Milliron v. County of San JuanMilliron v. County of San Juan
Opinion Number: __________
Filing Date: August 4, 2016
NO. 34,347
SHERRY MILLIRON,
Plaintiff-Appellant,
v.
THE COUNTY OF SAN JUAN, THE SAN JUAN SHERIFF‘S DEPARTMENT, and RICHARD STEVENS,
Defendants-Appellees.
Daylene Marsh, District Judge
Gilpin Law Firm, LLC
Donald G. Gilpin
Albuquerque, NM
for Appellant
Potts & Associates
Amy L. Glasser
Albuquerque, NM
Law Offices of Mark J. Klecan
Mark J. Klecan
Albuquerque, NM
for Appellees
OPINION
WECHSLER, Judge.
{1} Appellant Sherry Milliron appeals from the district court‘s dismissal of her negligence claim, brought pursuant to the New Mexico Tort Claims Act,
{2} Having reviewed the complaint and applicable law, we conclude that Appellant‘s well-pleaded facts, while potentially sufficient to support a claim of negligence, are insufficient to establish a waiver of the governmental immunity granted by
BACKGROUND
{3} On or about January 1, 2012, Appellant was traveling on Highway 550 south of Bloomfield, New Mexico, when her vehicle struck a pedestrian, Jasper Lopez. Appellant, alleging negligence, brought this action for personal injuries and property damage against Appellees. Appellees filed a motion to dismiss that was granted by the district court. This appeal resulted. To avoid unnecessary repetition, we have incorporated Appellant‘s factual allegations into our discussion of Rule 1-012(B)(6).
STANDARD OF REVIEW
{4} In reviewing a district court‘s dismissal of a complaint for failure to state a claim upon which relief can be granted, we “accept as true all facts well pleaded and question only whether the plaintiff might prevail under any state of facts provable under the claim.” Cal. First Bank v. State, 1990-NMSC-106, ¶ 2, 111 N.M. 64, 801 P.2d 646 (internal quotation marks and citation omitted). In doing so, “the complaint must be construed in a light most favorable to [the non-moving party] and with all doubts resolved in favor of its sufficiency.” Pillsbury v. Blumenthal, 1954-NMSC-066, ¶ 6, 58 N.M. 422, 272 P.2d 326.
{5} New Mexico is a notice pleading state. Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶ 10, 335 P.3d 1243. While this standard generally benefits plaintiffs in civil litigation, see Credit Inst. v. Nutrition Corp., 2003-NMCA-010, ¶ 22, 133 N.M. 248, 62 P.3d 339 (holding that “our liberal rules of notice pleading do not require that specific evidentiary detail be alleged in the complaint“), Rule 1-012(B)(6) nonetheless requires application of the facts pleaded in the complaint to the applicable law. Cal. First Bank, 1990-NMSC-106, ¶ 2. This Court is required to make inferences in favor of the sufficiency of the complaint. Pillsbury, 1954-NMSC-066, ¶ 6. But, in doing so, we are not permitted to consider facts not pleaded in order to make a plaintiff‘s claim provable. See Prot. and Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149, ¶ 17, 145 N.M. 156, 195 P.3d 1 (“[T]he court generally may not consider materials outside the pleadings on a [federal] Rule 12(b)(6) motion[.]“).
Appellant‘s Well-Pleaded Facts
{6} The sole count alleged in Appellant‘s complaint was for negligence resulting in personal injuries and property damage. This allegation of negligence was predicated upon Deputy Stevens’ conduct with respect to Lopez, specifically his decision to leave Lopez unsupervised near Highway 550.
{7} In support of this allegation, Appellant‘s complaint pleaded the following facts: (1) a motorist called 911 to report a potentially intoxicated pedestrian “wandering on” Highway 550; (2) the caller expressed concern that the pedestrian would be struck by passing traffic; (3) Deputy Stevens responded and contacted the pedestrian, Jasper Lopez; (4) Deputy Stevens took Lopez into his “custody and control” for the purpose of transporting him home; (5) Deputy Stevens received an emergency call related to a traffic accident; (6) Deputy Stevens told Lopez to exit the vehicle near a gas station along Highway 550; (7) Lopez did not enter the gas station, but instead reentered Highway 550, at which time he was struck by Appellant‘s vehicle; and (8) Appellant suffered property damage, physical injuries, and emotional injuries as a result of the collision.
{8} Despite stating that Deputy Stevens took Lopez into his “custody and control[,]” the complaint did not state as fact that the roadside interaction between Deputy Stevens and Lopez resulted in Lopez being placed under custodial arrest for any crime, or that Lopez was being transported under the authority of the Detoxification Reform Act,
WAIVER OF IMMUNITY UNDER THE TORT CLAIMS ACT
{9} As a general rule, governmental entities are immune from tort liability as provided in
[t]he immunity granted pursuant to [
Section 41-4-4(A) ] does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico[.]
{10} It is well-established that a law enforcement officer need not be the direct cause of injury to trigger a waiver of immunity under
Duty Owed to Appellant by Deputy Stevens
{11} A common-law negligence claim “requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiff‘s damages.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181. Factual determinations related to breach of duty and proximate causation are properly left to the jury. Lessard v. Coronado Paint & Decorating Ctr., 2007-NMCA-122, ¶ 27, 142 N.M. 583, 168 P.3d 155. However, whether a defendant owes a duty to a plaintiff is a legal question to be determined by the court. Lujan v. N.M. Dep‘t of Transp., 2015-NMCA-005, ¶ 8, 341 P.3d 1. Our Supreme Court recently clarified that “foreseeability is not a factor for courts to consider when determining the existence of a duty[.]” Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014-NMSC-014, ¶ 1, 326 P.3d 465. Under this standard, the existence of duty is policy, rather than fact driven. Id. ¶¶ 1, 3.
{12} After being dispatched in response to a 911 call, Deputy Sanders located and contacted the allegedly intoxicated Lopez. Deputy Stevens took Lopez into his “custody and control[,]” for the purpose of transporting him home. After receiving an emergency call, Deputy Stevens let Lopez out of the vehicle near a gas station. Appellant argues that Deputy Stevens’ decision to provide transportation to Lopez created a duty that was breached by his subsequent decision to terminate the transportation without ensuring that Lopez no longer posed a threat to himself or others.
{13} In Cross v. City of Clovis, our Supreme Court held that “a law enforcement officer has the duty in any activity actually undertaken to exercise for the safety of others that care ordinarily exercised by a reasonably prudent and qualified officer in light of the nature of what is being done.” 1988-NMSC-045, ¶ 6, 107 N.M. 251, 755 P.2d 589 (footnote omitted). Deputy Stevens actually undertook to transport Lopez. Accepting all well-pleaded facts as true, we must view this undertaking as motivated by either a concern for the safety of Lopez himself or for that of other motorists on Highway 550. Under Cross, a reasonably prudent and qualified officer would not have released Lopez back into the dangerous situation from which he was initially removed.
{14} This determination does not, however, conclude our inquiry. As discussed in detail below, even if Deputy Stevens breached a duty owed to Appellant, the immunity granted by
Waiver of Immunity Arising From the Commission of an Enumerated Tort
{15} With respect to the torts enumerated in
{16} In Blea, Espanola Police Department officers were alerted to a disturbance at a local gas station and instructed to search for the suspect‘s vehicle. Id. ¶ 3. Within a few minutes, the vehicle was located and a traffic stop was conducted. Id.. During this stop, the suspect was “extremely intoxicated” and “exhibited impaired judgment, impaired coordination, and inability to operate a motor vehicle in a safe and lawful manner.” Id. ¶ 4. The suspect additionally admitted both consuming and possessing marijuana. Id.. Instead of arresting the suspect, the officers ordered him to surrender the alcohol and marijuana in the vehicle and allowed him to continue driving his vehicle. Id. ¶¶ 4-5. The suspect subsequently caused a traffic accident, killing a young woman. Id. ¶ 6.
{17} At trial in Blea, the district court ruled that immunity was not waived under
{18} “Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.”
{19} While the rationale of California First Bank‘s footnote six clearly applies to intoxicated drivers, it is inapplicable to the facts of the present case. Lopez was not an intoxicated driver, but instead, an intoxicated pedestrian. To impute the intent to commit a battery to Lopez, as our Supreme Court discussed in California First Bank, we must conclude that injury to a passing motorist was a “substantially certain outcome” of Lopez‘s conduct. 1990-NMSC-106, ¶ 34, n.6. We are unwilling to draw this conclusion. See State v. Jones, 895 P.2d 643, 644 (Nev. 1995) (“[I]ntoxicated pedestrians do not present the serious public safety hazard that results from drunk drivers.“).
{20} Lopez‘s decision to enter Highway 550 in an allegedly intoxicated state led to an accidental collision and to his untimely death. However, even reading the complaint in the manner most favorable to Appellant as required by Rule 1-012(B)(6), we are unable to infer intent on the part of Lopez to cause a
Waiver of Immunity Arising From the Deprivation of a Statutory Right
{21} Appellant argues in the alternative that her injuries resulted from a deprivation of a statutory right. ”
{22} For example, in California First Bank, deputies observed an intoxicated individual, Harrison Shorty, fire several gun shots outside a bar in Gallup, New Mexico. 1990-NMSC-106, ¶ 3. Despite observing conduct in violation of New Mexico law, the deputies elected not to arrest Shorty.1 Id.. Shorty subsequently left the bar and, while driving through a marked intersection, crossed the center line and collided with another vehicle, killing three people. Id. ¶ 4. Applying
{23} Appellant argues that Deputy Stevens’ failure to detain or arrest the allegedly intoxicated Lopez constituted a breach of a statutory duty imposed by
A. The Detoxification Reform Act
{24} Appellant‘s complaint alleged that Lopez was “wandering on” Highway 550 in an intoxicated state. See Cal. First Bank, 1990-NMSC-106, ¶ 2 (requiring this Court to accept as true all well-pleaded facts in the complaint). Our Legislature has not enacted a criminal statute
{25} In her reply brief and during oral argument before this Court, Appellant argued that the Detoxification Reform Act creates a duty on the part of law enforcement officers to detain and transport intoxicated persons to safety. We disagree.
- is disorderly in a public place;
- is unable to care for the person‘s own safety;
- has threatened, attempted or inflicted physical harm on himself or another;
- has threatened, attempted or inflicted damage to the property of another;
- is likely to inflict serious physical harm on himself;
- is likely to inflict serious physical harm on another; or
- is incapacitated by alcohol or drugs.
(Emphasis added). The Legislature‘s use of the permissive “may” rather than the mandatory “shall” indicates the discretionary nature of a law enforcement officer‘s authority under
{26} Because Deputy Stevens was under no statutory obligation to detain or transport Lopez under
B. The Motor Vehicle Code
{27} Appellant additionally argues that Deputy Stevens’ failure to arrest Lopez for violations of the Motor Vehicle Code constituted a breach of a statutory duty imposed by
{28} Applying again the language of the complaint, violation of certain traffic statutes would subject Lopez to citation for “wandering on” Highway 550. See
{29} Cases cited by Appellant, including Blea and Torres v. State, 1995-NMSC-025, ¶ 24, 119 N.M. 609, 894 P.2d 386 (holding that the duty to investigate applied to a specific murder suspect), in support of her argument that Deputy Stevens breached a statutory duty imposed by
{30} In the present case, Deputy Stevens investigated a report of a potentially intoxicated pedestrian “wandering on” Highway 550. Applying these facts as pleaded, Deputy Stevens lacked statutory authority to place Lopez under custodial arrest for a violation of the Motor Vehicle Code.
{31} Absent the authority to place Lopez under custodial arrest for a statutory violation, Deputy Stevens did not breach a statutory duty imposed by
CONCLUSION
{32} Because Appellant‘s complaint did not allege facts sufficient to establish a waiver of the governmental immunity granted by
{33} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
MICHAEL E. VIGIL, Chief Judge
STEPHEN G. FRENCH, Judge