Spencer v. Health Force, Inc.

• Decision Date: 31 January 2005
• Docket Number: No. 28,532.,28,532.
• Citation: 137 N.M. 64,107 P.3d 504
• Parties: James SPENCER, Personal Representative of the Estate of Hope Rigolosi, Plaintiff/Petitioner, v. HEALTH FORCE, INC., A New York Corporation doing business in the State of New Mexico, Defendant/Respondent.
• Court: New Mexico Supreme Court

107 P.3d 504

137 N.M. 64

James SPENCER, Personal Representative of the Estate of Hope Rigolosi, Plaintiff/Petitioner, v. HEALTH FORCE, INC., A New York Corporation doing business in the State of New Mexico, Defendant/Respondent.

No. 28,532.

Supreme Court of New Mexico.

January 31, 2005.

Vigil & Vigil, P.A., Lisa K. Vigil, Jacob G. Vigil, Amalia J. Skogen Lucero, L. Helen Bennett, Albuquerque, NM, for Petitioner.

Madison, Harbour, Mroz & Brennan, P.A., M. Eliza Stewart, Michele U. Estrada, Albuquerque, NM, for Respondent.

Michael B. Browde, Albuquerque, NM, for Amicus Curiae New Mexico Trial Lawyers Association.

OPINION

SERNA, Justice.

{1} Plaintiff-Petitioner James Spencer, the personal representative of the estate of Hope Rigolosi, filed a wrongful death claim against Defendant-Respondent Health Force, Inc., based on negligent hiring, supervision, training, and retention of a home care worker, Ben Williams. Respondent filed a motion for partial summary judgment, and the district court granted the motion. Petitioner appealed to the Court of Appeals. The Court of Appeals affirmed the district court by unanimous opinion. Spencer v. Univ. of N.M. Hosp., 2004-NMCA-047, ¶ 2, 135 N.M. 554, 91 P.3d 73. The Court concluded that Respondent had no statutory duty to Rigolosi for the failure to perform a background check as required by the version of NMSA 1978, § 29-17-1 (repealed 1998) in effect at the relevant time because strict statutory compliance was not possible; because Respondent's violation of the statute was excusable under a "justifiable violation doctrine;" because Respondent had no common law duty of reasonable care due to the existence of the statute; and because, as a matter of law, Respondent's retention of Williams after he had allegedly stolen three narcotic pills from Rigolosi was not the proximate cause of her death. Spencer, 2004-NMCA-047, ¶¶ 16, 17, 23, 25, 135 N.M. 554, 91 P.3d 73. This Court granted Petitioner's petition for writ of certiorari. See NMSA 1978, § 34-5-14(B) (1972). We reverse the Court of Appeals and the district court.

I. Facts and Background

{2} Rigolosi, a thirty-six-year-old quadriplegic, died of a drug overdose on April 23, 1998. She required twenty-four-hour long-term care services. Respondent provides long-term home care to disabled individuals. Respondent hired Williams as a care giver on March 20, 1998, and assigned him, along with two other employees, to provide companionship and housekeeping care for Rigolosi in her home. Patricia Pendelton, the owner of Health Force, stated that Williams was hired based on Rigolosi's recommendation. Respondent asserts that it checked all references Williams provided and that the references informed Respondent that he was reliable and dependable. Respondent did not perform a criminal background check on Williams prior to his employment. Respondent contends that, on his employment application, Williams indicated that he had never been convicted of a felony. In fact, Williams had prior convictions for burglary, aggravated assault, armed robbery, credit card fraud, embezzlement, and shoplifting. Respondent recounts that Williams, as its employee, provided home care services to Rigolosi between March 20 and April 1, 1998.

{3} Petitioner presented evidence that Williams allegedly stole three of Rigolosi's narcotic prescription pills while working for Respondent and alleged that Respondent did not investigate or discipline Williams for this action. Kasey Whitley, Williams' Health Force coworker and one of Rigolosi's other care givers, stated that, prior to Rigolosi's admission to the hospital, some of her narcotic medication was missing and that Williams admitted that he took it. On March 31, 1998, Whitley noted on the Health Force log that some of Rigolosi's medication was missing during Williams' shift.

{4} On April 1, Rigolosi was admitted to University of New Mexico Hospital (UNMH) for pneumonia and was set to be discharged on April 23. Although Whitley stated that no one was assigned by Health Force to care for Rigolosi while she was hospitalized, Whitley also described her regular visits to Rigolosi while Rigolosi was hospitalized and stated that Williams also visited Rigolosi regularly during this time. Whitley stated that she believed that she, along with Williams, would again act as health care givers after Rigolosi was to be discharged from the hospital, based on Whitley's conversation with Pendleton. Petitioner presented evidence that UNMH employees identified Williams and Whitley as Rigolosi's care givers. Donna Mentillo, a UNMH employee, stated that Rigolosi introduced Williams to her as Rigolosi's "caregiver" and that Mentillo understood this to mean that he assisted with her home care. Pendelton stated that she was aware that Williams and the other care givers were going to the hospital to visit Rigolosi "at least a couple weeks after" Rigolosi was admitted. On April 23, Williams allegedly took Rigolosi out of her UNMH room and injected her with heroin, resulting in her death. {5} Respondent contends that Williams resigned from Health Force at the end of March and that his last date of employment was April 18. Pendelton also stated that Health Force had given thirty days' notice to the State of New Mexico, terminating its contract for Rigolosi's care effective April 7. Pendelton stated that she did not inform the staff at UNMH or Rigolosi that the care givers would not be providing services for Rigolosi while she was hospitalized. Respondent argues that, at the time of Rigolosi's death, Williams was not its employee, not subject to its control, and had not received authorization to visit Rigolosi at UNMH. Petitioner argues that Respondent did not terminate Williams' employment prior to Rigolosi's death or warn her of Williams' criminal background, and that Respondent does not have documentation of Williams' resignation. Thus, while it is undisputed that Williams was an employee for Respondent, the parties dispute whether Williams was an employee at the time of Rigolosi's death.

{6} In support of Petitioner's assertion that Williams continued to be Respondent's employee, in addition to the statements of Williams' coworker, Whitley, Petitioner relies on a time-dated voice recording, made approximately eight hours after Rigolosi's death, seized by the Albuquerque Police Department at Williams' residence. On the recording, a voice stated, "Hey Ben, this is Rachel. I just wanted to go over your schedule for this coming weekend. Give me a call when you get a chance, 883-4900. Thanks. Bye-bye." Petitioner notes that this phone number is identical to Respondent's published number. Pendleton confirmed that an individual named "Rachel" was employed by Health Force to handle care givers' work schedules. However, Respondent contends that the recording is not admissible because the message is hearsay and does not meet any exception to the hearsay rule.

II. Discussion

A. Standard of Review

{7} "Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). "If the facts are not in dispute, and only their legal effects remain to be determined, summary judgment is proper." Id. at 335, 825 P.2d at 1245.

A movant for summary judgment need only make a prima facie showing that there is no genuine issue of material fact, and that on the undisputed material facts, judgment is appropriate as a matter of law; the burden then shifts to the opponent to show at least a reasonable doubt, rather than a slight doubt, as to the existence of a genuine issue of fact.

Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263. "[T]he opponent must come forward and establish with admissible evidence that a genuine issue of fact exists." Id. This Court "view[s] the facts in a light most favorable to the party opposing the motion and draw[s] all reasonable inferences in support of a trial on the merits." Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879.

B. Duty

{8} This matter presents the central question of whether Respondent owes a duty to the disabled individuals that receive care services from Respondent's employees based on theories of negligent hiring and retention. "The existence of a tort duty is a policy question that is answered by reference to legal precedent, statutes, and other principles of law." Ruiz v. Garcia, 115 N.M. 269, 272, 850 P.2d 972, 975 (1993).

{9} The Legislature has recognized that agencies that employ care givers owe a duty to those disabled individuals who receive long-term care services. Section 29-17-1 requires health care agencies to perform a criminal background check on all applicants prior to employment. The statute in effect at the time relevant to the present matter required that employers submit fingerprints of applicants to the Federal Bureau Investigation (FBI) as well as the Department of Public Safety in order to obtain and verify the applicant's potential criminal history. Applicants with prior convictions could not be employed. This statute was enacted and became effective from April of 1997 until May 20, 1998, when it was repealed and a new version was enacted. Respondent contends that, at the time it hired Williams, the Legislature had already repealed the statute but that the new statutory procedure was phased in almost two years after Rigolosi's death, so there was no mechanism for an employer to carry out the specific requirements.

{10} As a matter of common law, "[l]iability for negligent hiring `flows from a direct duty running from the employer to those members of the public whom the employer might reasonably anticipate would be placed in a position of risk of injury as a result of the hiring.'" Medina v. Graham's Cowboys, Inc., 113 N.M. 471, 473, 827 P.2d 859, 861 (Ct.App.1992) (quoting Valdez v. Warner, 106...