Thompson v. City of Albuquerque

• Decision Date: 19 June 2017
• Docket Number: NO. S-1-SC-35974,S-1-SC-35974
• Citation: 397 P.3d 1279
• Parties: Bruce THOMPSON, as Guardian ad Litem for A.O., J.P., and G.G., Minor Children, Plaintiff-Respondent, v. CITY OF ALBUQUERQUE, Ray Schultz, former Chief of Police of the City of Albuquerque, and Kevin Sanchez, City of Albuquerque Police Officer, Defendants-Petitioners.
• Court: New Mexico Supreme Court

397 P.3d 1279

Bruce THOMPSON, as Guardian ad Litem for A.O., J.P., and G.G., Minor Children, Plaintiff-Respondent,

v.CITY OF ALBUQUERQUE, Ray Schultz, former Chief of Police of the City of Albuquerque, and Kevin Sanchez, City of Albuquerque Police Officer, Defendants-Petitioners.

NO. S-1-SC-35974

Supreme Court of New Mexico.

Filing Date: June 19, 2017

City of Albuquerque, Jessica M. Hernandez, City Attorney, Stephanie M. Griffin, Albuquerque, NM for Petitioners.

Kennedy, Kennedy, & Ives, LLC, Shannon L. Kennedy, Joseph P. Kennedy, Adam C. Flores, Albuquerque, NM for Respondent.

OPINION

EDWARD L. CHÁVEZ, Justice

{1} May the minor children of a parent whom they allege was wrongfully shot and killed by a law enforcement officer (1) sue for loss of consortium damages under the New Mexico Tort Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015), and (2) bring their lawsuit even if the parent's estate did not sue for wrongful death damages? We answer "yes" to both questions for the following reasons. First, Section 41-4-12 of the TCA waives a law enforcement officer's sovereign immunity from liability for personal injury and bodily injury damages resulting from battery, and loss of consortium damages may be characterized as either personal or bodily injury damages. Second, loss of consortium damages result from the wrongful injury or death of someone who was in a sufficiently close relationship to the loss of consortium claimant, and such damages belong to the loss of consortium claimant and not to the injured person or the decedent's estate.

BACKGROUND

{2} The background to our analysis is comprised of the well-pled facts in Plaintiffs' complaint, which we accept as truthful for purposes of reviewing the district court's ruling on Defendants' motion to dismiss. Callahan v. N.M. Fed'n of Teachers-TVI , 2006-NMSC-010, ¶ 4, 139 N.M. 201, 131 P.3d 51.

{3} On March 29, 2010, Albuquerque Police Department officers received information regarding a suspected stolen vehicle located in a commercial parking lot. Several officers then arrived at the scene and surrounded the suspected stolen vehicle with their unmarked police vehicles. Mickey Owings parked next to the suspected stolen vehicle. A passenger exited Owings's vehicle and approached the suspected stolen vehicle.

{4} The APD officers then positioned one of the unmarked police vehicles behind Owings's vehicle as Officer Sanchez approached Owings's vehicle on foot. Owings backed his vehicle into the unmarked police vehicle that was preventing him from leaving. Officer Sanchez drew his gun and pointed it at Owings as he continued to approach Owings's car. Owings drove away once Officer Sanchez began shooting at his car. Ultimately, Officer Sanchez shot and killed Owings during this encounter.

{5} Plaintiffs are Owings's surviving minor children who sued Defendants for loss of consortium damages under Section 41-4-12. Plaintiffs allege that Defendants' acts and omissions caused the wrongful death of their father, and as a result they will be "forced to grow up without the companionship, guidance, love, enjoyment, and support of their father...." The district court granted Defendants' Rule 1-012(B)(6) NMRA motion to dismiss, concluding that the TCA did not waive law enforcement officers' sovereign immunity for a loss of consortium claim. The Court of Appeals reversed, Thompson v. City of Albuquerque , 2017-NMCA-002, ¶ 11, 386 P.3d 1015, and we affirm the Court of Appeals.

DISCUSSION

{6} "Generally, the Tort Claims Act provides governmental entities and public employees acting in their official capacities with immunity from tort suits unless the [TCA] sets out a specific waiver of that immunity."Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't , 1996-NMSC-021, ¶ 6, 121 N.M. 646, 916 P.2d 1313. Section 41-4-12 provides that law enforcement officers' immunity is waived for:

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.

We review the dismissal of Plaintiffs' claim for loss of consortium damages under Rule 1-012(B)(6) de novo. See Fitzjerrell v. City of Gallup ex rel. Gallup Police Dep't , 2003-NMCA-125, ¶ 8, 134 N.M. 492, 79 P.3d 836 (noting that whether a motion to dismiss was properly granted is a question of law).

Loss of consortium is a claim for damages deriving from a tort upon another, but which may be brought as an independent claim for damages to a sufficiently close relationship

{7} Defendants argue that there is no waiver of sovereign immunity for loss of consortium under Section 41-4-12 because loss of consortium is not specifically enumerated in the statute, and therefore a waiver would be contrary to "the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the [TCA] and in accordance with the principles established in that act." Section 41-4-2(A). The structure of Section 41-4-12 persuades us otherwise.

{8} The plain language of Section 41-4-12 first presents the types of injury for which a law enforcement officer's immunity may be waived. Id. The types of injury enumerated include personal and bodily injury. Id. Loss of consortium fits squarely within personal injury as an element of such damages. See UJI 13-1810A NMRA (listing loss of consortium within the category of personal injury damages). Loss of consortium is a type of personal injury damage because "[d]amages for consortium are damages for the plaintiff's emotional distress" due to the harm to a sufficiently close relationship. Fernandez v. Walgreen Hastings Co. , 1998-NMSC-039, ¶ 26, 126 N.M. 263, 968 P.2d 774 ; see also Weinstein , 1996-NMSC-021, ¶ 26, 121 N.M. 646, 916 P.2d 1313 (holding that emotional distress is a type of personal injury). Courts have recognized that "[d]amages for emotional distress ... may be recoverable as damages for personal injury resulting from one of the enumerated acts." Romero v. Otero , 678 F.Supp. 1535, 1540 (D.N.M. 1987) (internal quotation marks omitted). Other courts have also found that loss of consortium is a damage resulting from bodily injury upon another. Brenneman v. Bd. of Regents of the Univ. of N.M. , 2004-NMCA-003, ¶ 19, 135 N.M. 68, 84 P.3d 685. Whether loss of consortium is labeled as personal or bodily injury, it is indisputably contemplated by the language of Section 41-4-12.

{9} Section 41-4-12 also delineates the torts for which a law enforcement officer's immunity may be waived. Id. The enumerated torts include battery, from which Plaintiffs allege their claim for loss of consortium damages arises in this case. In this regard, Plaintiffs' claim for loss of consortium damages derives from a tort enumerated under Section 41-4-12. See Williams v. Bd. of Regents of the Univ. of N.M. , No. CIV 13-0479 JB/WPL, 2014 WL 4351533, at *11 n.8 (D.N.M. Aug. 18, 2014) ("Loss of consortium can be asserted against New Mexico government actors, despite that it is not specifically mentioned in the [TCA], provided that the underlying tort—the one that caused direct physical injury—itself triggers an immunity waiver...." (citation omitted)). Loss of consortium damages are derivative in nature because they arise from a physical injury upon another person. See Romero v. Byers , 1994-NMSC-031, ¶ 8, 117 N.M. 422, 872 P.2d 840 ("Loss of consortium is simply the emotional distress suffered by one spouse who loses the normal company of his or her mate when the mate is physically injured due to the tortious conduct of another."). Therefore, both the injury and the tort from which the children's claim for loss of consortium damages derive are specifically enumerated under Section 41-4-12.

{10} The Court of Appeals has correctly recognized that immunity may be waived for loss of consortium damages as a claim deriving from an enumerated tort under the TCA. In Wachocki v. Bernalillo County Sheriff's Department (Wachocki I ), the Court of Appeals analyzed a wrongful death claim under Section 41-4-12 and a derivative claim for loss of consortium damages. 2010-NMCA-021, ¶¶ 1-2, 147 N.M. 720, 228 P.3d 504, aff'd , Wachocki v. Bernalillo Cty. Sheriff's Dep't (Wachocki II ), 2011-NMSC-039, ¶¶ 1, 12-14, 150 N.M. 650, 265 P.3d 701. The Court of Appeals held that Section 41-4-12 waived immunity for the wrongful death claim, Wachocki I , 2010-NMCA-021, ¶ 1, 147 N.M. 720, 228 P.3d 504, but regarding the loss of consortium claim, the claimant, who was the decedent's sibling, could not recover because he had failed to prove the foreseeability of harm to a sufficiently close relationship with the decedent. Id. ¶¶ 54-57.

{11}Defendants argue that Wachocki I did not expressly hold that damages for loss of consortium may be recovered under Section 41-4-12. The fact that the Wachocki I Court analyzed the merits of the claim for loss of consortium damages after it determined there was a waiver for the tort claim from which the damages derived leads us to conclude otherwise. The Court of Appeals began its analysis on loss of consortium damages by stating that "damages for loss of consortium may be recovered under the Section 41-4-2(A) waiver of sovereign immunity." Wachocki I , 2010-NMCA-021, ¶ 50, 147 N.M. 720, 228 P.3d 504 (citing Brenneman , 2004-NMCA-003, ¶ 19, 135 N.M. 68, 84 P.3d 685 ). Section 41-4-2(A) is a general provision explaining the policy reasons behind the TCA. The same is true of Section 41-4-2(B), which states that "[l]iability ... under the [TCA] shall be based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the...