2023 New Mexico Statutes › Chapter 41 - Torts › Article 4 - Tort Claims › Section 41-4-12 - Liability; law enforcement officers.

The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to 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, the independent tort of negligent spoliation of evidence or the independent tort of intentional spoliation of evidence, failure to comply with duties established pursuant to statute or law or any other 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. For purposes of this section, "law enforcement officer" means a public officer or employee vested by law with the power to maintain order, to make arrests for crime or to detain persons suspected of or convicted of committing a crime, whether that duty extends to all crimes or is limited to specific crimes.
History:
1953 Comp., § 5-14-12, enacted by Laws 1976, ch. 58, § 12; 1977, ch. 386, § 9; 2020, ch. 5, § 14; 2020 (1st S.S.), ch. 7, § 3.
ANNOTATIONS
The 2020 (1st S.S.) amendment,
effective September 20, 2020, provided that immunity granted pursuant to the Tort Claims Act does not apply to liability for the independent tort of negligent spoliation of evidence or the independent tort of intentional spoliation of evidence; and after "violation of property rights", added "the independent tort of negligent spoliation of evidence or the independent tort of intentional spoliation of evidence", after "statute or law or", added "any other", after "means a public officer", added "or employee", and after "suspected of", added "or convicted of".
The 2020 amendment,
effective May 20, 2020, waived tort immunity for law enforcement officers who, while acting within the scope of their duties, fail to comply with established duties, and defined "law enforcement officer" for purposes of this section; and after "violation of property rights", added "failure to comply with duties established pursuant to statute or law", and added the last sentence.
I. GENERAL CONSIDERATION.
Listed torts.
— Defendants' immunity for mishandling a gun during an arrest was not waived pursuant to this section, because plaintiff did not allege one of the predicate torts enumerated in the section.
Oliveros v. Mitchell
, 449 F.3d 1091 (10th Cir. 2006).
Strict construction.
— Since the Tort Claims Act is in derogation of a plaintiff's common-law rights to sue governmental employees for negligence, the act is to be strictly construed insofar as it modifies the common law.
Methola v. County of Eddy
, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.
Right to sue and recover under this act is limited
to the rights, procedures, limitations and conditions prescribed in the act.
Methola v. County of Eddy
, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.
Immunity from suit in federal courts.
— Although the state has waived its immunity from suit in its own state courts for actions of law enforcement officers, it has not waived its eleventh amendment immunity from suit in federal courts.
Flores v. Long
, 926 F. Supp. 166 (D.N.M. 1995), appeal dismissed, 110 F.3d 730 (10th Cir. 1997).
Relationship requirement.
— A minor daughter of the alleged victim satisfied the close relationship requirement but plaintiffs who asserted that they maintained an intimate relationship with a victim as the equivalent of their "step-dad" or "common law" husband in their "family unit" did not satisfy the close relationship requirement needed to state a claim for bystander recovery.
Sollars v. City of Albuquerque
, 794 F. Supp. 360 (D.N.M. 1992).
Claim for violating right to familial association.
— The plaintiffs, parents of a decedent allegedly killed by the gross negligence and reckless conduct of the defendants, had a claim for violation of constitutional right to familial association.
Blea v. City of Espanola
, 1994-NMCA-008, 117 N.M. 217, 870 P.2d 755, cert. denied, 117 N.M. 328, 871 P.2d 984.
Liability will not attach until all elements of negligence have been proved,
including duty, breach of duty and proximate cause.
Schear v. Board of Cnty. Comm'rs
, 1984-NMSC-079, 101 N.M. 671, 687 P.2d 728.
"Deprivation of rights".
— Plaintiff's reliance on wrongful death statute and state constitution to argue that violations of those provisions amount to a deprivation of rights secured by the constitution and laws of New Mexico within the meaning of this section was misplaced, because to base a waiver of immunity on those provisions would create exceptions that would eliminate the principle of sovereign immunity, a result not intended by the legislature.
Caillouette v. Hercules, Inc.
, 1992-NMCA-008, 113 N.M. 492, 827 P.2d 1306, cert. denied, 113 N.M. 352, 826 P.2d 573.
"Caused by" similar to "proximate cause".
— The words "caused by," as used in this section, do not differ significantly from the usual meaning of proximate cause found in ordinary negligence cases.
Methola v. County of Eddy
, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.
Concurrent torts of other governmental entities.
— This section does not provide a waiver of immunity for concurrent torts of all governmental entities when a police officer causes an occurrence for which immunity of a law enforcement agency is waived.
California First Bank v. State, Dep't of Alcohol Beverage Control
, 1990-NMSC-106, 111 N.M. 64, 801 P.2d 646.
Tort recognized as separate and distinct from constitutional deprivation.
— The New Mexico legislature recognizes that a tort is separate and distinct from a constitutional deprivation.
Wells v. County of Valencia
, 1982-NMSC-048, 98 N.M. 3, 644 P.2d 517.
Collateral estoppel did not apply to preclude plaintiff's state tort claims following federal court dismissal.
— Where plaintiff, as the personal representative of decedent's wrongful death estate, brought an action in federal court against the Roosevelt county board of county commissioners, the Roosevelt county sheriff's department, and the Roosevelt county sheriff, alleging deprivations of decedent's rights under the fourth and fourteenth amendments through 42 U.S.C. § 1983, as well as causes of action under the New Mexico Tort Claims Act (TCA), §§ 41-4-1 through 41-4-27 NMSA 1978, and where the sheriff asserted qualified immunity as a defense to plaintiff's § 1983 claims, and where the federal court granted the sheriff's motion and dismissed all federal claims against all defendants, and where, shortly thereafter, plaintiff filed a complaint in the state district court against the same defendants, alleging claims for negligence and aggravated assault and battery under the TCA, and where defendants moved to dismiss the TCA claims, arguing that because the federal court had already determined that the sheriff acted reasonably, the TCA claims were barred by collateral estoppel because the same standard of "objective reasonableness" must apply to plaintiff's TCA claims, the district court erred in applying collateral estoppel to grant defendants' motion to dismiss, because the relevant issues were not actually litigated and necessarily decided in federal court and plaintiff has not had the opportunity to fully and fairly litigate the issues.
Hernandez v. Parker
, 2022-NMCA-023.
Similarity to § 1983 action.
— Under New Mexico law, the most closely analogous state cause of action for a federal civil rights cause of action under 42 U.S.C. § 1983 is provided for in this section. The statute of limitations applicable to such a cause of action is set forth in 41-4-15 NMSA 1978.
DeVargas v. State ex rel. N.M. Dep't of Corr.
, 1982-NMSC-025, 97 N.M. 563, 642 P.2d 166.
Institution of suit invokes applicability of established law of negligence and damages.
— In the event a suit is instituted as permitted and limited by this section, the established law of negligence and damages shall apply to the claims as well as to all defenses which may be available to the defendants in those suits.
Methola v. County of Eddy
, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.
Vicarious liability of police department.
— Absent a claim that the officers were acting outside the scope of their authority, the police department may be held vicariously liable for any alleged torts committed by the officer for which immunity has been waived.
Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't
, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.
Two-year statute of limitations applies to action for unlawful arrest.
— Where plaintiff brought an action against the state of New Mexico, the New Mexico department of public safety, and a state police officer, asserting a cause of action under the New Mexico constitution arising from his allegedly unlawful arrest, and where plaintiff claimed that New Mexico law does not provide a statute of limitations for claims involving an alleged violation of the New Mexico constitution's prohibition of unreasonable seizures and therefore the four-year statute of limitations set forth in § 37-1-4 NMSA 1978 applies, the court held that defendant's allegations fell squarely within § 41-4-12 NMSA 1978, and the statute of limitations applicable to a § 41-4-12 cause of action under the New Mexico Tort Claims Act (NMTCA) is the two-year period set forth in § 41-4-15(A) NMSA 1978 of the NMTCA.
Rico-Reyes v. New Mexico
, 503 F. Supp. 3d 1055 (D. N.M. 2020)
II. LAW ENFORCEMENT OFFICERS.
Probation and parole officers.
— Where the probationer kidnapped the minor victim and repeatedly raped the victim leaving the victim with permanent physical and emotional harm; the probationer was a convicted sex offender with a sixteen-year history of violent crimes; the probationer was under the supervision of the defendant probation and parole officers; the probationer violated the terms of probation numerous times by committing new crimes; in violation of the conditions of probation, the probationer was able to be near plaintiff's home where the probationer had access to the victim and the opportunity to kidnap and rape the victim; plaintiff sued the defendant probation and parole officers alleging that they failed to monitor and supervise the probationer, enforce the conditions of probation, report violations of probation conditions to the court, maintain personal contact with the probationer, and recommended probationer for early discharge; and making arrests for crime, holding persons accused of criminal offense in custody, and maintaining public order did not constitute duties to which probation and parole officers were required to devote a majority of their time, the district court did not err when it ruled that the defendant probation and parole officers were not law enforcement officers under 41-4-3(D) NMSA 1978 and that the waiver of immunity in 41-4-12 NMSA 1978 did not apply to them.
Rayos v. State ex rel. Dep't of Corrections
, 2014-NMCA-103, cert. granted, 2014-NMCERT-010.
Probation officers.
— Probation officers are not "law enforcement officers" under Section 41-4-3D NMSA 1978 and therefore the waiver of immunity for violations of constitutional rights "caused by law enforcement officers acting within the scope of their duties" does not apply to them.
Bliss v. Franco
, 446 F.3d 1036 (10th Cir. 2006)
Investigator for district attorney.
— Where the duties of the chief investigator for the district attorney were to assist attorneys to prepare their cases, assist different agencies with their investigations, help on search warrants, supervise the assignments of a deputy and other investigators and the chief investigator, and accept assignments from attorneys, the office manager, pre-prosecution division, and finance staff, but did not include holding persons in custody, maintaining public order, or making arrests, the chief investigator was not a law enforcement officer.
Fernandez v. Mora-San Miguel Elec. Co-op., Inc.
, 462 F. 3d 1244 (10th Cir. 2006).
"Law enforcement officers".
— The director and the captain and assistant director of a county detention center were subject to suit as law enforcement officers under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978].
Davis v. Board of Cnty. Comm'rs
, 1999-NMCA-110, 127 N.M. 785, 987 P.2d 1172.
Parole officers and their supervisors were not law enforcement officers under 41-4-3 D NMSA 1978 and therefore the waiver of immunity in this section did not apply to them.
Vigil v. Martinez
, 1992-NMCA-033, 113 N.M. 714, 832 P.2d 405.
Eddy county sheriff, his deputies and jailers employed by the city of Albuquerque who performed services in or held in custody plaintiffs incarcerated in the Bernalillo and Eddy county jails are "law enforcement officers," bringing them within the purview of this section.
Methola v. County of Eddy
, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.
The office of the medical investigator and a physician employed as a medical investigator by that office are not law enforcement officers.
Dunn v. McFeeley
, 1999-NMCA-084, 127 N.M. 513, 984 P.2d 760, cert. denied, 127 N.M. 389, 981 P.2d 1207.
A crime laboratory technician and his employer, the state police crime laboratory, whose duties are to examine and evaluate physical evidence that may relate to a possible offense, are not law enforcement officers.
Dunn v. McFeeley
, 1999-NMCA-084, 127 N.M. 513, 984 P.2d 760, cert. denied, 127 N.M. 389, 981 P.2d 1207.
A mayor is not a law enforcement officer for purposes of this act.
Montes v. Gallegos
, 812 F. Supp. 1165 (D.N.M. 1992).
The director of the motor vehicle division, whose duties involved principally administrative matters, and who did not serve as a full-time law enforcement officer whose principal duties involved holding in custody persons accused of criminal offenses, maintaining public order or making arrests for crimes, was not a "law enforcement officer" within the contemplation of this section.
Dunn v. State ex rel. Taxation & Revenue Dep't
, 1993-NMCA-059, 116 N.M. 1, 859 P.2d 469.
District attorneys and their staffs do not fall within the "law enforcement officer" exception from immunity under the Tort Claims Act.
Coyazo v. State
, 1995-NMCA-056, 120 N.M. 47, 897 P.2d 234.
The statutory requirement that the defendants be law enforcement officers does not focus on the defendants' specific acts at the time of their alleged negligence; instead, it simply requires that the defendants' principal duties, those duties to which they devote a majority of their time, be of a law enforcement nature. The requirement in 41-4-12 NMSA 1978 that the officer must be acting within the scope of his duties simply means that the officer must be acting within the scope of employment in order to be sued in his or her capacity as a law enforcement officer.
Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't
, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.
The officers in this case are municipal police officers subject to 3-13-2 NMSA 1978, and their principal duties entail making arrests for crimes and maintaining public order; accordingly, they are law enforcement officers for purposes of the Tort Claims Act. Weinstein v. City of Santa Fe ex rel.
Santa Fe Police Dep't
, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.
Adoption agency investigators.
— Employees of a state adoption agency who investigated the death of an adopted child were not law enforcement officers because they did not perform the traditional duties of law enforcement officers of holding persons in custody, maintaining public order, and making arrests.
Johnson ex rel. Estate of Cano v. Holmes
, 377 F. Supp. 2d 1069 (D.N.M. 2004),
aff'd
, 455 F.3d 1133 (10th Cir. 2006).
Animal control officer.
— An animal control officer of a municipality is not a law enforcement officer, because the officer's duties did not include the maintenance of public order.
Tate v. Fish
, 347 F. Supp. 2d 1049 (D.N.M. 2004).
Grant of summary judgment improper where defendant failed to meet his burden of showing that transit security officers were not law enforcement officers for purposes of the Tort Claims Act.
— Where plaintiff brought a tort claim against the city of Albuquerque and two transit security officers (TSO), alleging excessive force, unlawful seizure, assault, battery, and false arrest/false imprisonment, and where the district court dismissed plaintiff's tort claims after concluding that the TSOs were not law enforcement officers under the provisions of the New Mexico Tort Claims Act and were therefore immune from plaintiff's tort claims, the district court erred in granting defendants' motion for summary judgment, because the description of a TSO's essential functions included providing security services, conducting periodic patrols, regulating the flow of city employees and the public to ensure safety, providing crowd and traffic control as needed, responding to calls for service and reports of crimes in progress, calling for emergency medical or police services as needed, assisting law enforcement agencies as needed, conducting preliminary investigations to determine if a crime had been committed, documenting incidents and preparing reports, providing general assistance to the public, and preparing a variety of reports regarding security enforcement activities, and therefore, aside from the absence of a gun and the authority to arrest, a TSO's job was nearly identical to the normal commonplace activities of a police officer on patrol. Defendants failed to carry their burden of showing the absence of a genuine dispute of material fact, and therefore summary judgment was improper.
Hernandez v. Fitzgerald
, 840 F. App'x 333 (10th Cir. 2020).
Summary judgment was proper where plaintiff failed to identify a negligent public employee who was a law enforcement officer.
— In a wrongful death lawsuit, where plaintiff, as personal representative of the estate of decedent, brought claims against the New Mexico Corrections Department (NMCD) after decedent was killed by an inmate who had been erroneously released from custody, alleging negligent operation of the NMCD facility from which the inmate had been released, and negligent actions by law enforcement officers, and where defendants moved for summary judgment arguing that they were immune from suit under the Tort Claims Act, 41-4-1 to 41-4-30 NMSA 1878, and where the district granted defendant's motion on the negligent law enforcement claim on the grounds that plaintiff had not shown that a negligent NMCD employee was a "law enforcement officer" as required to establish waiver, summary judgment was properly granted on this ground, because plaintiff failed to identify a negligent public employee who was a law enforcement officer.
Sanders v. NMDOC
, 2023-NMCA-030, cert. denied.
Effect of exceeding official duties.
— When an officer exceeds official duties and makes an arrest without authority of the municipality or in execution of orders thereof, the officer ceases to act on behalf of the city and assumes the entire responsibility personally.
Stull v. City of Tucumcari
, 1975-NMCA-105, 88 N.M. 320, 540 P.2d 250, cert. denied, 88 N.M. 319, 540 P.2d 249.
No distinction shall be drawn with regard to "public" or "special" duty
of governmental employees whose immunity to suit for acts of negligence has been excepted under this article.
Schear v. Board of Cnty. Comm'rs
, 1984-NMSC-079, 101 N.M. 671, 687 P.2d 728.
Secretary of corrections is not a law enforcement officer
within the meaning of this section as defined in 41-4-3D NMSA 1978.
Silva v. State
, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.
III. SCOPE OF DUTIES.
Duty to enforce speed limits.
— Where decedent was killed when decedent's vehicle was struck by a speeding van driver by a corrections officer; the sheriff's department received numerous complaints about the dangerous traffic condition on the road where the accident occurred involving its own officers, corrections officers and others; and despite that knowledge, the sheriff's department did not enforce the traffic laws as required by state or investigate the complaints, the wrongful death claim falls within the waiver of immunity for law enforcement officers.
Wachocki v. Bernalillo Cnty. Sheriff's Dep't
, 2010-NMCA-021, 147 N.M. 720, 228 P.3d 504,
aff'd
, 2011-NMSC-039, 150 N.M. 650, 265 P.3d 701.
Duty of law enforcement officer.
— A law enforcement officer has the duty in any activity actually undertaken to exercise for the safety of others that care ordinarily exercised by a reasonably prudent and qualified officer in light of the nature of what is being done.
Cross v. City of Clovis
, 1988-NMSC-045, 107 N.M. 251, 755 P.2d 589.
Although a law enforcement officer or agency may be held liable under this section for negligently causing infliction of one of the predicate torts, simple negligence in the performance of a law enforcement officer's duty does not amount to commission of one of the torts listed in the section.
Bober v. N.M. State Fair
, 1991-NMSC-031, 111 N.M. 644, 808 P.2d 614.
Summary judgment in favor of state police was affirmed in the case of an automobile passenger's action for injuries sustained in a traffic accident following a rock concert, in the absence of any allegations giving rise to a duty on the part of the state police to exercise ordinary care for the passenger's safety.
Bober v. N.M. State Fair
, 1991-NMSC-031, 111 N.M. 644, 808 P.2d 614.
As a matter of law, the plaintiffs, children of the deceased killed by law enforcement officers, were unforeseeable as injured parties and, therefore, the defendant officers owed no duty to them.
Lucero v. Salazar
, 1994-NMCA-066, 117 N.M. 803, 877 P.2d 1106, cert. denied, 117 N.M. 802, 877 P.2d 1105.
An employee's action, although unauthorized, is considered to be in the scope of employment if the action (1) is the kind the employee is employed to perform; (2) occurs during a period reasonably connected to the authorized employment period; (3) occurs in an area reasonably close to the authorized area, and (4) is actuated, at least in part, by a purpose to serve the employer. Accordingly, since the police officer conducted an arrest too far removed from the place he was authorized to perform his duties, and the arrest occurred during a time that he was expressly told to take off, the officer did not act within scope of his duties.
Narney v. Daniels
, 1992-NMCA-133, 115 N.M. 41, 846 P.2d 347, cert. denied, 114 N.M. 720, 845 P.2d 814 (1993).
Correctional officer, acting within the scope of his duties, was immune from liability.
— Where plaintiff, a former inmate at western New Mexico correctional facility (WNMCF), a prison run by the New Mexico corrections department, filed a complaint for damages against defendant, a former corrections officer at WNMCF who repeatedly subjected plaintiff to sexual abuse, alleging that as a result of the abuse, defendant was liable for sexual assault and false imprisonment under the New Mexico Tort Claims Act (NMTCA), defendant was protected by the NMTCA's immunity to liability for intentional torts, because although defendant's abuse was unauthorized and irrelevant to his employment, defendant was within his scope of duties when abusing plaintiff as the abuse took place at WNMCF during defendant's time of employment and defendant was on duty as a corrections officer while the abuse took place. Limiting "scope of duties" to only those acts officially requested, required or authorized would render all unlawful acts, which are always unauthorized, beyond the remedial scope of the NMTCA.
Garcia v. Martinez
, 414 F. Supp. 3d 1348 (D. N.M. 2019).
IV. WAIVER OF IMMUNITY.
Immunity not waived.
— Where the decedent was experiencing the effect of withdrawal from heroin when the metropolitan court ordered his release; the decedent was initially released to be transported by van as required by jail policy, but he exited the van; the decedent re-entered the metropolitan jail; the decedent was released to the jail parking lot without signing a waiver of van transportation contrary to jail policy; the decedent wandered off into the desert and died of hypothermia; and the medical director of the jail opined that at the time of his release, the decedent had no medical condition that required treatment, the city was not liable under the Tort Claims Act on plaintiff's claim that the jail officers who knew or should have known that the manner of the decedent's release would endanger his life.
Lessen v. City of Albuquerque
, 2008-NMCA-085, 144 N.M. 314, 187 P.3d 179, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677.
Immunity not waived for mere negligence.
— There is no waiver of immunity under this section for mere negligence of law enforcement officers that does not result in one of the enumerated acts.
Blea v. City of Espanola
, 1994-NMCA-008, 117 N.M. 217, 870 P.2d 755, cert. denied, 117 N.M. 328, 871 P.2d 984.
Immunity not waived for deprivation of "happiness".
— Vague references to "safety" or "happiness" in N.M. Const., art. II, § 4 are not sufficient to state a claim under this section. Waiver of immunity based on such constitutional grounds would emasculate the immunity preserved in the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978].
Blea v. City of Espanola
, 1994-NMCA-008, 117 N.M. 217, 870 P.2d 755, cert. denied, 117 N.M. 328, 871 P.2d 984.
Immunity waived under 41-4-5 NMSA 1978.
— Section 41-4-5 NMSA 1978, which waives immunity for negligent operation or maintenance of a motor vehicle, watercraft, or aircraft, applies to all public employees, including law enforcement officers. This section, which applies only to law enforcement officers, waives immunity only for the acts enumerated in this provision, such as assault and battery.
Wilson v. Grant Cnty.
, 1994-NMCA-001, 117 N.M. 105, 869 P.2d 293.
Harm result of accident.
— In plaintiff's wrongful death suit against the state and a law enforcement officer, no waiver of immunity existed where the harm allegedly caused by the officer was clearly the result of an accident rather than an intentional tort, and the officer's decisions did not support an inference of an intention to engage in unlawful conduct that invaded the protected interests of others.
Caillouette v. Hercules, Inc.
, 1992-NMCA-008, 113 N.M. 492, 827 P.2d 1306, cert. denied, 113 N.M. 352, 826 P.2d 573.
V. CLAIMS COVERED.
A. IN GENERAL.
Claim for negligent misrepresentation.
— Plaintiff's allegations against officers of a county detention center based on their negligent misrepresentations in making an employment recommendation about a former employee state a viable claim for relief against the county.
Davis v. Board of Cnty. Comm'rs
, 1999-NMCA-110, 127 N.M. 785, 987 P.2d 1172.
Wrongful execution of writ.
— The facial validity of a writ of restitution protects the executing officers from liability. Runge v. Fox, 1990-NMCA-086, 110 N.M. 447, 796 P.2d 1143.
Liability for violent assault.
— Where deputy town marshal, acting upon order of mayor, committed violent assault upon plaintiff using more force than circumstances warranted, the town was not liable in damages since mayor exceeded authority and ceased to act in behalf of the town.
Salazar v. Town of Bernalillo
, 1956-NMSC-125, 62 N.M. 199, 307 P.2d 186.
Sexual harassment and invasion of privacy.
— Because sexual harassment and invasion of privacy are not among the enumerated torts for which immunity is waived, the prisoner's claims fail.
Ramer v. Place-Gallegos
, 1994-NMCA-101, 118 N.M. 363, 881 P.2d 723.
Emotional distress.
— The Tort Claims Act does not waive the immunity of law enforcement officers for intentional infliction of emotional distress standing alone as a common-law tort. Damages for emotional distress, however, may be recoverable as damages for "personal injury" resulting from one of the enumerated acts.
Romero v. Otero
, 678 F. Supp. 1535 (D.N.M. 1987).
Claim for loss of consortium is permissible under the Tort Claims Act.
—Where plaintiffs' father was shot and killed by law enforcement officers during a stolen vehicle investigation, the district court erred in dismissing plaintiffs' complaint on the ground that their loss of consortium claims did not fall within the Tort Claims Act (TCA), because the TCA waives a law enforcement officer's sovereign immunity from liability for personal injury and for bodily injury damages resulting from battery, and loss of consortium damages may be characterized as either personal or bodily injury damages, and therefore both the injury and the tort from which the plaintiff's claim for loss of consortium damages derive are specifically enumerated under this section.
Thompson v. City of Albuquerque
, 2017-NMSC-021,
aff'g
2017-NMCA-002, 386 P.3d 1015.
Claims for loss of consortium damages are independent of the underlying tort claim.
— Where plaintiffs' father was shot and killed by law enforcement officers during a stolen vehicle investigation, the plaintiffs were not required to bring their claim for loss of consortium damages along with the underlying battery claim, because loss of consortium claimants suffer a direct injury separate from the physical injury to another.
Thompson v. City of Albuquerque
, 2017-NMSC-021,
aff'g
2017-NMCA-002, 386 P.3d 1015.
Damages for loss of consortium may be recovered.
— Where plaintiffs' father was shot and killed by law enforcement officers during a stolen vehicle investigation, the district court erred in dismissing plaintiffs' complaint on the ground that their loss of consortium claims did not fall within the Tort Claims Act (TCA), because generally, plaintiffs should be allowed to recover for loss of consortium if the evidence shows that their relationships with the decedent were sufficiently close financially, socially, or both, and if it was foreseeable that the injury to the decedent would harm the relationships, and 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 under the TCA.
Thompson v. City of Albuquerque
, 2017-NMCA-002, cert. granted.
Negligent release of criminal suspect.
— Plaintiff's complaint, claiming personal injuries and damages resulting from rape by a criminal suspect following the suspect's allegedly negligent release from a detention center, stated a cause of action against the city which operated the center and against the center director.
Abalos v. Bernalillo Cnty. Dist. Attorney's Office
, 1987-NMCA-026, 105 N.M. 554, 734 P.2d 794, cert. quashed, 106 N.M. 35, 738 P.2d 907.
The plaintiff's allegations that the officers were negligent in failing to forward the paperwork necessary to prosecute the man who later raped her and in failing to develop a policy to prevent the release of such prisoners back into the community at large met the requirement of alleging that the officers failed to exercise the care of reasonably prudent and qualified officers in an activity undertaken for the safety of others, and the allegations are therefore sufficient to state a claim under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978].
Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't
, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.
Negligent failure to apprehend drunk driver.
— Allegations in a complaint that sheriff deputies failed to apprehend a drunk driver or investigate a tavern disturbance and that this failure proximately caused personal injury to the plaintiff's family, sufficed to state a cause of action for negligent violation of a right secured under New Mexico law for which this section waives sovereign immunity.
California First Bank v. State, Dep't of Alcohol Beverage Control
, 1990-NMSC-106, 111 N.M. 64, 801 P.2d 646.
Liability for failure to detain intoxicated driver.
— Law enforcement officers may be liable if they fail to detain an intoxicated driver who then acts with the requisite level of intent to commit a battery while driving intoxicated.
Blea v. City of Espanola
, 1994-NMCA-008, 117 N.M. 217, 870 P.2d 755, cert. denied, 117 N.M. 328, 871 P.2d 984.
Officer's unlawful entry.
— Chief of police's deliberate and unlawful intrusion into a person's home to effect the arrest of a spouse constituted a trespass actionable under this section.
Montes v. Gallegos
, 812 F. Supp. 1165 (D.N.M. 1992).
Negligence of city police officers in maintaining a police roadblock
was a question for the jury, and the jury reasonably could have found that the officers' failure to keep a proper lookout and failure to warn proximately caused the death of one in the zone of the danger in question.
Cross v. City of Clovis
, 1988-NMSC-045,107 N.M. 251, 755 P.2d 589.
B. DUTY TO INVESTIGATE.
Class of persons to be protected by duty to investigate.
— In creating the duty to investigate, the legislature did not limit the traditional tort concept of foreseeability that would otherwise define the intended beneficiaries of the statute; all persons who are foreseeably at risk within the general population are within the class of persons to be protected by the duty to investigate.
Torres v. State
, 1995-NMSC-025, 119 N.M. 609, 894 P.2d 386.
When any person of the public, regardless of geographic location, is foreseeably at risk of injury by a party reported to be in violation of the criminal law, officers undertaking the investigation of the crime owe that person a duty to exercise the care ordinarily exercised by prudent and qualified officers.
Torres v. State
, 1995-NMSC-025, 119 N.M. 609, 894 P.2d 386.
Foreseeability of criminal act.
— Since it is not unlikely that a murderer would flee the city in which the crime was committed and, given modern-day transportation, that this person would flee across state lines, and since the police knew or should have known that it is possible that a person who kills randomly with no motive would kill again, the harm in this case was not so removed from the conduct of the defendants that the court may say as a matter of law that the victims were unforeseeable; thus foreseeability is a question for the jury to determine by giving thought to, among other things, the time, space, and distance between the alleged failure to investigate and the deaths of the two victims.
Torres v. State
, 1995-NMSC-025, 119 N.M. 609, 894 P.2d 386.
Liability for inadequate response to reported criminal act.
— A governmental entity and its law enforcement officers may be held liable for negligently failing, after receiving notice, to take adequate action to protect a citizen from imminent danger and injury and for failing to adopt proper procedures for responding to, and investigating, reported criminal acts.
Schear v. Board of Cnty. Comm'rs
, 1984-NMSC-079, 101 N.M. 671, 687 P.2d 728.
Liability for failure to bring criminals before court.
— The statutory obligations that officers cooperate with prosecutors and bring defendants before the courts are primarily designed to protect the public by ensuring that dangerous criminals are removed from society and brought to justice; accordingly, as with the duty to investigate crimes under 29-1-1 NMSA 1978, the duties of cooperating with prosecutors, diligently filing complaints, and bringing defendants before the courts inure to the benefit of private individuals, and the violation of these statutory duties may give rise to a cognizable claim under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978].
Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep'
t, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.
C. TRAINING AND SUPERVISION.
Negligent training and supervision by superiors.
— When personal injury results from a violation by subordinate officers of rights secured by the constitution or laws of the United States or New Mexico or from commission of certain torts specified in this section, then the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] waives immunity for negligent supervision or training by superior law enforcement officers that proximately causes the violation. However, that immunity is not waived for negligent training and supervision standing alone; such negligence must cause a tort specified in this section or violation of rights.
McDermitt v. Corrections Corp. of Am.
, 1991-NMCA-034, 112 N.M. 247, 814 P.2d 115 (Ct. App. 1991).
The Tort Claims Act does not provide immunity to law enforcement officers whose negligent supervision and training of their subordinates proximately causes the commission by those subordinates of the torts of assault, battery, false arrest, and malicious prosecution.
Ortiz v. N.M. State Police
, 1991-NMCA-031, 112 N.M. 249, 814 P.2d 117, cert. quashed, 113 N.M. 352, 826 P.2d 573 (1992).
Sheriff, who was a defendant in a case involving a fatal shooting by a deputy, was not immune from liability for negligently failing to train or supervise his employees.
Quezada v. Cnty. of Bernalillo
, 944 F.2d 710 (10th Cir. 1991).
Law reviews.
— For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).
For note, "Federal Civil Rights Act - The New Mexico Appellate Courts' Choice of the Proper Limitations Period for Civil Rights Actions Filed Under 42 U.S.C. § 1983:
DeVargas v. State ex rel. New Mexico Department of Corrections
," see 13 N.M.L. Rev. 555 (1983).
For note, "Liability of Law Enforcement Officers While in the Line of Duty:
Wilson v. Grant County,
" see 25 N.M.L. Rev. 329 (1995).
For note, "An Employer's Duty to Third Parties When Giving Employment Recommendations -
Davis v. Board of County Commissioners of Dona Ana County,
" see 30 N.M.L. Rev. 307 (2000).
For article, "What Does the Natural Rights Clause mean to New Mexico?", see 39 N.M. L. Rev. 375 (2009).
For note, "Trends in New Mexico Law: 1994 95 Tort Law Evolution and Duty in New Mexico: Torres v. State," see 26 N.M. L. Rev. 585 (1996).
For article, "Reticent Revolution: Prospects for Damage Suits under the New Mexico Bill of Rights," see 25 N.M. L. Rev. 173 (1995).
For note, "Torts — Sovereign Immunity: Caillouette v. Hercules," see 25 N.M. L. Rev. 423 (1993).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
57 Am. Jur. 2d Municipal, County, School, and State Tort Liability §§ 177 to 182, 428 to 481.
Liability of governmental unit or its officers for injury to innocent pedestrian or occupant of parked vehicle, or for damage to such vehicle, as result of police chase, 100 A.L.R.3d 815.
Liability of governmental unit or its officers for injury to innocent occupant of moving vehicle, or for damage to such vehicle, as result of police chase, 4 A.L.R.4th 865.
Governmental tort liability for injuries caused by negligently released individual, 6 A.L.R.4th 1155.
Liability of governmental officer or entity for failure to warn or notify of release of potentially dangerous individual from custody, 12 A.L.R.4th 722.
Liability of governmental unit for intentional assault by employee other than police officer, 17 A.L.R.4th 881.
Liability of governmental unit for injuries caused by driver of third vehicle to person whose vehicle had been stopped by police car, 17 A.L.R.4th 897.
Municipal or state liability for injuries resulting from police roadblocks or commandeering of private vehicles, 19 A.L.R.4th 937.
Liability for failure of police response to emergency call, 39 A.L.R.4th 691.
Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 A.L.R.4th 705.
Probation officer's liability for negligent supervision of probationer, 44 A.L.R.4th 638.
Governmental tort liability for failure to provide police protection to specifically threatened crime victim, 46 A.L.R.4th 948.
Failure to restrain drunk driver as ground of liability of state or local government unit or officer, 48 A.L.R.4th 320.
Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence, 81 A.L.R.4th 1031.
Admissibility of evidence of polygraph test result, or offer or refusal to take test, in action for malicious prosecution, 10 A.L.R.5th 663.
Immunity of police or other law enforcement officer from liability in defamation action, 100 A.L.R.5th 341.
Construction and application of Federal Tort Claims Act provision (28 U.S.C.S. § 2608(h)) excepting from coverage claims arising out of false imprisonment, false arrest, malicious prosecution, or abuse of process, 43 A.L.R. Fed. 571.
Failure of state or local government to protect child abuse victim as violation of federal constitutional right, 79 A.L.R. Fed. 514.
Applicability of libel and slander exception to waiver of sovereign immunity under Federal Tort Claims Act (28 USCS § 2680(h)), 79 A.L.R. Fed. 826.
Appealability, under collateral order doctrine, of order denying qualified immunity in 42 USCS § 1983 or Bivens action for damages where claim for equitable relief is also pending - post-Harlow cases, 105 A.L.R. Fed. 851.
Construction and application of Federal Tort Claims Act provision (28 USCA § 2680(h)) excepting from coverage claims arising out of false imprisonment, false arrest, malicious prosecution, or abuse of process, 152 A.L.R. Fed. 605.