Ortiz v. U.S. Border Patrol

• Decision Date: 08 March 1999
• Docket Number: No. Civ. 97-1701 BB/LFG.,Civ. 97-1701 BB/LFG.
• Citation: 39 F.Supp.2d 1321
• Parties: Ernesto ORTIZ, Plaintiff, v. UNITED STATES BORDER PATROL, Defendant.
• Court: U.S. District Court — District of New Mexico

39 F.Supp.2d 1321

Ernesto ORTIZ, Plaintiff, v. UNITED STATES BORDER PATROL, Defendant.

No. Civ. 97-1701 BB/LFG.

United States District Court, D. New Mexico.

March 8, 1999.

Phil Blenden, Blenden Law Firm, Carlsbad, NM, for plaintiff.

Raymond Hamilton, AUSA, Albuquerque, NM, for defendant.

MEMORANDUM OPINION AND ORDER

BLACK, District Judge.

THIS MATTER comes before the Court on Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. 24). Having reviewed the submissions of the parties and the relevant law, the Court finds that Defendant's motion should be GRANTED.

Facts

Plaintiff was involved in a single-vehicle accident in which his Bronco hit a patch of ice, skidded off the highway, and rolled onto its top. Plaintiff was trapped in the vehicle. Two Border Patrol agents driving on the same highway came upon the accident shortly after it occurred, and stopped to help. They were informed by other individuals that Plaintiff was still in the vehicle and needed an ambulance. After calling for the ambulance, one of the agents spoke with a New Mexico State Police officer, Sergeant Kiper, who had also arrived on the scene. Sergeant Kiper informed the agent that Plaintiff was suffocating in the Bronco, because the overturned vehicle was pressing down on Plaintiff and making it difficult for him to breathe. Sergeant Kiper asked the agents to help roll the Bronco onto its side, off its roof, so Plaintiff could be removed. The agents attached a chain to the Bronco and, using their Border Patrol vehicle, pulled the Bronco onto its side. According to Plaintiff, he was thrown about the vehicle as a result, and suffered spinal injuries which have left his legs and lower body paralyzed. Plaintiff filed suit against Defendant under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. § 1346(b), claiming Defendant's employees negligently injured him. Defendant has filed the instant motion seeking dismissal of Plaintiff's case.

Standard of Review

Both parties submitted affidavits for the Court's consideration, and the Court has considered those affidavits. Therefore, Defendant's motion must be analyzed as a summary judgment motion rather than a Rule 12(b)(6) motion to dismiss. See Lowe v. Town of Fairland, Oklahoma, 143 F.3d 1378, 1381 (10th Cir.1998). Summary judgment should be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Quaker State Minit-Lube, Inc. v. Fireman's Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir.1995) (quoting Fed.R.Civ.P. 56(c)). "All facts and reasonable inferences must be construed in the light most favorable to the nonmoving party." Id. On a motion for summary judgment, the issue is "not whether [the court] thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Nevertheless, a jury question does not exist because of the presence of a mere scintilla of evidence; rather, there must be a conflict in substantial evidence to create a jury question." Walker v. NationsBank of Florida, 53 F.3d 1548, 1555 (11th Cir.1995). The Court will consider Defendant's motion in light of these standards. As discussed below, under the case law there are two possible analyses to apply to this case. The result is the same under either analysis.

Primary Analysis

Under the FTCA, the United States is liable for negligent acts of its employees if a "private person," in similar circumstances, would be liable to the claimant under the law of the place where the negligent act occurred. § 1346(b). There is no dispute in this case that New Mexico law applies. According to the Border Patrol, under New Mexico law a private individual performing the same acts as its agents would not be liable to Plaintiff. The basis for this assertion is New Mexico's "good Samaritan" statute, NMSA 1978, § 24-10-3. Under that statute, a person administering emergency care at the scene of an emergency, without remuneration or the expectation of remuneration, is not liable for any civil damages unless the person acts in a grossly negligent manner. The Border Patrol contends there is no evidence its agents were grossly negligent, and no evidence they acted in the expectation of receiving remuneration for their efforts. Therefore, argues the Border Patrol, it is entitled to assert the defense provided by the good Samaritan statute.

In response, Plaintiff essentially argues two points. First, Plaintiff argues that the Border Patrol agents were law enforcement officers on duty at the time they came upon the accident. For purposes of the good Samaritan statute, therefore, they should be treated as a state or local law enforcement officer would be, rather than a "normal" private individual. Relying on case law from jurisdictions outside New Mexico, Plaintiff contends law enforcement officers have a pre-existing duty to render aid at the scene of an emergency, receive remuneration (in the form of their salaries) for their actions, and are not entitled to assert the protection provided by the good Samaritan statute. See, e.g., Praet v. Borough of Sayreville, 218 N.J.Super. 218, 527 A.2d 486, 488-89 (1987); Lee v. State, 490 P.2d 1206, 1209-10 (Alaska 1971). Plaintiff asks the Court to interpret New Mexico's statute in the same manner.¹ Plaintiff's other argument is a suggestion that the agents were indeed grossly negligent in their actions, and therefore even under the good Samaritan statute the Border Patrol can be held liable for those actions.

The application-of-the-good-Samaritanstatute issue can be distilled into one inquiry: by using the phrase "private person," did Congress mean a person not a federal employee, but in a similar position as the federal employee, in either the government or private sector? Or did Congress mean a person who is not a government employee of any kind? In other words, should the Border Patrol agents in this case be compared for FTCA purposes with state or local government employees having similar duties and responsibilities, or only with persons not employed by any government entity? In the former situation, the defenses and immunities of the Border Patrol agents would be the same as those of state or local government employees in similar situations; in the latter, the agents would be able to take advantage only of those defenses available to an individual not acting as a government employee.

Simply by using the phrase "private person," Congress appears to have decided that federal employees are not to be compared to state or local government employees, but to non-public-sector individuals. If that were not the intent of Congress, it would have been a simple matter to delete the phrase "if a private person" from the FTCA. This would have left the FTCA imposing liability in accordance with the law of the place of occurrence in general, allowing comparison to government-employee liability as well as normal tort liability. This common-sense interpretation of the FTCA is borne out by cases interpreting the statute.

In Indian Towing Co. v. United States, 350 U.S. 61, 65, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the Supreme Court was faced with a government argument to the effect that the FTCA must be read to exclude liability in the performance of activities that private persons do not perform. In rejecting that argument, the Court reasoned in part that the government's argument would impose liability in the same manner as if the federal government were a municipal corporation and not as if it were a private person, and held this was not a permissible interpretation of the FTCA. By emphasizing the contrast between municipal employees and private persons, the Court impliedly rejected the argument Plaintiff makes in this case, that a Border Patrol agent should be liable to the same extent as a state or local law enforcement officer.

The Tenth Circuit has also held that where defenses and immunities to tort liability are concerned, the federal government is to be compared to a non-public-sector entity rather than a state or local governmental body. Ewell v. United States, 776 F.2d 246, 248-49 (10th Cir. 1985). In Ewell, the defense in question was provided by Utah's recreational use statute, which eliminated a landowner's duty of care toward any person who enters the owner's premises, without charge by the owner, for recreational purposes. The plaintiff had been a passenger on a motor-cycle being driven on federal land, was injured in an accident, and filed suit against the United States. She argued that the Utah recreational use statute should not apply to the United States, because the statute was not intended to apply to public landowners, as opposed to private owners. The Tenth Circuit held that it did not matter whether the statute applied to land controlled by state or local governments, because the FTCA makes the United States liable only to the extent a private person would be liable under similar circumstances. Since the Utah statute applied to private landowners, it was equally applicable to the United States. Id.; see also DiMella v. Gray Lines of Boston, Inc., 836 F.2d 718, 720 (1st Cir.1988) (Massachusetts recreationaluse statute applies to United States even if it would not apply to state governmental instrumentalities).

It is true that in the context of activities peculiar to law enforcement, some courts have established exceptions to the principle that the proper comparison in FTCA cases is to private, nongovernment individuals. However, these cases only serve to illustrate that there is a significant difference under the FTCA between "private persons" and government employees, and...