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Docket Number

No. 14498.

Advocates

Ray Twohig, Ray Twohig, P.C., Albuquerque, for plaintiffs-appellants. Margo J. McCormick, Robert C. Gutierrez, Miller, Stratvert, Torgerson Schlenker, P.A., Albuquerque, for defendants-appellees.

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Lucero v. Salazar & Rohlfs — Summary of Opinion (Court of Appeals of New Mexico, May 11, 1994)

Factual and Procedural Background

Plaintiffs Charles and Russell Lucero alleged that their natural father, Carlos Lucero, was shot and killed without justification by Defendant Richard Rohlfs, an on-duty Albuquerque police officer, and that Defendant Kenny Salazar assisted Rohlfs in the alleged unlawful killing. Plaintiffs asserted two counts at issue on appeal: (1) Count I alleged Defendants intentionally deprived Plaintiffs of their relationship with their father, violating Plaintiffs' right "to enjoy life and seek and obtain happiness" under Article II, Section 4 of the New Mexico Constitution; and (2) Count II alleged Defendants violated Plaintiffs' "rights to association" under Article II, Section 17 of the New Mexico Constitution. A third count was dismissed on Plaintiffs' motion and is not part of this appeal.

Defendants moved to dismiss for failure to state a claim or alternatively for summary judgment. The trial court dismissed Counts I and II for failure to state a claim under SCRA 1986, 1-012(B)(6) (Repl. 1992). Plaintiffs appealed only as to Defendants Salazar and Rohlfs in their capacity as state actors; the City of Albuquerque and Bob Stover (chief of police), originally named defendants, are not parties to this appeal. The Court of Appeals affirmed the trial court's dismissal.

Legal Issues Presented

Whether the trial court erred in dismissing Plaintiffs' complaint for failure to state a claim for which immunity from suit was waived under the Tort Claims Act, NMSA 1978, §§ 41-4-1 to -12.
Whether the trial court erred in ruling that Plaintiffs did not plead facts sufficient to establish state interference with their constitutional rights (specifically rights claimed under Article II, Sections 4 and 17 of the New Mexico Constitution).

Arguments of the Parties

Plaintiffs' Arguments

Plaintiffs argued that immunity was waived under Section 41-4-12 of the Tort Claims Act, which excepts from immunity "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."
Plaintiffs asserted that the constitutional rights allegedly violated included their personal rights to associate with their father and to receive his love, guidance, and protection, rights they grounded in Article II, Sections 4 and 17 of the New Mexico Constitution.

Defendants' Arguments

Defendants argued that, as a matter of law, Plaintiffs were unforeseeable as injured parties and therefore the Defendants owed no duty to Plaintiffs; consequently, immunity under the Tort Claims Act was not waived.
Defendants relied on established tort-duty and foreseeability principles to contend that Plaintiffs' allegations did not create a duty that would permit waiver of sovereign immunity under the Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
City of Las Cruces v. Garcia, 102 N.M. 25, 690 P.2d 1019 (1984)	Statutory interpretation: interpret statutes consistently with legislative intent and avoid constructions that are absurd, unreasonable, or unjust.	The court invoked this principle when construing Section 41-4-12 of the Tort Claims Act.
Saenz v. Morris, 106 N.M. 530, 746 P.2d 159 (Ct.App. 1987)	On a motion to dismiss, well-pleaded facts are taken as established.	Used to frame the standard for reviewing the trial court's dismissal motion.
Futrell v. Ahrens, 88 N.M. 284, 540 P.2d 214 (1975)	Discussion of the scope of rights of association under federal constitutional law (federal right of association does not apply to the right of one individual to associate with another).	Referenced to show Article II, Section 17 had not been shown to guarantee "rights of association" as alleged by Plaintiffs.
California First Bank v. State, 111 N.M. 64, 801 P.2d 646 (1990)	Noted that the scope of Article II, Section 4's protections (right to enjoy life and pursue happiness) had not been determined by the court in prior cases when the issue was not properly raised.	Cited to indicate that whether Article II, Section 4 gives rise to a cause of action under the Tort Claims Act had not previously been decided.
Oldfield v. Benavidez, 116 N.M. 785, 867 P.2d 1167 (1994)	Recognition that the Fourteenth Amendment embodies a right to familial integrity but that the parameters are not clearly established and the right is not absolute.	Cited as a related authority on familial integrity and limits on such constitutional rights.
Blea v. City of Espanola, 117 N.M. 217, 870 P.2d 755 (Ct.App. 1994)	Holds mere references to rights like "enjoy life" are insufficient to waive immunity; noted that waiver under § 41-4-12 occurred where defendants conceded a federal constitutional right of familial association.	Used to support the proposition that pleading only general constitutional language does not effect a waiver of immunity; contrasted circumstances where waiver occurred by concession.
Caillouette v. Hercules, Inc., 113 N.M. 492, 827 P.2d 1306 (Ct.App. 1992), cert. denied	Refused to find waiver of immunity based on wrongful death statute and Article II, § 4 because such a finding would eliminate sovereign immunity principles.	Relied upon to show courts will not extend waiver of immunity simply by invoking Article II, § 4.
Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36 (1990)	Duty is a question of law; determination involves analysis of relationship, plaintiff's interests, defendant's conduct; duty determination refers to precedent and policy.	Applied to decide, as a matter of law, that Defendants owed no duty to Plaintiffs because Plaintiffs were unforeseeable.
Torres v. State, 116 N.M. 379, 862 P.2d 1238 (Ct.App.), cert. granted (1993)	Illustrates limits on liability of officers to additional victims of a murderer — officers are not liable for failure to promptly investigate and solve every homicide.	Used to reinforce the policy that officers do not owe a duty to all potential or indirect victims, supporting no waiver of immunity for indirect victims.
Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983)	Set criteria for foreseeability and negligent infliction of emotional distress in familial-death contexts (familial relationship, contemporaneous sensory perception, severity, physical manifestation, death/injury to victim).	Adopted as an analogous framework for assessing foreseeability and duty in Plaintiffs' constitutional/association claim.
Bogart v. Hester, 66 N.M. 311, 347 P.2d 327 (1959)	Negligence encompasses foreseeability of harm and duty of care.	Quoted within Ramirez and relied upon as foundational for foreseeability/duty analysis.
Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928)	Foreseeability framed in terms of duty; if plaintiff and injury are foreseeable, a duty exists.	Invoked (via Ramirez) to connect foreseeability and the legal duty analysis applied to Plaintiffs' claims.
Folz v. State, 110 N.M. 457, 797 P.2d 246 (1990)	Eliminated the physical manifestation requirement for negligent infliction of emotional distress in New Mexico.	Noted as a contrasting authority modifying Ramirez's criteria (as to physical manifestation requirement).
Solon v. WEK Drilling Co., 113 N.M. 566, 829 P.2d 645 (1992)	Parents of an adult child were held not to be foreseeable plaintiffs for a loss-of-consortium claim; social policy supports limiting liability to avoid excessive extension of tort liability to indirect relatives.	The court found Solon analogous and persuasive; used to conclude Plaintiffs (parents of an adult) were unforeseeable and thus owed no duty.
Bober v. New Mexico State Fair, 111 N.M. 644, 808 P.2d 614 (1991)	The Tort Claims Act bases liability on traditional tort concepts of duty and the reasonably prudent person's standard of care in performing that duty.	Used to justify applying traditional tort foreseeability/duty analysis (e.g., Ramirez, Solon) to Plaintiffs' constitutionally framed claim under the Tort Claims Act.

Court's Reasoning and Analysis

The court's analysis proceeded in several discrete steps grounded in statutory construction and traditional tort concepts of duty and foreseeability.

Statutory construction of § 41-4-12. The court began by interpreting Section 41-4-12 of the Tort Claims Act, which carves out an exception to sovereign immunity for deprivations of constitutional rights by law enforcement officers. The court stated it must construe the statute consistent with legislative intent and avoid absurd or unreasonable constructions (citing City of Las Cruces v. Garcia).
Scope of the pleaded constitutional rights. The court examined whether the constitutional provisions Plaintiffs invoked actually support Plaintiffs' asserted right of intimate association. It concluded that Article II, Section 17 (speech/libel provision) was not shown to guarantee a "right of association" as Plaintiffs claimed and cited Futrell to note limits on federal association jurisprudence. The court acknowledged the text of Article II, Section 4 (right to enjoy life and seek happiness) but observed that the scope of that provision and whether it gives rise to a Tort Claims Act cause of action had not been defined by prior decisions.
Mere conclusory constitutional references insufficient to waive immunity. Relying on Blea and Caillouette, the court held that general references to rights such as "enjoy life" are not enough to establish a waiver of immunity under § 41-4-12; waiver cannot be based on conclusory constitutional invocations that would undermine the Tort Claims Act's preserved immunity.
If cause of action assumed, duty and foreseeability still lacking. The court proceeded, for argument's sake, to assume Plaintiffs could state a cause of action under Article II, Section 4, then asked whether Defendants owed them a legal duty. Citing Calkins, the court explained duty is determined as a matter of law by analyzing relationships, the plaintiff's interests, and the defendant's conduct and that such determinations are policy-laden.
Application of negligent-infliction/familial-association precedent. The court analogized Plaintiffs' asserted deprivation of intimate association to negligent infliction of emotional distress/loss-of-consortium claims and applied the foreseeability criteria articulated in Ramirez and the policy reasoning in Solon. Ramirez's criteria identify who is a foreseeable plaintiff in familial-death contexts (intimate familial relationship, contemporaneous sensory perception, severity, physical manifestation, and victim's death/injury), and Solon held that parents of an adult were not foreseeable plaintiffs for loss of consortium. The court deemed these principles applicable under the Tort Claims Act (supported by Bober's direction that liability under the Act be based on traditional tort concepts).
Policy considerations and limiting liability for indirect victims. The court emphasized public policy embedded in the Tort Claims Act: while the legislature recognized unfair results under strict sovereign immunity, it also intended not to impose broad duties on government that would expose it to limitless liability. The court interpreted Section 41-4-2(A) as reflecting legislative intent not to waive immunity for injuries to indirect or incidental victims of tortious acts by government employees (citing Caillouette and Torres for parallel holdings limiting liability).
Conclusion of no duty and affirmance of dismissal. Combining the foregoing (insufficiency of bare constitutional allegations to waive immunity and, even assuming a right existed, lack of duty because Plaintiffs were unforeseeable), the court concluded the trial court properly dismissed Counts I and II for failure to state a claim.

Holding and Implications

HOLDING: The Court of Appeals affirmed the trial court's dismissal of Plaintiffs' Counts I and II. The court held that Plaintiffs' complaint failed to state a claim sufficient to waive immunity from suit under the Tort Claims Act. Even assuming Plaintiffs could base a cause of action on Article II, Section 4, Plaintiffs were unforeseeable as injured parties and Defendants therefore owed no duty to them.

Implications: The decision applies established tort-duty and foreseeability principles (as articulated in Ramirez, Solon, and related precedents) to bar waiver of sovereign immunity where plaintiffs are indirect or unforeseeable victims. The direct effect is that Plaintiffs' claims against Defendants Salazar and Rohlfs were dismissed and the dismissal was affirmed. The court relied on existing precedent and statutory interpretation in reaching its conclusion and did not purport to create a novel rule beyond the application of those authorities to the facts before it.

Order: IT IS SO ORDERED. ALARID and BLACK, JJ., concur.

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Russell LUCERO and Charles Lucero, Plaintiffs-Appellants v. Kenny SALAZAR and Richard Rohlfs, Defendants-Appellees, and City of Albuquerque and Bob Sto

OPINION

APODACA, Judge.

Plaintiffs Charles and Russell Lucero (Plaintiffs) appeal the trial court's dismissal of Counts I and II of their complaint against Defendants Kenny Salazar and Richard Rohlfs (Defendants). Plaintiffs raise the following issues on appeal: (1) whether the trial court erred in dismissing Plaintiffs' complaint for failure to state a claim for which immunity from suit was waived under the Tort Claims Act, NMSA 1978, §§ 41-4-1 to -12 (Repl.Pamp. 1989); and (2) whether the trial court erred in ruling that Plaintiffs did not plead facts sufficient to establish state interference with their constitutional rights. Because we hold that Plaintiffs' complaint failed to state a claim sufficient to waive immunity from suit under the Tort Claims Act, we affirm the trial court's dismissal of Plaintiffs' complaint.

BACKGROUND

Plaintiffs' complaint alleged that Carlos Lucero, Plaintiffs' natural father, was shot and killed without justification by Defendant Rohlfs, an on-duty Albuquerque police officer. The complaint also alleged that Defendant Salazar assisted Defendant Rohlfs in the unlawful killing. Plaintiffs contended in Count I that, by intentionally killing their father, Defendants intentionally deprived Plaintiffs of their relationship with their father and thereby violated their right "to enjoy life and seek and obtain happiness as guaranteed by Article II, Section 4 of the New Mexico Constitution." In Count II, they alleged that Defendants' action violated "their rights to association as guaranteed by Article II, Section 17 of the New Mexico Constitution." A third count was dismissed on Plaintiffs' motion and is not at issue in this appeal.

After Defendants filed a motion to dismiss Plaintiffs' complaint for failure to state a claim or, alternatively, for summary judgment, the trial court dismissed Plaintiffs' complaint for failure to state a claim under SCRA 1986, 1-012(B)(6) (Repl. 1992). Plaintiffs appealed the trial court's judgment only as to Defendants Salazar and Rohlfs in their capacity as state actors. The City of Albuquerque and Bob Stover, chief of police, who were originally named as defendants, are therefore not parties to this appeal.

DISCUSSION

Plaintiffs argue that Defendants' immunity was waived under the Tort Claims Act. They rely on Section 41-4-12 of the Act, which provides that "[t]he immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for . . . 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." The constitutional rights that Plaintiffs allege were violated are their personal rights to associate with their father and receive his love, guidance, and protection, which they argue are guaranteed by Article II, Sections 4 and 17 of the New Mexico Constitution.

This Court must interpret Section 41-4-12 consistently with the legislature's intent and adopt a construction that will not render the statute's application absurd, unreasonable, or unjust. City of Las Cruces v. Garcia, 102 N.M. 25, 26-27, 690 P.2d 1019, 1020-21 (1984). In considering a motion to dismiss, well-pleaded facts are taken as established. Saenz v. Morris, 106 N.M. 530, 531, 746 P.2d 159, 160 (Ct.App. 1987). Initially, we note that Plaintiffs rely in part on Article II, Section 17. That section guarantees the individual's right to "freely speak, write and publish his sentiments on all subjects" and provides that truth is a defense in libel actions. Plaintiffs cite no authority, and we are not aware of any, holding that Article II, Section 17, of the New Mexico Constitution was intended to guarantee "rights of association." Cf. U.S. Const. amend. 1 (freedom of assembly guaranteed); Futrell v. Ahrens, 88 N.M. 284, 286, 540 P.2d 214, 216 (1975) (recognizing even federal constitutional right of association does not apply to the light of one individual to associate with another).

Article II, Section 4 of our Constitution states that "[a]ll persons are born equally free, have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness." The scope of the right to enjoy life and pursue happiness stated in Article II, Section 4 of the New Mexico Constitution, and whether violation of that section's provisions gives rise to a cause of action under the Tort Claims Act, has not been determined. Cf. California First Bank v. State, 111 N.M. 64, 76, 801 P.2d 646, 658 (1990) (refusing to reach issue because not properly raised). But see Oldfield v. Benavidez, 116 N.M. 785, 790, 867 P.2d 1167, 1172 (1994) (recognizing the fourteenth amendment to the United State Constitution embodies a light to familial integrity but stating "[t]he parameters of the right have never been clearly established, and the right is not absolute or unqualified.").

It is clear, however, that mere references to the right to enjoy life and to seek and obtain safety and happiness are not sufficient to serve as a basis for a waiver of immunity under Section 41-4-12. Blea v. City of Espanola, 117 N.M. 217, 221, 870 P.2d 755, 759 (Ct.App. 1994) (relying on Caillouette v. Hercules, Inc., 113 N.M. 492, 497, 827 P.2d 1306, 1311 (Ct.App.), cert. denied, 113 N.M. 352, 826 P.2d 573 (1992)). "Waiver of immunity based on such constitutional grounds would emasculate the immunity preserved in the Tort Claims Act." Id. Blea also held that the plaintiffs, the decedent's parents, could proceed on their separate claim that their federal constitutional right of familial association had been violated. Id. 117 N.M. at 222, 870 P.2d at 760. In so holding, however, the panel in Blea was persuaded by the defendants' concession that there was such a right under the federal constitution. Thus, the allegation that the right had been violated was sufficient to waive immunity under Section 41-4-12. Id. at 222-23, 870 P.2d at 760-61. For this reason, Blea was not required to address the issue raised here — the extent of the defendants' duty to prevent a violation of such a right. This issue is squarely raised in the case before us, and we therefore consider it.

However, even assuming Plaintiffs have a cause of action, based on Article II, Section 4 of the New Mexico Constitution, we agree with Defendants' argument that, as a matter of law, Plaintiffs were unforeseeable as injured parties, and therefore Defendants owed no duty to them. See Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990) ("The court must determine as a matter of law whether a particular defendant owes a duty to a particular plaintiff."). "The determination of duty in any given situation involves an analysis of the relationship of the parties, the plaintiff's injured interests and the defendant's conduct; it is essentially a policy decision based on these factors that the plaintiff's interests are entitled to protection." Id. at 63, 792 P.2d at 40. The issue of the existence of a duty is made with reference to legal precedent, statutes, and other legal principles. Id. at 62, 792 P.2d at 39, see also Torres v. State, 116 N.M. 379, 383, 862 P.2d 1238, 1242 (Ct.App.), cert. granted, 116 N.M. 379, 862 P.2d 1238 (1993).

Although couched in constitutional terms, the injury alleged by Plaintiffs is analogous to an allegation of negligent infliction of emotional distress. We believe similar policy considerations are applicable to both types of injuries. In Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983), our Supreme Court discussed the requirements for a claim of negligent infliction of emotional distress. The plaintiffs were the children of a man who was killed when he was struck by a car. Id. at 539-40, 673 P.2d at 823-24. Although Ramirez recognized that the intimate familial relationship was a legally protected interest, it adopted certain standards intended to ensure that the interest was foreseeable, so that the possibility of recovery by deserving claimants would be assured and the liability of defendants constrained. Id. at 541, 673 P.2d at 825. The Court stated that:

In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person. Bogart v. Hester, 66 N.M. 311, 347 P.2d 327 (1959).

. . . .

Duty and foreseeability have been closely integrated concepts in tort law since the court in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928)[,] 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.

Id. To establish who was a foreseeable plaintiff in situations where negligent infliction of emotional distress was alleged, Ramirez established the following criteria:

1. There must be a marital, or intimate familial relationship between the victim and the plaintiff, limited to husband and wife, parent and child, grandparent and grandchild, brother and sister and to those persons who occupy a legitimate position in loco parentis;

2. The shock to the plaintiff must be severe, and result from a direct emotional impact upon the plaintiff caused by the contemporaneous sensory perception of the accident . . .;

3. There must be some physical manifestation of, or physical injury to the plaintiff resulting from the emotional injury;

4. The accident must result in physical injury or death to the victim.

Id. 100 N.M. at 541-42, 673 P.2d at 825-26. But see Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990) (eliminating physical manifestation of injury requirement). Based on these criteria, Ramirez held that the children who witnessed their father's death had valid claims of negligent infliction of emotional distress, but that the child who did not witness the accident and the young friend who witnessed the accident did not have claims. Id. at 543, 673 P.2d at 827.

We also consider the basis of the holding in Solon v. WEK Drilling Co., 113 N.M. 566, 829 P.2d 645 (1992), to be applicable to the claim asserted by Plaintiffs here. In Solon, our Supreme Court held that the parents of an adult child were not foreseeable plaintiffs for purposes of asserting a claim for loss of consortium, which was defined as the deprivation of "companionship, society, and affection." Id. at 570, 829 P.2d at 649. This claim is equivalent to Plaintiffs' claim of loss of association. Solon stated:

We have no hesitancy in holding as a matter of law that the existence and interests of the Ponces and their relationship with their son were unforeseeable to defendant WEK Drilling. While it is foreseeable that someone who is not provided a safe place to work will have living parents, the same can be said of the other relatives standing in an "intimate familial relationship" with a tort victim: his or her spouse, parent, child, grandparent, grandchild, brother, sister, and (in the case of a minor) others occupying a position of in loco parentis (citation omitted). The social policy of cutting off the liability that would otherwise extend to these family members seems sound, at least in a case in which they allege no more palpable injury than that claimed here.

Id. at 571, 829 P.2d at 650.

Without citation to authority, Plaintiffs contend that Solon is inapplicable to this case because a "constitutional," rather than a tort, analysis is required. We are not persuaded. The Tort Claims Act expressly provides that "[l]iability for acts or omissions under the Tort Claims Act shall be based upon traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." Section 41-4-2(B); see Bober v. New Mexico State Fair, 111 N.M. 644, 650, 808 P.2d 614, 620 (1991). We therefore consider the reasoning of Ramirez and Solon to be applicable to Plaintiffs' claim that they were deprived of their right to intimate association with their father.

Additionally, the discussions in Ramirez and Solon are consistent with the public policy underlying the Tort Claims Act:

The legislature recognizes the inherently unfair and inequitable results [that] occur in the strict application of the doctrine of sovereign immunity. On the other hand, the legislature recognizes that while a private party may readily be held liable for his torts within the chosen ambit of his activity, the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done.

Section 41-4-2(A); see also Caillouette, 113 N.M. at 497, 827 P.2d at 1311 (refusing to find a waiver of immunity based on wrongful death statute and Article II, section 4 of New Mexico Constitution because to do so would eliminate the principle of sovereign immunity). Cf. Torres, 116 N.M. at 383-84, 862 P.2d at 1242-43 (holding that officers are not liable to additional victims of murderer because there is no duty to promptly investigate and solve every reported homicide). We thus construe the language of Section 41-4-2(A) as evincing a legislative intent not to waive immunity for injuries to indirect or incidental victims of tortious acts committed by government employees.

CONCLUSION

In summary, assuming that the right to intimate association is encompassed within Article II, Sections 4 and 17 of the New Mexico Constitution, we hold that, as a matter of law, Plaintiffs were unforeseeable, as injured parties, and Defendants therefore had no duty toward them. We thus conclude that the trial court did not err in dismissing Plaintiffs' claims.

IT IS SO ORDERED.

ALARID and BLACK, JJ., concur.

LUCERO v. SALAZAR