January 28, 2015 – Marshall Richey v. Hammond Conservancy District, No. 32,847

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	JANUARY 28, 2015
NO. 32,847
MARSHALL RICHEY,
Plaintiff-Appellant,
v.
HAMMOND CONSERVANCY DISTRICT,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
William C. Birdsall, District Judge
Alexander A. Wold, P.C.
Alexander A. Wold, Jr.
Albuquerque, NM
for Appellant
Miller Stratvert, P.A.
Timothy R. Briggs
Luke A. Salganek
Albuquerque, NM
for Appellee

OPINION
ZAMORA, Judge.
{1} 	The Opinion filed on October 15, 2014 is withdrawn, and the following
Opinion is substituted in its place.
{2} 	Plaintiff, Marshall Richey, appeals from the district court’s grant of Defendant’s
motion to dismiss for failure to state a claim upon which relief can be granted pursuant
to Rule 1-012(B)(6) NMRA. 	Plaintiff contends that the district court erred in
concluding that the facts alleged in his amended complaint failed to state a claim
within the exclusivity exception to the New Mexico Workers’ Compensation Act (the
Act), as recognized in Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131
N.M. 272, 34 P.3d 1148. We hold that the allegations in the amended complaint are
sufficient to satisfy Rule 1-012(B)(6). We therefore reverse and remand for further
proceedings.
BACKGROUND
{3} 	Plaintiff was injured while working for Hammond Conservancy District
(Defendant), and filed a personal injury claim pursuant to Delgado. Plaintiff pleaded
the following facts in his amended complaint. In 2010, Plaintiff worked for Employee
Connections, Inc., as a temporary worker. 	On October 18, 2010, Employee
Connections “loaned” Plaintiff to Hammond Conservancy District (Defendant) as a

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temporary worker. At Defendant’s direction, Plaintiff used a small-diameter, short-
nozzle, high-pressure water hose to clean culverts used for flood control. Prior to that
date, several workers, including Plaintiff, had advised Defendant that the hose was
very difficult to control and had reported “near misses of serious injury and death.”
The workers, including Plaintiff, warned Defendant that injury from using the hose
to clean out culverts was “certain to result.” In spite of the workers’ protests and over
Plaintiff’s objections, Defendant directed Plaintiff to use the hose to clean the culvert.
The hose “failed to prevent the loss of control” and, as a result, water from the high-
pressure hose was “injected directly into . . . Plaintiff,” causing severe injuries.
{4} 	Plaintiff alleged that Defendant knew the assigned task was virtually certain to
cause injury or death and that compelling him to perform the task in spite of the
numerous employee complaints and objections was egregious. Plaintiff also alleged
that Defendant’s egregious conduct was the direct, natural, and proximate cause of his
injuries.
{5} 	Defendant moved to dismiss pursuant to Rule 1-012(B)(6), arguing that
Plaintiff’s claims were barred by the exclusivity provisions of the Act and claiming
governmental immunity under the Tort Claims Act, NMSA 1978, §§ 41-1-1 to -30
(1976, as amended through 2013). 	Plaintiff moved to stay Defendant’s Rule 1-
012(B)(6) motion pending discovery. The district court held a hearing on Plaintiff’s

3
motion to stay, and Plaintiff was permitted to amend his complaint. 	The parties
completed briefing on Defendant’s motion to dismiss. After conducting a hearing on
the motion, the district court dismissed Plaintiff’s claims with prejudice pursuant to
Rule 1-012(B)(6). This appeal followed.
DISCUSSION
{6} 	The fundamental question presented in this appeal is whether Plaintiff’s
amended complaint included facts sufficient to state a claim under Delgado. 	To
resolve this question, it is necessary to first examine the evolution of New Mexico’s
intentional conduct exception to Worker’s Compensation exclusivity.
The Intentional Conduct Exception to Worker’s Compensation Exclusivity
{7} 	The purpose of the Act’s exclusivity provision is to achieve balance between
injured workers’ need for compensation and employers’ need to limit liability for
work-related injuries. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 24, 127
N.M. 47, 976 P.2d 999. 	However, the Act’s exclusivity does not preclude claims
against employers that intentionally inflict injury upon workers. Id.
{8} 	Prior to our Supreme Court’s decision in Delgado in 2001, worker injuries were
only compensable outside the Act if the injured worker could demonstrate the
employer’s actual intent to injure the worker. 	See Coleman v. Eddy Potash, Inc.,
1995-NMSC-063, ¶ 26, 120 N.M. 645, 905 P.2d 185, overruled by Delgado, 2001-

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NMSC-034, ¶ 23 n.3; see also Flores v. Danfelser, 1999-NMCA-091, ¶ 17, 127 N.M.
571, 985 P.2d 173, overruled by Delgado, 2001-NMSC-034, ¶ 23 n.3; Johnson
Controls World Servs., Inc. v. Barnes, 1993-NMCA-004, ¶ 12, 115 N.M. 116, 847
P.2d 761, overruled by Delgado, 2001-NMSC-034, ¶ 23 n.3; Maestas v. El Paso
Natural Gas Co., 1990-NMCA-092, ¶ 9, 110 N.M. 609, 798 P.2d 210, overruled by
Delgado, 2001-NMSC-034, ¶ 23 n.3; Gallegos v. Chastain, 1981-NMCA-014, ¶ 5,
95 N.M. 551, 624 P.2d 60, overruled by Delgado, 2001-NMSC-034, ¶ 23 n.3; Sanford
v. Presto Mfg. Co., 1979-NMCA-059, ¶ 14, 92 N.M. 746, 594 P.2d 1202, overruled
by Delgado, 2001-NMSC-034, ¶ 23 n.3. 	Our courts adopted this actual intent test
from Professor Larson’s treatise, 6 Arthur Larson & Lex K. Larson, Larson’s
Workers’ Compensation Law § 103.03 (2000). Delgado, 2001-NMSC-034, ¶ 16.
Delgado
{9} 	In 2001, our Supreme Court decided Delgado, which changed the law by
broadening the exclusivity exception. Padilla v. Wall Colmonoy Corp., 2006-NMCA-
137, ¶ 9, 140 N.M. 630, 145 P.3d 110. In Delgado, the worker was ordered by his
supervisor to remove a fifteen-foot iron cauldron brimming over with molten slag,
without shutting down a furnace or otherwise correcting an especially dangerous
emergency “runaway” condition that caused additional slag to continue flowing.
2001-NMSC-034, ¶ 4. Although the worker protested the orders, and informed the

5
supervisor that he was not qualified or competent to perform the removal because he
had never operated a kress-haul (a special truck for removing the cauldron) alone
under such conditions, the supervisor insisted he proceed. 	Id. ¶ 5. 	The worker
“emerged from the smoke-filled tunnel, fully engulfed in flames,” suffering third-
degree burns over his entire body. Id. He later died of his injuries. Id.
{10} 	The Court examined the actual intent test, and rejected it as unbalanced in favor
of employers. 	See id. ¶ 23 (“Under the actual intent test, a single standard of
culpability, namely willfulness, will prevent a worker from benefitting from the Act
while preserving the corresponding benefits for the employer. This bias violates the
explicit mandate of Section 52-5-1, which demands the equal treatment of workers
and employers.”) In order to address the egregious conduct of the employer in that
case, and to restore balance and equality to the Act, the Supreme Court set forth a new
test for determining when conduct falls outside the scope of the Act:
[W]illfulness renders a worker’s injury non-accidental, and therefore
outside the scope of the Act, when: (1) the worker or employer engages
in an intentional act or omission, without just cause or excuse, that is
reasonably expected to result in the injury suffered by the worker; (2) the
worker or employer expects the intentional act or omission to result in
the injury, or has utterly disregarded the consequences; and (3) the
intentional act or omission proximately causes the injury.
Delgado, 2001-NMSC-034, ¶¶ 23, 24, 26.

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{11} 	The first element of the Delgado test looks at “whether a reasonable person
would expect the injury suffered by the worker to flow from the intentional act or
omission.” Id. ¶ 27. The second element “requires an examination of the subjective
state of mind of the worker or employer.” Id. ¶ 28. This element is satisfied when the
worker or employer either failed to consider the consequences of the intentional act
or omission, or considered the consequences and expected the injury to occur. 	Id.
This element is not satisfied where “the worker or employer considered the
consequences and negligently failed to expect the worker’s injury to be among them.”
Id. Finally, the third element requires proximate cause. Id. ¶ 29.
Morales
{12} 	In Morales v. Reynolds, 2004-NMCA-098, 136 N.M. 280, 97 P.3d 612, this
Court consolidated and decided the first two cases involving Delgado claims reaching
us after the Delgado decision. Morales, 2004-NMCA-093, ¶¶ 1,10. The Morales case
was an appeal from a district court’s grant of summary judgment in favor of the
employer. Id. ¶ 3. The Fernandez case appealed a district court’s dismissal for failure
to state a claim. Id. ¶ 5.
{13} 	Our focus in Morales was on “the procedural and evidentiary requirements a
plaintiff must meet in order to overcome a motion to dismiss or for summary
judgment.” Dominguez v. Perovich Props., Inc., 2005-NMCA-050, ¶ 16, 137 N.M.

7
401, 111 P.3d 721. 	To determine whether the workers’ claims met the Delgado
requirements as a matter of law, we considered the type of employer conduct Delgado
sought to deter. Morales, 2004-NMCA-098, ¶ 10.
{14} 	Because the Delgado Court did not elaborate on the type of employer conduct
that would render a worker’s injury compensable under the new test, we looked to the
facts of that case for guidance. Morales, 2004-NMCA-098, ¶ 9. We determined that
the Delgado decision stemmed from “a combination of deadly conditions, profit-
motivated disregard for easily implemented safety measures, complete lack of worker
training or preparation, and outright denial of assistance to a worker in a terrifying
situation.” Morales, 2004-NMCA-098, ¶ 10.
{15} 	We concluded Delgado plaintiffs “must plead or present evidence that the
employer met each of the three Delgado elements through actions that exemplify a
comparable degree of egregiousness as the employer in Delgado in order to survive
a pre-trial dispositive motion.” Morales, 2004-NMCA-098, ¶ 14. We compared this
threshold determination of egregiousness to the requirement in intentional infliction
of emotional distress (IIED) cases, where “we require the court to determine as a
matter of law whether conduct reasonably may be regarded as so extreme and
outrageous that it will permit recovery[.]” 	Id. ¶ 15 (internal quotation marks and
citation omitted).

8
{16} 	The purpose for a threshold determination of egregiousness in Delgado cases
was to “preserve the bargain of the Act in a meaningful way.” 	Morales, 2004-
NMCA-098, ¶ 16. 	Our concern was that “[e]xposing employers to the costs of
litigating a full trial on the merits of every case in which a worker alleges some wilful
conduct or claims that safety was ignored due to profit motive would deprive
employers of their benefit from the Act’s bargain.” Id. Even unsuccessful claims, we
reasoned, “would be a significant drain on an employer’s financial resources if all
questions of employer intent, no matter how slight, were sent to a jury.” Id.
{17} 	Holding that both the Morales and the Fernandez plaintiffs failed to satisfy the
threshold determination of egregious employer conduct, as well as the requirements
of Delgado, we affirmed the district courts’ decisions in both cases. Morales, 2004-
NMCA-098, ¶ 1.
Salazar I and Salazar II
{18} 	In 2005, this Court addressed the question of whether the receipt of Worker’s
Compensation benefits precludes an injured worker from filing a Delgado claim.
Salazar v. Torres, 2005-NMCA-127, ¶ 1, 138 N.M. 510, 122 P.3d 1279 (Salazar I),
rev’d in part, 2007-NMSC-019, 141 N.M. 559, 158 P.3d 449 (Salazar II). In Salazar
I, the employer instructed the worker to start a truck by pouring gasoline into the
truck’s carburetor. 2005-NMCA-127, ¶ 2. While the worker was still pouring the

9
gasoline, the employer instructed the worker’s son to start the truck’s ignition. 	Id.
The engine ignited the gasoline and the worker was severely burned. Id.
{19} 	The worker received Worker’s Compensation benefits, and entered into a
settlement which included a lump-sum payment for permanent partial disability as
well as future medical benefits. Id. ¶¶ 3, 31 (Pickard, J., specially concurring in part
and dissenting in part). The worker subsequently filed a claim for damages, pursuant
to Delgado. Salazar I, 2005-NMCA-127, ¶ 3. 	The employer moved for summary
judgment and the worker responded. Id. Then, “for the first time in its reply to the
response, [the employer] contended that [the w]orker’s version of the facts, even if
true, would not rise to the level of egregiousness sufficient to support a Delgado
claim.” Salazar I, 2005-NMCA-127, ¶ 3. Summary judgment was granted without
an explanation of the district court’s reasoning. Id.
{20} 	A divided panel reversed the district court’s grant of summary judgment. Id.
¶¶ 1, 30. The majority noted that in many cases, injured workers, faced with medical
bills and an inability to work, will not be “in a financial position to wait out a lengthy,
expensive and risky court proceeding to be compensated for the injury, due to the
problems of pressing medical bills, and often the inability to work.” Id. ¶ 11 (internal
quotation marks and citation omitted). As a result, the majority concluded that “to
consider the receipt of benefits a forfeiture of [a worker’s] right to pursue the

10
employer in the courts would not only be harsh and unjust, it would also frustrate the
laudable purposes of the Act.” Id. (alteration, internal quotation marks, and citation
omitted).
{21} 	Addressing the employer’s argument that the worker’s allegations, even if true,
would not satisfy the required elements of a Delgado claim, the majority held that:
Worker’s complaint tracks the language of Delgado verbatim in so far
as alleging the mental state on [the e]mployer’s part, and [the e]mployer
never submitted an affidavit in contesting these allegations. 	Our law
simply requires notice pleading, and without any motion for summary
judgment 	supported 	by 	[the 	e]mployer’s 	own 	affidavit 	regarding
willfulness, we hold that [the w]orker’s allegations tracking the language
of Delgado were sufficient to withstand what was tantamount to a
motion to dismiss for failure to state a claim.
Salazar I, 2005-NMCA-127, ¶ 27 (emphasis added) (citation omitted).
{22} 	A special concurrence and dissent took issue with the majority’s holdings
related to both the pleading standard and receipt of benefits for Delgado claims.
Salazar I, 2005-NMCA-127, ¶¶ 36, 37 (Pickard, J., specially concurring in part and
dissenting in part). As to the issue of benefits, the dissent expressed concern that by
allowing employees to sue in tort after accepting compensation, the majority was
disrupting the Act’s balance of interests. See id. ¶ 34 (Pickard, J., dissenting) (“[T]he
Act represents a bargain between employers and workers pursuant to which each gives
up rights and obligations in return for some other benefit. 	The Act balances a
worker’s need for expeditious payment of benefits and an employer’s need to limit

11
liability. In [the dissenting Judge’s] view, the majority tips this balance entirely to the
side of the worker[.]” (citation omitted)).
{23} 	The special concurrence advocated for a more stringent pleading standard in
cases involving Delgado claims, stating:
Our most recent cases of Dominguez and Morales have required a level
of egregiousness of employer behavior comparable to that found in
Delgado.
. . . .
So as not to require employers to litigate in circumstances where a
worker cannot establish the requisite Delgado willfulness at the time of
the filing of the complaint, I would adopt a pleading requirement in
Delgado 	cases 	that 	requires 	workers 	to 	plead 	sufficient 	facts
demonstrating that the standard is met or be subject to dismissal for
failure to state a claim upon which relief can be granted.
Salazar I, 2005-NMCA-127, ¶ 38 (Pickard, J., specially concurring).
{24} 	Our Supreme Court granted certiorari to resolve the question of “whether and
when a worker can receive benefits under the Act without compromising a potential
intentional tort action under Delgado.” Salazar II, 2007-NMSC-019, ¶ 4. “Based on
the clear intent of the Act,” the Court held that when a worker suffers a work-related
injury, and “questions whether the injury was intentionally inflicted by the employer,”
the worker may collect benefits under the Act, “while pursuing an intentional tort
action under Delgado.” Salazar II, 2007-NMSC-019, ¶ 1. However, the Court also
concluded that when a worker enters into a final settlement of the claim in exchange

12
for a lump-sum payment of indemnity benefits, the worker is then precluded from
pursuing a Delgado claim. Salazar II, 2007-NMSC-019, ¶ 1. Because the worker in
that case had received a lump-sum payment, representing full settlement of his claim,
the Court reversed Salazar I. Salazar II, 2007-NMSC-019, ¶ 1. Notably, Salazar II
did not reverse the majority’s holding in Salazar I as to the pleading standard for
Delgado claims. Salazar II, 2007-NMSC-019, ¶¶ 4, 30.
The Present Case
Standard of Review
{25} 	We review motions to dismiss a complaint for failure to state a claim under
Rule 1-012(B)(6) de novo. 	Healthsource, Inc. v. X-Ray Assocs. of N.M., 2005-
NMCA-097, ¶ 16, 138 N.M. 70, 116 P.3d 861. In considering a motion to dismiss,
we test “the legal sufficiency of the complaint, not the factual allegations of the
pleadings which, for purposes of ruling on the motion, the court must accept as true.”
Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 2, 134 N.M. 43, 73 P.3d 181 (internal
quotation marks and citation omitted). Accepting all well-pleaded factual allegations
in the complaint as true, we “resolve all doubts in favor of sufficiency of the
complaint.” 	Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917
(internal quotation marks and citation omitted). Dismissal under Rule 1-012(B)(6) is
appropriate only where the non-moving party is “not entitled to recover under any

13
theory of the facts alleged in their complaint.” 	Delfino, 2011-NMSC-015, ¶ 12
(internal quotation marks and citation omitted).
{26} 	Defendant argues that Plaintiff’s amended complaint is legally insufficient to
state a Delgado claim because Plaintiff failed to allege Defendant’s subjective intent,
and because Plaintiff’s allegations do not satisfy the threshold determination of
egregiousness required for Delgado claims. Defendant also argues that an employer’s
failure to take safety measures does not meet the Delgado standard.
{27} 	Defendant correctly states that the absence of safety measures generally will not
give rise to a Delgado claim. See May v. DCP Midstream, L.P., 2010-NMCA-087,
¶ 13, 148 N.M. 595, 241 P.3d 193 (“The absence of safety measures by itself
demonstrates neither intent nor an inherent probability of injury, and we believe the
Supreme Court in Delgado intended more than the disregard of preventative safety
devices when contemplating an exception to the Workers’ Compensation Act.”); see
also Dominguez, 2005-NMCA-050, ¶ 22 (holding that an employer’s appalling
disregard for safety requirements designed to help prevent injury and death on the job
does not equate to an employer “specifically and wilfully caus[ing] the [worker] to
enter harm’s way, facing virtually certain serious injury or death, as contemplated
under Delgado”). However, we are not convinced that Plaintiff is alleging a general
failure by Defendant to provide safe equipment or take safety precautions.

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{28} 	Plaintiff’s allegations are that Defendant was notified that the specific
equipment Plaintiff was required to use was dangerous and had nearly caused serious
injuries to several employees; that Defendant required Plaintiff to use the equipment
in spite of this knowledge and over his objections; and that as a result, Plaintiff was
severely injured using the equipment. 	Under Morales, the “critical measure” for
Delgado claims is “whether the employer has, in a specific dangerous circumstance,
required the [worker] to perform a task where the employer is or should clearly be
aware that there is a substantial likelihood the [worker] will suffer injury or death by
performing the task.” Dominguez, 2005-NMCA-050, ¶ 22; see May, 2010-NMCA-
087, ¶ 13.
{29} 	Taking the allegations in Plaintiff’s amended complaint as true, and construing
them in a light most favorable to the complaint’s sufficiency, we conclude that
Plaintiff’s allegations were sufficient to state a claim under Delgado. See Salazar I,
2005-NMCA-127, ¶ 27 (holding that “[the w]orker’s allegations tracking the language
of Delgado were sufficient to withstand what was tantamount to a motion to dismiss
for failure to state a claim”).
{30} 	To the extent that Defendant argues that under Morales the Rule 12(B)(6)
analysis for Delgado claims is different than the analysis typically applied to Rule
(12)(B)(6) motions, we are not persuaded. As Salazar I recognized, New Mexico is

1Judge Pickard authored Morales and also wrote the dissenting opinion in
Salazar I.
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a notice pleading state. Madrid v. Vill. of Chama, 2012-NMCA-071, ¶ 17, 283 P.3d
871. 	We do not require “[district] courts to consider the merits of a plaintiff’s
allegations when deciding a motion to dismiss[.]” Id. Rather, we require “only that
the plaintiff allege facts sufficient to put the defendant on notice of his claims.” Id.;
see Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶¶ 1, 10, 335 P.3d 243
(reaffirming “New Mexico’s longstanding commitment to the nontechnical fair notice
requirements”); see also Rule 1-008(A)(2) (stating that a claim for relief shall contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief”).
{31} 	In Salazar I, 2005-NMCA-127, ¶ 27, we held that the notice pleading standard
is applicable in cases involving Delgado claims, and our holding as to that issue was
not reversed by Salazar II, 2007-NMSC-019, ¶ 4. 	We also note that the special
concurrence in Salazar I proposed adopting a heightened pleading standard for
Delgado claims, indicating that Morales had not already done so. 	Salazar I, 2005-
NMCA-127, ¶ 38.1 Moreover, applying the notice pleading standard to Delgado
claims is consistent with the policy and philosophy of the Act as discussed in Salazar
II:

16
Delgado established a high threshold of culpability that should
eliminate many claims before trial. 	In light of this high threshold,
injured workers must be afforded a reasonable time to investigate,
including pre-trial discovery, whether they have a sustainable Delgado
claim. It may not be until the summary judgment stage, or even trial,
that a worker has the answer.
Salazar II, 2007-NMSC-019, ¶ 14 (citations omitted).
{32} 	Salazar II also addressed the concern expressed in Salazar I’s dissent, that
employers may be required to litigate in circumstances where the requisite Delgado
willfulness is not established in the complaint:
We acknowledge that under our holding here, employers who pay
compensation benefits may, in some cases, also have to pay legal fees to
defend an intentional tort action under Delgado. Even if the worker’s
Delgado claim is ultimately dismissed, the employer will never recover
the cost of those legal fees. 	However, the Act does not insulate
employers from such contingencies. As noted above, the [L]egislature
intended to protect employers from negligence actions for accidental
injury, not actions for intentional tort. 	Accordingly, an employer is
protected from having to defend negligence lawsuits, but not against the
expense of lawsuits grounded in intentional or willful behavior. 	We
observe that in some instances, perhaps most, prudent employers have
the ability to anticipate and plan for the possibility of paying future
attorney fees to defend against Delgado claims. [The w]orkers, on the
other 	hand, 	can 	rarely 	plan 	for 	injuries 	inflicted 	by 	the 	willful
misconduct of their employers.
Salazar II, 2007-NMSC-019, ¶ 22 (citation omitted).
Defendant’s Governmental Immunity Defense
{33} 	In its motion to dismiss, Defendant claims that because it is a statutorily created
conservancy district, it is an arm of the State and enjoys immunity under the Tort

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Claims Act. 	Plaintiff argues that immunity was waived pursuant to NMSA 1978,
§ 41-4-6 (2007). The district court found that Defendant’s Rule 1-012(B)(6) motion
to dismiss was well taken, and ordered that Plaintiff’s complaint be dismissed with
prejudice pursuant to Rule 1-012(B)(6). Because the district court did not reach the
issue of governmental immunity, we leave it for determination on remand.
CONCLUSION
{34} 	For the foregoing reasons, we reverse and remand for further proceedings.
{35} 	IT IS SO ORDERED.
_______________________________
M. MONICA ZAMORA, Judge
WE CONCUR:
___________________________________
MICHAEL D. BUSTAMANTE, Judge
___________________________________
RODERICK T. KENNEDY, Judge