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Thompson v. City of Albuquerque

Supreme Court of New Mexico

June 19, 2017

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.

         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


          EDWARD L. 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), 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.


         {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 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.


         {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. 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.

         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 PoliceDep't, 2003-NMCA-125, ¶ 8, 134 N.M. 492, 79 P.3d 836 (noting that ...

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