*1 er with other criminal statutes. Sec- P.2d HARRELL, 30-l-6(C) together tion Amelia read Section as Personal 51-1-38, Ms. Representative is clear that crimes for Paul P. Lujan charged petty are misde- Harrell, Plaintiff-Appellee, for a meanors. The statute of limitations year. 30-1— petty misdemeanor is one § 8(F). BELEN, The CITY OF Ross Lovato and that a appellees argue in this case Montano, Ernest provided for” limitation is not “otherwise Defendants-Appellants. Lujan which Ms. because the statute under No. 3453. charged expressly does not state degree It is their of the crime. 51-1-38. § Appeals Court of of New Mexico. statute penal contention that unless the ex- crime, degree pressly specifies the May 1979. (G) (A) through then subsections of Section apply 30-1-8 do not to limit time within As 18, 1979. Amended July may which a criminal action be commenced. interpret the statutes in the manner
suggested by appellees result
an inconsistency Leg- we do not believe the islature intended. Crimes with an authoriz-
ed maximum penalty of less than six
months which expressly do not state the degree of the crime would have the same
length of limitation as a third or fourth degree felony. 30-1-8. §
Appellees additionally contend that Unemployment Compensation Law is a “revenue 30-l-8(G) law.” provides Section for a three-year statute of limitations for
any crime in violation of a revenue law. disagree
We appellees’ with the contention. Unemployment Compensation Law re quires employers “spe contribute to a fund, separate apart cial public from all * * money, or funds of this state 51-1-19, Thus, § N.M.S.A.1978. the contri required butions paid to be provi under the sions of the law are not “revenues” to the state, and are not within the meaning of 30-1-8(G).
Section
Cf. Howell v. Division
of Employment
Etc.,
Security
358 Mo.
Court). We therefore hold that the statute applicable limitations to an action brought 51-1-38(A) under Section is one year.
IT IS SO ORDERED. FELTER, JJ.,
PAYNE concur. *2 Branch, Stephen Slusher, A. W.
Turner Branch, Perkal, A., Albuquer- Coleman & P. que, plaintiff-appellee. Casados, Gal- Gallagher,
David R. J. E. Martin, lagher, Albuquerque, & Casados defendants-appellants.
OPINION
HENDLEY, Judge. wrong- judgment
Plaintiff recovered involving son who com- ful death action her custody. De- police while in mitted suicide grounds appeal asserting several fendants (1) give certain for reversal: refusal instructions; certain in- (2) giving structions; items in (3) admitting certain evidence; cell and checked on Paul 10 to 15 permitting expert an express opinion. We affirm. minutes.
Facts was When Paul was first booked stripped son, Paul, except of all clothes his under-
Plaintiff’s
ap-
deceased
prehended by
shorts and
Belen
for armed
cell.
*3
robbery
jail.
and taken to
Paul
arrived,
was seven-
given
his mother
was
his shirt
he
years
teen
old. Plaintiff was notified of
glassed in
pants
and
removed to the
and
arrest,
thereafter,
her
shortly
son’s
and
ar-
When his mother
they spoke.
area where
jail.
rived at
the
She was taken to an
left,
in the
cell but
-he was
office
present
where Paul was
with Officer
again stripped.
was
Gabaldon.
given permission
She was
to
ap-
his
hours after
Approximately three
speak privately
glass
him in a
enclosed
prehension
was found
police,
the
Paul
room.
cell
his
hanging
dead
from a vent in the
Plaintiff
that
testified
Paul said that “he
long-sleeved shirt.
going
penitentiary,
wasn’t
to the
they
that
Refusal to Instruct
wouldn’t take him there alive
.
.
. .”
Defendants claim that
the trial court
She informed Assistant Chief Montano of
jury
wheth-
failing
erred in
to submit to
Paul’s
“.
statement
.
that he’d die
independent
er
inter-
Paul’s suicide was an
go
before he
penitentiary],
[to
vening cause and whether Paul’s action
would kill
plaintiff
himself
.
.
. .” As
in not
killing
plaintiff’s
himself and
action
leaving
was
attempt-
the area she saw Paul
he had been
remaining with her son after
ing
top (as
to slash his
flip
wrist with a
contributory neg-
incarcerated amounted to
cola).
found on cans of
told Montano
She
ligence.
are un-
Both of these contentions
of this and
restraining
both returned to the
founded.
plaintiff
area where
flip top
took “the
gave it to
[plaintiff] got
Montano and I
instruc
party
is entitled to
Paul’s wrist and turned it and Montano
if it is
upon
theory
tion
his
of the case
walked out.”
Mar
evidence.
supported by substantial
incident,
As a result of this
Officer Orte-
Schmick,
tinez v.
N.M.
told take care he’s going try to to kill himself.” custodial is in the party When one another, jailed
Plaintiff
testified that Montano assured
as in the case of
care
stating
her
“we’ll
safety
of Paul’s
take
duty to
prisoner, the
has the
custodian
exer-.
good
nothing
care
him” and “there’s
ordinary care under the
cise reasonable and
there for him to hurt himself.” Based
circumstances for the life and health
policeman’s
assurances and the belief
Williams,
Ga.App.
charge. Thomas v.
do,
nothing
there was
else for her to
(1962); see Porter v.
S.E.2d
plaintiff went home.
Cook,
County
Ill.App.3d
(1976); compare
Warner
N.E.2d
left,
plaintiff
gave
After
in-
Montano
P.2d
Authority, 551
Hospital
Kiowa
Lovato,
dispatcher,
structions
Knowledge on
(Okl.App.1976).
watch and check Paul
few minutes.
may
charge
part of the custodian that
cell was located near
dis-
meas
injure
precautionary
himself unless
patcher’s desk and had a window from
factor
important
ures are taken is an
which the cell could be observed. Lovato
exer-
lights
determining
testified that he turned off the
in the
whether
the custodian
«15
cised reasonable
Thomas,
care.
supra,
That
answer is factual. There is
no
simply
Porter, supra.
evidence of her contributory negligence.
She repeatedly told the authorities of Paul’s
police, then,
Belen
had the
suicide,
threats and attempted
life and
exercise reasonable care for the
was assured that defendants would watch
Paul,
they
persons
health
were the
out for
She had
him.
no
to stay with
responsible
placing
him in
custodial
and,
fact,
Paul in
did everything that
heightened by
Their
setting.
she
reasonably
expected
could
be
to do
knowledge that
made re-
their
Paul had
protect
jailed
her
son.
Under the facts
peated threats
and had once even at-
case,
impose
this
a further
plain-
tempted
commit suicide.
tiff
lessening
would have
effect of
duty of the defendants. This we will not
moreover, contemplates
duty,
This
*4
do. The
court
the
properly
trial
refused
of a
reasonably foreseeable occurrence
the
requested
plaintiff’s
instruction on
contrib-
injury regardless of whether
self-inflicted
utory negligence.
charge’s
the
volitional
product
is the
of
County,
King
act. Hunt v.
negligent
The foregoing discussion answers defend-
(Ct.App.1971).
Wash.App.
lic absolves Paul from grounds tention on the that “the so-called circumstances, he due care under these place ‘standards’ had no in this lawsuit contributorially could not definition be since,they whatsoever” relate to “detention court, Hunt, negligent. supra. The trial permanent facilities of a nature” rather then, not submit refusing did err in than to “temporary police custody ju- of a independent Paul’s whether suicide was an allegation venile.” This is without merit. intervening force and his act of whether contributorially negli killing himself was 2.01 of the standards defines Section
gent. facility place as “a detention where however, The foregoing, pending may does child be detained court hear not issue, ing answer whether the and does include facilities for the trial court refusing erred in delinquent instruct care and rehabilitation of on the contrib chil negligence utory plaintiff. general reading Baca dren.” of the standards See Baca, 71 N.M. they set a P.2d 765 indicates that minimum standard which “assures more “preclude detention does not on ultimate
uniform and sound for the deten- practices their deliberation.” N.M.U.J.I. delinquent 15.1, tion child.” Belen Civ. “Directions for Use.” jail, then, facility was a as con- detention Defendants also appeal contend on such, As templated by the standards. depositions officers, use of standards were and admissible relevant on required by Rule of Evidence were the issue of the minimum level of detention not of the kind reasonably upon by relied City comply. to which the Belen had to psychologists in However, the field. de fendants did not specific objec make this Photograph tion at trial as required by Higgins v. Hermes, photograph N.M. (Ct. Plaintiff’s Exhibit 8 is a color App.1976). death. Since shortly prop torso after defendants failed to of Paul’s taken erly object trial, at objected admission on lost their Rule 703 they Defendants to its objection appeal. grounds irrelevancy. Affirmed. rele 401 defines
Rule of Evidence “tend which has vancy that evidence IT IS SO ORDERED. any fact the existence ency to make the determination consequence to is of WOOD, J.,C. concurs. *5 probable less probable or more the action evidence.” be it would without SUTIN, J., dissenting. the scene depicted here photograph The part of the incident, and was taken SUTIN, Judge (dissenting). the cut investigation. It shows official I dissent. on his the bruises wrist and marks on Paul’s fact that a hanging. neck from Harrell, age, while years P. Paul evi of other may be cumulative photograph Belen, com- city jail in in incarcerated it inad render necessarily not dence does apprehended suicide. He had been mitted to corroborate long as it serves missible so aof city police the commission by the in Sedillo, 76 N.M. State v. evidence. other Be- in burglary of a business establishment photograph (1966). The P.2d 500 len, gun. being taken armed with a After evidence other to corroborate tended here Paul he was his mother. jail, visited therefore, as relevant was, admissible and going did not talk much. He was afraid evidence. He had penitentiary. He cried. flip his with the tried to cut wrist or arm Expert Witness can, top of a and his mother not told be there. return because he would not psy Plaintiff’s a clinical expert, left, When his mother told the officers she suicide, was chologist with an expertise him kill himself. take care of or he would regarding hypothetical question asked a She did not consider Paul insane or mental- action for what would have been reasonable ly disturbed. police to have taken in order originally booked, Paul had all out- contend this Paul’s suicide. Defendants er clothing taken from put him and was province invaded the cell. came, When his mother his disagree. We decide what is “reasonable.” given clothes were back to wear. When his gave 15.1, The Court N.M.U.J.I.Civ. N.M. mother left at m., 1:00 a. she was calm and S.A.1978, which that the jury states is free Paul was normal. Paul was returned to his give either to an expert opinion wearing whatever cell his m., clothes. At 1:43 a. weight they think reject it deserves or to approximately later, 45 minutes by use of such, entirely. shirt, As opinion expert his an grate vent, overhead in a First, toilet, this is an hung him- intentional tort Paul stepping off the which the claim relief predicated self. intentional infliction of every ten to fif- Paul cheeked mental injury directly by defendants that through glass by looking teen minutes caused Paul to lose control of his mind or to cell. While the in the door of the window become law mentally irresponsible. “The cell, light lights off in the sufficient were has for long recognized time a distinction him to ob- through this window for came torts, negligent between intentional and serve Paul. and has defens- generally recognized fewer es, and been more inclined to find expert psychologist Plaintiff’s stated that legal defendant’s was the cause conduct person usually suicidal state has to be of, harm is in- complained where the tort in a state of depression. person has Such Tate, Cal.Rptr. at supra. tentional.” [5 about; sight lost of what life is all See, causing physical Liability of one 33.] reasoning impaired is so that self-destruc- injuries injured party as a result of which tion is a problems. solution to some of life’s suicide, attempts 77 A.L.R.3d or commits In lay language, person this has to be beside himself, mind, out of his and unreasonable. Impulses take over and control more than expert
reason does. The
also stated that
Second, this
is not a case where a
should have called the Crisis Cen-
caused, aided,
assisted
led Paul to self-
ter, a
prevention organization
be-
jailer’s
destruction.
pas-
conduct was
was,
cause hypothetically,
opin-
Paul
in his
interval,
During
sive.
the 45 minute
he did
ion,
suicide;
high
risk for
that a trained
clothing,
not remove Paul’s outer
keep a
person
called,
should have been
and that if
vigil
constant
or seek outside medical assist-
he had been transferred to the Bernalillo
ance.
complaints by plaintiff
These
did not
Center,
Medical
the suicide could
relate to the reasons for Paul’s suicide.
have
prevented;
been
ordinary per-
that an
voluntarily
Paul
intentionally
took his
son could have detected all this.
own life.
*6
However,
expert
testified that he had
Third,
jail
a
is not a mental institution
any
done
studies and was not familiar
hospital in which
risk
patient
a
is a suicide
any
with
requirements relating
jails
to
wherein
patient
provided
must be
felons,
the incarceration of accused
nor re-
proper
hospital
standards of
medical
quirements relating to the standards for
watched,
closely
care and
a situation which
jails or
relating
standards
to the detention
See,
greater
Dinner
supervision.
demands
juveniles.
of
States,
(2nd
stein v.
was not alone
aby
ordered
App.3d
Cal.Rptr.
(1976),
supervision than
strict
Through
v. State
Broussard
the court
psychiatrist;
said:
(La.App.1978)
Hosp.,
Div.
356 So.2d
general
jailer
rule is that a
is not
permit
to
not unreasonable
where it was
liable
prisoner
keeping
to a
in his
though
patients
to be with other
patient
injuries
prisoner’s own
resulting from the
a robe tie
thereby obtain
might
intentional conduct.
omitted.]
[Citations
Annot.,
See,
Liabil-
hang himself.
which to
special circumstanc-
possible
Absent some
mental
institu-
hospital, other
ity of
jailer
es
prevent
is under no
A.L.R.3d
tion,
patient,
suicide of
taking
[Empha-
latter from
his own life.
Baruch, 52 N.J.
v.
(1974); Fernandez
sis added.]
(1968)
authorities
where
A does not have a see knowledge skill normally possessed the cell is so constructed to avoid by like institutions in similar communities any self-destruction, (2) method of have juveniles. handling general Just knowledge method which hospital would have a different standard juvenile suicide, might (3) be commit patients of care for its with mental disor- present at prevent all times to ders a hospital specializing than in mental self-destruction, from seek medical disorders, juveniles wayward home for assistance. would have a different standard care imposed general hospi- than that upon a only duty that arises is that which might tal which with men- patients have occurs at the time of arrest. Section 32-1- tal 23(A)(3) disorders. P.2d at [471 267-268.] Children’s Code. in It reads pertinent part: prove For a stan- plaintiff failure of A. person taking a child into custo- care, was re- plaintiff’s judgment dard of dy shall, with all speed: reasonable to en- with direction versed and remanded ****** ter judgment for defendant. (3) deliver the child ... to a home. It jail was a detention Belen
medical facility if the child is believed to juveniles had the standard of care same be suffering from a serious is essen- as a detention home. A standard mental condition or illness requires which physi- without towns tial. Jails small either prompt diag- treatment or prompt different stan- would have a employed cians nosis. [Emphasis added.] cities with a jails large dard of care physician is on physician duty. Where a custody by police, taken into medical mal- appeared duty, Paul the standard of care in acted be and like a normal young City Spokane, practice applies. man. Shea Wash.App. Defendants owed Paul no jails have care in a dif- standard of him from self-destruction. pris- ferent standard than that exercised meet the stan- ons. institution should Each B. No of care for standard juveniles or mentally dard care for ill proven by plaintiff. similar com- potential inmates that If we that the is entitled assume *8 general rule This is the munities exercise. his to reasonable care attention for institu- hospitals, mental established condition, safety his mental malpractice, tions, legal medical and known, may plaintiff the still require, if field any professional institution or other required prove that defendants failed to upon liabili- extent of care bears where the required. conform to the standard Marico ty- pa County Cowart, 106 Ariz. facts, frustrate the city jail Under similar set a the is to except a young teenager Maricopa purpose confined in the for its existence. Suicide, negligent. cause,
C. D. intervening Defendants were not as an was question at least a of fact for Beach, In Lucas v. City Long supra, jury. Stephen, a year plaintiff old son was The court refused to instruct the city jail booked the for intoxication. The intervening cause. It was reversible error. officers opinion were of the Stephen that Defendants were entitled to a directed ver- was under the drug. influence of a At dict. m., about Stephen 2:00 a. damages for the plaintiff For to recover cell in the detention facilities. At defendants, negligence plaintiff must m., officer, about 4:55 a. while prove negligence that of defendants making inspection, Stephen found hang- proximate was the cause of Paul’s self-de- ing by his neck with a noose constructed of is bro- struction. If the chain of causation strip of cloth torn from a mattress cover. cause, by intervening ken an unforeseeable Stephen was dead. There was no evidence subject liability. It is defendants are not Stephen any suffered from psychosis important intervening that an cause note or other mental illness. is one operation that comes into after regulations State governing the adminis- to act. negligent defendant’s act or omission tration of detention facilities re- jailer The failure of the to act not cause did quired that inmates by be observed a custo- It not cause a suicide occur. did dian at least once each hour. police psychosis or illness which led to mental officer comply did not did regulation. with this Paul’s self-destruction. It not cause Judgment impulse state of re- mind or an irresistible plaintiff was reversed. sulting in The suicide which Paul’s suicide.
The Lucas court said:
jailer
followed the
to act
omission
The “cause”
Stephen’s
death was his
intervening
was an
of Paul’s
cause
death.
own act in hanging himself. No act or He took his own life.
Sergeant
omission of
Riley produced the
In Maricopa
said:
County, the court
mental condition
prompted
which
Ste-
. In
specif-
those cases which a
phen to do what he did.
.
.
.
[Em-
absent,
ic duty of care is
is cases
phasis
Cal.Rptr. at
added.]
[131
474.]
involving wrongful
by
act
the defend-
jailer
negligent.
was not
All other
ant and a subsequent
suicide
the in-
matters which
plaintiff
urges in
jured
party, the almost universal rule is
instant case were
against plaintiff
injured
resolved
that the
party
is a
in Lucas.
superseding
The court
cause which is neither
dismissed these
fore-
events
as a
seeable nor a normal incident of the risk
matter of law.
origi-
created and therefore relieves the
For a collection
subject
of cases on the
nal actor
liability
from
for the death re-
matter,
Annot.,
see
prison
Civil
sulting
[Emphasis by
from the suicide.
authorities for self-inflicted injury or
P.2d
court.] [471
267.]
prisoner,
death of
621
(1965);
Reid,
and
court
Runyon
(Okl. Code
the statute itself.
trial
v.
1973);
Stewart,
176,
Jones v.
183 Tenn.
191
giving in-
committed reversible error
(1946);
S.W.2d 439
v.
Day
Waas Ashland
&
to viola-
structions
11 and 12 relative
No.
Night Bank,
469,
201 Ky.
257
29
S.W.
regulations
and 8.01 of the
tions
9.04
§§
(1923),
(1925); Lucas,
taking shirt, his own life with use of a grate vent,
overhead by stepping off the toilet in a matter of minutes. There
is no evidence that he acted without volition
under an impulse, uncontrollable or that he
did not understand the nature of his act. intervening This was ah cause. Mexico, STATE of New His conduct relationship had no Plaintiff-Appellee, jailer’s claimed acts of the omission to act. Foreseeability, within the concept of rea- care, DOE, child, sonable inapplicable Defendant-Appellant. is so that reasona- Jane ble disagree. minds cannot No. 4101. intervening act broke the chain of Mexico. Appeals Court of of New causation as a matter of law. Oct. 1979.
E. The instructing trial court erred in the jury.
Defendants compliance established the minimum standards of the Children’s