BRUCE THOMPSON, as Guardian ad Litem for A.O., J.P., and G.G., Minor Children, Plaintiff-Respondent, v. CITY OF ALBUQUERQUE, RAY SCHULTZ, former Chief of Police of the City of Albuquerque, and KEVIN SANCHEZ, City of Albuquerque Police Officer, Defendants-Petitioners.
NO. S-1-SC-35974
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Filing Date: June 19, 2017
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number:______________
Filing Date: June 19, 2017
NO. S-1-SC-35974
BRUCE THOMPSON, as Guardian ad Litem for A.O., J.P., and G.G., Minor Children,
Plaintiff-Respondent,
v.
CITY OF ALBUQUERQUE, RAY SCHULTZ, former Chief of Police of the City of Albuquerque, and KEVIN SANCHEZ, City of Albuquerque Police Officer,
Defendants-Petitioners.
ORIGINAL PROCEEDING ON CERTIORARI Denise Barela Shepherd, District Judge
City of Albuquerque Jessica M. Hernandez, City Attorney Stephanie M. Griffin Albuquerque, NM
for Petitioners
Kennedy, Kennedy, & Ives, LLC Shannon L. Kennedy Joseph P. Kennedy Adam C. Flores Albuquerque, NM
for Respondent
CHÁVEZ, Justice.
{1} May the minor children of a parent whom they allege was wrongfully shot and
killed by a law enforcement officer (1) sue for loss of consortium damages under the
New Mexico Tort Claims Act (TCA),
BACKGROUND
{2} The background to our analysis is comprised of the well-pled facts in Plaintiffs’ complaint, which we accept as truthful for purposes of reviewing the district court’s ruling on Defendants’ motion to dismiss. Callahan v. N.M. Fed’n of Teachers-TVI, 2006-NMSC-010, ¶ 4, 139 N.M. 201, 131 P.3d 51.
{3} On March 29, 2010, Albuquerque Police Department officers received information regarding a suspected stolen vehicle located in a commercial parking lot. Several officers then arrived at the scene and surrounded the suspected stolen vehicle with their unmarked police vehicles. Mickey Owings parked next to the suspected stolen vehicle. A passenger exited Owings’s vehicle and approached the suspected stolen vehicle.
{4} The APD officers then positioned one of the unmarked police vehicles behind Owings’s vehicle as Officer Sanchez approached Owings’s vehicle on foot. Owings backed his vehicle into the unmarked police vehicle that was preventing him from leaving. Officer Sanchez drew his gun and pointed it at Owings as he continued to approach Owings’s car. Owings drove away once Officer Sanchez began shooting at his car. Ultimately, Officer Sanchez shot and killed Owings during this encounter.
{5} Plaintiffs are Owings’s surviving minor children who sued Defendants for loss
of consortium damages under
DISCUSSION
{6} “Generally, the Tort Claims Act provides governmental entities and public
employees acting in their official capacities with immunity from tort suits unless the
[TCA] sets out a specific waiver of that immunity.” Weinstein v. City of Santa Fe ex
rel. Santa Fe Police Dep’t, 1996-NMSC-021, ¶ 6, 121 N.M. 646, 916 P.2d 1313.
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.
We review the dismissal of Plaintiffs’ claim for loss of consortium damages under Rule 1-012(B)(6) de novo. See Fitzjerrell v. City of Gallup ex rel. Gallup Police Dep’t, 2003-NMCA-125, ¶ 8, 134 N.M. 492, 79 P.3d 836 (noting that whether a motion to dismiss was properly granted is a question of law).
Loss of consortium is a claim for damages deriving from a tort upon another, but which may be brought as an independent claim for damages to a sufficiently close relationship
{7} Defendants argue that there is no waiver of sovereign immunity for loss of
consortium under
{8} The plain language of
“[d]amages for emotional distress . . . may be recoverable as damages for personal
injury resulting from one of the enumerated acts.” Romero v. Otero, 678 F. Supp.
1535, 1540 (D. N.M. 1987) (internal quotation marks omitted). Other courts have
also found that loss of consortium is a damage resulting from bodily injury upon
another. Brenneman v. Bd. of Regents of the Univ. of N.M., 2004-NMCA-003, ¶ 19,
135 N.M. 68, 84 P.3d 685. Whether loss of consortium is labeled as personal or
bodily injury, it is indisputably contemplated by the language of
{9}
{10} The Court of Appeals has correctly recognized that immunity may be waived
for loss of consortium damages as a claim deriving from an enumerated tort under the
TCA. In Wachocki v. Bernalillo County Sheriff’s Department (Wachocki I), the Court
of Appeals analyzed a wrongful death claim under
{11} Defendants argue that Wachocki I did not expressly hold that damages for loss
of consortium may be recovered under
general provision,
{12} Brenneman, to which Wachocki I cited, also supports our conclusion that
immunity is waived for loss of consortium damages under
arising from negligence and not an intentional tort. We are not persuaded because
other courts have also recognized that loss of consortium damages may result from
intentional torts. See McGrath v. Nassau Health Care Corp., 217 F. Supp. 2d 319,
335 (E.D. N.Y. 2002) (“Assault and battery claims may sustain derivative loss of
consortium claims.”). In McGrath, a public employee brought a lawsuit against her
governmental employer and supervisor alleging assault and battery, among other
claims, while the employee’s husband asserted a loss of consortium claim deriving
from the physical injury upon his wife. Id. at 322, 335. The court declined to dismiss
the underlying intentional tort claims because the plaintiffs had pled sufficient facts
to support them, and the loss of consortium claim was also not dismissed because it
was adequately supported by the intentional tort claims. Id. at 333-34; see also Pahle
v. Colebrookdale Twp., 227 F. Supp. 2d 361, 376 (E.D. Pa. 2002) (recognizing that
an assault and battery on a husband by a police officer, if proven, indubitably forms
the basis for a loss of consortium claim by the wife). Furthermore, waiving immunity
for loss of consortium damages resulting from negligent conduct necessarily implies
that there also is waiver of damages resulting from intentional conduct. It would be
illogical to forego waiving immunity for intentional conduct when waiver for
negligence is permitted, particularly since
wider range of tortious conduct committed by law enforcement officers than any other
classification of public employee. Compare
{14} Defendants next contend that even if loss of consortium damages derive from the underlying battery, any lawsuit for such damages must be brought along with the underlying battery claim. We agree that a plaintiff who sues for loss of consortium damages must prove—as an element of loss of consortium damages—that the alleged tortfeasor caused the wrongful injury or death of someone who was in a sufficiently close relationship to the plaintiff, resulting in harm to the relationship. However, this does not mean that the loss of consortium claim must always be brought with the underlying tort claim, or that actual recovery for the underlying tort is a prerequisite for the recovery of loss of consortium damages. See Archer v. Roadrunner Trucking, Inc., 1997-NMSC-003, ¶ 13, 122 N.M. 703, 930 P.2d 1155 (stating that while loss of consortium claimants may recover only if the physically injured person has a cause
of action for his or her injuries, actual recovery for the underlying tort is not required in order to recover loss of consortium damages); Turpie v. Sw. Cardiology Assocs., P.A., 1998-NMCA-042, ¶ 7, 124 N.M. 787, 955 P.2d 716 (“[T]he defendant must be at least potentially liable to the injured [person] before it can be liable to the [claimant] seeking loss of consortium damages.”).
{15} For our purposes in reviewing whether Plaintiffs are entitled to bring their claim as a matter of law, and not whether they may actually recover on their claim (which we were not asked to decide), Plaintiffs need only have pled sufficient facts to notify Defendants about the complaint’s general premise. See Petty v. Bank of N.M. Holding Co., 1990-NMSC-021, ¶ 7, 109 N.M. 524, 787 P.2d 443 (“Under our rules of notice pleading, it is sufficient that defendants be given only a fair idea of the nature of the claim asserted against them sufficient to apprise them of the general basis of the claim; specific evidentiary detail is not required at this stage of the pleadings.”) (internal quotation marks and citation omitted)). Plaintiffs sufficiently pled the underlying battery claim from which their claim for loss of consortium damages arose by alleging that Defendants caused the deadly shooting of Owings, which resulted in the minor children losing their relationship with their father.
because it was only their father who suffered a deadly battery, not the children, and
therefore their claim is merely a bystander claim for which there is no waiver under
{17} A derivative claim for loss of consortium damages need not be brought along
with the underlying tort claim because loss of consortium claimants suffer a direct
injury separate from the physical injury to another. State Farm Mut. Auto. Ins. Co.
v. Luebbers, 2005-NMCA-112, ¶ 37, 138 N.M. 289, 119 P.3d 169. In Luebbers, the
Court of Appeals explicitly held that a minor child could pursue a claim for loss of
consortium damages separate from an underlying wrongful death claim. Id.
Defendants assert that Luebbers cannot be applied here because that case analyzed
a claim for loss of consortium damages against a private party, not a government
entity, under
immunity in situations that would subject a private party to liability under our
common law.” (citing
{18} Our recognition that claims for loss of consortium damages are independent is
not unprecedented. As this area of law has expanded, this Court has increasingly
allowed plaintiffs with differing relationships to the physically injured person to bring
independent claims for loss of consortium damages that are separate from the
underlying tort claim. See Fernandez, 1998-NMSC-039, ¶ 32 (affirming dismissal
of the plaintiff’s underlying tort claim, but holding that the plaintiff could
nevertheless pursue her claim for loss of consortium damages); Byers, 1994-NMSC-
031, ¶ 10 (concluding that “[j]ust as a spouse’s pain and suffering is separate
property,” so too the spouse’s recovery for the “emotional suffering due to the loss
of consortium is separate property” (citations omitted)). We hold that Plaintiffs in
this case may bring the claim for loss of
CONCLUSION
{19} Because
{20} IT IS SO ORDERED.
______________________________ EDWARD L. CHÁVEZ, Justice
WE CONCUR:
___________________________________ JUDITH K. NAKAMURA, Chief Justice
___________________________________ PETRA JIMENEZ MAES, Justice
___________________________________ CHARLES W. DANIELS, Justice
___________________________________ BARBARA J. VIGIL, Justice