Wittkowski v. State, Corrections Dept. of State of N.M.
| Decision Date | 24 June 1985 |
| Docket Number | No. 7939,7939 |
| Citation | 1985 NMCA 66,103 N.M. 526,710 P.2d 93 |
| Parties | Carla J. WITTKOWSKI, Individually and as Personal Representative of the Estate of Roland H. Wittkowski, Deceased, and as wife and surviving spouse of Ronald H. Wittkowski, deceased, and as Guardian and Next Friend of Christopher Allyn Wittkowski, a minor, and of Gretchen Roswitha Wittkowski, a minor, Plaintiffs-Appellants, v. STATE of New Mexico, CORRECTIONS DEPARTMENT OF STATE OF NEW MEXICO; Roger W. Crist, Individually and as Secretary of Corrections; Harvey Winans, Individually and as Warden of the Penitentiary of New Mexico; and New Mexico State Police, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
The personal representative and survivors of Roland H. Wittkowski brought suit for wrongful death, seeking compensatory and punitive damages against defendants under the New Mexico Tort Claims Act and the Federal Civil Rights Act. The district court granted defendants' NMSA 1978, Civ.P.Rule 12(b)(6) (Repl.Pamp.1980) motions to dismiss.
Because the case comes to the court following the granting of the Rule 12(b)(6) motion, we must accept the facts set out in the complaint as true, and resolve all doubts in favor of the sufficiency of the complaint. Runyan v. Jaramillo, 90 N.M. 629, 567 P.2d 478 (1977).
Facts.
Facts alleged in plaintiffs' complaint show that the decedent, Roland H. Wittkowski, a resident of Colorado, was killed during a robbery of the liquor store in which he worked. His killers, Ross David Thomas and Eddie Lee Seward, had escaped from the New Mexico State Penitentiary in Santa Fe.
Thomas and Seward had documented histories of violence. Both had escaped or attempted escape before. Thomas had an extensive record of violent behavior and was an alcoholic. Both were psychotics. Nevertheless, they were classified as minimum trustees, with only minimum supervision and assigned to work on a dairy operation at the prison. The complaint alleges they were left unguarded at night, without proper lighting for surveillance, without proper fencing or other facilities to prevent escape, and without properly trained prison personnel to supervise them. They escaped at 4:10 a.m., March 1, 1982. The state police knew of the escape within two hours and issued an all-points bulletin in New Mexico, but did not contact Colorado authorities. Thomas and Seward crossed the Colorado border, and at 7:00 p.m. that night, they robbed the liquor store and shot Wittkowski.
Plaintiffs alleged that the defendants breached duties set out in statutes and their own rules and regulations. The state police are alleged to have breached their duty, under NMSA 1978, Sections 29-1-4 and 29-3-3 (Repl.Pamp.1984) to identify, investigate and apprehend escapees and to cooperate with necessary officials in New Mexico and other states. The New Mexico State Department of Corrections, then-Secretary of Corrections Roger W. Crist, and then-warden Harvey Winans are alleged to have breached their duties to correctly classify prisoners in view of their personal histories, and to use all means in their power to prevent escape. See NMSA 1978, Sections 33-2-16 and 33-2-31 (Repl.Pamp.1983). The federal civil rights claim was brought under 42 U.S.C.A. Section 1983 (West 1981), and alleges that the defendants acted with knowledge of the dangerousness of the escapees and knowledge of inadequate supervision of the dairy barn.
On appeal the plaintiffs contend that because the case of Schear v. Board of County Commissioners, Bernalillo County, 101 N.M. 671, 687 P.2d 728 (1984), abolished the distinction between private and public duties, the complaint states a cause of action against all defendants under the Tort Claims Act, NMSA 1978, Sections 41-4-1 through -29 (Repl.Pamp.1982 and Cum.Supp.1984). We discuss whether Colorado or New Mexico law should apply before reaching the merits of the argument against each defendant. We then discuss the federal civil rights claim.
Choice of Law.
The shooting of Wittkowski occurred in Colorado. All of the conduct of defendants allegedly leading up to the shooting occurred in New Mexico. While plaintiffs plead both Colorado and New Mexico law in the alternative, they argue that Colorado law should apply, citing First National Bank in Albuquerque v. Benson, 89 N.M. 481, 553 P.2d 1288 (Ct.App.1976). Benson states that New Mexico applies the place of the wrong rule in tort cases and the place of the wrong is the location of the last act necessary to complete the injury citing Restatement (First) of Conflicts of Laws, Sec. 378 (1934). However, New Mexico cases recognize an exception to the place of the wrong rule when the application of foreign law would violate New Mexico public policy. Sandoval v. Valdez, 91 N.M. 705, 580 P.2d 131 (Ct.App.1978). The Restatement (First) of Conflicts of Laws, supra, which New Mexico recognizes, states at Section 380(2):
Where by the law of the place of wrong, the liability-creating character of the actor's conduct depends upon the application of a standard of care, and such standard has been defined in particular situations by statute or judicial decision of the law of the place of the actor's conduct, such application of the standard will be made by the forum.
New Mexico has determined the standard of care relating to its own corrections officials and state police in the Tort Claims Act and through decisional law. To apply the place of wrong rule could result in the identical conduct by New Mexico officials being determined actionable if the final act occurred in one state but not actionable if it occurred in another. Public policy dictates that New Mexico law determine the existence of duties and immunities on the part of New Mexico officials.
Existence of Duty.
The trial court relied on the public versus private duty concept of Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (Ct.App.1979) in dismissing the action. Indeed, that was a valid distinction at the time the motion was decided. However, in the interim the supreme court decided Schear, and explicitly recognized that the abolition of sovereign immunity in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975) and the subsequent passage of the Tort Claims Act, rendered the distinction invalid. Finding law enforcement officials have a duty to investigate reported violations of the criminal law under NMSA 1978, Section 29-1-1 (Repl.Pamp.), the court allowed a private cause of action for one injured by the negligence of the law enforcement officers in not responding to a reported crime in progress. The court stated that the distinction between private and public duties is a function of sovereign immunity and not a common law negligence concept and, therefore, its efficacy is dependent on the vitality of the doctrine of sovereign immunity, stating "[i]t is clear to us ... that the Tort Claims Act abolished the 'public duty-special duty' distinction in this jurisdiction." 101 N.M. 673, 687 P.2d at 730.
The defendants contend that the Schear doctrine should not apply to this case and should only be applied prospectively. We disagree. Schear did not overrule Doe, rather it held that case "not controlling" due to the subsequent passage of the Tort Claims Act. It did not create new duties on the part of law enforcement officers; instead it recognized that the Tort Claims Act had worked the change in the law. A new interpretation was applied to Schear itself, and should also be applied here. See State v. Kaiser, 91 N.M. 611, 577 P.2d 1257 (Ct.App.1978).
Tort Claims Act.
The Tort Claims Act shields both governmental entities and public employees from liability for torts except when immunity is specifically waived in the Act. If a public employee, while acting in the scope of duty, commits a tort falling within one of the waivers, the entity which employs him is liable. See Sec. 41-4-4(A) (Repl.Pamp.1982). We now discuss the claims against each defendant.
Section 41-4-4(A) states that governmental entities and officials, while acting in the scope of their duty, are granted immunity from liability for any tort, except as waived under the Act. A waiver of immunity is provided for law enforcement officers under Section 41-4-12 for the wrongs listed in that section.1
Law enforcement officers are defined in Section 41-4-3(D) as "any full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes, or members of the national guard when called to active duty by the governor[.]"
Based on the statutes, plaintiffs contend that the State, the Department of Corrections and Crist and Winans are within the law enforcement waiver. However, the supreme court has already decided that the Secretary of Corrections and penitentiary warden are not law enforcement officers within the meaning of the waiver of immunity provision. Anchondo v. Corrections Department, 100 N.M. 108, 666 P.2d 1255 (1983). Therefore, the court below properly dismissed the claims against Crist and Winans.
The state is also not a proper defendant. Under Lopez v. State, 24 SBB 193 (Ct.App.1985), cert. granted and under advisement February 20, 1985, the negligent governmental entity, that is, the...
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