Spencer v. University of New Mexico Hosp.

• Decision Date: 12 February 2004
• Docket Number: No. 22,702.,22,702.
• Parties: James SPENCER, Personal Representative of the Estate of Hope Rigolosi, Deceased, Plaintiff-Appellant, v. UNIVERSITY OF NEW MEXICO HOSPITAL, University of New Mexico Board of Regents, and Benjamin Williams, Defendants, and Health Force, Inc., a New York Corporation doing business in the State of New Mexico, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

91 P.3d 73

135 N.M. 554

2004 NMCA 47

James SPENCER, Personal Representative of the Estate of Hope Rigolosi, Deceased, Plaintiff-Appellant, v. UNIVERSITY OF NEW MEXICO HOSPITAL, University of New Mexico Board of Regents, and Benjamin Williams, Defendants, and Health Force, Inc., a New York Corporation doing business in the State of New Mexico, Defendant-Appellee.

No. 22,702.

Court of Appeals of New Mexico.

February 12, 2004.

Certiorari Granted April 23, 2004.

Amalia S. Lucero, Lisa K. Vigil, Jacob G. Vigil, Vigil & Vigil, P.A., Albuquerque, for Appellant.

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

Certiorari Granted, No. 28,532, April 23, 2004.

OPINION

WECHSLER, Chief Judge.

{1} Ben Williams, a man with a long criminal record, was hired as a caregiver by Health Force, Inc., and allegedly caused the death of Plaintiff's decedent, Hope Rigolosi, by injecting her with heroin. Plaintiff sued Health Force, alleging liability based on negligent hiring and retention and respondeat superior. The district court granted summary judgment on both claims, and Plaintiff appeals.

{2} We affirm summary judgment on the respondeat superior claim because Plaintiff abandoned that issue in the memorandum in support and did not brief the issue. See State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.1985)

(stating that issues raised in the docketing statement, but not briefed, are abandoned). We also affirm summary judgment on the negligent hiring and retention claim. We deny Health Force's motion objecting to Plaintiff's designation of the transcript of proceedings of July 20, 2001 and seeking to strike pleadings related to the respondeat superior claim.

Factual and Procedural Background

{3} Rigolosi was a thirty-six-year-old quadriplegic who required twenty-four-hour care. Health Force hired Williams as a caregiver on March 20, 1998. He was assigned to Rigolosi and cared for her at her home. At the time Williams was hired, he was sixty-one years old, had a long criminal history dating back more than thirty years, and was a fugitive from a previously imposed nine-and-a-half year sentence. Williams' record included convictions for burglary, aggravated assault, armed robbery with a deadly weapon, fraudulent use of a credit card, embezzlement, and shoplifting. Health Force hired Williams without performing a criminal background check of any kind. It called one or two references.

{4} There was evidence that on March 31, 1998, three of Rigolosi's narcotic prescription pills may have disappeared while Williams was on duty. The next day, April 1, Rigolosi was admitted to the hospital because she had pneumonia. On April 23, approximately one month after being hired, while visiting Rigolosi in the hospital, Williams allegedly injected Rigolosi with heroin which caused her death. When hospital staff found Rigolosi dead in her hospital room at 2:20 a.m., Williams was in the room "dancing and chanting."

{5} The record includes motions in limine to prohibit Health Force from introducing evidence that Rigolosi had expressed thoughts of suicide, evidence of her prior record for drug trafficking, and evidence of her prior drug and alcohol abuse. There appears to be some evidence that Health Force did not introduce Williams to Rigolosi, that she already knew Williams, and that she wanted him to be her caregiver. On the other hand, there was some evidence Rigolosi was "uncomfortable" with Williams.

{6} The parties dispute whether Williams was still employed by Health Force on April 23. We need not address this issue because we conclude that, under the limited circumstances of this case, Health Force had no duty.

Standard of Review

{7} Plaintiff contends the district court erred in granting Health Force summary judgment on Plaintiff's claim of negligent hiring and retention. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We review this issue de novo. Id.

Negligent Hiring and Retention

{8} Negligent hiring or retention is based on a duty flowing from the employer to the public to protect those whom the employer might reasonably anticipate would be injured as a result of the hiring or retention. See Narney v. Daniels, 115 N.M. 41, 50-51, 846 P.2d 347, 356-57 (Ct.App.1992)

. Negligent hiring or retention does not require that the employer actually know of the employee's lack of fitness, but depends on whether the employer knew or should have known that the employee posed a risk of harm to the public. Los Ranchitos v. Tierra Grande, Inc., 116 N.M. 222, 228, 861 P.2d 263, 269 (Ct.App.1993). Liability based on a theory of negligent hiring and retention requires a duty on the part of the employer toward the public. Narney, 115 N.M. at 51,

846 P.2d at 357. Additionally, the negligent hiring or retention must be the proximate cause of the plaintiff's injury and the injury must be foreseeable. Id.

{9} The existence of a duty is a question of law. See Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990)

. Duty can be established by statute or common law or by the general negligence standard, which requires an individual to use reasonable care. Narney, 115 N.M. at 51,

846 P.2d at 357. The existence of a duty is a question of policy to be determined by statutes, legal precedent, and other principles comprising the law. Id. To determine whether a duty exists, we analyze the relationship of the parties, the injured plaintiff's interests, and the defendant's conduct, combined with a determination of whether the plaintiff's interests should be protected as a matter of policy. See Calkins, 110 N.M. at 63,

792 P.2d at 40.

Statutory Duty

{10} Plaintiff argues that, in March 1998 when Health Force hired Williams, Health Force had a duty, imposed by statute, to perform a criminal background check on Williams. The Caregivers Criminal History Screening Act, first enacted in 1997, required caregivers to undergo criminal background checks. See NMSA 1978, § 29-17-1 (1997, repealed 1998, and replaced by NMSA 1978, §§ 29-17-2 to -5 (1998, as amended through 1999)) (the 1997 statute). This statute, Laws 1997, Chapter 202, became effective April 10, 1997. 1997 N.M. Laws, Ch. 202, § 2. It required nationwide and statewide criminal records checks of any applicant for employment with a care provider. Section 29-17-1(B). The process for these checks was specified in the statute. The nationwide check required "fingerprinting on federal bureau of investigation approved fingerprint cards, submitting the fingerprint cards to the bureau and obtaining the nationwide conviction record of an applicant." Section 29-17-1(A)(6)(a). Similarly, the statewide check required "fingerprinting on federal bureau of investigation approved fingerprint cards, submitting the cards to the department of public safety and obtaining the statewide conviction and felony arrest history of an applicant." Section 29-17-1(A)(7).

{11} There were admittedly problems with the 1997 statute. It failed to identify the agency to receive the FBI information and therefore the FBI would not provide the information. Roselyn Dufour, one of Plaintiff's experts, testified:

[t]he word came out within three months that it was going to be repealed. And there was a great deal of confusion about what needed to be done and when.... There was no process. There was no mechanism in place. There was no procedure. [Health care] providers were left to their own devices to try and figure out what they were supposed to do, and it was very shortly after that bill was passed that we were informed that the FBI would not be accepting fingerprints.

{12} Plaintiff produced evidence through Ms. Dufour that, even with any problems with the statute, it was possible, at least in Belen, New Mexico, to go to the police department and obtain information. It was not clear whether the information from the Belen Police Department was limited to statewide information or whether it also included national information.

{13} The 1997 statute was repealed and a new version was enacted on March 7, 1998. See 1998 N.M. Laws, Ch. 68, § 6. Despite the repeal of the 1997 statute, it was in force until May 20, 1998. See Compiler's Note to § 29-17-1. Plaintiff argues that Health Force had a duty, imposed by the 1997 statute, to protect the public by hiring and retaining as caregivers only people who had been screened for a criminal background. See Narney, 115 N.M. at 51,

846 P.2d at 357 (relying on statute to establish a duty that police departments hire and retain only mentally stable police officers).

{14} Health Force counters that it did not have to perform a criminal background check on Williams because the 1997 statute created a window of one hundred days in which an employee could be temporarily employed. See § 29-17-1(B). However, that subsection does not aid Health Force. It allows an employer to extend the temporary offer of employment only on condition that the employer has initiated the criminal background check within five days of the date of hire. Id. It appears undisputed that Health Force never initiated any criminal background check within five days of the date of hire, or at any time, and therefore it would not be entitled to rely on the window created by the statute.

{15} During our consideration of this case, we became increasingly concerned about whether a duty to perform a criminal background check could be fairly based on a statute that required a specific process that could not be followed. We requested and received supplemental briefs from the parties on this issue.

{16} We conclude that under the limited circumstances of this case, no statutory duty can be based on Health Force's failure to perform the background checks required by the 1997 statute in force...