386 P.3d 1015
N.M. Ct. App.2016Background
- In March 2010 Albuquerque police in unmarked cars confronted a suspected stolen vehicle; Officer Sanchez shot and killed Mickey Owings, who was unarmed, as Owings backed his car away.
- Owings’ children (ages 3, 5, and 12 at time of suit) are the plaintiffs, represented by guardian ad litem Bruce Thompson.
- In June 2014 Plaintiff sued the City, the former police chief, and Officer Sanchez under the New Mexico Tort Claims Act (TCA) for loss of consortium and related negligent hiring/training/retention theories.
- Defendants moved to dismiss under Rule 1-012(B)(6), arguing (inter alia) failure to comply with TCA notice and limitations, that loss of consortium is not covered by the TCA waiver in § 41-4-12, and that the children did not themselves suffer an enumerated tort.
- The district court dismissed solely on the ground that § 41-4-12 does not waive immunity for loss of consortium claims. Plaintiff appealed.
- The Court of Appeals reversed, holding § 41-4-12 can support loss of consortium claims derivative of enumerated torts and that such claims need not be brought only within the decedent’s own action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the TCA (§ 41-4-12) waive sovereign immunity for loss of consortium claims arising from officer misconduct? | Loss of consortium is a recognized tort damage that flows from bodily injury/wrongful death and falls within TCA waivers. | § 41-4-12 lists specific torts but does not list loss of consortium, so immunity is not waived for it. | Reversed: § 41-4-12 can support recovery of loss of consortium damages when they derive from an enumerated tort. |
| Must a loss of consortium claim be brought together with the underlying (decedent’s) tort claim (e.g., wrongful death/battery)? | Children may bring a separate loss of consortium claim distinct from the decedent’s wrongful death claim. | Loss of consortium must accompany the primary claim; separate suit is improper. | Rejected: Loss of consortium may be pursued separately (citing Luebbers). |
| Is a loss of consortium claim barred because the claimants (children) did not themselves suffer an enumerated tort (e.g., battery)? | No — loss of consortium is derivative; claimants need not be the persons who directly suffered the enumerated tort. | Children did not suffer the enumerated tort, so waiver under § 41-4-12 cannot apply. | Rejected: Derivative nature means the claimant is not the person who suffered the underlying tort. |
| Do prior TCA and loss-of-consortium precedents support permitting such claims under § 41-4-12? | Wachocki and Brenneman support that loss of consortium damages fall within TCA waivers for enumerated torts; Luebbers allows separate child claims. | Defendants contend those precedents are distinguishable or dicta and thus inapplicable. | Court finds Wachocki and Brenneman persuasive and applicable; prior holdings support allowing loss of consortium under § 41-4-12. |
Key Cases Cited
- Wachocki v. Bernalillo County Sheriff’s Dep’t, 228 P.3d 504 (N.M. Ct. App. 2010) (stating loss of consortium damages may be recovered under § 41-4-2(A)/§ 41-4-12 waiver).
- Brenneman v. Board of Regents of Univ. of N.M., 84 P.3d 685 (N.M. Ct. App. 2004) (loss of consortium damages flow from traditional tort duties and are within TCA waivers).
- State Farm Mut. Auto. Ins. Co. v. Luebbers, 119 P.3d 169 (N.M. Ct. App. 2005) (minor child may pursue a separate loss of parental consortium claim after a parent’s death).
- Archer v. Roadrunner Trucking Inc., 930 P.2d 1155 (N.M. 1997) (loss of consortium is derivative of the injured person’s underlying claim).
- Fitzjerrell v. City of Gallup, 79 P.3d 836 (N.M. Ct. App. 2003) (standard for reviewing dismissal under Rule 1-012(B)(6)).
- McDermitt v. Corr. Corp. of Am., 814 P.2d 115 (N.M. Ct. App. 1991) (negligent training/supervision by law enforcement can waive immunity when it causes an enumerated tort).