Milliron v. Cnty. of San Juan

384 P.3d 1089

Sherry Milliron, Plaintiff–Appellant,

v.The County of San Juan, The San Juan Sheriff's Department, and Richard Stevens, Defendants–Appellees.

NO. 34,347

Court of Appeals of New Mexico.

Filing Date: August 4, 2016

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, NMSA 1978, Sections 41–4–1 to –27 (1976, as amended through 2015), against Appellees San Juan County, San Juan County Sheriff's Department, and San Juan County Sheriff's Department Deputy Richard Stevens. The district court ruled that, under any legal theory, the facts alleged were insufficient to establish a waiver of the governmental immunity granted by Section 41–4–4(A). Appellant argues on appeal that the district court's Rule 1–012(B)(6) NMRA dismissal was error because the complaint pleaded facts entitling Appellant to relief for damages caused by Appellees' negligence. Appellant also argues that the district court's ruling indicates a failure to accept the facts alleged as true as required by Rule 1–012(B)(6).

{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 Section 41–4–4(A). Because Appellees are immune from suit under the facts of the case, Appellant has not stated a claim upon which relief may be granted. Given this conclusion, we need not review Appellant's additional Rule 1–012(B)(6) argument. We affirm.

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.

APPLICATION OF RULE 1–012(B)(6)

{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, 111 N.M. 64, 801 P.2d 646. This Court is required to make inferences in favor of the sufficiency of the complaint. Pillsbury , 1954–NMSC–066, ¶ 6, 58 N.M. 422, 272 P.2d 326. 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, NMSA 1978, §§ 43–2–1.1 to –23 (1976, as amended through 2005). Nor does the complaint state as fact that Lopez intentionally collided with Appellant's vehicle.

WAIVER OF IMMUNITY UNDER THE TORT CLAIMS ACT

{9} As a general rule, governmental entities are immune from tort liability as provided in Section 41–4–4(A). See § 41–4–4(A) ( “A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort[.]”). This immunity is waived with respect to law enforcement officers acting within the scope of their duties by Section 41–4–12, which provides,

[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 Section 41–4–12. Blea v. City of Espanola , 1994-NMCA-008, ¶ 14, 117 N.M. 217, 870 P.2d 755. Thus, even if a third party is the direct cause of an injury, the immunity granted by Section 41–4–4(A) is waived if a plaintiff “demonstrate[s] 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 [Section 41-4-12] or a deprivation of a right secured by law.”

Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't , 1996–NMSC–021, ¶ 7, 121 N.M. 646, 916 P.2d 1313. It is, however, equally well-established that the mere negligence of a law enforcement officer is insufficient to waive the tort immunity granted by Section 41–4–4(A) unless such negligence results in one of the torts enumerated in Section 41–4–12 or a deprivation of a statutory right. See Blea , 1994–NMCA–008, ¶ 12, 117 N.M. 217, 870 P.2d 755 (“[W]e continue to hold there is no waiver of immunity under Section 41–4–12 for mere negligence of law enforcement officers that does not result in one of the enumerated acts.”); Caillouette v. Hercules, Inc. , 1992–NMCA–008, ¶ 18, 113 N.M. 492, 827 P.2d 1306 (“[T]he negligence complained of must cause a specified tort or violation of rights; immunity is not waived for negligence standing alone.”). Against this backdrop, we determine whether Appellant's complaint pleaded facts sufficient to trigger a waiver of the immunity granted to Appellees by Section 41–4–4(A).

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...