2023 New Mexico Statutes › Chapter 41 - Torts › Article 2 - Wrongful Death; Actions for Damages › Section 41-2-1 - [Death by wrongful act or neglect; liability in damages.]

Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.
History:
Laws 1882, ch. 61, § 2; C.L. 1884, § 2309; Laws 1891, ch. 49, § 1; C.L. 1897, § 3214; Code 1915, § 1821; C.S. 1929, § 36-102; 1941 Comp., § 24-101; 1953 Comp., § 22-20-1.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For action to be brought by personal representative,
see
41-2-3 NMSA 1978.
For survival of action,
see
37-2-1 NMSA 1978.
For nonliability to suit and defenses denied employers under Workers' Compensation Law,
see
52-1-8 NMSA 1978.
I. GENERAL CONSIDERATION.
Applicability of Missouri prior construction.
— Because statute [41-2-1 through 41-2-4 NMSA 1978] was adopted from Missouri, the rule that a statute adopted or borrowed from another state is presumed to include its prior construction by the courts of that state is applicable to these statutes.
White v. Montoya
, 1942-NMSC-031, 46 N.M. 241, 126 P.2d 471.
Missouri views often followed.
— The New Mexico Supreme Court has often followed the views of the Missouri Supreme Court in its interpretations of this section.
Langham v. Beech Aircraft Corp.
, 1975-NMSC-064, 88 N.M. 516, 543 P.2d 484.
Effect of post-borrowing construction.
— This statute was originally taken from Missouri and while a case decided long after the statute was adopted by New Mexico is entitled to respectful consideration, it is not controlling.
Cain v. Bowlby
, 114 F.2d 519 (10th Cir.), cert. denied, 311 U.S. 710, 61 S. Ct. 319, 85 L. Ed. 462 (1940).
Construction of section.
— This section is a derogation of common law and must be strictly construed.
Cain v. Bowlby
, 114 F.2d 519 (10th Cir.), cert. denied, 311 U.S. 710, 61 S. Ct. 319, 85 L. Ed. 462 (1940).
Purpose of section.
— This section has to some degree an objective of public punishment, and was designed in part at least to act as a deterrent to the negligent conduct of others, and thereby promote public safety and welfare.
Trujillo v. Prince
, 1938-NMSC-024, 42 N.M. 337, 78 P.2d 145.
Negligence made costly.
— The statutes [41-2-1 to 41-2-4 NMSA 1978] allowing damages for wrongful act or neglect causing death have for their purpose more than compensation. It is intended to promote safety of life and limb by making negligence that causes death costly to the wrongdoer.
Stang v. Hertz Corp.
, 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14;
Langham v. Beech Aircraft Corp.
, 1975-NMSC-064, 88 N.M. 516, 543 P.2d 484.
This section is a survival statute
under which the cause of action arises at time of death.
State ex rel. De Moss v. Dist. Court
, 1951-NMSC-010, 55 N.M. 135, 227 P.2d 937.
The death by wrongful act statute is a "survival" statute and consequently, the cause of action arises when the tort is committed (now at death), thus barring an action therefor at the end of one year (now three years) thereafter.
Natseway v. Jojola
, 1952-NMSC-104, 56 N.M. 793, 251 P.2d 274 (decided under prior law).
The remedy provided in 41-2-4 NMSA 1978 is exclusive.
In re Estate of Reilly
, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069.
Scope of limitation.
— This statute creates a new right and its limitation is not on the remedy alone, but on the right itself.
Natseway v. Jojola
, 1952-NMSC-10456 N.M. 793, 251 P.2d 274.
Effect of limitation.
— The New Mexico Wrongful Death Act creates a cause of action which did not exist at common law and the limitation provisions thereof are not only a limitation on the remedy, but also on the right to institute such an action.
Perry v. Staver
, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.
Law of the place of the wrong governs
the right of action for death.
McKenzie v. K.S.N. Co.
, 1968-NMCA-044, 79 N.M. 314, 442 P.2d 804.
II. STANDING TO SUE.
Effect of intervention by widow and child.
— Permitting persons claiming to be the decedent's widow and child to intervene is not reversible error where defendants' counsel insisted that the parties claiming injury should be definitely named in the complaint, and that the injured parties were the surviving widow and children. The error was invited and defendants were in no position to complain.
Hall v. Stiles
, 1953-NMSC-041, 57 N.M. 281, 258 P.2d 386.
Scope of "personal representative".
— Temporary, special and ancillary administrators are included in the term "personal representative" as used in wrongful death statutes, and the term includes an administrator de bonis non when the regular administrator refuses to sue.
Henkel v. Hood
, 1945-NMSC-006, 49 N.M. 45, 156 P.2d 790.
Identification of child as a beneficiary.
— New Mexico law permits the admission of evidence identifying the decedent's children in a wrongful death action and the trial court did err by admitting evidence that the decedent had a child by a prior marriage.
Harris v. Illinois-California Express
, 687 F.2d 1361 (10th Cir. 1982).
The cause of action under the Wrongful Death Act is in the personal representative.
Stang v. Hertz Corp.
, 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.
Actions under the Wrongful Death Act may be brought by the personal representative of the deceased person only.
Hall v. Stiles
, 1953-NMSC-041, 57 N.M. 281,258 P.2d 386.
Appointment of co-personal representative not required.
— Where an adversity of interest between the illegitimate child of the decedent and the personal representative of the decedent exists, appointing a co-personal representative is not required where appointment would not remedy the adversity.
Spoon v. Mata
, 2014-NMCA-115.
Effect of designation.
— Where a statute gives the cause of action and designates the persons who may be sued, they alone are authorized to be sued.
Ickes v. Brimhall
, 1938-NMSC-036, 42 N.M. 412, 79 P.2d 942.
Administrator may file suit under this section
to recover damages for wrongful death.
Romero v. Atchinson, T. & S.F. Ry.
, 1903-NMSC-008, 11 N.M. 679, 72 P. 37.
Representative to serve as trustee.
— The personal representative who makes a recovery under this section serves as a trustee, a "statutory trustee," for discoverable and identifiable beneficiaries in the line of named kinship or descent.
Baca v. Baca
, 1963-NMSC-043, 71 N.M. 468, 379 P.2d 765.
Personal representative stands in the place of statutory beneficiaries.
— Where personal representative's role in wrongful death action is to stand in the place of the statutory beneficiaries, to centralize claims, and to prevent multiple and possibly contradictory lawsuits, statutory beneficiaries should not be allowed to intrude on the role of a properly appointed personal representative.
Spoon v. Mata
, 2014-NMCA-115.
Disqualification of personal representative not required.
— Where personal representative maintained that the illegitimate child of the decedent in a wrongful death action was entitled to the statutory share of wrongful death proceeds and that the personal representative intended to fulfill her duty towards the child, there was not sufficient adversity of interest requiring the personal representative's disqualification or appointment of co-personal representative.
Spoon v. Mata
, 2014-NMCA-115.
The fact that the personal representative is also pursuing individual claims in a wrongful death lawsuit is not a sufficient basis
by itself to presume that the interests of the personal representative and the statutory beneficiaries are so adverse as to preclude the individual from representing the statutory beneficiaries' interest in the action.
Spoon v. Mata
, 2014-NMCA-115.
Conflict of laws.
— It is unimportant that the community administrator would not have had power to bring suit in Texas, as power of personal representative in New Mexico is measured by the laws of this state, since the law of Texas is looked to only to determine whether the party meets the broad definition of "personal representative."
Henkel v. Hood
, 1945-NMSC-006, 49 N.M. 45, 156 P.2d 790.
Wrongful death and estate functions contrasted.
— Wrongful death suit under this act has no relation to the estate, it being incidental that a "personal representative" is named to bring suit and it is not because this would fall within those duties, but because someone must be named and our legislature has fixed the personal representative of that individual.
Henkel v. Hood
, 1945-NMSC-006, 49 N.M. 45, 156 P.2d 790.
Source of personal representative authority.
— Since character of "personal representative" under wrongful death statute is entirely foreign to and unconnected with character as estate administrator, the authority to bring the action flows entirely from the wrongful death statute itself and not from the probate or other estate laws.
Henkel v. Hood
, 1945-NMSC-006, 49 N.M. 45, 156 P.2d 790.
III. CLAIMS COVERED.
Constitutionality where recovery against carrier employee precluded.
— Having thus afforded a fixed penalty against the carrier for wrongful death, it is not a denial of the equal protection of the law for the legislature to provide that such sum should be exclusive of all other liability for wrongful death, thereby precluding recovery against the negligent employee.
Schloss v. Matteucci
, 260 F.2d 16 (10th Cir. 1958).
This section applies where injury sued upon resulted in death.
Kilkenny v. Kenney
, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149.
Effect on nonresident alien.
— The word "person" in this section includes a nonresident alien who is present illegally in the state of New Mexico.
Torres v. Sierra
, 1976-NMCA-064, 89 N.M. 441, 553 P.2d 721, cert. denied, 90 N.M. 8, 558 P.2d 620.
Torts against Indians.
— The cause of action which an Indian acquires when a tort is committed against that Indian is property which the Indian may acquire or become invested with, particularly if the tort is committed outside of an Indian reservation by a state citizen who is not an Indian, and where that Indian is killed as a result of a tort, the cause of action survives.
Trujillo v. Prince
, 1938-NMSC-024, 42 N.M. 337, 78 P.2d 145.
Probate court jurisdiction over Indians.
— A New Mexico probate court had jurisdiction to appoint an administrator for a deceased reservation Indian to enforce the right of action created by this section.
Trujillo v. Prince
, 1938-NMSC-024, 42 N.M. 337, 78 P.2d 145.
Survival of kindred not required.
— A right of action under the Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978] is not dependent or conditioned upon the survival of kindred.
Stang v. Hertz Corp.
, 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.
Spousal consortium claim recognized.
— New Mexico recognizes a claim for loss of spousal consortium. This cause of action imposes no new conduct obligation on potential defendants.
Romero v. Byers
, 1994-NMSC-031, 117 N.M. 422, 872 P.2d 840.
Murder conviction required for forfeiture.
— Section 30-2-9 NMSA 1978 requires a conviction of murder, and did not apply to require forfeiture of husband's rights as a beneficiary under the Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978] when the husband was convicted of vehicular homicide in the death of his wife.
Aranda v. Camacho
, 1997-NMCA-010, 122 N.M. 763, 931 P.2d 757.
A nonviable fetus,
a fetus incapable of sustaining life outside the mother's womb, is not a "person" under the Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978].
Miller v. Kirk
, 1995-NMSC-067, 120 N.M. 654, 905 P.2d 194.
Right of recovery provided for wrongful death of viable fetus.
— The legislature in enacting this section intended that a viable fetus be included within the word "person" in this section and, therefore, it intended to provide a right of recovery for the wrongful death of a viable fetus.
Salazar v. St. Vincent Hosp.
, 1980-NMCA-051, 95 N.M. 150, 619 P.2d 826, cert. quashed, 94 N.M. 806, 617 P.2d 1321.
Exceptions to section.
— While this section, if standing alone, would apply to all deaths resulting from the negligence of corporations and individuals, 41-2-4 NMSA 1978 is an exception thereto.
White v. Montoya
, 1942-NMSC-031, 46 N.M. 241, 126 P.2d 471.
Common carrier action exclusive.
— Right of action for wrongful death caused by a common carrier is exclusive of the right of action for wrongful death caused by a person or corporation other than the common carrier.
Mallory v. Pioneer S.W. Stages, Inc.
, 54 F.2d 559 (10th Cir. 1931).
Effect on manufacturer of "public conveyance".
— The manufacturer of a "public conveyance" can be held liable for damages where the passengers died as a result of defects in the conveyance, and the remedy provided by 41-2-4 NMSA 1978 against the "owner" of a defective "public conveyance" does not provide the only remedy.
Langham v. Beech Aircraft Corp.
, 1975-NMSC-064, 88 N.M. 516, 543 P.2d 484.
Recovery against "employee-driver" of "public conveyance".
— Recovery may not be had under either this section or 41-2-4 NMSA 1978 of the wrongful death statutes against the "employee-driver" of a "public conveyance."
Langham v. Beech Aircraft Corp.
, 1975-NMSC-064, 88 N.M. 516, 543 P.2d 484.
Suit by third person against insurer barred.
— Injured third person cannot proceed directly against insurer or join insurer and insured as defendants in the absence of contractual or statutory provisions.
Chavez v. Pino
, 1974-NMCA-071, 86 N.M. 464, 525 P.2d 391.
No liability for death.
— Defendants, who owned and operated a heavy construction business and maintained a pond on their premises, were not guilty of wrongful acts where a nine-year-old child, who had the capacity to comprehend and avoid the danger incurred, got on a raft in the pond, jumped in for a swim and drowned.
Mellas v. Lowdermilk
, 1954-NMSC-057, 58 N.M. 363, 271 P.2d 399.
Effect on action for loss of consortium.
— The Wrongful Death Act does not apply to common-law remedies that existed prior to this act and which were not repealed; therefore, the statute of limitations applicable to the wrongful death action is not applicable to the husband's common-law right of action for loss of consortium.
Kilkenny v. Kenney
, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149.
IV. DEFENSES.
Applicability of saving clause for infants.
— The statute providing a saving clause for infants [37-1-10 NMSA 1978] is not applicable to the death by wrongful act statute.
Natseway v. Jojola
, 1952-NMSC-10456 N.M. 793, 251 P.2d 274.
No interspousal immunity.
— There is no immunity from tort liability between spouses by reason of that relationship.
Maestas v. Overton
, 1975-NMSC-004, 87 N.M. 213, 531 P.2d 947.
When action barred.
— Not only the remedy but the right to maintain suit is barred where damages are sought for wrongful death on account of alleged negligence of relator in performing surgery on decedent and complaint is filed more than one year (now three years) after death occurred.
State ex rel. De Moss v. Dist. Court
, 1951-NMSC-010, 55 N.M. 135, 227 P.2d 937.
Cause of action for wrongful death is barred where action is brought within one year (now three years) from the date of the wrongful death, but more than one year after the tort is committed.
Natseway v. Jojola
, 1952-NMSC-104, 56 N.M. 793, 251 P.2d 274 (decided under prior law).
Last clear chance doctrine held improper.
— In a head-on collision between decedent's automobile and a commercial truck-trailer on a two-lane highway with both drivers having the potential of sighting the other for a distance of more than 600 feet before meeting, the possibility that the collision might have been avoided had the defendant continued in the proper lane or had turned right instead of left was of no legal significance. The concept of a last clear chance is negated by either the existence of a sudden emergency or by the existence of equal opportunity to act, and it was error for the trial court to instruct the jury on the doctrine of last clear chance.
Darter v. Greiner
, 301 F.2d 772 (10th Cir. 1962).
Defense of suicide.
— Where decedent, who was a pedestrian, was struck by defendant's vehicle and killed; prior to the accident, decedent told some friends that decedent was going to kill decedent; in a subsequent telephone conversation, decedent told a friend that decedent was "walking between cars"; and in a wrongful death action, defendant took the position that decedent had committed suicide, the district court did not abuse its discretion in allowing the use of the term "suicide" at trial.
Zia Trust, Inc. v. Aragon
, 2011-NMCA-076, 150 N.M. 763, 258 P.3d 1146, cert. denied, 2011-NMCERT-006, 150 N.M. 763, 266 P.3d 632.
Inapplicability of limitations of actions.
— Provisions of 37-1-14 NMSA 1978, concerning limitations of actions, are inapplicable to the Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978].
Perry v. Staver
, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.
V. EVIDENCE.
Presumption of due care.
— In a wrongful death action, deceased is presumed to have used due care and not to have been guilty of contributory negligence.
Hogsett v. Hanna
, 1936-NMSC-063, 41 N.M. 22, 63 P.2d 540.
When writ of prohibition made absolute.
— In a malpractice case against a surgeon, the supreme court will make absolute its alternative writ of prohibition where the principal witness is dead, trial would be expensive and regardless of the verdict the professional reputation of the defendant would be damaged, judgment would be reversed and case remanded with instructions to dismiss it.
State ex rel. De Moss v. Dist. Court
, 1951-NMSC-010, 55 N.M. 135, 227 P.2d 937.
Burden of proof.
— In a wrongful death claim, the burden is on the plaintiff to prove that the claimed wrongful act was the proximate cause of the death.
Lopez v. Maes
, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984.
The burden of establishing a timely presentment of a claim against an estate, pursuant to 45-3-803 NMSA 1978, rests upon the claimant, and nothing in the statutes allowing recovery for wrongful death, 41-2-1 to 41-2-4 NMSA 1978, expresses a legislative intent to create an exception.
Corlett v. Smith
, 1987-NMCA-099, 106 N.M. 207, 740 P.2d 1191, cert. denied, 106 N.M. 174, 740 P.2d 1158.
Sufficient evidence of duty and breach of duty in wrongful death action.
— Where the personal representative of the wrongful death estate of decedent sued three entities, a nursing home and two of its ownership companies, asserting that the three entities were negligent in the care they provided for decedent, and where the jury found that each of the defendants was negligent and caused injury or damages to decedent, allocated a percentage of the negligence to each defendant, and also found that defendants were engaged in a joint venture which imposed joint and several liability, and where defendants claimed that the evidence failed to establish that the two ownership companies owed any duty to decedent or that a duty was breached or caused decedent's injury or death, there was sufficient evidence to support the jury's verdict where the evidence established that the nursing facility contracted with the ownership companies to perform the nursing facility's management-related duties, including coordination, supervision and assessment of adequate staff, but that the ownership companies failed to ensure adequate staffing, that the ownership companies' policies and procedures related to staffing were inadequate and irresponsible, and that there were numerous violations of the standard of care involving decedent. From this evidence, a reasonable jury could infer that defendants failed to ensure quality assurance standards were met, that staffing was inadequate, and that those failures were a cause of decedent's injuries.
Collado v. Fiesta Park Healthcare
, 2023-NMCA-014, cert. denied.
Where second vehicle involved.
— Where there is absolutely no evidence in the record to show that decedent was alive when decedent's body was run over by the second vehicle, and no evidence to show this act by the second driver in any way contributed to the death, the burden was on plaintiff to not only show that the second driver was negligent, but that the second driver's negligence was the proximate cause, or at least a concurring proximate cause, of the death.
Lopez v. Maes
, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984.
In the absence of any evidence to show that death resulted from the body being run over by the second vehicle, the first driver's failure to remove the body from the highway cannot possibly be said to have proximately caused this death.
Lopez v. Maes
, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984.
VI. DAMAGES.
Effect on damages to wife's executor and husband.
— The provisions of 41-2-3 NMSA 1978 when considered with this section warrant the allowance to the personal representative of the decedent, damages prior to death, provided they are not the same as those for which the husband, individually, has a right of recovery.
Stang v. Hertz Corp.
, 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.
Authority for damages between injury and death.
— The right of the administrator to recover damages sustained by decedent between the date of the injury and the date of death falls within the provisions of the Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978], provided these damages are not the same as those for which the husband, individually, has a right of recovery.
Kilkenny v. Kenney
, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149.
Determining damages.
— The age, earning capacity, health, habits and probable duration of life are all things to be considered in determining the quantum of damages for death, and an award of $7,500 for a man forty-five years of age, educated, in good health, and capable of earning $200 a month, is not excessive.
Duncan v. Madrid
, 1940-NMSC-029, 44 N.M. 249, 101 P.2d 382.
In death actions, the age, occupation, earning capacity, rate of wages, health, habits and probable duration of the life are proper elements of inquiry.
Hall v. Stiles
, 1953-NMSC-041, 57 N.M. 281, 258 P.2d 386.
When husband performed household services, other income-producing activity could not be undertaken. Further, specific costs would be incurred if someone else were retained to perform them. The value of those services is an evidentiary item admissible in establishing the present worth of husband's life.
Corlett v. Smith
, 1988-NMCA-067, 107 N.M. 707, 763 P.2d 1172, cert. denied, 107 N.M. 610, 762 P.2d 897.
Value is present worth.
— The worth of the life of the deceased is not all that the deceased would earn in a lifetime, but the present worth, taking into consideration the earning power of money.
Mares v. N.M. Pub. Serv. Co.
, 1938-NMSC-032, 42 N.M. 473, 82 P.2d 257.
Pain, suffering and medical expenses included.
— Personal representative of decedent, who was the administratrix of decedent's estate, could recover, under Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978] for decedent's conscious pain and suffering and medical and related care between the injury and death.
Stang v. Hertz Corp.
, 1969-NMCA-118, 81 N.M. 69, 463 P.2d 45,
aff'd
, 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.
Factors to be considered in determining the monetary value of a decedent's life.
— Where plaintiff, as personal representative of the estate of the deceased patient, brought an action against the United States for medical negligence and wrongful death arising under the Federal Tort Claims Act, and where the court found that the patient was treated by a physician employed by the United States and was acting within the scope and course of her employment, that the physician fell below the standard of care by removing the patient from anticoagulation medication even though the patient had a high risk for developing blood clots, and that the patient subsequently suffered ischemic stroke and died, the court awarded the full amount of damages under New Mexico law in the amount of $600,000, taking into consideration the decedent's include age, earning capacity, health, habits, life expectancy, and pain and suffering experienced between the time of injury and death.
Nez v. United States
, 367 F. Supp. 3d 1245 (D. N.M. 2019).
Per accident coverage limitation.
— The several statutory beneficiaries in a wrongful death action are entitled to recover, pursuant to underinsured motorist insurance policies, the per-person rather than the per-accident limits of coverage for underinsured motorist benefits.
Lewis v. Dairyland Ins. Co.
, 1992-NMSC-031, 113 N.M. 686, 831 P.2d 985.
VII. ATTORNEY DUTIES TO BENEFICIARIES.
Attorney owes duty to statutory beneficiaries.
— An attorney handling a wrongful death case owes to the statutory beneficiaries of that action a duty of reasonable care to protect their interests in receiving any proceeds obtained.
Leyba v. Whitley
, 1995-NMSC-066, 120 N.M. 768, 907 P.2d 172.
Attorney's duty to resolve conflicts according to professional standards.
— Where the attorney represented the client as the personal representative of the wrongful death estates of the client's child and grandchild who had been killed in a collision between the client's car and a truck; the client claimed that the non-client, who was a statutory beneficiary and the parent of the client's child, had abandoned the child and was not entitled to any of the wrongful death proceeds; the attorney knew that the client had been drinking alcohol before the collision and that the collision occurred when the client stopped the client's car in a traffic lane of an interstate highway at night with the car lights off; the attorney negotiated a settlement agreement with the non-client that substantially reduced the non-client's entitlement to the wrongful death proceeds; the attorney told the non-client that the attorney did not represent the non-client, the attorney represented only the client, and the attorney was not providing services to the non-client; there was a dispute as to whether the attorney informed the non-client that the client challenged the non-client's right to receive any of the wrongful death proceeds; the attorney did not tell the non-client the size of the anticipated settlement, that the attorney represented the client against the non-client, or that the non-client was entitled to fifty percent of the wrongful death proceeds; and the non-client sued the attorney for malpractice, fraud, collusion and misrepresentation, summary judgment for the attorney was not appropriate because there were genuine issues of material fact regarding whether the attorney had a conflict of interest in representing the personal representative who was potentially liable for the decedents' deaths and whether the attorney handled the conflict of interest between the client and non-client with due care and skill without harming the statutory beneficiary and because the non-client's independent tort claims were not barred by the adversarial exception.
Spencer v. Barber
, 2013-NMSC-010, 299 P.3d 388,
rev'g
2011-NMCA-090, 150 N.M. 519, 263 P.3d 296.
Adversarial exception to attorney's duty to statutory beneficiaries.
— The adversarial exception to an attorney's implied duty to pursue a wrongful death case for the benefit of a non-client statutory beneficiary applies when there is a conflict of interest or a breach of confidence between the client and the non-client statutory beneficiary. Even if an attorney identifies an actual or potential conflict, the attorney continues to owe a duty to the non-client statutory beneficiary unless the non-client statutory beneficiary knows or should know that the non-client statutory beneficiary cannot rely on the attorney to act for the non-client statutory beneficiary's benefit. If an attorney identifies a conflict between the attorney's client and a non-client statutory beneficiary, the attorney should give notice to the non-client statutory beneficiary that the non-client statutory beneficiary cannot rely on the attorney to act for the non-client statutory beneficiary's benefit and then the adversarial exception negates the duty owed by the non-client statutory beneficiary.
Spencer v. Barber
, 2011-NMCA-090, 150 N.M. 519, 263 P.3d 296, cert. granted, 2011-NMCERT-009, 269 P.3d 904.
Adversarial exception applies to contract and tort-based malpractice claims.
— The adversarial exception to the implied duty owed by an attorney to non-client statutory beneficiaries applies to both contract-based and tort-based claims of malpractice against the attorney.
Spencer v. Barber
, 2011-NMCA-090, 150 N.M. 519, 263 P.3d 296, cert. granted, 2011-NMCERT-009, 269 P.3d 904.
Adversarial exception to attorney's duty to statutory beneficiaries.
— Where the attorney filed a wrongful death action for the estate of the client's child and grandchild; the client took the position that the non-client, who was the surviving parent of the grandchild, had abandoned the grandchild and was not entitled to recover from the wrongful death estates; before the attorney accepted any offer of settlement from the tortfeasors, the attorney met with the non-client to settle any claims of the non-client to the wrongful death estates; the attorney told the non-client and the non-client understood that the attorney did not represent the non-client, the attorney represented only the client, and the attorney was not providing services to the non-client; and the non-client negotiated with the attorney to obtain a better settlement than the attorney offered, any implied duties that the attorney owed to the non-client ended when the adversarial relationship developed between the client and the non-client regarding the non-client's right to recover from the wrongful death estates.
Spencer v. Barber
, 2011-NMCA-090, 150 N.M. 519, 263 P.3d 296, cert. granted, 2011-NMCERT-009, 269 P.3d 904.
Law reviews.
— For comment, "Attractive Nuisance - Liability of the United States for Accidental Drowning of Infant Trespassers in Middle Rio Grande Project Irrigation Ditches," see 10 Nat. Resources J. 137 (1970).
For survey, "The Statute of Limitations in Medical Malpractice Actions," see 6 N.M.L. Rev. 271 (1976).
For note, "Torts - Wrongful Death - A Viable Fetus Is a 'Person' Under the New Mexico Wrongful Death Statute:
Salazar v. St. Vincent Hospital
," see 12 N.M.L. Rev. 843 (1982).
For survey of medical malpractice law in New Mexico, see 18 N.M.L. Rev. 469 (1988).
For annual survey of New Mexico law of civil procedure, 19 N.M.L. Rev. 627 (1990).
For article, "Unintentional homicides caused by risk-creating conduct: Problems in distinguishing between depraved mind murder, second degree murder, involuntary manslaughter, and noncriminal homicide in New Mexico," 20 N.M.L. Rev. 55 (1990).
For annual survey of New Mexico Law of Torts, see 20 N.M.L. Rev. 407 (1990).
For note, "New Mexico Adopts Hedonic Damage in the Context of Wrongful Death Actions:
Sears v. Nissan (Romero v. Byers),
" see 25 N.M.L. Rev. 385 (1995).
For note, "Trends in New Mexico Law 1994 95: Tort Law (legal malpractice) — Attorneys Owe a Duty to Statutory Beneficiaries Regardless of Privity," see 26 N.M.L. Rev. 643 (1996).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
22A Am. Jur. 2d Death §§ 1 et seq., 158 et seq., 215 et seq.
Exemplary damages for assault as affected by death of party assaulted or assailant, 16 A.L.R. 792, 123 A.L.R. 1115.
Compensation from other sources as precluding recovery for death, 18 A.L.R. 686, 95 A.L.R. 575.
Husband and wife, personal relations of, or marital misconduct of either spouse, as affecting action for death of spouse, 18 A.L.R. 1409, 90 A.L.R. 920.
Liability for death of, or injury to, one seeking to rescue another, 19 A.L.R. 4, 158 A.L.R. 189, 166 A.L.R. 752.
Right of parent who consents to or acquiesces in employment of child under statutory age to recover for latter's injury or death while in such employment, 23 A.L.R. 635, 40 A.L.R. 1206.
Contributory negligence of custodian of child as affecting right of parent to recover for its death or injury, 23 A.L.R. 655.
Release by, or judgment in favor of, person injured as barring action for his death, 39 A.L.R. 579.
Natural parent's right to recover for death of adopted child, 56 A.L.R. 1349.
Contractual relationship as affecting right of action for death, 80 A.L.R. 880, 115 A.L.R. 1026.
Municipal corporation or other governmental unit as within the term "corporation," "person," or other term employed in death statute descriptive of party against whom action may be maintained, 115 A.L.R. 1287.
Effect of existence of nearer related but nondependent member upon right to sue under death statute in behalf of remotely related but dependent member of same class, 162 A.L.R. 704.
Contributory negligence of beneficiary as affecting action under death or survival statute, 2 A.L.R.2d 785.
Marriage of child as affecting right of recovery by parents in death action, 7 A.L.R.2d 1380.
Civil liability for death by suicide, 11 A.L.R.2d 751, 58 A.L.R.3d 828.
Liability of parent or person in loco parentis for personal tort against minor child, 19 A.L.R.2d 423, 41 A.L.R.3d 904, 6 A.L.R.4th 1066.
Danger or apparent danger of great bodily harm or death as condition of self-defense in civil action for death, 25 A.L.R.2d 1215.
Husband or his estate, action against, for causing death of wife, or vice versa, 28 A.L.R.2d 662.
Municipal liability for injury resulting in death, notice of claim as condition of, 51 A.L.R.2d 1128.
Officers, personal liability of peace officer or bond for negligence causing death, 60 A.L.R.2d 873.
Action for death of adoptive parent, by or for benefit of adopted or equitably adopted child, 94 A.L.R.2d 1237, 97 A.L.R.3d 347.
Right of action for death of woman who consented to abortion, 36 A.L.R.3d 630.
Right to recover for death of child resulting from prenatal injury, 40 A.L.R.3d 1222.
Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent, 87 A.L.R.3d 849.
Admissibility of evidence of, or propriety of comment as to, plaintiff spouse's remarriage, or possibility thereof, in action for damages for death of other spouse, 88 A.L.R.3d 926.
Liability of swimming facility operator for injury or death inflicted by third person, 90 A.L.R.3d 533.
Liability of one negligently causing fire for injuries sustained by person other than firefighter in attempt to control fire or to save life or property, 91 A.L.R.3d 1202.
Modern status of interspousal tort immunity in personal injury and wrongful death actions, 92 A.L.R.3d 901.
Validity of release of prospective right to wrongful death action, 92 A.L.R.3d 1232.
Liability of motel operator for injury or death of guest or privy resulting from condition in plumbing or bathroom of room or suite, 93 A.L.R.3d 253.
Liability for civilian skydiver's or parachutist's injury or death, 95 A.L.R.3d 1280.
Liability of one who sells gun to child for injury to third party, 4 A.L.R.4th 331.
Employer's right of action for loss of services or the like against third person tortiously killing or injuring employee, 4 A.L.R.4th 504.
Liability of labor union for injury or death allegedly resulting from unsafe working conditions, 14 A.L.R.4th 1161.
Negligence of one parent contributing to injury or death of child as barring or reducing damages recoverable by other parent for losses suffered by other parent as result of injury or death of child, 26 A.L.R.4th 396.
Judgment in favor of, or adverse to, person injured as barring action for death, 26 A.L.R.4th 1264.
Loss of enjoyment of life as a distinct element or factor in awarding damages for bodily injury, 34 A.L.R.4th 293.
Handgun manufacturer's or seller's liability for injuries caused to another by use of gun in committing crime, 44 A.L.R.4th 595.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in farming, ranching, or agricultural labor, 46 A.L.R.4th 220.
Excessiveness or adequacy of damages resulting in death of homemaker, 47 A.L.R.4th 100.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.
Effect of statute limiting landowner's liability for personal injury to recreational user, 47 A.L.R.4th 262.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons, 48 A.L.R.4th 229.
Strict liability of landlord for injury or death of tenant or third person caused by defect in premises leased for residential use, 48 A.L.R.4th 638.
Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering. 55 A.L.R.4th 186.
Primary liability of private chain franchisor for injury or death caused by franchise premises or equipment, 59 A.L.R.4th 1142.
Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of parent, 61 A.L.R.4th 251.
Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of spouse, 61 A.L.R.4th 309.
Excessiveness or adequacy of damages awarded for parents' noneconomic loss caused by personal injury or death of child, 61 A.L.R.4th 413.
Liability for injury or death allegedly caused by activities of hospital "rescue team," 64 A.L.R.4th 1200.
Recovery in death action for failure to diagnose incurable disease which caused death, 64 A.L.R.4th 1232.
Tort liability for window washer's injury or death, 69 A.L.R.4th 207.
Effect of death of beneficiary, following wrongful death, upon damages, 73 A.L.R.4th 441.
When is death "instantaneous" for purposes of wrongful death or survival action, 75 A.L.R.4th 151.
Admissibility of evidence, in action for personal injury or death, of injured party's use of intoxicants or illegal drugs on issue of life expectancy, 86 A.L.R.4th 1135.
Liability for injury or death allegedly caused by foreign substance in beverage, 90 A.L.R.4th 12.
Liability for injury or death allegedly caused by foreign object in food or food product, 1 A.L.R.5th 1.
Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R.5th 189.
Franchisor's tort liability for injuries allegedly caused by assault or other criminal activity on or near franchise premises, 2 A.L.R.5th 369.
Liability of travel publication, travel agent, or similar party for personal injury or death of traveler, 2 A.L.R.5th 396.
Refusal of medical treatment on religious grounds as affecting right to recover for personal injury or death, 3 A.L.R.5th 721.
Right of workers' compensation insurer or employer paying to a workers' compensation fund, on the compensable death of an employee with no dependents, to indemnity or subrogation from proceeds of wrongful death action brought against third-party tortfeasor, 7 A.L.R.5th 969.
Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.
Landlord's liability for injury or death of tenant's child from lead paint poisoning, 19 A.L.R.5th 405.
Wrongful death damages for loss of expectancy of inheritance from decedent, 42 A.L.R.5th 465.
Landlord's liability for failure to protect tenant from criminal acts of third person, 43 A.L.R.5th 207.
Liability of electric company to one other than employee for injury or death arising from commencement or resumption of service, 46 A.L.R.5th 423.
Failure to use or misuse of automobile child safety seat or restraint system as affecting recovery for personal injury or death, 46 A.L.R.5th 557.
Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 A.L.R.5th 513.
Liability of hotel, motel, resort, or private membership club or association operating swimming pool, for injury or death of guest or member, 55 A.L.R.5th 463.
Venue of wrongful death action, 58 A.L.R.5th 535.
Hospital liability as to diagnosis and care of patients in emergency room, 58 A.L.R.5th 613.
Validity of state statutory cap on punitive damages, 103 A.L.R.5th 379.
Admiralty jurisdiction: maritime nature of tort - modern cases, 80 A.L.R. Fed. 105.
Recovery of prejudgment interest in actions under the Federal Employers' Liability Act (45 USCS § 51 et seq.) or Jones Act (46 USCS Appx § 688), 80 A.L.R. Fed. 185.
Monetary remedies under § 23 of Consumer Product Safety Act (15 USCS § 2072), 87 A.L.R. Fed. 587.
Limitation of liability of air carrier for personal injury or death, 91 A.L.R. Fed. 547.
First Amendment guaranty of freedom of speech or press as defense to liability stemming from speech allegedly causing bodily injury, 94 A.L.R. Fed. 26.
Excessiveness or adequacy of compensatory damages for personal injury to or death of seaman in actions under Jones Act (46 USCS Appx § 688) or doctrine of unseaworthiness - modern cases, 96 A.L.R. Fed. 541.
Excessiveness or adequacy of award of damages for personal injury or death in actions under Federal Employers' Liability Act (45 USCS § 51 et seq.) - modern cases, 97 A.L.R. Fed. 189.
25A C.J.S. Death §§ 13 et seq., 95 et seq.