{1} These cases present us with the opportunity to resolve the issues of whether the New Mexico Tort Claims Act (TCA), NMSA 1978, §§ 41 -4-1 to -27 (1976, as amended through 2004), requires a plaintiff to name a specific public employee as a defendant to
I. BACKGROUND AND FACTS
{2} The cases come before us in different procedural postures, and we set out the background to each appeal below. Additional factual and procedural details will be developed as necessary in the context of the discussion of each case.
A. Lopez
{3} Louie Lopez filed a pro se complaint against the Las Cruces Police Department, alleging assault, battery, and improper arrest. In his complaint, Lopez did not name the police officers who he alleged had assaulted him. The Police Department filed a motion to dismiss or for summary judgment, arguing that under Abalos v. Bernalillo County District Attorney’s Office,
B. Coleman
{4} Margaret Coleman’s complaint alleged that she was injured when she tripped on a section of sidewalk in Las Cruces, which was in disrepair due to the negligence of the City of Las Cruces. Her complaint alleged that the City breached its duty to maintain the sidewalk in a safe condition. Coleman presented evidence at trial that on three occasions, City employees had been notified of a sunken water meter and an uneven sidewalk. The jury was instructed that the City could only act through its officers and employees, and the jury found that the City was negligent and that its negligence was the proximate cause of Coleman’s injuries. After the district court entered judgment on the jury verdict, the City moved for judgment as a matter of law or a new trial, arguing, in part, that identification of a specific negligent City employee was a jurisdictional requirement under the TCA and that Coleman’s failure to identify a specific negligent employee resulted in a lack of notice to the City. The district court denied the City’s motion, and the City appealed from the judgment.
II. DISCUSSION
{5} Both .cases require us to address whether the TCA requires the naming of a specific governmental employee, but each case also raises separate questions. Therefore, we first address the issues raised in Lopez and then address those raised in Coleman.
1. Procedural Issues
{6} As a preliminary matter, we address the Police Department’s arguments concerning preservation and the role of the amicus, NMTLA, in this appeal. The Police Department argues that Lopez, a pro se plaintiff, did not preserve the arguments he now makes through counsel on appeal. Relying on Brace v. Lester,
{7} The Police Department also argues that the role of an amicus “is to call the court’s attention to facts or situations that may have escaped consideration. [It] is not a party and cannot assume the functions of a party. [It] must accept the case before the court with the issues made by the parties.” State ex rel. Burg v. City of Albuquerque,
[5] {8} Although we agree with the Police Department’s description of the role of an amicus in the appellate process, under the facts of this case, we cannot say that NMTLA acted inappropriately in seeking reconsideration of our summary decision. NMTLA argued in its motion for reconsideration that the issue of whether Lopez was required to name individual public employees had been incorrectly decided in a manner contrary to standard practice throughout the state and without the benefit of briefing or argument by licensed attorneys. NMTLA also points out that at the time it filed the motion for reconsideration, it had attempted to contact Lopez but had been unable to do so. Under these circumstances, we conclude that NMTLA did not act improperly in filing a motion for reconsideration. It was seeking to preserve this Court’s ability to correctly decide an important issue. At the same time, it successfully sought out counsel to represent Lopez in a pro bono capacity. We now have briefing by a properly represented Lopez, as well as amicus briefing by the NMTLA. It would exalt form over substance to dismiss Lopez’s appeal at this point in time. “It is the appellate court policy to construe rules liberally so that an appeal may be decided on the merits whenever possible.” Hester v. Hester,
2. The Tort Claims Act
{9} Lopez challenges the district court’s dismissal of his claim, arguing that the Police Department is the proper defendant and that he is not required by statute or public policy to name an individual public
{10} Because the court dismissed Lopez’s claim on the Police Department’s motion to dismiss or for summary judgment, we review de novo the legal issue of whether a TCA plaintiff is required to name an individual public employee. See Celaya v. Hall,
{11} The purpose of the TCA is to limit governmental liability for torts to those situations for which immunity is specifically waived. Section 41-4-2(A). Because a governmental entity “can act only through its employees, ... the act of the offending employee is the act of the public entity under traditional tort concepts.” Silva v. State,
{12} Although the TCA sets forth the circumstances in which governmental entities are liable for the torts of their employees, it does not specify who should be named as a defendant in a lawsuit. We note that a tort action brought under the TCA, unlike a civil rights action brought pursuant to 42 U.S.C. § 1983, does not require a government employee to be sued in his or her individual capacity in order to avoid Eleventh Amendment immunity defenses. See Ford v. N.M. Dep’t of Pub. Safety,
{13} Various sections of the TCA indicate that the Legislature contemplated suits or judgments against either a governmental entity or a public employee. Section 41-4-19(A) states that “[i]n any action for damages against a governmental entity or public employee,” the liability shall not exceed the stated amounts. Section 41-4-19(B) states that “[i]nterest shall be allowed on judgments against a governmental entity or public employee” at a particular rate. Section 41-4-19(C) states that no judgment “against a governmental entity or public employee” shall include punitive damages or pre-judgment interest. Finally, Section 41-4-17(A) states that the TCA “shall be the exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived.” The fact that these provisions are framed in the disjunctive indicates a legislative intent that either the employee or the relevant governmental entity can be sued.
{14} Case law decided under Rule 1-019 NMRA (joinder of persons needed for just adjudication) also supports this view.
{15} We are also unpersuaded by the Police Department’s argument that New Mexico case law supports its position. The Police Department argues that under Abalos, the public employee is a necessary party to the litigation and a plaintiff must name both the relevant state agency and a negligent employee in order to state a claim under the TCA. The Police Department argues that when this Court wrote that a TCA claim requires a negligent public employee and a governmental entity, we were establishing a rule for who should be named as a defendant in a lawsuit. Contrary to the arguments of the Police Department, however, Abalos does not set forth a rule requiring an employee to be named in the complaint. In Abalos, this Court was specifically asked to address “(1) whether a governmental entity can be a named party defendant; and (2) if the entity can be sued, which entity should be named.”
{16} However, Abalos never stated that a specific employee must be named. Rather, our discussion focused on which agency should be named in a TCA suit, and it was in the context of determining which employer was responsible for the negligent conduct that we discussed the employee. We simply pointed out that because an entity can only act through its employees, “it follows that one can sue the public employee and the agency or entity for whom the public employee works.” Id. Thus, Abalos does not require both the employee and the entity to be named; it merely clarifies that both can be sued. Id. That is, as our cases Alústrate, a plaintiff can sue the employee whose conduct falls within one of the waivers of immunity, and under Section 41^1-4, the governmental entity would pay the award. Alternatively, a plaintiff can sue the governmental entity who has the right to control the employee’s conduct under a theory of respondeat superior. We are not persuaded, therefore, that Abalos stands for the principle that a negligent employee must be named as a defendant in a TCA case.
{18} Just as we are unpersuaded that Abafos and Silva require a negligent public employee to be named as a defendant, we are not convinced by the Police Department’s argument that Cobos v. Doña Ana County Housing Authority,
{19} We are not persuaded by the Police Department’s arguments that Abafos, Silva, or Cobos requires the joinder of the entity and the employee in the caption of the complaint. Moreover, neither this Court nor our Supreme Court has ever required that a negligent public employee be named in the complaint. As NMTLA points out in its amicus brief, both this Court and our Supreme Court have resolved numerous appeals in which no employee was joined. Indeed, our review of dozens of TCA cases reveals that sometimes the governmental entity alone is named, see, e.g., Leithead v. City of Santa Fe,
B. Coleman
{20} Unlike Lopez’s case, Margaret Coleman’s case proceeded to trial, where the jury found the City’s negligence was a proximate cause of Coleman’s injuries. Following the entry of judgment on the jury verdict, the City moved for judgment as a matter of law or, in the alternative, for a new trial, and the trial court denied the motion. The City now appeals from the judgment on the jury verdict, arguing that Coleman’s claim did not satisfy the jurisdictional prerequisites of a TCA claim. Specifically, the City appears to argue that Coleman’s claim did not fall within one of the TCA waivers of immunity because Coleman failed to name a negligent public employee in her complaint and did not identify such an employee at trial.
{21} Like the Police Department in Lopez, the City argues that failure to name a public employee for whose conduct the City is responsible constitutes a failure to demonstrate that the cause of action fits within a TCA waiver and thus constitutes jurisdictional error. As we wrote in our discussion of Lopez, a named public employee is not a necessary party to a TCA claim that is based on the doctrine of respondeat superior. For the reasons given above, therefore, we are not persuaded that failing to name a specific public employee in the complaint is a defect, let alone a jurisdictional defect. See State ex rel. State Highway & Transp. Dept. v. City of Sunland Park,
{22} The City also argues that without an identified employee, it was impossible for the jury to determine if the City was responsible for that employee’s conduct. In making this argument, the City relies on the wording of Section 41-4-ll(A), which states that immunity is waived for “damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.” Thus, the City argues, the statute must require at least that the evidence identify a negligent public employee who was directly supervised by the City.
{23} Because we have determined that the failure to name a specific employee does not implicate jurisdiction, the City was required to properly and timely preserve its arguments on this point. See State v. Garcia,
{24} As indicated above, the requirement of preservation serves the twin purposes of allowing the trial court an opportunity to correct errors and creating a record for appeal. See Diversey Corp.,
{25} In this case, by waiting until after the judgment had been entered to complain that a negligent employee had not been identified, the City deprived Coleman of the opportunity to introduce evidence identifying specific employees who might have been negligent. It further deprived Coleman of the opportunity to attempt to try a theory of the case that did not require the identification of a specific negligent employee. For example, in Cardoza v. Town of Silver City,
{26} Moreover, Coleman provided evidence of repeated notice to various City employees of the dangerous conditions on the sidewalk. Under the principles discussed in this opinion, and in the absence of any timely raised argument to the contrary, this was sufficient to establish her prima facie case.
III. CONCLUSION
{27} We reverse the district court’s order entering summary judgment for the Police Department in Lopez, and we affirm the jury verdict in Coleman.
{28} IT IS SO ORDERED.