Thompson v. City of Albuquerque
2017 NMCA 2
| N.M. Ct. App. | 2016Background
- In March 2010, Albuquerque police officers confronted a suspected stolen vehicle; Officer Sanchez shot and fatally wounded Mickey Owings, who was unarmed and later died.
- In May–June 2014 Bruce Thompson was appointed guardian ad litem for Owings’ three minor children (ages 3, 5, 12) and filed loss of consortium claims under the New Mexico Tort Claims Act (TCA), alleging wrongful death and negligent hiring/training/supervision by the City and officers.
- Defendants moved to dismiss under Rule 1-012(B)(6), arguing failure to comply with TCA notice, statute of limitations, insufficient facts for loss of consortium, and that Section 41-4-12 of the TCA does not waive immunity for loss of consortium or related claims.
- The district court dismissed solely on the ground that the TCA did not waive immunity for the children’s loss of consortium claims. It did not decide the notice, statute of limitations, or pleading-sufficiency arguments.
- The Court of Appeals reviewed de novo and reversed, holding the district court erred in concluding Section 41-4-12 bars loss of consortium claims by minors derived from enumerated torts committed by law enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether loss of consortium claims by minors are waived under the TCA when derived from an enumerated tort by law enforcement | Loss of consortium is a recognized derivative tort and falls within the TCA waivers because it arises from bodily injury/wrongful death caused by an enumerated tort | Section 41-4-12 lists specific torts and does not expressly include loss of consortium, so immunity is not waived for such claims | Held: Loss of consortium claims are recoverable under the TCA when they derive from an underlying tort that triggers Section 41-4-12 waiver |
| Whether a loss of consortium claim must be brought together with the underlying wrongful death claim | Luebbers permits a minor child to pursue a separate loss of parental consortium action outside of a wrongful death claim | Loss of consortium must be joined with the underlying claim (district court view) | Held: A minor may pursue a separate loss of consortium claim; it need not be brought only within a wrongful death action |
| Whether the children themselves must have suffered the enumerated tort to assert loss of consortium | Loss of consortium is by definition derivative — plaintiffs need not be the direct victims of the enumerated tort | Children did not suffer battery, so their claims fail | Held: Rejected — loss of consortium plaintiffs are not the same persons who suffered the underlying tort; derivative claims are permitted |
| Applicability of Wachocki/Brenneman holdings to § 41-4-12 | Wachocki and Brenneman support that loss of consortium damages flow from traditional tort duties and can fall under TCA waivers | Defendants contend Wachocki/Brenneman are distinguishable or inapposite to § 41-4-12 | Held: Wachocki and Brenneman support recovery of loss of consortium under the TCA and § 41-4-12 waiver when tied to an enumerated tort by law enforcement |
Key Cases Cited
- Fitzjerrell v. City of Gallup ex rel. Gallup Police Dep’t, 134 N.M. 492 (2003) (Rule 1-012(B)(6) dismissal standard and acceptance of pleaded facts)
- Brenneman v. Bd. of Regents of Univ. of N.M., 135 N.M. 68 (2004) (loss of consortium damages flow from bodily injury and fit within TCA waiver principles)
- Wachocki v. Bernalillo Cty. Sheriff’s Dep’t, 147 N.M. 720 (2010) (loss of consortium may be recovered under TCA waiver for law enforcement–caused injuries)
- State Farm Mut. Auto. Ins. Co. v. Luebbers, 138 N.M. 289 (2005) (minor child may pursue separate loss of parental consortium claim outside wrongful death action)
- McDermitt v. Corr. Corp. of Am., 112 N.M. 247 (1991) (immunity waived for negligent training/supervision that causes a tort listed in § 41-4-12)
- Archer v. Roadrunner Trucking Inc., 122 N.M. 703 (1997) (loss of consortium derives from the injured person’s underlying cause of action)
- Pemberton v. Cordova, 105 N.M. 476 (1987) (governmental liability limited to TCA waivers)