June 9, 2016 – Bruce Thompson, as Guardian Ad Litem for A.O., J.P. and G.G., Minor Children v. City of Albuquerque, Ray Schultz, former Chief of Police of the City of Albuquerque, and K. Sanchez, City of Albuquerque Police Officer, NO. 34,427

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _June 9, 2016

NO. 34,427

BRUCE THOMPSON, as Guardian Ad Litem
for A.O., J.P., and G.G., Minor Children,

Plaintiff-A ppellant,
V.

CITY OF ALBUQUERQUE, RAY SCHULTZ,
former Chief of Police of the City of Albuquerque,
and K. SANCHEZ, City of Albuquerque Police Officer,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Denise Barela Shepherd, District J udge

Kennedy Kennedy & Ives, LLC
Shannon L. Kennedy

Joseph P. Kennedy
Michael L.. ‘Timm, Jr.

Albuquerque, NM

for Appellant

City of Albuquerque

Jessica M. Hemandez, City Attomey
Stephanie M. Gnffin, Deputy City Attomey
Albuquerque, NM

for Appellees

OPINION
BUSTAMANTE, Judge.
{1} 	Plaintiff appeals the dismissal of loss of consortium claims filed under Section
41-4-12 of the New Mexico Tort Claims Act on behalf of three minors. Because we
conclude that the district court erred in ruling that the Tort Claims Act did not waive
immunity for such claims, we reverse.
BACKGROUND
{2} 	In March 2010 Albuquerque Police Department officers responded to a report
of a stolen vehicle in a Walmart parking lot. Several officers parked unmarked police
cars in the lot around the stolen car. Decedent Mickey Owings (Owings), the father
of A.O., J.P., and G.G. (Children), drove into the lot and parked next to the stolen
vehicle, and a passenger got out of Owings’ car and approached the stolen car.
Officers moved one of the unmarked cars behind Owings’ car to block it in, while
another officer, Officer Sanchez, approached Owings’ car on foot. Owings then
backed his car into the unmarked police car. As Owings was backing into the police
car, Officer Sanchez shot toward Owings’ car, hitting Owings in the chest. Although
Owings drove away, he lost consciousness and came to a stop on a nearby road. He
ultimately died from the gunshot wounds sustained in the parking lot. Owings was
unarmed.

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{3} 	On May 7, 2014, just over four years after the shooting, Bruce Thompson
(Plaintiff) was appointed guardian ad litem for Children. A month later, Plaintiff filed
a complaint against the City of Albuquerque, Ray Schultz (who was the police chief
at the time of the shooting), and Officer Sanchez (collectively, Defendants) for “loss
of consortium under the Tort Claims Act for the wrongful death of Mickey Owings.”
See NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015) (the Tort Claims
Act or TCA). The complaint alleged, among other things, that “Defendant Sanchez
shot Mr. Owings in violation of City policy and the law on deadly force, as [Owings]
did not pose a threat of immediate death or serious physical injury to [Officer
Sanchez] or others” and that “[t]he City of Albuquerque and Ray Schultz contributed
to Mr. Owings’ death by negligently hiring, training, retaining, failing to discipline,
and failing to supervise its officers and by maintain[ing] a policy that allowed police
officers to shoot at a moving vehicle.” At the time of the filing of the complaint,
Children were three, five, and twelve years old.
{4} 	Defendants filed a motion to dismiss for failure to state a claim under Rule 1-
012(B)(6) NMRA. As grounds for dismissal, Defendants argued that (1) Plaintiff had
failed to comply with the TCA’s notice provisions, see § 41-4-16, (2) Plaintiff’s
claims were barred by the statute of limitations in the TCA, see § 41-4-15, (3) the
facts alleged in the complaint were insufficient to establish a loss of consortium claim,

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(4) there is no waiver of immunity under Section 41-4-12 for loss of consortium or
negligent hiring or retention claims. After a hearing, the district court granted the
motion to dismiss. Plaintiff appealed.
DISCUSSION
{5} 	“Whether or not the district court has properly granted a motion to dismiss
under Rule 1-012(B)(6) is a question of law, which we review de novo.” Fitzjerrell
v. City of Gallup ex rel. Gallup Police Dep’t, 2003-NMCA-125, ¶ 8, 134 N.M. 492,
79 P.3d 836. In our review, we accept properly pleaded facts as true. Id. “Dismissal
of a claim under this rule is only proper if [the p]laintiffs are not legally entitled to
relief under any set of provable facts.” Id.
{6} 	The district court’s dismissal order was based on the district court’s conclusion
that “the [TCA] . . . does not waive sovereign immunity for the loss of consortium
claim[s] asserted in this case.” The district court did not reach Defendants’ arguments
for dismissal related to notice, statute of limitations, or sufficiency of the allegations.
The district court’s conclusion was based on its determination that (1) loss of
consortium is not one of the enumerated torts for which immunity is waived under
Section 41-4-12; (2) even if a loss of consortium claim is derivative of an enumerated
tort, such claim “must be brought together with the claim from which it is derived,”
i.e., the battery on Owings, (3) Plaintiff’s claims must fail because Children

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themselves did not suffer one of the enumerated torts. On appeal, Plaintiff argues that
each of these conclusions is incorrect. We agree with Plaintiff.
{7} 	We begin with a discussion of loss of consortium and then turn to the claim in
the context of the TCA. “Loss of consortium was defined in an early case as the
emotional distress suffered by one spouse who loses the normal company of his or her
mate when the mate is physically injured due to the tortious conduct of another.”
Brenneman v. Bd. of Regents of Univ. of N.M., 2004-NMCA-003, ¶ 7, 135 N.M. 68,
84 P.3d 685 (internal quotation marks and citation omitted). Later cases have
recognized loss of consortium claims by children, grandparents, siblings, and
unmarried cohabitating partners. See id. ¶ 20 (recognizing minor children’s loss of
consortium 	claims); 	Fitzjerrell, 	2003-NMCA-125, 	¶¶ 	9-11, 	17 	(discussing
development of loss of consortium law in New Mexico). Uniform Jury Instruction 13-
1810A NMRA defines loss of consortium as “[t]he emotional distress of
(plaintiff) due to the loss [of the society], [guidance], [companionship] and [sexual
relations] resulting from the injury to 	(name of injured or deceased spouse or
child of plaintiff).” (alterations in original). A loss of consortium claim “derives from
the underlying cause of action in the physically-injured [person].” 	Archer v.
Roadrunner Trucking Inc., 1997-NMSC-003, ¶ 11, 122 N.M. 703, 930 P.2d 1155.
Generally, plaintiffs “should be allowed to recover for loss of consortium if the

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evidence shows that their relationships with [the d]ecedent [were] sufficiently close
financially, socially, or both, and if it was foreseeable that the injury to [the d]ecedent
would harm the relationships.” Fitzjerrell, 2003-NMCA-125, ¶ 14.
{8} 	In New Mexico, “governmental entities and public employees shall only be
liable within the limitations of the [TCA] and in accordance with the principles
established in that act.” Section 41-4-2(A). Hence, Plaintiff’s claim “must fit within
one of the exceptions to the immunity granted, or it may not be maintained.”
Pemberton v. Cordova, 1987-NMCA-020, ¶ 4, 105 N.M. 476, 734 P.2d 254.
{9} 	The particular section addressing waivers for law enforcement officials is
Section 41-4-12, which states,
The immunity granted pursuant to Subsection A of Section 41-4-
4 . . . 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 when caused
by law enforcement officers while acting within the scope of their duties.
{10} 	Liability under this section “requires . . . 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 this section or a deprivation of a right
secured by law.” Wachocki v. Bernalillo Cty. Sheriff’s Dep’t, 2010-NMCA-021, ¶ 23,
147 N.M. 720, 228 P.3d 504 (internal quotation marks and citation omitted), aff’d,

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2011-NMSC-039, ¶ 1, 150 N.M. 650, 265 P.3d 701. “[I]mmunity [is also waived] for
negligent training and supervision by a law enforcement officer that causes the
commission by a subordinate law enforcement officer of a tort listed in Section 41-4-
12.” McDermitt v. Corr. Corp. of Am., 1991-NMCA-034, ¶ 7, 112 N.M. 247, 814 P.2d
115.
{11} 	The district court apparently agreed with Defendants’ position that, because loss
of consortium is not listed in Section 41-4-12 as a tort, Plaintiff’s claim cannot stand.
We disagree. In Wachocki, this Court considered a wrongful death claim under
Section 41-4-12 against the Bernalillo County Sheriff’s Department for negligence in
enforcement of the law, which led to the decedent’s death. Wachocki, 2010-NMCA-
021, ¶ 24 (“Claims for injuries proximately caused by an officer’s negligent breach
of one or more of the[] duties [established by statute] are within the purview of
Section 41-4-12.”). Included in the Court’s analysis was assessment of whether the
decedent’s brother’s loss of consortium claim was correctly denied by the district
court. Wachocki, 2010-NMCA-021, ¶ 50. Although the bulk of the analysis focused
on whether the brother met his burden to demonstrate the elements of a loss of
consortium claim, id. ¶ 54, the Court stated “that damages for loss of consortium may
be recovered under the Section 41–4–2(A) waiver of sovereign immunity.” Wachocki,
2010-NMCA-021, ¶ 50; see Williams v. Bd. of Regents of the Univ. of N.M., No. Civ.

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13-0479 JB/WPL, 2014 WL 4351533, ___ F. Supp. 3d ___, at * n.8 (Aug. 18, 2014)
(stating that “[l]oss of consortium can be asserted against New Mexico government
actors, despite that it is not specifically mentioned in the [TCA], provided that the
underlying tort—the one that caused direct physical injury—itself triggers an
immunity waiver under the [TCA].”). For support of this statement, the court cited
Brenneman. The Brenneman Court held that loss of consortium claims fall within the
waiver of immunity in the TCA because the TCA waived immunity “with respect to
specific people and places which, in the performance of certain governmental
functions, give rise to traditional duties to the public.” 2004-NMCA-003, ¶ 19. It went
on to state that loss of consortium damages fall within the traditional tort concepts on
which the TCA is based.
Once a duty is established, loss of consortium damages flow from the
principles of tort liability. As loss of consortium is a damage resulting
from bodily injury and our courts have repeatedly held that loss of
consortium plaintiffs are foreseeable, we believe that loss of consortium
is exactly the type of damage “based upon the traditional tort concepts
of duty” that the Legislature intended to include under the applicable
waivers of sovereign immunity in the [TCA].
Id. (quoting § 41-4-2(B)).
{12} 	Defendants argue that neither Wachocki nor Brenneman applies here. First,
Defendants argue that Wachocki is distinguishable because it did not address whether
a loss of consortium claim must be brought together with a wrongful death action and

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because the facts differed from those here. We fail to see how these differences render
inapplicable Wachocki’s general statement that loss of consortium claims may be
brought under the TCA.
{13} 	Defendants also argue that, because the discussion of the loss of consortium
claim in Wachocki did not reference a particular section of the TCA, it is unclear
whether its holding applied to Section 41-4-12 or Section 41-4-5, which addresses the
negligent operation of a motor vehicle. It is true that, in that case, the decedent’s death
was caused by a vehicle driven by a law enforcement officer. Wachocki, 2010-
NMCA-021, ¶ 3. However, the Wachocki Court began its analysis with the statement,
“We review de novo whether this wrongful death claim falls within the waiver of
immunity under Section 41-4-12[,]” id. ¶ 18, and referenced Section 41-4-12 ten times
in the opinion. Wachocki, 2010-NMCA-021, ¶¶ 1, 18-19, 23-24, 28-29. In contrast,
it never mentioned Section 41-4-5 once. We therefore disagree with Defendants that
“it is unknown as to whether [this Court] was referring to Section 41-4-12 or Section
41-4-5.”
{14} 	To the extent that Defendants argue that Wachocki’s reliance on Brenneman
was misplaced and that therefore Wachocki’s holding is suspect, we disagree.
Defendants’ argument stems from statements in Brenneman that Section 41-4-12 “is
quite distinct from the rest of the Act” and that “[t]he plain language of [Sections 41-

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4-9 and -10] reveals that limitations on recoverable damages under Section 41-4-12
are inapplicable to cases under Sections 41-4-9 and -10.” Brenneman, 2004-NMCA-
003, ¶ 14. We do not interpret these statements, as Defendants do, to indicate that loss
of consortium claims or damages are unavailable under Section 41-4-12. We can find
no case relying on Brenneman to limit the types of damages available under Section
41-4-12. Moreover, in the context of the entire opinion, these statements were
intended to distinguish an earlier case, which, for several reasons, was not good law
on loss of consortium. Brenneman, 2004-NMCA-003, ¶¶ 14-16 (stating that the earlier
case, Lucero v. Salazar, 1994-NMCA-066, 117 N.M. 803, 877 P.2d 1106, did not
address loss of consortium, did not decide whether loss of consortium claims were
barred by the TCA, and was decided before expansion of the loss of consortium body
of law in New Mexico). Since the Court did not undertake a full examination of
Section 41-4-12 and these statements were not based on statutory construction of that
section, we decline to consider these statements as anything more than dicta. See
Sangre de Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, ¶ 23, 84 N.M. 343,
503 P.2d 323 (“The general rule is that cases are not authority for propositions not
considered.”). Hence, they do not undermine the subsequent direct holding in
Wachocki on which we rely here.

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{15} 	We next address the district court’s conclusion that even if a loss of consortium
claim is derivative of an enumerated tort, such claim “must be brought together with
the claim from which it is derived[.]” This contention was rejected in State Farm
Mutual Automobile Insurance Co. v. Luebbers, in which this Court considered
whether a minor child could bring a loss of consortium claim separate from a
wrongful death claim. 2005-NMCA-112, ¶ 37, 138 N.M. 289, 119 P.3d 169. Stating
that New Mexico case law had established that “loss of consortium claims have a
place in our tort jurisprudence[,]” the Court held “that upon the death of a parent, a
minor child may pursue a separate claim for loss of parental consortium outside of a
wrongful death action.” Id.
{16} 	Defendants argue that Luebbers is inapplicable because it did not address
claims under the TCA. However, since we have concluded that loss of consortium
claims can be brought under the TCA, we see no reason that the Luebbers holding
would not extend to the TCA as well. Luebbers’ holding is now part and parcel of the
“traditional tort concepts of duty” that the legislature intended to include under the
TCA. Section 41-4-2(B).
{17} 	Finally, in the dismissal order, the district court stated that “Plaintiff argues the
loss of consortium claim arises from the battery perpetrated on Owings and that
battery is an enumerated tort. While it is true that battery is an enumerated tort,

1There are references in the briefs to potential statute of limitations issues.
However, the district court’s ruling did not rest on the statute of limitations. We
therefore are not addressing the statute of limitations issues.
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[C]hildren did not suffer a battery.” To the extent this statement can be interpreted to
indicate that the district court dismissed Plaintiff’s loss of consortium claims because
Children themselves did not suffer a battery, it erred. A loss of consortium claim is
derivative of another claim. Archer, 1997-NMSC-003, ¶ 11. A “derivative action” is
“[a] lawsuit arising from an injury to another person, such as a husband’s action for
loss of consortium arising from an injury to his wife caused by a third person.”
Black’s Law Dictionary 538 (10th ed. 2014) (emphasis added). As such, the party
claiming a loss of consortium is never the same person who suffered the tort that
caused the loss of consortium. 1
CONCLUSION
{18} 	The district court erred in dismissing Children’s complaint on the ground that
their loss of consortium claims did not fall within the TCA. We reverse and remand
for further proceedings.
{19} 	IT IS SO ORDERED.
__________________________________
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:

MICHAEL E. VIGIL, Chief Judge

TIMOTHY L. GARCIA, Judge

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