scope of duty, negligently or intentionally causes the commission of a listed tort by another person.

In Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980), prisoners in three separate incidents were beaten by fellow inmates. The supreme court decided that the jailers were law enforcement officers who could be held liable to the injured prisoners for failure to comply with their duty to exercise reasonable and ordinary care for the protection of the prisoners. Methola rejected the contention that Section 41-4-12 waived immunity only for "personal injury or bodily injury resulting from assault or battery when committed by law enforcement officers." Id. at 332, 622 P.2d at 237 (emphasis in original). The court wrote, "[W]e conclude that the Legislature intended 'caused by' in Section 41-4-12 to include those acts enumerated in that section which were caused by the negligence of law enforcement officers while acting within the scope of their duties." Id. at 333, 622 P.2d at 238 (emphasis omitted).

In Schear v. Board of County Commissioners, 101 N.M. 671, 687 P.2d 728 (1984), the supreme court held that the Tort Claims Act waived immunity when a citizen was attacked by a criminal after sheriff's officers negligently failed to respond to an emergency call. The opinion stated that this court had misunderstood Methola when we upheld immunity on the ground that the assault had been committed by a third party. The court wrote, "We again specifically hold that law enforcement officers need not be the direct cause of injury (in the sense of having inflicted it) in order for liability to attach." Id. at 673, 687 P.2d at 730 (emphasis in original).

Most recently, in California First Bank v. State, 111 N.M. 64, 801 P.2d 646 (1990), the supreme court considered liability predicated on a motor vehicle accident caused by an intoxicated driver. The court decided that liability for the accident could be imposed upon law enforcement officers who had wrongfully failed to enforce the liquor-control and drunk-driving laws. Although the opinion relied upon another ground for holding that immunity was waived, it also suggested that immunity would be waived if the intoxicated driver had committed a battery, one of the torts listed in Section 41-4-12. See id. at 73-74 n. 6, 801 P.2d at 655-56 n. 6.

We recognize that California First Bank, in a passage quoted by Judge Bivins' dissent, rejected the proposition that Section 41-4-12 waives immunity for all governmental actors who caused the non-immune act of a law enforcement officer. The comment, however, was made in a discussion of the liability of defendants who were not law enforcement officers. Id. at 67-68, 801 P.2d at 649-50. The waiver of immunity provided by Section 41-4-12 specifically relates to law enforcement officers. We are confident that the court did not intend to immunize law enforcement officers who caused conduct by other law enforcement officers for which immunity is waived under Section 41-4-12.

Cross v. City of Clovis, 107 N.M. 251, 755 P.2d 589 (1988) does not persuade us to the contrary. The issues in that case were traditional tort questions of duty and proximate cause, not the question before us. We doubt that the passage quoted in Judge Bivins' dissent, which states that immunity is waived when law enforcement officers cause third-party torts, was suggesting that the third-party tortfeasor must be someone other than a law enforcement officer.

In short, Methola and its progeny hold that immunity is waived when a law enforcement officer causes the commission of certain listed torts by a third person. We find nothing in the reasoning of those opinions or the language of Section 41-4-12 that would enable us to limit those holdings to encompass only occasions when the listed tort was committed by someone other than a law enforcement officer.

Defendants further contend, however, that there is a public policy ground for specifically rejecting the tort of negligent training and supervision under the Tort Claims Act. They argue that the tort should not be recognized because plaintiffs could never increase their recovery in a lawsuit by including such a claim--recovery would always also be possible under a respondeat superior theory. Defendants suggest that recognition of liability for negligent supervision and training would serve no function except to enable plaintiffs to obtain otherwise unavailable discovery (such as production of personnel files) and to introduce otherwise inadmissible inflammatory evidence at trial.

We need not determine at this juncture whether we agree that recovery under the tort of negligent training and supervision would be purely duplicative. Even if it would be, we see no bar in the Tort Claims Act to that cause of action. Defendants' concerns about illegitimate discovery and inflammatory evidence at trial can be resolved by rendering discovery and proof unnecessary through concessions on matters such as defenses or liability (e.g., admitting that the supervisors would be liable if the subordinates are found liable) and by bifurcating trial of the underlying claims against the subordinate officers.² See Baum v. Orosco, 106 N.M. 265, 268-69, 742 P.2d 1, 4-5 (Ct.App.1987) (In Bank) (approving bifurcation); Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303 (1954) (evidence that is relevant only to negligent entrustment is inadmissible when owner admits agency so that vicarious liability is established); Tindall v. Enderle, 162 Ind.App. 524, 320 N.E.2d 764 (1974) (evidence of negligent hiring not admissible when employer stipulates that employee was acting within scope of employment so that employer is subject to liability under doctrine of respondeat superior ); Tuite v. Union Pacific Stages, Inc., 204 Or. 565, 284 P.2d 333 (1955) (trial court did not err in failing to submit negligent entrustment claim to jury when employer stipulated to employer-employee relationship). Cf. Estate of Arrington v. Fields, 578 S.W.2d 173 (Tex.Ct.App.1979) (stipulation of agency relationship does not moot negligent hiring claim when punitive damages are at issue). Such concessions could also greatly limit, if not eliminate, the expense of having multiple attorneys for numerous named defendants.

We emphasize that our decision in this case is limited to construction of the Tort Claims Act. Although appellants urge ...