Solon Ex Rel. Estate of Ponce v. WEK Drilling Co.

P.2d 645 SOLON, Representa- Arthur as Personal of Ivan Ponce on

tive of the Estate Ponce, Plaintiff, behalf of Ambrosia Ponce, Alvino Ponce and Maria individu- Ponce, ally friends of Ivan and as next deceased, Applicants in Intervention- Appellants, COMPANY,

WEK DRILLING INC., Defendant-Appellee.

No. 19532. Supreme Mexico. Court New

March 1992. Hall,

Taylor, Gaddy, Rakes E. & James Rakes, Bierly Albuquerque, and Daniel Neal, Hobbs, appellants. J.W. Gary Don Mark Terrence Sanchez Hobbs, Reagan, appellee. OPINION MONTGOMERY,Justice.

This, it, Palsgraf1 is a as we view one). particularly good (though not a duty one who owes a whether provide a safe to another to work, negligence in place and whose duty breaching that causes the death of the other, par- also to the other’s owes R.R., Long intervention contains a claim which "sounds 248 N.Y. Island (1928). Appellate jurisdiction contract" —the claim that defendant breached N.E. 99 1986, 12-102(A)(1), implied provide plain- contractual on SCRA Comí is based place complaint to work. proposed tiffs decedent a safe applicants’ because the 5fi7 they tortfeasor, loving may parents enjoyed ents so that sue in and his a close the right, damages their for sustained as a own Ivan to contributed Framing result of their son’s death. the parents’ well-being among his by, financial question way, par- in this hold that the things, we performing other work the around against ents cause of the home, have no action putting a new roof on the uphold district tortfeasor and the court’s house, patio pouring a concrete rear the ruling permission to denying parents the home, assisting the and otherwise wrongful intervene in a death action the upkeep. household maintenance and brought by personal representative of the (he Ivan been had married was divorced at against alleged their son’s estate the tort- death) daughter, the time his and had a feasor. Ambrosia, par- him who lived with at his ents’ home. I. A few months after Ivan’s death in Feb- denying The trial court based order its ruary personal representative the legal insufficiency leave to on intervene the estate, Solon, brought his Arthur action an parents’ proposed complaint the in inter- County in Eddy the District Court of on order, reviewing vention. we of behalf of Ambrosia to recover for her fa- accept allegations course as true the in the wrongful ther’s death. The action was parents’ proposed complaint. alleges It brought wrongful under the New Mexico wrongful the defendant in the death act, death NMSA Sections 41-2-1 to suit, Drilling Co., (“WEK WEK Drill- Inc. thereafter, -3 (Repl.Pamp.1989). the Soon ing”), operated owned and oil-well drill- an intervene, grounds Ponces moved to on the ing rig Eddy in County, New in they subject claimed an interest Ponce, where the happened. accident Ivan their the action and that claim and the intervention, applicants the son of the in main had a in law or fact (“the Ponces”), Alvino and Maria Ponce moved, words, They in common. employed by was an independent contrac- right both intervention SCRA for under engaged tor in certain work and around 1986, 1-024(A), and, alternative, in the drilling rig. proxi- Ivan killed as was permissive 1- intervention under Rule Drilling’s negligence mate result of WEK 024(B). They proposed their com- attached failing, respects, in various to maintain plaint in intervention to motion. The rig operate in a safe condition it in and, hearings ruling held district court two safe manner.2 complaint did proposed not state a proposed complaint intervention upon granted, claim which relief could be that, alleges proximate further as a result appeal motion. The denied the Ponces Drilling’s negligence, of WEK the Ponces order denying from the motion damages: suffered certain loss financial intervene. son; support provided by their loss of con- son, including sortium with their loss of his II. affection; society, companionship, and sorrow, grief, Although court consider bereavement various district years ing forms. was 25 old at the under Rule Ivan time a motion intervene of his death and had his has discretion under both subsections lived with developed deposition rule, Apodaca his As at a v. Town Tome all life. see of 520 Grant, taken in connection with the Ponces’ at- Land intervene, (1974),3 made tempt appeared it that Ivan the court improperly an N.M. at 520 P.2d at 553. At the outset of Ivan died when secured coun- 2. drilling rig terweight litigation, scope boom of the struck on the court’s discretion 24(A) him on the head. slight probably ranges under Rule nonexistent. 24(A), Rule as the The court’s discretion under right” implies, phrase "intervention of consid- paragraph erably under A of the rule narrower paragraph Apodaca, See B. than it is under under denying the motion cause below as beneficiaries that it clear was Instead, they Wrongful Act. seek exercise of its discretion. Death Rather law, holding, independent matter of court as a cause of action intervene in- proposed complaint in recognize that the Ponces’ request Court action. existing Wrongful tervention did not them outside the * * * ” proposed com- While a determination that a Act Death plaint legally sufficient— intervention is. request The to intervene Ponces’ for so a to dismiss as to withstand motion 24(B) relating rest on must therefore Rule under Rule a claim failure state intervention; they no permissive 12(B)(6) required the trial not before —is right as matter to intervene a of basis may grant application to inter- court 24(A), “an they Rule for do not claim under vene, certainly permissible for the or relating property to the transac interest proffered complaint the court to scrutinize subject the of the action tion which is of states action. see whether it a ****’’ 1986, 1-024(A)(2).4 Nor SCRA Moore John E. Ken- See 3B James Wm. & they such a claim. Under could assert ¶ 24.10[4], nedy, Moore’s Federal Practice 41-2-3, every our action under Section 1991) (2d (“Leave inter- ed. [to brought wrongful by act is to the death be granted if the court should not be vene] decedent, the personal representative of relief.”); any grant not intervenor id. could distributed, proceeds are and the to be ¶ 24.14, (“The proposed complaint at 24-144 surviving or there is no husband where must a or of intervenor state answer the surviving is a child or chil wife but there defense.”); well-pleaded or 7C claim dren, par or to such child children. The al., Wright A. et Federal Practice Charles in the of the cannot share ents decedent 1914, at 416-17 & 2d Procedure: Civil § by proceeds the unless decedent survived (1986) (“The pleading state proposed must child, spouse, grandchild. a nor a neither a defense.”). good or good claim for relief a wrongful act, death which we have The Ponces, here, applicants the do The statute, pro as a survival characterized otherwise; they do not seri- contend action for the benefit of vides a cause of propriety the of the district ously challenge sue tort statutory the beneficiaries determining at the outset court’s whether damages, by for measured the feasor the complaint in proposed their intervention life, the dece decedent’s which the value upon which relief could be a claim stated himself been entitled dent would have granted. Stang had death ensued. See recover seriously the contend that Nor do Ponces 348, 350-52, 467 Corp., Hertz for relief they had a claim under 14, 16-18 (1970); Kilkenny v. see also Although their wrongful death act. brief Kenney, references to chief contains numerous (1961); Natseway Jojola, 56 N.M. act, act, construing and to to cases The act wrongful death statutes recovery, for therefore furnishes basis many permit a decedent’s of which states — beneficiaries, of the dece statutory by the in the suc- proceeds to share provides no basis damages; but it dent’s prosecuted wrongful death cessfully parents, or recovery by the decedent’s for fairly makes it clear that claim—their brief else, damages flowing anyone of their own recognition seeking of a cause they are the decedent’s life. from the loss of law, wrong- at common outside above, Thus, as the Ponces’ basis noted act, their “loss of out-of- for ful death lie, if intervening in this must lawsuit damages and for their loss pocket economic 24(B) all, Rule autho- provisions in the in at son.” And with their consortium Although rizing permissive intervention. “Ap- they expressly state: reply brief wrongful Ponces’ claim and Solon’s intervene in the pellants do not seek to intervene”), right since no such statute attempt to intervene under Ponces did not 24(A)(1) (providing for intervention available. Rule right an unconditional statute confers "when a question death action “have a along suggested by Judge evolved the lines common,” Andrews, 1-024(B), dissenting fact in in Palsgraf: SCRA (answered by negatively the trial Every large one to the owes world at court) proposed refraining remains: Does the Ponces’ from those acts that complaint may unreasonably legally safety in intervention threaten the * * ** claim, independent only wronged others Not he sufficient common law might act, reasonably to whom harm wrongful of the death be ex- economic result, pected to he who is in loss and loss consortium also suffered son, injured, fact even he be outside what the death of their which was generally thought danger alleged caused negligence defen- zone. Drilling? dant this disposi- WEK It is to

tive that we now turn. (dissenting Or, 162 N.E. opinion). at 103 suggested Prosser, by ques- has Dean who 5 Judge tioned reasoning some of Cardozo’s III. Palsgraf: in In negligence encompass- New entirely plaintiff As between an innocent concepts foreseeability es the of harm and admittedly a defendant who has de- person injured to the duty and parted from the social standard of con- * * * care person toward that duct, individual, if only toward one who Duty foreseeability and have been should bear the loss? If the result is out integrated closely concepts tort proportion fault, of all to the defendant’s since the court in [Palsgraf stated the it proportion ] can be no less out of to the foreseeability duty. issue of plaintiff’s terms entire innocence. If it is un- plaintiff, If it is just found and to the the defendant to make defen- foreseeable, plaintiff, to that were then a dant bear a loss which the defendant plaintiff by foreseen, is owed to that the could not have it is no less unjust plaintiff plain- defendant. to the to make tiff which plaintiff bear a loss too Armstrong, Ramirez v. foreseen, could not is and which not 822, (1983) added). (emphasis 825 plaintiff’s negli- even due to own Estates, See also Calkins v. Cox gence. 59, 61-62, (1990): P.2d 792 al., PageW. et Keeton Prosser and Kee- determining In duty, it must be deter- (5th 287 ton the Law Torts at § injured party mined that the was a fore- 1984) ed. Keeton Prosser & [hereinafter ]. plaintiff within seeable he was —that observes, problem As Prosser is one of danger by zone of created tort- [the policy: the line social where to draw actions; words, to other feasor’s] against liability. unlimited It otherwise the duty whom was owed? country has been fashionable * * * duty closely A to an is individual many years for courts commenta- now foreseeability with in- intertwined sweep liability, a wide tors to advocate jury resulting to individual spreading on the notion of loss based activity conducted with less than rea- taxes, through prices, such as devices by alleged sonable care tort-feasor. insurance, id., though years see recent [Citing Palsgraf.] Ramirez and trend perceptible opposition to this has Or, Judge quote apho- to famous Cardozo’s through increasingly manifested stri- been Palsgraf majority opinion: rism in the “tort dent demands for reform.” air, “[Njegligence speak, in the so to will slate, writing But we are not on a clean (quoting Frederick not do.” 162 N.E. 99 perceive and we do not this case be a Pollock, (11th 1920)). ed. Law Torts 455 good one in the social reexamine matter, original liability law need not As an that limits tortfeasor’s plaintiff way. this It could have the foreseeable and excludes have evolved Prosser, visited, 1 generally William L. 52 Mich.L.Rev. 5. See Re- 570 duty, always and not conclu- plaintiff is That existence

where the unforeseeable. in sive, the law or less in fact the current state of situations will more by any the state- Mexico is demonstrated inevitably New do not fit within arise which quoted ments in and Calkins Ramirez Kee- fixed and rule.” Prosser & inflexible above, applicable au- as well as 43, at ton § See, Mexico e.g., Bober v. New thorities. considered, in ad- the Court Fair, State foreseeability to the dition to the of harm (1991) (owner occupier of land (the emotionally chil- plaintiffs distressed harmed persons might who has actually their father’s dren who witnessed land); on the see also by unsafe condition death), invad- type of interest that was Corp., 113 N.M. Klopp v. Wackenhut interest byed the tortfeasor’s conduct—the (1992) (quoting Cal- in freedom emotional shock— from severe guard holding duty to kins and airline had killed or between the pas- against danger risk of unreasonable plain- injured victim of the accident and terminal); senger airport Restatement familial rela- tiffs —a marital or intimate 281(b) c (Second) & comment Torts § plain- tionship the victim between (1965) (actor actor’s conduct liable Implementing the factor of foresee- tiffs. plaintiff or class respect harmed, ability plaintiffs that the would be included; he fact persons of within which for adopted requirements certain the Court person actor’s causes harm to that conduct per- recovery: contemporaneous sensory reasonably an- actor could not whom accident, ception of as contrasted with liable ticipated injury does make actor learning by means or of the accident Harper et person injured); so Fowler V. occurrence, physical its and manifes- after 18.2, (2d al., ed. The Law Torts at 655 § of to, of, injury plaintiff accom- tation 1986) obligation to (prevailing is that view resulting from panying or the emotional negligent is owed refrain from conduct 542, 673 injury.6 100 N.M. at foreseeably are endan- only to those who P.2d at 825. conduct). by gered case, plain- present In the the would-be Despite adoption in Ra this Court’s interests: tiffs assert an invasion two negli of the doctrine mirez security, in economic which their interest gence, as a breach of toward defined allege infringed loss of they by n . was pro- particular person persons or class of to their financial their son's contribution against an risk tected unreasonable son’s support; deprivation and of their conduct, Ramirez harm from an actor’s society, affection—a companionship, something exception stands for of an itself has The first interest loss of consortium. recognized In that case to the doctrine. we explicit recognition received recent and negligent for infliction a cause action Court, Medical Center this Lovelace bystanders in favor of emotional distress Mendez, 336, 343-45, P.2d 111 805 N.M. (children who the accident witnessed (1991),though in that case re- 610-12 killed), their father was struck to a covery of economic loss was afforded though the ac- it could be said that even malpractice medical victim to whom toward tor’s conduct was care ordinary to exercise defendants’ chil- father toward children’s The Ponces’ admittedly breached. fore- dren, had no reason to who the actor is not interest claim invasion emotionally dis- present see would be alleged in their strong; as particularly death. by witnessing their father’s tressed set in Alvino complaint and as forth as an viewed, may serve As so loss of deposition, it consists of the suggestion “the Ponce’s that example of Prosser’s performing such plaintiff their son’s services harm to the foreseeability of roof, pa- repairing building determining the as tasks be but one factor should requirement physical 260 manifestation State, was overruled Folz tio, wood, cutting grass, chopping consortium, recovery for loss of notwith- repairing family’s vehicles. There is no standing the Ponces’ earnest entreaties claim for specific monetary loss do For we so. the factor—if it is a peri- amount contributed to the on a prerequisite factor —or the it is that— —if Nevertheless, assume, odic may basis. we of foreseeability by Drilling WEK that its deciding, without that their claim would be drilling rig failure to maintain its in a safe dismiss, sufficient to withstand a motion to condition would cause harm to Ivan (namely, other factors the factor of fore- just Ponce’s glaringly too absent seeability) did not bar the claim. recognize to convince us a cause of their favor for redress consortium, As for their claim for loss of may harm. We assume it is they vigorous foreseeable persuade mount a effort to 25-year-old employee depart existing indepen- this Court to of an prece precluding recognition working rig dent dent contractor drilling of a claim for acknowledge, loss of They living parents, consortium. would have but is foresee- must, they that current New Mexico parents, law able that he would reside with his presents a recovery formidable barrier to loving there would be close filial, spousal, loss pa them, and that consortium — rental, or other. See Tondre v. Thur partially dependent on him for their Inc., mond-Hollis-Thurmond, support? economic These facts do not (1985) (refusing surprise, certainly come as a but we cannot to recognize claim spousal wife’s for loss of say financially dependent parents by negligent consortium caused Drilling were foreseeable WEK as a husband); Starkovick, Roseberry v. matter law. (1963) thoroughly It is settled in New (affirming dismissal of wife’s action for course, that whether the defendant owes spousal loss of by negli consortium caused duty question a to plaintiff is a of law. gent injury husband); Galt, to v. Wilson Bober, 650, E.g., 111 N.M. at 808 P.2d at 227, 235, 1104, 100 N.M. 1112 (citing 620 County Schear v. Board of (Ct.App.) (denying parents’ claim for loss of Comm’rs, 728, 101 N.M. P.2d 687 resulting filial consortium from doctors’ (1984)). 729 hesitancy have no in We hold- son), treatment of their infant ing a as matter that law the existence 192, quashed, cert. 100 N.M. 668 P.2d 308 and interests of the Ponces and rela- (1983); Wylie, Wilson 518 tionship with their son were unforeseeable 1213, P.2d (Ct.App.1973) (reversing 1220 Drilling. to defendant WEK it is While $10,000 award to for loss of pro- foreseeable that someone who is not society resulting negli of child from child’s place living vided a safe to work will have death), gently denied, caused 86 cert. N.M. parents, the same can said be 5, (1974); P.2d 518 1209 Hoskie v. United standing in relatives an “intimate familial States, 1353, (10th Cir.1981) 666 F.2d 1359 relationship” awith tort victim: his or her (under law, parents per New Mexico not child, spouse, parent, grandparent, grand- action, mitted, negligence in to recover for child, sister, (in brother, case child); loss of consortium with their SCRA minor) occupying position others in loco 1986, (Uniform Jury 13-2112 Instruction 541, parentis. Ramirez, See 100 N.M. at respect with to loss consortium: “This is 673 P.2d at 825. The social of cut- recognized not a in cause ting liability off that would otherwise Mexico.”). Kilkenny of New But see extend to these members seems 269-70, Kenney, 68 N.M. at 361 P.2d at sound, at in in least a case (recognizing, dictum, in husband’s allege palpable injury no more than that common law loss action for claimed here. spousal by negligent consortium caused in death).

jury prior of wife to her nothing By opinion do we either not reaffirm or retreat from New We are inclined to reexamine current Mex- disallowing recovery case on the law New Mexico ico law for economic harm or 572 ** * with reference to nonrecovery of consortium a harmless for loss [Helen Palsgraf] quali- duty to did not take to itself the whom the tortfeasor’s

victim to happened ty of because it to be a ordinary care for the victim’s safe- a tort exercise * * * undeniably wrong reference to some one ty runs. * * plaintiff The in her own else. sues motion to denying The the Ponces’ order her, wrong personal right for a to intervene is affirmed. beneficiary of a not as the vicarious IT SO ORDERED. IS duty to another. breach of at Palsgraf, 162 N.E. 99-100. J., BACA, concurs. Judge wrote that When Chief Cardozo RANSOM, C.J., specially concurs. reasonably perceived to be de- risk “[t]he RANSOM, (specially Chief Justice duty risk im- obeyed, fines the to be concurring). relation,” 100, talking he ports id. point specially I to make the same duty concur of a in relation to about the absence my I dissent to Calkins v. that made foreseeably at risk. It is unfortu- one Estates, Armstrong, Cox nate that Ramirez v. (1983), this Court that, “If it Palsgraf stated in reference agree majority I with the in the instant plaintiff, found that duty is whether a was owed must foreseeable, duty then a plaintiff, were using decided as a matter of plaintiff by the defendant.” owed legal policy. The crux of the existing however, 100 N.M. at 673 P.2d at 825. duty analysis required, that is principle simply That does follow from foreseeability determina- not a factual Calkins, fell into tion, the Court legal policy rather it is a deter- adopted principle, error when critical. In This distinction is mination. it reasoned that a majority when as stated New perceived as one risk gives rise to negligence as an act opinion, we define gives any necessarily rise to a foreseeably involving an unreasonable foreseeably progressing in a natural risk complains of risk that individual who sequence and continuous from violation of 13-601. injury. See also SCRA duty. law, first not the fact of Foreseeability often a most cause, duty. proximate defines may only rarely, Palsgraf, as in fact and jury a false foreseeability be considered that, “In The stated Court Ramirez often, duty as of a matter issue. Most pro- to insure that interest to be order ** of the fact not on an absence turns foreseeable, actually is courts tected foreseeability, rather of issue adopted a number of criteria to be it is policy issue of whether reasonable injury in any met case where such is impose injury a risk of a avoid claimed.” at foreseeable, which, is remote. although fact, however, point P.2d at of 825. Succinctly, 792 P.2d at 44. while Id. not foreseeabil- recited criteria did delimit Judge Palsgraf held that Cardozo Chief as ity, but rather remoteness a matter of duty in relation to another there can be no is public policy. example, For one criterion (“risk foreseeability reason- person claiming absent family to the members that shock perceived”), it does follow ably to be of distress infliction emotional necessarily present risk of is contemporaneous be caused senso- must person foreseeable injury that other resulting perception of the accident ry Chief from one’s acts and omissions. family injury or death to another physical only addressing Judge Yet, Cardozo was clearly member. it is foreseeable innocent and of act that was by learning victim of may be caused severe shock respect to that victim. harmless with by means than contem- the accident is not a perception. Ramirez apparent eye poraneous If hazard was no To the extent it does turn Palsgraf case. ordinary vigilance, an act innocent foreseeability, acknowledges policy sound.” Ramirez Social indeed became the foreseeability un- family bystanders majority determinative rationale of the (not wrongdoer known in fact to the unlike opinion seemingly adopted when the author foreseeability family dependents un- suggestion in Prosser & Keeton that wrongdoer). known in to the fact presence foreseeability but one determining fact in duty, the existence of Factually, accept I resolution of cannot a problem “the is one of policy: social purports this case to hold a matter against where to draw line otherwise twenty- law it was not a foreseeable that liability.” unlimited five-year-old man “would reside with his parents, a there close and

loving them, relationship with and that partially dependent would be on him support.”

for their I economic believe fi- nancially dependent parents indeed are person

foreseeable. A is not an innocuous package importing no relation to others as 829 P.2d 652 package

was the explod- fireworks that ed dislodged when from the arms Helen RUTHERFORD, Theresa Petitioner- passenger. s fellow As with se- Appellant, bystanders, vere shock to unknown parents it is foreseeable an adult child support would suffer loss of financial ALBUQUERQUE, CITY OF Arthur A. wrongful consortium his death. Blumenfeld, Chief Administrative Offi- cer, Czar, Jay Director of Ser- General The of the deceased failed to vices, City Albuquerque and the action, not because the Officer, Hearing Respondents-Appel- wrongdoer reasonably perceive could not lees. security persons risk to the economic dependent upon wrongful the victim of No. 19899. death, rather, public policy, as matter of Supreme Court of Mexico. New impose because reasonable to duty to risk of injury avoid a economic April dependents. loss of consortium to certain legislature has in the wrong- declared ful death act state’s as to benefi- damages every

ciaries of to be awarded in wrongful Others death. who suffer economic or loss of consor- relief, tium are a claim for denied not be- cause risk of harm to them is unforesee- able, legis- policy set because

lature.

Finally, my disagreement addition that as a of law the existence and matter

interests of relation- their unforeseeable, ship son I with their were disagree interests in economic

security “palpa- and consortium were not ble”, by majority which I take the mean imperceptible were

those interests nom- agree only I inal. social “[t]he cutting liability off otherwise seems extend these members

Case Details

Case Name: Solon Ex Rel. Estate of Ponce v. WEK Drilling Co.

Court Name: New Mexico Supreme Court

Date Published: Mar 31, 1992

Citation: 829 P.2d 645

Docket Number: 19532

Court Abbreviation: N.M.