BRUCE THOMPSON, as Guardian ad Litem for A.O., J.P., and G.G., Minor Children, Plaintiff-Respondent,
CITY OF ALBUQUERQUE, RAY SCHULTZ, former Chief of Police of the City of Albuquerque, and KEVIN SANCHEZ, City of Albuquerque Police Officer, Defendants-Petitioners.
PROCEEDING ON CERTIORARI Denise Barela Shepherd, District
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
L. CHÁVEZ, Justice
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), NMSA 1978, §§ 41-4-1 to -30
(1976, as amended through 2015), and (2) bring their lawsuit
even if the parent's estate did not sue for wrongful
death damages? We answer "yes" to both questions
for the following reasons. First, Section 41-4-12 of the TCA
waives a law enforcement officer's sovereign immunity
from liability for personal injury and bodily injury damages
resulting from battery, and loss of consortium damages may be
characterized as either personal or bodily injury damages.
Second, loss of consortium damages result from the wrongful
injury or death of someone who was in a sufficiently close
relationship to the loss of consortium claimant, and such
damages belong to the loss of consortium claimant and not to
the injured person or the decedent's estate.
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.
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
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.
Plaintiffs are Owings's surviving minor children who sued
Defendants for loss of consortium damages under Section
41-4-12. Plaintiffs allege that Defendants' acts and
omissions caused the wrongful death of their father, and as a
result they will be "forced to grow up without the
companionship, guidance, love, enjoyment, and support of
their father . . . ." The district court granted
Defendants' Rule 1-012(B)(6) NMRA motion to dismiss,
concluding that the TCA did not waive law enforcement
officers' sovereign immunity for a loss of consortium
claim. The Court of Appeals reversed, Thompson v. City of
Albuquerque, 2017-NMCA-002, ¶ 11, 386 P.3d 1015,
and we affirm the Court of Appeals.
"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. Section 41-4-12 provides that law enforcement
officers' immunity is waived for:
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.
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 PoliceDep't, 2003-NMCA-125, ¶ 8, 134 N.M. 492, 79
P.3d 836 (noting that ...