397 P.3d 1279
N.M.2017Background
- On March 29, 2010 APD officers confronted Mickey Owings; Officer Sanchez shot and killed Owings during the encounter.
- Plaintiffs are Owings’s surviving minor children who sued the City, former Chief Schultz, and Officer Sanchez under the New Mexico Tort Claims Act (TCA) for loss of consortium damages arising from the battery (shooting).
- Defendants moved to dismiss under Rule 1-012(B)(6) NMRA, arguing the TCA did not waive sovereign immunity for loss of consortium claims; the district court granted dismissal.
- The Court of Appeals reversed; the Supreme Court granted certiorari to decide (1) whether §41-4-12 waives immunity for loss of consortium damages and (2) whether loss of consortium can be brought even if the decedent’s estate did not sue.
- The Supreme Court affirmed the Court of Appeals: §41-4-12 waives immunity for loss of consortium deriving from an enumerated tort (battery), and such claims may be brought independently of the underlying tort or the decedent’s estate bringing wrongful death.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §41-4-12 waives sovereign immunity for loss of consortium damages | Loss of consortium is a form of personal/bodily injury and falls within §41-4-12’s waiver for personal/bodily injury caused by enumerated torts (battery) | Loss of consortium is not specifically enumerated in §41-4-12, so no waiver exists; waiver must be explicit under the TCA | Yes. Court held loss of consortium is personal/bodily injury damage and §41-4-12 waives immunity when it derives from an enumerated tort (battery) |
| Whether children may bring loss of consortium independently even if the decedent’s estate did not sue | Loss of consortium is a direct, independent relational injury and may be pursued separately; actual recovery by injured person or estate is not prerequisite | Loss of consortium must be joined with the underlying tort claim or require recovery by the injured person/estate | Yes. Claimants may pursue loss of consortium independently; plaintiffs need only plead facts showing the underlying tort and a sufficiently close relationship |
Key Cases Cited
- Wachocki v. Bernalillo County Sheriff’s Department, 265 P.3d 701 (N.M. 2011) (analyzed wrongful-death and derivative loss-of-consortium claims under §41-4-12 and treated loss-of-consortium as recoverable when underlying tort waives immunity)
- Brenneman v. Board of Regents of the University of New Mexico, 84 P.3d 685 (N.M. Ct. App. 2004) (held loss of consortium is a type of bodily-injury damage recoverable under TCA waivers)
- Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t, 916 P.2d 1313 (N.M. 1996) (discussed limits on bystander emotional-distress claims under §41-4-12 and distinguished direct relational injuries)
- Archer v. Roadrunner Trucking, Inc., 930 P.2d 1155 (N.M. 1997) (held actual recovery by the physically injured person is not a prerequisite to a loss-of-consortium recovery)
- State Farm Mutual Auto. Ins. Co. v. Luebbers, 119 P.3d 169 (N.M. Ct. App. 2005) (held a minor may pursue loss-of-consortium separate from an underlying wrongful-death claim)