BRUCE THOMPSON, as Guardian Ad Litem for A.O., J.P., and G.G., Minor Children v. CITY OF ALBUQUERQUE, RAY SCHULTZ, former Chief of Police of the City of Albuquerque, and K. SANCHEZ, City of Albuquerque Police Officer
NO. 34,427
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
June 9, 2016
BUSTAMANTE, Judge.
Kennedy Kennedy & Ives, LLC
Shannon L. Kennedy
Joseph P. Kennedy
Michael L. Timm, Jr.
Albuquerque, NM
for Appellant
City of Albuquerque
Jessica M. Hernandez, City Attorney
Stephanie M. Griffin, Deputy City Attorney
Albuquerque, NM
for Appellees
OPINION
BUSTAMANTE, Judge.
{1} Plaintiff appeals the dismissal of loss of consortium claims filed under
BACKGROUND
{2} In March 2010 Albuquerque Police Department officers responded to a report of a stolen vehicle in a Walmart parking lot. Several officers parked unmarked police cars in the lot around the stolen car. Decedent Mickey Owings (Owings), the father of A.O., J.P., and G.G. (Children), drove into the lot and parked next to the stolen vehicle, and a passenger got out of Owings’ car and approached the stolen car. Officers moved one of the unmarked cars behind Owings’ car to block it in, while another officer, Officer Sanchez, approached Owings’ car on foot. Owings then backed his car into the unmarked police car. As Owings was backing into the police car, Officer Sanchez shot toward Owings’ car, hitting Owings in the chest. Although Owings drove away, he lost consciousness and came to a stop on a nearby road. He ultimately died from the gunshot wounds sustained in the parking lot. Owings was unarmed.
{3} On May 7, 2014, just over four years after the shooting, Bruce Thompson (Plaintiff) was appointed guardian ad litem for Children. A month later, Plaintiff filed a complaint against the City of Albuquerque, Ray
{4} Defendants filed a motion to dismiss for failure to state a claim under Rule 1-012(B)(6) NMRA. As grounds for dismissal, Defendants argued that (1) Plaintiff had failed to comply with the TCA‘s notice provisions, see
DISCUSSION
{5} “Whether or not the district court has properly granted a motion to dismiss under Rule 1-012(B)(6) is a question of law, which we review de novo.” Fitzjerrell v. City of Gallup ex rel. Gallup Police Dep‘t, 2003-NMCA-125, ¶ 8, 134 N.M. 492, 79 P.3d 836. In our review, we accept properly pleaded facts as true. Id. “Dismissal of a claim under this rule is only proper if [the p]laintiffs are not legally entitled to relief under any set of provable facts.” Id.
{6} The district court‘s dismissal order was based on the district court‘s conclusion that “the [TCA] . . . does not waive sovereign immunity for the loss of consortium claim[s] asserted in this case.” The district court did not reach Defendants’ arguments for dismissal related to notice, statute of limitations, or sufficiency of the allegations. The district court‘s conclusion was based on its determination that (1) loss of consortium is not one of the enumerated torts for which immunity is waived under
{7} We begin with a discussion of loss of consortium and then turn to the claim in the context of the TCA. “Loss of consortium was defined in an early case as the emotional distress suffered by one spouse who loses the normal company of his or her mate when the mate is physically injured due to the tortious conduct of another.” Brenneman v. Bd. of Regents of Univ. of N.M., 2004-NMCA-003, ¶ 7, 135 N.M. 68, 84 P.3d 685 (internal quotation marks and citation omitted). Later cases have recognized loss of consortium claims by children, grandparents, siblings, and unmarried cohabitating partners. See id. ¶ 20 (recognizing minor children‘s loss of consortium claims); Fitzjerrell, 2003-NMCA-125, ¶¶ 9-11, 17 (discussing development of loss of consortium law in New Mexico). Uniform Jury Instruction 13-1810A NMRA defines loss of consortium as “[t]he emotional distress of ________ (plaintiff) due to the loss [of the society], [guidance], [companionship] and [sexual relations] resulting from the injury to ________ (name of injured or deceased spouse or child of plaintiff).” (alterations in original). A loss of consortium claim “derives from the underlying cause of action in the physically-injured [person].” Archer v. Roadrunner Trucking Inc., 1997-NMSC-003, ¶ 11, 122 N.M. 703, 930 P.2d 1155. Generally, plaintiffs “should be allowed to recover for loss of consortium if the evidence shows that their relationships with [the d]ecedent [were] sufficiently close financially, socially, or both, and
{8} In New Mexico, “governmental entities and public employees shall only be liable within the limitations of the [TCA] and in accordance with the principles established in that act.”
{9} The particular section addressing waivers for law enforcement officials is
The immunity granted pursuant to Subsection A of Section 41-4-4 . . . 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 when caused by law enforcement officers while acting within the scope of their duties.
{10} Liability under this section “requires . . . that the defendants were law enforcement officers acting within the scope of their duties, and that the plaintiff‘s injuries arose out of either a tort enumerated in this section or a deprivation of a right secured by law.” Wachocki v. Bernalillo Cty. Sheriff‘s Dep‘t, 2010-NMCA-021, ¶ 23, 147 N.M. 720, 228 P.3d 504 (internal quotation marks and citation omitted), aff‘d, 2011-NMSC-039, ¶ 1, 150 N.M. 650, 265 P.3d 701. “[I]mmunity [is also waived] for negligent training and supervision by a law enforcement officer that causes the commission by a subordinate law enforcement officer of a tort listed in Section 41-4-12.” McDermitt v. Corr. Corp. of Am., 1991-NMCA-034, ¶ 7, 112 N.M. 247, 814 P.2d 115.
{11} The district court apparently agreed with Defendants’ position that, because loss of consortium is not listed in Section 41-4-12 as a tort, Plaintiff‘s claim cannot stand. We disagree. In Wachocki, this Court considered a wrongful death claim under
Once a duty is established, loss of consortium damages flow from the principles of tort liability. As loss of consortium is a damage resulting from bodily injury and our courts have repeatedly held that loss of consortium plaintiffs are foreseeable, we
believe that loss of consortium is exactly the type of damage “based upon the traditional tort concepts of duty” that the Legislature intended to include under the applicable waivers of sovereign immunity in the [TCA].
Id. (quoting
{12} Defendants argue that neither Wachocki nor Brenneman applies here. First, Defendants argue that Wachocki is distinguishable because it did not address whether a loss of consortium claim must be brought together with a wrongful death action and because the facts differed from those here. We fail to see how these differences render inapplicable Wachocki‘s general statement that loss of consortium claims may be brought under the TCA.
{13} Defendants also argue that, because the discussion of the loss of consortium claim in Wachocki did not reference a particular section of the TCA, it is unclear whether its holding applied to
{14} To the extent that Defendants argue that Wachocki‘s reliance on Brenneman was misplaced and that therefore Wachocki‘s holding is suspect, we disagree. Defendants’ argument stems from statements in Brenneman that
{15} We next address the district court‘s conclusion that even if a loss of consortium claim is derivative of an enumerated tort, such claim “must be brought together with the claim from which it is derived[.]” This contention was rejected in State Farm Mutual Automobile Insurance Co. v. Luebbers, in which this Court considered whether a minor child could bring a loss of consortium claim separate from a wrongful death claim. 2005-NMCA-112, ¶ 37, 138 N.M. 289, 119 P.3d 169. Stating that New Mexico case law had established that “loss of consortium claims have a place in our tort jurisprudence[,]” the Court held “that upon the death of a parent, a minor child may pursue a separate claim for loss of parental consortium outside of a wrongful death action.” Id.
{16} Defendants argue that Luebbers is inapplicable because it did not address claims
{17} Finally, in the dismissal order, the district court stated that “Plaintiff argues the loss of consortium claim arises from the battery perpetrated on Owings and that battery is an enumerated tort. While it is true that battery is an enumerated tort, [C]hildren did not suffer a battery.” To the extent this statement can be interpreted to indicate that the district court dismissed Plaintiff‘s loss of consortium claims because Children themselves did not suffer a battery, it erred. A loss of consortium claim is derivative of another claim. Archer, 1997-NMSC-003, ¶ 11. A “derivative action” is “[a] lawsuit arising from an injury to another person, such as a husband‘s action for loss of consortium arising from an injury to his wife caused by a third person.” Black‘s Law Dictionary 538 (10th ed. 2014) (emphasis added). As such, the party claiming a loss of consortium is never the same person who suffered the tort that caused the loss of consortium.1
CONCLUSION
{18} The district court erred in dismissing Children‘s complaint on the ground that their loss of consortium claims did not fall within the TCA. We reverse and remand for further proceedings.
{19} IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
MICHAEL E. VIGIL, Chief Judge
TIMOTHY L. GARCIA, Judge