WACHOCKI v. BCSD

• Decision Date: 24 November 2009
• Docket Number: No. 27,761.,27
• Citation: 228 P.3d 504
• Parties: Michael and Tia WACHOCKI, individually and as Personal Representatives of the Estate of Jason Wachocki, deceased, and Bill Wachocki, Plaintiffs-Appellees/Cross-Appellants, v. BERNALILLO COUNTY SHERIFF'S DEPARTMENT, Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeals of New Mexico

228 P.3d 504

2010-NMCA-021

2010-NMCA-021

Michael and Tia WACHOCKI, individually and as Personal Representatives of the Estate of Jason Wachocki, deceased, and Bill Wachocki, Plaintiffs-Appellees/Cross-Appellants, v. BERNALILLO COUNTY SHERIFF'S DEPARTMENT, Defendant-Appellant/Cross-Appellee.

No. 27,761.

Court of Appeals of New Mexico.

November 24, 2009.

Certiorari Granted, February 8, 2010, Nos. 32,131, 32,099.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

McGinn, Carpenter, Montoya & Love, P.A., Randi McGinn, A. Elicia Montoya, Albuquerque, NM, for Plaintiffs-Appellees/Cross-Appellants.

Kennedy, Moulton & Wells, P.C., Deborah D. Wells, Albuquerque, NM, for Defendant-Appellant/Cross-Appellee.

Slease & Martinez, P.A., William D. Slease, Jonlyn M. Martinez, Albuquerque, NM, for Amicus Curiae NM Association of Counties.

OPINION

BUSTAMANTE, Judge.

{1} The Bernalillo County Sheriff's Department (BCSD) appeals the judgment of the district court holding it thirty percent liable for the wrongful death of Jason Wachocki. BCSD argues (1) that several of the district court's factual findings were not supported by substantial evidence; (2) that the district court erred in finding that Jason Wachocki had no comparative fault in causing his death; (3) that the district court erred in calculating the lost value of Jason's life and household services; and (4) that the court improperly determined that this claim fell within the waiver of sovereign immunity for law enforcement officers under NMSA 1978, Section 41-4-12 (1977). We do not address the three evidentiary arguments because BCSD failed to conform to the rules of appellate procedure with regard to briefing such issues. We affirm the district court's decision that the Tort Claims Act does not provide immunity in this case.

{2} Jason's parents and adult brother cross appeal. Michael and Tia Wachocki argue on behalf of their son's estate that the $400,000 cap under the Tort Claims Act is unconstitutional and that a judgment for full damages should have been entered against BCSD. Bill Wachocki argues that the court improperly denied his claim for loss of consortium with his deceased brother. We conclude that the cap on damages remains constitutional because it continues to bear a rational relation to a legitimate governmental purpose and that the right to recover for loss of consortium does not extend to the facts of this case.

BACKGROUND

{3} This case arises from the death of twenty-two-year-old Jason Wachocki (Jason). Jason was killed when his vehicle was struck by a speeding van driven by Willie Hiley (Willie), a corrections officer at the Metropolitan Detention Center (jail). After a bench trial, the district court found Willie seventy percent at fault for Jason's death and BCSD thirty percent at fault. The court concluded that BCSD's liability resulted from its negligence in failing to enforce traffic laws against jail corrections officers on Shelly Road.

{4} The fatal collision occurred at the intersection of Shelly Road and Speedway Boulevard west of Albuquerque. Shelly Road is a two-lane road running north and south, providing access to the jail, Sandia Motor Speedway (the race track), and the Albuquerque Solid Waste Management Department (SWMD). Speedway Boulevard makes a T-intersection with Shelly Road, and leads to the race track to the west. BCSD has the responsibility for patrolling these roadways.

{5} Jason worked weekends at the race track on the fire and safety crew. As Jason left his shift on the night of August 21, 2004, he traveled east along Speedway Boulevard, coming to a complete stop at the three-way intersection with Shelly Road at approximately 10:58 p.m. At the same time, Willie was driving south along Shelly Road on his way to work the graveyard shift at the jail. As Willie approached the intersection of Speedway Boulevard, he turned off his vehicle's headlights in an apparent attempt to determine whether there were any other vehicles in the area based on signs of illumination from their headlights. As Jason proceeded through the intersection, Willie's vehicle came out of the darkness with its headlights off, making it impossible for Jason to see it approaching. Willie ran the stop sign driving in excess of 75 miles per hour, or almost twice the posted speed limit, striking Jason's vehicle and killing him instantly.

{6} As early as 2000, before the jail was in operation, BCSD was informed by a SWMD supervisor about a "very serious traffic situation" on Shelly Road, involving motorists speeding and running the stop sign. BCSD responded by twice running "traffic specials" in the area and by training SWMD safety officers in the use of radar guns so that SWMD could monitor and issue citations to its own employees. In a series of speed audits, SWMD safety officers clocked vehicles—including non-SWMD employees—going 51-111 mph in a 45 mph zone, documenting thirty-nine violations in one day alone.

{7} The jail opened in 2003 and traffic increased significantly on Shelly Road. The new jail had 75-100 employees working each of its three shifts. These employees, along with law enforcement and members of the public, all began using Shelly Road to get to and from the jail.

{8} In the fourteen months between the opening of the jail and Jason's death, BCSD received numerous complaints about corrections officers and others violating traffic laws on Shelly Road. It also received requests to enforce the traffic laws on the roadways leading to the jail. Harry Tipton, the jail's director, had witnessed law enforcement officers, corrections officers, and members of the public speeding, passing illegally, and running through stop signs in the area, and asked BCSD to step up patrols. Dawn Freeze, the general manager of the race track, saw traffic violations on an almost daily basis, including speeding, illegal passing, and running stop signs. She made twenty phone calls reporting traffic violations by law enforcement officers, corrections officers, and others, and specifically requested traffic enforcement. Chuck Tipton, Jason's boss at the race track, made two phone calls reporting traffic violations and requesting enforcement. A similar phone call was made by Mike Archuleta, security superintendent for SWMD.

{9} The district court found that BCSD failed to respond to any of these requests to enforce traffic laws on the roads leading to the jail and that it did not enforce traffic laws against law enforcement officers and most corrections officers. After the opening of the jail and before Jason's death, SWMD continued to monitor traffic in the area and documented 192 vehicles speeding, illegally passing, and running stop signs over five separate days. Most of the vehicles violating traffic laws were those of law enforcement officers or corrections officers. The district court found that during the same time that these violations occurred, BCSD wrote a total of three speeding citations and one warning for running the stop sign at the intersection where Jason was killed. Even after Jason's death, video surveillance of the intersection revealed that BCSD's own officers continued to run the stop sign at Shelly Road. Jason's younger brother Bill also testified that he was actually a passenger in a jail transport van that sped through the stop sign on its way to the jail after Jason's death.

{10} The district court also found that BCSD knew that its failure to patrol traffic on Shelly Road could lead to a serious accident. At trial, Sheriff Darren White candidly acknowledged that if traffic laws were not enforced in a certain area, or against certain persons, vehicles would drive very fast causing more accidents and more severe accidents. Sheriff White also testified that issuing citations would deter violations of traffic laws not only by the person receiving the citation, but also by those who see the police taking enforcement action.

{11} Based on the foregoing, the district court found that Willie knew

that although law enforcement and corrections officers were speeding, illegally passing and running the stop signs, the BCSD was not enforcing the traffic laws against them on the roadways to and from the jail;

. . . that because BCSD did not stop or issue any citations to law enforcement or corrections officers, he would not be stopped or punished for violating the traffic laws on those roadways.

{12} The court concluded that:

The BCSD, through its deputies and employees, was negligent in violating the traffic laws on Shelly Road, the frontage road and at the 3-way intersection on the road to the jail.

The BCSD, through its deputies and employees, was negligent in not enforcing the law and allowing other deputies, law enforcement officers and most corrections officers to violate the traffic laws on Shelly Road, the frontage road and at the 3-way intersection on the road to the jail.

The BCSD, through its deputies and employees, was negligent in deciding not to respond to citizen complaints and concerns about speeding, illegal passing and running the stop sign on Shelly Road and at the 3-way intersection.

The negligence of the BCSD, through its deputies and employees, was a contributing cause of the collision on August 21, 2004, and the wrongful death of Jason Wachocki.

{13} The district court set the total compensatory damages for Jason's death at $3,707,563.82. BCSD's comparative fault portion amounted to $1,112,269.15, but the judgment was capped at $400,000 pursuant to NMSA 1978, Section 41-4-19(A)(3) (1991) (amended 2007), which sets forth maximum governmental liability under the Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2009). The Wachockis argue that this cap has become unconstitutional because it has failed to account for inflation and cost-of-living increases since it was imposed. They argue that it no longer serves any rational purpose because economic changes have rendered it useless as a deterrent...