Lead Opinion
OPINION
This, as we view it, is a Palsgraf
I.
The trial court based its order denying leave to intervene on the legal insufficiency of the parents’ proposed complaint in intervention. In reviewing that order, we of course accept as true the allegations in the parents’ proposed complaint. It alleges that the defendant in the wrongful death suit, WEK Drilling Co., Inc. (“WEK Drilling”), owned and operated an oil-well drilling rig in Eddy County, New Mexico, where the accident happened. Ivan Ponce, the son of the applicants in intervention, Alvino and Maria Ponce (“the Ponces”), was employed by an independent contractor engaged in certain work in and around the drilling rig. Ivan was killed as a proximate result of WEK Drilling’s negligence in failing, in various respects, to maintain the rig in a safe condition and operate it in a safe manner.
The proposed complaint in intervention further alleges that, as a proximate result of WEK Drilling’s negligence, the Ponces suffered certain damages: loss of financial support provided by their son; loss of consortium with their son, including loss of his society, companionship, and affection; and grief, sorrow, and bereavement in various forms. Ivan was 25 years old at the time of his death and had lived with his parents all his life. As developed at a deposition taken in connection with the Ponces’ attempt to intervene, it appeared that Ivan and his parents enjoyed a close and loving relationship and that Ivan contributed to his parents’ financial well-being by, among other things, performing work around the family home, putting a new roof on the house, pouring a concrete patio at the rear of the home, and otherwise assisting with the household maintenance and upkeep. Ivan had been married (he was divorced at the time of his death) and had a daughter, Ambrosia, who lived with him at his parents’ home.
A few months after Ivan’s death in February 1990, the personal representative of his estate, Arthur Solon, brought an action in the District Court of Eddy County on behalf of Ambrosia to recover for her father’s wrongful death. The action was brought under the New Mexico wrongful death act, NMSA 1978, Sections 41-2-1 to -3 (Repl.Pamp.1989). Soon thereafter, the Ponces moved to intervene, on the grounds that they claimed an interest in the subject of the action and that their claim and the main action had a question of law or fact in common. They moved, in other words, both for intervention of right under SCRA 1986, 1-024(A), and, in the alternative, for permissive intervention under Rule 1-024(B). They attached their proposed complaint in intervention to the motion. The district court held two hearings and, ruling that the proposed complaint did not state a claim upon which relief could be granted, denied the motion. The Ponces appeal from the order denying their motion to intervene.
II.
Although a district court considering a motion to intervene under Rule 24 has discretion under both subsections of the rule, see Apodaca v. Town of Tome Land Grant,
Nor do the Ponces seriously contend that they had a claim for relief under the wrongful death act. Although their brief in chief contains numerous references to the act, to cases construing the act, and to the wrongful death statutes in other states — many of which permit a decedent’s parents to share in the proceeds of a successfully prosecuted wrongful death claim — their brief makes it fairly clear that they are seeking recognition of a cause of action at common law, outside the wrongful death act, for their “loss of out-of-pocket economic damages and for their loss of consortium with their son.” And in their reply brief they expressly state: “Appellants do not seek to intervene in the cause below as beneficiaries under the Wrongful Death Act. Rather they seek to intervene on an independent cause of action which they request this Court to recognize as existing for them outside the Wrongful Death Act * * * * ”
The Ponces’ request to intervene must therefore rest on Rule 24(B) relating to permissive intervention; they have no basis to intervene as a matter of right under Rule 24(A), for they do not claim “an interest relating to the property or transaction which is the subject of the action ****’’ SCRA 1986, 1-024(A)(2).
Thus, as noted above, the Ponces’ basis for intervening in this lawsuit must lie, if at all, in the provisions of Rule 24(B) authorizing permissive intervention. Although the Ponces’ claim and Solon’s wrongful
III.
In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person * * * *
Duty and foreseeability have been closely integrated concepts in tort law since the court in [Palsgraf ] stated the issue of foreseeability in terms of duty. If it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the defendant.
Ramirez v. Armstrong,
In determining duty, it must be determined that the injured party was a foreseeable plaintiff — that he was within the zone of danger created by [the tortfeasor’s] actions; in other words, to whom was the duty owed?
* * * A duty to an individual is closely intertwined with the foreseeability of injury to that individual resulting from an activity conducted with less than reasonable care by the alleged tort-feasor. [Citing Ramirez and Palsgraf.]
Or, to quote Judge Cardozo’s famous aphorism in the Palsgraf majority opinion: “[Njegligence in the air, so to speak, will not do.”
As an original matter, the law need not have evolved this way. It could have evolved along the lines suggested by Judge Andrews, dissenting in Palsgraf:
Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others * * * * Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone.
As between an entirely innocent plaintiff and a defendant who admittedly has departed from the social standard of conduct, if only toward one individual, who should bear the loss? If the result is out of all proportion to the defendant’s fault, it can be no less out of proportion to the plaintiff’s entire innocence. If it is unjust to the defendant to make the defendant bear a loss which the defendant could not have foreseen, it is no less unjust to the plaintiff to make the plaintiff bear a loss which the plaintiff too could not have foreseen, and which is not even due to the plaintiff’s own negligence.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 43, at 287 (5th ed. 1984) [hereinafter Prosser & Keeton ]. As Prosser observes, the problem is one of social policy: where to draw the line against otherwise unlimited liability. It has been fashionable in this country for many years now for courts and commentators to advocate a wide sweep of liability, based on the notion of loss spreading through devices such as prices, taxes, and insurance, see id., though in recent years perceptible opposition to this trend has been manifested through increasingly strident demands for “tort reform.”
But we are not writing on a clean slate, and we do not perceive this case to be a good one in which to reexamine the social policy that limits a tortfeasor’s liability to the foreseeable plaintiff and excludes it
Despite this Court’s adoption in Ramirez of the Palsgraf doctrine of negligence, defined as a breach of duty toward а. particular person or class of persons protected against an unreasonable risk of harm from an actor’s conduct, Ramirez itself stands for something of an exception to the doctrine. In that case we recognized a cause of action for negligent infliction of emotional distress in favor of bystanders (children who witnessed the accident in which their father was struck and killed), even though it could be said that the actor’s conduct was negligent toward the children’s father but not toward the children, who the actor had no reason to foresee would be present and emotionally distressed by witnessing their father’s death. As so viewed, the case may serve as an example of Prosser’s suggestion that “the foreseeability of harm to the plaintiff should be but one factor in determining the existence of a duty, and not always conclusive, and that situations will more or less inevitably arise which do not fit within any fixed and inflexible rule.” Prosser & Keeton § 43, at 288.
In Ramirez, the Court considered, in addition to the foreseeability of harm to the plaintiffs (the emotionally distressed children who actually witnessed their father’s death), the type of interest that was invaded by the tortfeasor’s conduct — the interest in freedom from severe emotional shock— and the relationship between the killed or injured victim of the accident and the plaintiffs — a marital or intimate familial relationship between the victim and the plaintiffs. Implementing the factor of foreseeability that the plaintiffs would be harmed, the Court adopted certain requirements for recovery: contemporaneous sensory perception of the accident, as contrasted with learning of the accident by other means or after its occurrence, and physical manifestation of, or injury to, the plaintiff accompanying or resulting from the emotional injury.
In the present case, the would-be plaintiffs assert an invasion of two interests: their interest in economic security, which they allege was infringed by the loss of their son's contribution to their financial support; and deprivation of their son’s companionship, society, and affection — a loss of consortium. The first interest has received recent and explicit recognition by this Court, Lovelace Medical Center v. Mendez,
As for their claim for loss of consortium, they mount a vigorous effort to persuade this Court to depart from existing precedent precluding recognition of a claim for loss of consortium. They acknowledge, as they must, that current New Mexico law presents a formidable barrier to recovery for loss of consortium — spousal, filial, parental, or other. See Tondre v. Thurmond-Hollis-Thurmond, Inc.,
We are not inclined to reexamine in this case the law in New Mexico disallowing recovery for loss of consortium, notwithstanding the Ponces’ earnest entreaties that we do so. For the factor — if it is a factor — or the prerequisite — if it is that— of foreseeability by WEK Drilling that its failure to maintain its drilling rig in a safe condition would cause harm to Ivan Ponce’s parents is just too glaringly absent to convince us to recognize a cause of action in their favor for redress of that harm. We may assume it is foreseeable that a 25-year-old employee of an independent contractor working on the drilling rig would have living parents, but is it foreseeable that he would reside with his parents, that there would be a close and loving relationship with them, and that they would be partially dependent on him for their economic support? These facts do not come as a surprise, but we certainly cannot say that financially dependent parents were foreseeable to WEK Drilling as a matter of law.
It is thoroughly settled in New Mexico, of course, that whether the defendant owes a duty to the plaintiff is a question of law. E.g., Bober,
By nothing in this opinion do we either reaffirm or retreat from current New Mexico law on recovery for economic harm or
The order denying the Ponces’ motion to intervene is affirmed.
IT IS SO ORDERED.
Notes
. Palsgraf v. Long Island R.R.,
. Ivan died when an improperly secured counterweight on the boom of the drilling rig struck him on the head.
. The court’s discretion under Rule 24(A), as the phrase "intervention of right” implies, is considerably narrower under paragraph A of the rule than it is under paragraph B. See Apodaca,
. The Ponces did not attempt to intervene under Rule 24(A)(1) (providing for intervention of right "when a statute confers an unconditional right to intervene”), since no such statute was available.
. See generally William L. Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1 (1953).
. The requirement of physical manifestation was overruled in Folz v. State,
Concurrence Opinion
(specially concurring).
I concur specially to make the same point that I made in my dissent to Calkins v. Cox Estates,
I agree with the majority in the instant case that whether a duty was owed must be decided as a matter of law using existing legal policy. The crux of the duty analysis that is required, however, is not a factual foreseeability determination, but rather it is a legal policy determination. This distinction is critical. In New Mexico, as stated in the majority opinion, we define negligence as an act foreseeably involving an unreasonable risk to that individual who complains of injury. See also SCRA 1986, 13-601. Foreseeability is most often a question of fact and only rarely, as in Palsgraf, may foreseeability be considered a false jury issue. Most often, duty as a matter of law turns not on an absence of the fact issue of foreseeability, but rather the policy issue of whether it is reasonable to impose a duty to avoid a risk of injury which, although foreseeable, is remote.
Id. at 67,
If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless * * * with reference to [Helen Palsgraf] did not take to itself the quality of a tort because it happened to be a wrong * * * with reference to some one else. * * * The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.
Palsgraf,
When Chief Judge Cardozo wrote that “[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation,” id. at 100, he was talking about the absence of a duty in relation to one not foreseeably at risk. It is unfortunate that in Ramirez v. Armstrong,
The Court stated in Ramirez that, “In order to insure that the interest to be protected is actually foreseeable, courts * * * have adopted a number of criteria to be met in any case where such injury is claimed.” Ramirez,
Factually, I cannot accept a resolution of this case that purports to hold as a matter of law it was not foreseeable that a twenty-five-year-old man “would reside with his parents, that there would be a close and loving relationship with them, and that they would be partially dependent on him for their economic support.” I believe financially dependent parents indeed are foreseeable. A person is not an innocuous package importing no relation to others as was the package of fireworks that exploded when dislodged from the arms of Helen Palsgraf s fellow passenger. As with severe shock to unknown family bystanders, it is foreseeable that parents of an adult child would suffer loss of financial support and consortium from his wrongful death.
The parents of the deceased failed to state a cause of action, not because the wrongdoer could not reasonably perceive a risk to the economic security of persons dependent upon the victim of wrongful death, rather, as a matter of public policy, because it is not reasonable to impose a duty to avoid a risk of economic injury or loss of consortium to certain dependents. The legislature has declared in the wrongful death act the state’s policy as to beneficiaries of damages to be awarded in every action for wrongful death. Others who suffer economic injury or loss of consortium are denied a claim for relief, not because risk of harm to them is unforeseeable, but because of policy set by the legislature.
Finally, in addition to my disagreement that as a matter of law the existence and interests of the parents and their relationship with their son were unforeseeable, I disagree that their interests in economic security and consortium were not “palpable”, by which I take the majority to mean those interests were imperceptible or nominal. I agree only that “[t]he social policy of cutting off liability that would otherwise extend to these family members seems sound.” Social policy indeed became the determinative rationale of the majority opinion when the author seemingly adopted the suggestion in Prosser & Keeton that the presence of foreseeability is but one fact in determining the existence of duty, and “the problem is one of social policy: where to draw the line against otherwise unlimited liability.”