Torres v. State

Decision Date23 March 1995
Docket NumberNo. 21535,21535
Citation119 N.M. 609,1995 NMSC 25,894 P.2d 386
PartiesEsperio TORRES, personal representative of the Estate of Armando Torres, deceased, and John Beeks, personal representative of the Estate of Jeren Beeks, deceased, Plaintiffs-Petitioners, v. STATE of New Mexico, New Mexico Department of Public Safety, City of Albuquerque, Albuquerque Police Department, Robert Vanderhee, Ruth Lowe, and Sam Baca, Defendants-Respondents.
CourtNew Mexico Supreme Court
OPINION

RANSOM, Justice.

We issued a writ of certiorari to the Court of Appeals to review that Court's opinion in Torres v. State, 116 N.M. 379, 862 P.2d 1238 (Ct.App.), cert. granted, 117 N.M. 802, 877 P.2d 1105 (1993), in which the Court of Appeals affirmed the dismissal of a complaint brought by Esperio Torres and John Beeks as personal representatives of the estates of their adult sons. Torres and Beeks sought wrongful-death damages against the Albuquerque Police Department and others under the New Mexico Tort Claims Act, NMSA 1978, Secs. 41-4-1 to -27 (Repl.Pamp.1989 & Cum.Supp.1994). The district court dismissed the action for failure to state a claim upon which relief could be granted. Accepting as true all facts well pleaded, see Jones v. International Union of Operating Eng'rs, 72 N.M. 322, 325, 383 P.2d 571, 573 (1963), we reverse.

Facts and proceedings. On the morning of November 29, 1988, a gunman entered an Albuquerque bagel shop and killed three people. Witnesses described the gunman to the Albuquerque Police Department ("APD"), and the description appeared in the news media later that day. Albuquerque Mayor Ken Schultz instructed Chief of Police Sam Baca to put as many officers as needed on the investigation and authorized all overtime needed to arrest the murderer. In an effort to prevent the gunman from leaving town, APD informed the media that officers were guarding the airport, train depot, and bus station.

On the afternoon of November 29 an employee at an Albuquerque gun shop telephoned the New Mexico Department of Public Safety ("DPS") and spoke with Officer Robert Vanderhee. The employee informed Vanderhee that a man by the name of Nathan Trupp matched the description of the gunman and that Trupp had purchased a handgun on November 28. The employee gave Trupp's address to Vanderhee. Vanderhee attempted to reach his liaison at APD, Sergeant Desi Garcia, but Garcia was not in. He then tried to reach Officer Ruth Lowe, who was in charge of the investigation, but Lowe had left for the day. Vanderhee left a message for Lowe and went home without following up on the information he had received. Lowe received Vanderhee's message on the evening of November 29 but was unable to reach him at his office.

At 8:30 the next morning (November 30) Vanderhee reached either Garcia or Lowe and relayed the information he had received. That same morning a taxi driver informed Lowe and Vanderhee that, on November 28, he had driven Trupp to several Albuquerque gun shops and then to do target shooting. The taxi driver gave Lowe and Vanderhee a description of Trupp, Trupp's address, and a summary of Trupp's activities, including the purchase of the handgun. The driver believed Trupp was mentally unstable.

At approximately 10:15 that morning APD sent officers to Trupp's apartment complex. The officers observed the complex until approximately 1:30, at which time they forcibly entered Trupp's apartment. Trupp was not in his apartment and could not be located. Fearing that Trupp would flee, APD stationed police officers at the airport, train depot, and bus station.

A subsequent investigation revealed that Trupp had committed the murders in the bagel shop. Trupp spent the night of November 29 in his apartment and stayed there until approximately 9:00 the next morning, at which time he paid his rent. After paying rent, Trupp went to the bus station and boarded a 12:30 bus for Los Angeles. He arrived in Los Angeles on December 1. At approximately 6:45 that evening Trupp shot and killed Armando Torres and Jeren Beeks, who were both security guards at Universal Studios. Trupp used the same handgun that was used in the bagel-shop murders.

On November 29, 1990, Esperio Torres and John Beeks filed an action under the Tort Claims Act. In addition to the facts set out above, the complaint alleged that Trupp was delusional and hearing non-existent voices from November 28 to December 1. The complaint also alleged that APD did not request an interstate warrant for Trupp nor did it ask the Federal Bureau of Investigation to become involved in the search. Finally, the complaint alleged that APD failed to notify out-of-state law enforcement authorities of the murders or of Trupp's unknown whereabouts. According to Torres and Beeks, these failures amounted to a breach by APD and DPS of their statutory duty to investigate and their common-law duty to exercise--for the safety of others foreseeably at risk from assault by the same gunman--that care ordinarily exercised by reasonably prudent and qualified officers in light of the nature of the crime and the urgency of the investigation. They argue that such breaches proximately caused the deaths of their sons.

On April 8, 1991, the district court dismissed with prejudice the complaint, holding that "as a matter of law, the injured parties were not foreseeable plaintiffs and the defendants owed no duty to plaintiffs." The Court of Appeals affirmed.

Policy reasons advanced by the Court of Appeals are not determinative. The Court of Appeals held that as a matter of policy the duty to investigate and the duty to exercise ordinary care should not be extended to the victims in this case because it would be "unrealistic in light of rising criminal activity and limited public resources." 116 N.M. at 384, 862 P.2d at 1243.1 Although "rising criminal activity" and "limited public resources" may be factors for the jury to consider in determining whether APD or DPS breached its duties, we do note that Mayor Schultz here ordered Police Chief Baca to put as many officers as needed on the case, authorizing as much overtime as needed to apprehend the killer; and while these factors may bear upon the discharge of duty, they do not bear upon the existence of the statutory duty of law enforcement officers to investigate crimes.

Policy determines duty. With deference always to constitutional principles, it is the particular domain of the legislature, as the voice of the people, to make public policy. Elected executive officials and executive agencies also make policy, to a lesser extent, as authorized by the constitution or the legislature. The judiciary, however, is not as directly and politically responsible to the people as are the legislative and executive branches of government. Courts should make policy in order to determine duty only when the body politic has not spoken and only with the understanding that any misperception of the public mind may be corrected shortly by the legislature.

What is the existing public policy with respect to governmental liability for the acts or omissions of law enforcement officers? The legislature specifically has waived immunity from liability under "traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." Section 41-4-2(B). This waiver of immunity applies to actions for wrongful death from battery "caused by law enforcement officers while acting within the scope of their duties." Section 41-4-12; Methola v. County of Eddy, 95 N.M. 329, 333, 622 P.2d 234, 238 (1980) (holding that under Section 41-4-12 officer's negligence may proximately "cause" battery by third person against another); Blea v. City of Espanola, 117 N.M. 217, 221, 870 P.2d 755, 759 (Ct.App.) (holding battery committed by intoxicated driver gave rise to action against law enforcement officers claimed to have been negligent in failing to detain driver earlier), cert. denied, 117 N.M. 328, 871 P.2d 984 (1994); Ortiz v. New Mexico State Police, 112 N.M. 249, 252, 814 P.2d 117, 120 (Ct.App.1991) (holding law enforcement officers liable when negligent supervision and training of subordinates leads to battery), cert. quashed, 113 N.M. 352, 826 P.2d 573 (1992). With NMSA 1978, Section 29-1-1 (Repl.Pamp.1994), the legislature has imposed on law enforcement officers a duty to investigate crimes called to their attention, and an action for injuries proximately caused by an officer's negligent breach of this duty is within the contemplation of Section 41-4-12. Schear v. Board of County Comm'rs., 101 N.M. 671, 676, 687 P.2d 728, 733 (1984); see California First Bank v. State, 111 N.M. 64, 801 P.2d 646 (1990) (recognizing private cause of action under Section 41-4-12 when law enforcement officer's negligent failure to discharge duties under Section 29-1-1 results in personal injury).

In this case the Court of Appeals has formulated public policy by which it restricts the statutory duty of law enforcement officers. It is not necessary, however, for the courts to formulate policy in order to apply the law to this case. Because the trial court dismissed the complaint for failure to state a claim, we need only recognize the statutory duty and examine the complaint for any set of facts provable under the claim that may show breach under traditional tort concepts of ordinary care required for the safety of persons foreseeably at risk. See California First Bank, 111 N.M. at 66, 801 P.2d at 648.

We apply New Mexico tort law in this case. Although neither party argued that the district court applied the wrong law, we feel it necessary to review which state's law applies in this case because the deaths occurred in California. In determining this issue,...

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