November 24, 2009 – Michael and Tia Wachocki, individually and as Personal Representatives of the Estate of Jason Wachocki, deceased, and Bill Wachocki v. Bernalillo County Sheriff’s Department, No. 27,761

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ November 24, 2009

NO. 27,761

MICHAEL and TIA WACHOCKL, individually
and as Personal Representatives of the Estate of
JASON WACHOCKI, deceased, and BILL WACHOCKI,

Plaintiffs-A ppellees/Cross-A ppellants,
V.
BERNALILLO COUNTY SHERIFF’ S DEPARTMENT,

Defendant- A ppellant/Cross-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Linda M. Vanzi, District J udge

McGinn, Carpenter, Montoya & Love, P.A.
Randi McGinn

A. Elicia Montoya

Albuquerque, NM

for Plaintiffs-A ppellees/Cross-A ppellants

Kennedy, Moulton & Wells, P.C.
Deborah D. Wells

Albuquerque, NM

for Defendant-A ppellant/Cross-A ppellee
Slease & Martinez, P.A.

William D. Slease
Jonlyn M. Martinez
Albuquerque, NM
for Amicus Curiae NM Association of Counties

OPINION
BUSTAMANTE, Judge.
{1} 	The Bernalillo County Sheriff’s Department (BCSD), appeals the judgment of
the district court holding it thirty percent liable for the wrongful death of Jason
Wachocki. BCSD argues (1) that several of the district court’s factual findings were
not supported by substantial evidence; (2) that the district court erred in finding that
Jason Wachocki had no comparative fault in causing his death; (3) that the district
court erred in calculating the lost value of Jason’s life and household services; and (4)
that the court improperly determined that this claim fell within the waiver of sovereign
immunity for law enforcement officers under NMSA 1978, Section 41-4-12 (1977).
We do not address the three evidentiary arguments because BCSD failed to conform
to the rules of appellate procedure with regard to briefing such issues. We affirm the
district court’s decision that the Tort Claims Act does not provide immunity in this
case.
{2} 	Jason’s parents and adult brother cross appeal. 	Michael and Tia Wachocki
argue on behalf of their son’s estate that the $400,000 cap under the Tort Claims Act
is unconstitutional and that a judgment for full damages should have been entered
against BCSD. Bill Wachocki argues that the court improperly denied his claim for
loss of consortium with his deceased brother. We conclude that the cap on damages

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remains constitutional because it continues to bear a rational relation to a legitimate
governmental purpose and that the right to recover for loss of consortium does not
extend to the facts of this case.
BACKGROUND
{3} 	This case arises from the death of twenty-two-year-old Jason Wachocki (Jason).
Jason was killed when his vehicle was struck by a speeding van driven by Willie Hiley
(Willie), a corrections officer at the Metropolitan Detention Center (jail). 	After a
bench trial, the district court found Willie seventy percent at fault for Jason’s death
and BCSD thirty percent at fault. The court concluded that BCSD’s liability resulted
from its negligence in failing to enforce traffic laws against jail corrections officers
on Shelly Road.
{4} 	The fatal collision occurred at the intersection of Shelly Road and Speedway
Boulevard west of Albuquerque. Shelly Road is a two-lane road running north and
south, providing access to the jail, Sandia Motor Speedway (the race track), and the
Albuquerque Solid Waste Management Department (SWMD). Speedway Boulevard
makes a T-intersection with Shelly Road, and leads to the race track to the west.
BCSD has the responsibility for patrolling these roadways.
{5} 	Jason worked weekends at the race track on the fire and safety crew. As Jason
left his shift on the night of August 21, 2004, he traveled east along Speedway

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Boulevard, coming to a complete stop at the three-way intersection with Shelly Road
at approximately 10:58 p.m. At the same time, Willie was driving south along Shelly
Road on his way to work the graveyard shift at the jail. As Willie approached the
intersection of Speedway Boulevard, he turned off his vehicle’s headlights in an
apparent attempt to determine whether there were any other vehicles in the area based
on signs of illumination from their headlights. 	As Jason proceeded through the
intersection, Willie’s vehicle came out of the darkness with its headlights off, making
it impossible for Jason to see it approaching. Willie ran the stop sign driving in excess
of 75 miles per hour, or almost twice the posted speed limit, striking Jason’s vehicle
and killing him instantly.
{6} 	As early as 2000, before the jail was in operation, BCSD was informed by a
SWMD supervisor about a “very serious traffic situation” on Shelly Road, involving
motorists speeding and running the stop sign. 	BCSD responded by twice running
“traffic specials” in the area and by training SWMD safety officers in the use of radar
guns so that SWMD could monitor and issue citations to its own employees. 	In a
series of speed audits, SWMD safety officers clocked vehicles—including non-
SWMD employees—going 51-111 mph in a 45 mph zone, documenting thirty-nine
violations in one day alone.
{7} 	The jail opened in 2003 and traffic increased significantly on Shelly Road. The

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new jail had 75-100 employees working each of its three shifts. These employees,
along with law enforcement and members of the public, all began using Shelly Road
to get to and from the jail.
{8} 	In the fourteen months between the opening of the jail and Jason’s death, BCSD
received numerous complaints about corrections officers and others violating traffic
laws on Shelly Road. 	It also received requests to enforce the traffic laws on the
roadways leading to the jail. 	Harry Tipton, the jail’s director, had witnessed law
enforcement officers, corrections officers, and members of the public speeding,
passing illegally, and running through stop signs in the area, and asked BCSD to step
up patrols. Dawn Freeze, the general manager of the race track, saw traffic violations
on an almost daily basis, including speeding, illegal passing, and running stop signs.
She made twenty phone calls reporting traffic violations by law enforcement officers,
corrections officers, and others, and specifically requested traffic enforcement. Chuck
Tipton, Jason’s boss at the race track, made two phone calls reporting traffic violations
and requesting enforcement. 	A similar phone call was made by Mike Archuleta,
security superintendent for SWMD.
{9} 	The district court found that BCSD failed to respond to any of these requests
to enforce traffic laws on the roads leading to the jail and that it did not enforce traffic
laws against law enforcement officers and most corrections officers. 	After the

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opening of the jail and before Jason’s death, SWMD continued to monitor traffic in
the area and documented 192 vehicles speeding, illegally passing, and running stop
signs over five separate days. Most of the vehicles violating traffic laws were those
of law enforcement officers or corrections officers. 	The district court found that
during the same time that these violations occurred, BCSD wrote a total of three
speeding citations and one warning for running the stop sign at the intersection where
Jason was killed. 	Even after Jason’s death, video surveillance of the intersection
revealed that BCSD’s own officers continued to run the stop sign at Shelly Road.
Jason’s younger brother Bill also testified that he was actually a passenger in a jail
transport van that sped through the stop sign on its way to the jail after Jason’s death.
{10} 	The district court also found that BCSD knew that its failure to patrol traffic on
Shelly Road could lead to a serious accident. At trial, Sheriff Darren White candidly
acknowledged that if traffic laws were not enforced in a certain area, or against certain
persons, vehicles would drive very fast causing more accidents and more severe
accidents. Sheriff White also testified that issuing citations would deter violations of
traffic laws not only by the person receiving the citation, but also by those who see the
police taking enforcement action.
11} 	Based on the foregoing, the district court found that Willie knew
that although law enforcement and corrections officers were speeding,
illegally passing and running the stop signs, the BCSD was not enforcing

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the traffic laws against them on the roadways to and from the [jail;]
. . . that because BCSD did not stop or issue any citations to law
enforcement or corrections officers, he would not be stopped or punished
for violating the traffic laws on those roadways.
{12} 	The court concluded that:
The [BCSD], through its deputies and employees, was negligent in
violating the traffic laws on Shelly Road, the frontage road and at the 3-
way intersection on the road to the [jail].
The [BCSD], through its deputies and employees, was negligent in not
enforcing the law and allowing other deputies, law enforcement officers
and most corrections officers to violate the traffic laws on Shelly Road,
the frontage road and at the 3-way intersection on the road to the [jail].
The BCSD, through its deputies and employees, was negligent in
deciding not to respond to citizen complaints and concerns about
speeding, illegal passing and running the stop sign on Shelly Road and
at the 3-way intersection.
The negligence of the BCSD, through its deputies and employees, was
a contributing cause of the collision on August 21, 2004[,] and the
wrongful death of Jason Wachocki.
{13} 	The district court set the total compensatory damages for Jason’s death at
$3,707,563.82. BCSD’s comparative fault portion amounted to $1,112,269.15, but
the judgment was capped at $400,000 pursuant to NMSA 1978, Section 41-4-19(A)(3)
(1991) (amended 2007), which sets forth maximum governmental liability under the
Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2009).
The Wachockis argue that this cap has become unconstitutional because it has failed

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to account for inflation and cost-of-living increases since it was imposed. They argue
that it no longer serves any rational purpose because economic changes have rendered
it useless as a deterrent to governmental negligence and because it violates a
fundamental right to hold one’s government fully accountable for its negligent acts.
{14} 	Jason’s brother, Bill Wachocki, cross appeals the denial of his claim for loss of
consortium. Bill was twenty-two years old at the time his brother was killed. He and
Jason had been roommates for approximately eight months immediately preceding
Jason’s death. During that time the two split bills, shared household chores, socialized
together, and relied on each other for friendship.
DISCUSSION
BCSD’s Evidentiary Arguments Cannot be Addressed
{15} 	We do not address BCSD’s challenge of the district court’s findings of fact
substantively because its brief does not conform to the New Mexico Rules of
Appellate Procedure. 	Its brief renders it virtually impossible for us to review its
assertions because it fails to cite the record and fails to present the evidence as a
whole. 	The only way to properly support a challenge to the sufficiency of the
evidence is to include in the argument section of the brief in chief “citations to
authorities, record proper, transcript of proceedings or exhibits relied upon.” Rule 12-
213(A)(4) NMRA. Where a party fails to cite any portion of the record to support its

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factual allegations, the Court need not consider its argument on appeal. 	Santa Fe
Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819, 824
(1992).
{16} 	The argument section of BCSD’s brief includes no citations as required by the
Rule. 	Its multiple assertions are virtually impossible to confirm given the large
record: a 1300-page record proper, multiple volumes of trial testimony transcripts,
and many exhibits. 	“This [C]ourt will not search the record to find evidence to
support an appellant’s claims.” In re Estate of Heeter, 113 N.M. 691, 694, 831 P.2d
990, 993 (Ct. App. 1992).
{17} 	Furthermore, BCSD fails to demonstrate how the district court’s findings were
unsupported by substantial evidence. “A contention that a . . . finding of fact is not
supported by substantial evidence shall be deemed waived unless the argument
identifies with particularity the fact or facts that are not supported by substantial
evidence.” Rule 12-213(A)(4). Where the appellant fails to “include the substance
of all the evidence bearing upon a proposition,” the Court of Appeals will not consider
a challenge to the sufficiency of the evidence. 	Martinez v. Sw. Landfills, Inc., 115
N.M. 181, 186, 848 P.2d 1108, 1113 (Ct. App. 1993). Here, BCSD discussed only
those facts which it argues tend to show that some of the district court’s findings were
contradicted. BCSD wholly fails to address the substance of all the evidence bearing

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on the findings. 	In doing so, BCSD of necessity did not demonstrate how the
evidence supporting the district court’s findings fails to amount to substantial
evidence. Accordingly, BCSD’s challenges to the district court’s findings of fact are
deemed waived, and we will not consider its challenge to the sufficiency of the
evidence.
The Wachockis’ Claim for Wrongful Death Falls Within the Tort Claims Act
Waiver of Immunity for Law Enforcement Officers
{18} 	“Generally, the Tort Claims Act provides governmental entities and public
employees acting in their official capacities with immunity from tort suits unless the
Act sets out a specific waiver of that immunity.” Weinstein v. City of Santa Fe, ex rel.
Santa Fe Police Dep’t, 121 N.M. 646, 649, 916 P.2d 1313, 1316 (1996). “Section 41-
4-12 of the Act sets out the applicable waiver of immunity for the acts or omissions
of law enforcement officers,” listing several specific torts for which liability is
waived. 	Weinstein, 121 N.M. at 649, 916 P.2d at 1316. 	Section 41-4-12 waives
immunity from liability for “wrongful death . . . resulting from . . . deprivation of any
rights . . . secured by the . . . laws of . . . New Mexico when caused by law
enforcement officers while acting within the scope of their duties.” Weinstein, 121
N.M. at 649, 916 P.2d at 1316 (internal quotation marks omitted). This waiver covers
intentional torts committed by law enforcement officers but can also extend to acts
committed by third parties when caused by law enforcement negligence. Id. at 652,

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916 P.2d 1319. We review de novo whether this wrongful death claim falls within the
waiver 	of 	immunity 	under 	Section 	41-4-12. 	See 	In 	re 	Estate 	of 	Armijo,
2000-NMCA-008, ¶ 5, 128 N.M. 565, 995 P.2d 487 (filed 1999) (holding that
construction of a statute is a matter of law), aff’d in part, rev’d in part and remanded
by 2001-NMSC-027, 130 N.M. 714, 31 P.3d 372.
{19} 	BCSD argues that the facts of this case are not within the purview of the waiver
found in Section 41-4-12. It argues that, to fall within the waiver, there must have
been a specific incident to which law enforcement failed to respond. 	The New
Mexico Association of Counties (NMAC) provides amicus briefing on this issue and
makes a similar argument. It argues that the facts of this case fall outside the waiver
because each prior case finding a Section 41-4-12 waiver has dealt with “a specific
criminal act in progress or a specific criminal actor who had been called to the
attention of law enforcement and to which law enforcement wholly failed to respond
or allowed to proceed without taking any enforcement or protective actions for the
benefit of foreseeable victims.” Essentially, their argument is that BCSD’s statutory
duties did not extend to Jason because it was either because it was not foreseeable that
any injury could result from its inaction, or because Jason was not a foreseeable victim
of such inaction.
{20} 	Our Supreme Court rejected similar arguments in Torres v. State, 119 N.M.

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609, 894 P.2d 386 (1995). 	In Torres, a murder suspect eluded a manhunt in New
Mexico, fled to California, and killed two people. 	The estates of the California
victims brought suit, asserting that the New Mexico law enforcement entities involved
were negligent in the way they conducted their investigation. The Albuquerque Police
Department and New Mexico Department of Public Safety argued that as a matter of
law the out-of-state victims were not foreseeable because they were too remote from
anything that occurred in New Mexico. 	Id. at 612-13, 894 P.2d at 389-90.
Specifically, they argued that in the context of alleged negligent investigation by law
enforcement, a victim is not foreseeable unless he or she is in imminent danger. Id.
at 613, 894 P.2d at 390. The Supreme Court rejected this argument, noting that the
“[L]egislature has enunciated no policy that gives rise to arbitrary time and place
restrictions on the duty of law enforcement officers.” Id. at 614, 894 P.2d at 391.
{21} 	In Torres, the Supreme Court also refused to limit negligent investigation
actions to circumstances where the police knew the identity and condition of the
criminal actor. 	Id. 	The Court noted that “knowledge of the identity . . . of the
criminal . . . is not determinative in defining duty.” Id. Instead, the Court stated the
question of forseeability, as it relates to Section 41-1-12, as whether “there is a
possible risk . . . to some victim and the officer knows of that risk.” Torres, 119 N.M.
at 614, 894 P.2d at 391.

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{22} 	In describing the duty to investigate under NMSA 1978, Section 29-1-1 (1979),
the Court held that “[a]ll persons who are foreseeably at risk within the general
population are within the class of persons to be protected.” Torres, 119 N.M. at 615,
894 P.2d at 392. In short, the Supreme Court made clear that the duty to investigate
under Section 29-1-1 is subject to a “traditional tort concept of forseeability.” Torres,
119 N.M. at 615, 894 P.2d at 392. The statute itself does not alter the normal tort
analysis of forseeability. 	The duty may run to known individuals or a class of
individuals. See Schear v. Bd of County Comm’rs, 101 N.M. 671, 675, 687 P.2d 728,
732 (1984) (involving a known potential victim); California First Bank v. State, 111
N.M. 64, 66, 801 P.2d 646, 648 (1990) (involving a group of potential, but
unidentified, individuals—persons driving on a certain route being used by an
intoxicated driver).
{23} 	Contrary to BCSD and NMAC’s arguments, the Section 41-4-12 waiver of
immunity requires only 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.” Weinstein,
121 N.M. at 649, 916 P.2d at 1316. 	There is no dispute that BCSD was a law
enforcement entity acting within the scope of its authority. Therefore, the salient issue
is whether Jason’s wrongful death resulted from one of the enumerated torts or from

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the deprivation of some right.
{24} 	Here, the Wachockis argue that Jason’s wrongful death resulted from BCSD’s
deprivation of rights secured to him by NMSA 1978, Section 4-37-4 (1975), and
Section 29-1-1. Section 4-37-4(A)(1) states in relevant part that “[i]t is the duty of
every county sheriff, deputy sheriff, constable and other county law enforcement
officer to . . . enforce the provisions of all county ordinances.” Section 29-1-1 states
in relevant part that “[i]t is hereby declared to be the duty of every sheriff, deputy
sheriff, constable and every other peace officer to investigate all violations of the
criminal laws of the state which are called to the attention of any such officer or of
which he is aware.” Both sections secure private rights that may be enforced under
the Tort Claims Act because the duties they establish are designed to protect
individual citizens from harm. Weinstein, 121 N.M. at 654-55, 916 P.2d at 1321-22.
Claims for injuries proximately caused by an officer’s negligent breach of one or more
of these duties are within the purview of Section 41-4-12. Torres, 119 N.M. at 612,
894 P.2d at 389.
{25} 	A deprivation of one of these rights may occur where law enforcement fails to
investigate or take enforcement action against certain persons committing criminal
acts. 	For example, in California First Bank, 111 N.M. at 68, 801 P.2d at 648, the
McKinley County Sheriff’s Department allegedly followed a policy of non-

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enforcement against persons who may have been driving under the influence after
having patronized “Indian Bars.” There, sheriff’s deputies saw Harrison Shorty come
out of a bar, fire off several shots with a firearm, and then re-enter the bar. 	Id.
Despite witnessing this sequence of events, the deputies failed to intervene or
apprehend Shorty. Id. Shorty later drove away from the bar in an intoxicated state
and was involved in a collision that killed three people. Id. The sheriff’s department
was sued for failing to investigate the driver as required by Section 29-1-1. California
First Bank, 111 N.M. at 73, 801 P.2d at 655. Our Supreme Court concluded that the
claims against the sheriff’s department fell within the purview of the waiver. Id.
{26} 	The similarity between the facts of California First Bank and this case are
evident. Shorty was a member of a specific group against whom certain traffic laws
were not enforced as a matter of policy. Willie was a jail corrections officer, one of
the groups against whom—as determined by the district court—BCSD failed to
enforce traffic laws on Shelly Road. Both cases involve decisions by law enforcement
to ignore a known risk to motorists created by the improper driving of others. 	The
situation here is more aggravated given that the offending parties were in large part
members of law enforcement themselves.
{27} 	The district court’s findings support its conclusion that BCSD breached its
duties under Sections 4-37-4 and 29-1-1. Specifically, the district court found that

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BCSD received numerous complaints from the public and jail officials about the
dangerous traffic situation on Shelly Road involving its own officers, the jail
corrections officers, and others. Despite this knowledge, during the period between
the opening of the jail and Jason’s death, BCSD did not enforce traffic laws as
required by Section 4-37-4 against its own officers, corrections officers, and others
using Shelly Road. BCSD failed to investigate violations of traffic laws even though
it was made aware of the problem by numerous complaints from credible sources.
Disturbingly, this pattern continued even after Jason’s death.
{28} 	There remains the issue of whether this breach contributed to cause Jason’s
death. 	See 	§ 41-4-12 (waiving immunity for wrongful death resulting from
deprivation of rights “when caused by law enforcement officers while acting within
the scope of their duties”). The established law of negligence guides our analysis.
Weinstein, 121 N.M. at 652, 916 P.2d at 1319. In negligence, “[a] proximate cause
requires only a result that proceeds in a natural and continuous sequence from the act
or omission in question.” Cross v. City of Clovis, 107 N.M. 251, 255, 755 P.2d 589,
593 (1988). Here, Sheriff White testified that the failure to enforce traffic laws would
result in more accidents and more serious accidents. He also testified that by fulfilling
its enforcement obligations, BCSD could deter traffic violations. 	It would be
anomalous to discount Sheriff White’s testimony on these matters. Thus, the district

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court could reasonably conclude, based on BCSD’s articulation of the known
ramifications of non-enforcement, that the collision and resulting fatality were natural
consequences of the risk created by BCSD’s failure to act. In short, BCSD’s failure
to act made Jason’s death tragically predictable.
{29} 	Finally, BCSD and NMAC rely on Bober v. New Mexico State Fair, 111 N.M.
644, 808 P.2d 614 (1991), to argue that immunity is not waived under the facts of this
case. 	The plaintiff in Bober was injured when the vehicle in which she was a
passenger was struck by another vehicle exiting the State Fair grounds amid heavy
traffic after a rock concert. Plaintiff sued the New Mexico State Police, among others,
alleging that the “State Police had a duty to provide adequate traffic supervision and
control on the Fairground while patrons were leaving the concert.” 	Id. at 653, 808
P.2d at 623. The Supreme Court upheld dismissal of the case against the State Police
on two related grounds. First, the Court held that the bare assertion of negligence,
with no supporting facts indicating how any duty to act was invoked or arose in the
particular fact pattern, was insufficient. Id. at 653-54, 808 P.2d at 623-24. Second,
the Court noted that Section 41-4-12 requires more than simple negligence in the
performance of a law enforcement officer’s duties. Bober, 111 N.M. at 653-54, 808
P.2d at 623-24. As illustrations of the type of facts or circumstances which amount
to more than simple negligence, the Court cited Cross, Schear and Methola v. County

17
of Eddy, 95 N.M. 329, 622 P.2d 234 (1980) each of which involved an intentional tort
committed by a third party as a result of the negligence of law enforcement officers.
By contrast to Bober, Cross, Schear, and Methola, the Wachockis have proved
specific facts invoking BCSD’s duty to investigate, and they have introduced evidence
from which the district court could reasonably conclude that BCSD’s negligent non-
enforcement of traffic laws caused a third party, Willie, to commit an intentional tort.
Thus, everything the Court pointed out as missing in the claim against the State Police
in Bober is present here. As such, Bober is simply not applicable.
Public Policy Does Not Foreclose Liability
{30} 	In its amicus curiae brief, NMAC asserts that our affirmance of the district
court’s decision will, in effect, penalize BCSD for its resource-allocation decisions.
It argues that the appropriate allocation of limited funds requires BCSD to exercise
judgment about where to focus its efforts and that the courts are in no position to
second-guess such internal decisions. While we are mindful that BCSD and other law
enforcement agencies must operate in the face of resource constraints, we cannot
agree that this justifies immunity under these facts. A similar argument was made in
Torres. The Supreme Court’s response then is equally apropos here:
The Court of Appeals held that as a matter of policy the duty to
investigate and the duty to exercise ordinary care should not be extended
to the victims in this case because it would be ‘unrealistic in light of
rising criminal activity and limited public resources.’ Although ‘rising

18
criminal activity’ and ‘limited public resources’ may be factors for the
jury to consider in determining whether APD or DPS breached its
duties, . . . and while these factors may bear upon the discharge of duty,
they do not bear upon the existence of the statutory duty of law
enforcement officers to investigate crimes.
Torres, 119 N.M. at 612, 894 P.2d at 389 (internal quotation marks, citation and
footnote omitted). Our holding does not constrain BCSD’s discretion in determining
how to best allocate its resources beyond the constraints, if any, already imposed by
the Legislature under Sections 4-37-4 and 29-1-1.
{31} 	Further, the aggravated facts here argue against NMAC’s position. BCSD had
ample notice of repeated dangerous traffic violations by its own employees, officers,
jail employees, and city employees. Its response was minimal at best, even though the
sheriff himself recognized the potential consequences of non-enforcement. If this set
of facts were to be deemed off-limits to judicial review, the policy choices embodied
in Sections 4-37-4 and 29-1-1, as well as in the Tort Claims Act, would be largely
negated.
Constitutionality of the Tort Claims Act Cap on Damages
{32} 	On cross appeal, the Wachockis argue that BCSD’s liability should not have
been capped at $400,000 because the Tort Claims Act’s cap on damages is
unconstitutional under both the State and Federal Constitutions. 	The Wachockis
assert that the cap is unconstitutional based on four grounds: (1) that the cap violates

19
state and federal guarantees of equal protection, (2) it violates the guarantee of
substantive due process, (3) it encroaches on the separation of powers clause, and (4)
it encroaches on the right to a jury trial.
{33} 	We review the Wachockis’ constitutional challenges de novo. 	State v.
Druktenis, 2004-NMCA-032, ¶ 14, 135 N.M. 223, 86 P.3d 1050. “[T]here exists a
presumption of constitutionality, and the party attacking the constitutionality of the
statute has the burden of proving the statute is unconstitutional beyond all reasonable
doubt.” 	ACLU of N. M. v. City of Albuquerque, 2006-NMCA-078, ¶ 10, 139 N.M.
761, 137 P.3d 1215 (internal quotation marks and citation omitted).
{34} 	Although the Wachockis raise equal protection and due process claims under
both the State and Federal Constitutions, they have not made the required showing for
divergence from federal precedent. See State v. Gomez, 1997-NMSC-006, ¶ 19, 122
N.M. 777, 932 P.2d 1 (stating that a state court may rely on the state constitution,
diverging from federal precedent, only if it is shown that there is “a flawed federal
analysis, structural differences between [the] state and federal government, or
distinctive state characteristics” (citation omitted)). 	“We therefore limit our due
process and equal protection analysis to the federal constitution, unpersuaded that the
state constitution affords any greater protections.” ACLU of N. M., 2006-NMCA-078,
¶ 18.

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A. 	Application of the Tort Claims Act Cap on Damages Did Not Violate the
Wachockis’ Rights to Substantive Due Process
{35} 	The premise behind the Wachockis’ substantive due process argument is that
the cap inhibits the ability of all individuals to hold their government fully
accountable. They argue that the ability to hold the government fully accountable is
a “fundamental right,” based on several state constitutional provisions relating to
popular sovereignty, right to self-government, inherent rights, and victim’s rights. The
Wachockis argue that, when read together, these provisions create a fundamental right
to recover damages against the government in an amount at least in proportion with
inflation. 	They argue that, in order for the cap to have the same value as it did in
1991, the $400,000 per person cap should be valued at $603,275 and that the failure
to increase the cap reduces the waiver’s effectiveness in deterring governmental
negligence. Notwithstanding these arguments, even assuming that a right to recover
compensation in proportion with inflation exists, it does not rise to the level of a
fundamental right falling within the protection of substantive due process.
{36} 	Federal substantive due process protection extends only to a narrow and limited
set of fundamental rights, which include the “rights to marry, to have children, to
direct the education and upbringing of one’s children, to marital privacy, to use
contraception, to bodily integrity, and to abortion.” Washington v. Glucksberg, 521
U.S. 702, 720 (1997) (citations omitted). The Supreme Court has also “assumed, and

21
strongly suggested, that the Due Process Clause protects the traditional right to refuse
unwanted lifesaving medical treatment.” Id. (citation omitted).
{37} 	The Supreme Court has been reluctant to expand substantive due process
protections beyond these areas, stating that it will exercise the “utmost care” when
asked to break new ground in this area of law out of concern that there are no real
outer constraints. Id. (internal quotation marks and citation omitted). The Wachockis
make no argument that the right to full recovery against the government in tort falls
within one of the recognized areas protected under substantive due process.
Therefore, we conclude that the Wachockis have suffered no substantive due process
violation.
The Tort Claims Act Cap on Damages Does Not Violate Equal Protection
{38} 	The Wachockis argue that the cap on damages creates two classes of individuals
receiving unequal treatment: 	(1) victims with more serious injuries exceeding
$400,000 in damages versus victims with minor injuries equal to or less than
$400,000, where the latter receive full compensation and the prior do not; and (2)
victims of non-government tortfeasors who may be fully compensated and victims of
government tortfeasors whose compensation is limited by the cap. 	Assuming that
these represent classes of persons similarly situated but treated differently—such that
equal protection is properly invoked—we find no constitutional infirmity.

22
{39} 	When a statute is challenged on equal protection grounds, “one of three levels
of review is applied, depending on either the rights affected . . . or the status or group
of people it affects.” ACLU of N.M., 2006-NMCA-078, ¶ 19. Strict scrutiny requires
the most exacting review and applies only when the violated interest is a fundamental
right or civil liberty guaranteed by the constitution or where a legislative classification
involves a suspect classification, such as race or ancestry. 	Trujillo v. City of
Albuquerque, 1998-NMSC-031, ¶ 16, 125 N.M. 721, 965 P.2d 305 (Trujillo II).
Under strict scrutiny, the burden is on the government to prove that the legislation at
issue is narrowly tailored to accomplish a compelling governmental interest. ACLU
of N.M., 2006-NMCA-078, ¶ 19. Intermediate scrutiny is less exacting and applies
when a violated interest is important but not fundamental, or when the interest
involves a sensitive but not suspect class. 	Id. 	Under intermediate scrutiny, the
government must prove that the legislation at issue is substantially related to an
important governmental interest. Id. Finally, rational basis review applies when the
interest at issue is neither a fundamental or important right, or when a legislative
classification does not involve a suspect or sensitive class. Id. Under rational basis,
the challenger has the burden to demonstrate that the statute is not rationally related
to a legitimate governmental interest. Id.
{40} 	The Wachockis argue that the cap on damages is unconstitutional even under

23
the rational basis standard, but they urge us to apply intermediate scrutiny. 	They
argue that the ability to hold ones “government responsible and accountable when it
acts to harm . . . must be deemed a fundamental right.” 	We recognize that if a
fundamental right were at issue, strict scrutiny would be proper. 	Nonetheless, the
Wachockis urge us to apply only intermediate scrutiny on this issue. We cannot do
so because application of anything other than rational basis review would conflict with
established Supreme Court precedent.
{41} 	In Trujillo II, our Supreme Court gave detailed consideration to the question of
the proper standard of review to be applied to a challenge to the cap on damages under
Section 41-4-19. 	Trujillo II, 1998-NMSC-031, ¶¶ 26-32. There, the Court applied
intermediate scrutiny to a constitutional challenge of the cap, but its holding was
clearly limited only to the facts of that case, based on the doctrine of law of the case,
which is inapplicable here. Id. ¶ 13. With respect to the case at hand, the Court gave
clear guidance, stating that “[r]ational basis scrutiny is the appropriate equal
protection analysis to be employed.” Id. ¶ 26. “The interests at stake in a challenge
of the TCA cap are of an economic or financial nature, and this Court is unconvinced
that . . . equal protection rights are affected so substantially that intermediate scrutiny
is warranted.” Id. Therefore, neither intermediate nor strict scrutiny is proper, and we
consider the Wachockis’ arguments only to determine whether the cap on damages

24
bears a rational relation to some important governmental purpose.
{42} 	The Wachockis argue that, even if the damages cap was constitutional at the
time when it was passed, Section 41-4-19 is now irrational because it does not include
any cost-of-living increases. The Wachockis’ arguments in support of this position
were stated in our substantive due process analysis, and we do not restate them here.
Although we appreciate the weight of the arguments, we cannot conclude that the cap
now lacks a rational basis.
{43} 	In Trujillo v. City of Albuquerque (Trujillo I), our Supreme Court took it as
“self-evident that preservation of the public treasury constitutes an important
governmental interest.” 	110 N.M. 621, 628, 798 P.2d 571, 578 (1990) (internal
quotation marks and citation omitted). 	Furthermore, imposition of a fixed cap, as
opposed to one that fluctuates as a percentage of damages, bears a rational relationship
to the governmental need to protect against the danger of a catastrophic judgment and
also provides a basis for rational fiscal planning. See State ex rel. Colo. State Claims
Bd. v. DeFoor, 824 P.2d 783, 788 (Colo. 1992) (en banc). Even if a better system of
accomplishing these goals could be formulated, we agree with the Colorado court’s
analysis in DeFoor when it stated that “it is not the function of [the courts] to rewrite
legislation; the power to change the present scheme rests with the [legislature].” Id.
at 787 n.3 (internal quotation marks and citation omitted). Thus, we conclude that the

25
current fixed cap is rationally related to the legislative goal of protecting the public
treasury.
B. 	The Tort Claims Act Cap on Damages Does Not Encroach On The Right
to Trial by Jury or the Separation of Powers Clause
{44} 	The Wachockis argue that the TCA cap infringes on their constitutional rights
to access the courts and to trial by jury because it interferes with the jury’s—or other
judicial fact finder’s—right to determine damages. We are unconvinced that either
of these rights have been impaired. First, the Wachockis never asserted their right to
trial by jury, and there is no argument that they would have been denied a jury had one
been requested. Accordingly, the right was waived and cannot be asserted for the first
time on appeal. Rule 1-038(D) NMRA; see Richardson v. Carnegie Library Rest.,
Inc., 107 N.M. 688, 691-92, 763 P.2d 1153, 1156-57 (1988) (declining to consider
whether liability limits under the Dramshop Act violated the right to a jury trial where
the complaining party never requested a jury trial), overruled on other grounds by
Trujillo II, 1998-NMSC-031, ¶ 18.
{45} 	In addition, the Wachockis fail to show how the right of access to the courts or
the right to a jury incorporate a right to maximum recovery. In Trujillo II, the Court
concluded that the constitutional right to access the courts did not create a right to
unlimited recovery against the government. Id. ¶ 20. The Court went on to say that
“nothing within New Mexico’s constitutional provision itself purports to control the

26
scope or substance of remedies afforded.” Id. ¶ 23. We fail to see how the right to a
jury—which can be seen as a component of the broad right to access—changes the
analysis of or the result reached in Trujillo II. See Bd. of Educ. v. Harrell, 118 N.M.
470, 481, 882 P.2d 511, 522 (1994) (stating New Mexico’s right to trial by jury
“merely preserves the common law right to jury trial and does not create a new or
broader right.” (internal quotation marks and citation omitted)); Sandoval v. Chrysler
Corp., 1998-NMCA-085, ¶¶ 10, 12, 125 N.M. 292, 960 P.2d 834 (recognizing that an
excessive jury award may be reduced at the discretion of the district court); Carlile v.
Continental Oil Co., 81 N.M. 484, 486, 468 P.2d 885, 887 (Ct. App. 1970)
(concluding that reasonable regulatory provisions, even if “different in form and
substance from those in effect at the adoption of the Constitution, do not abridge, limit
or modify the right [to a jury]”).
{46} 	The Wachockis’ final constitutional argument is that the fixed cap on damages
impermissibly infringes on the authority of the judicial branch to regulate court
practices, procedures, and verdicts. Relying on two cases from other jurisdictions,
they argue that the cap forces judges to grant a compulsory, predetermined remittitur.
The Wachockis first cite Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251,
253 (Kan. 1988), overruled in part by Bair v. Peck, 811 P.2d 1176 (Kan. 1991), which
dealt with a cap limiting recovery in medical malpractice actions. They also cite Best

27
v. Taylor Machine Works, 689 N.E.2d 1057, 1063 (Ill. 1997), which dealt with a
statute capping recovery for all “non-economic” injuries. Neither of these cases is
persuasive because they both deal with damage caps favoring private defendants and
thus present examples of the legislature regulating judicial processes that are
otherwise founded squarely within the common law. 	See Marrujo v. N.M. State
Highway Transp. Dep’t, 118 N.M. 753, 761, 887 P.2d 747, 755 (1994) (stating that
“[t]he right to sue the government is a statutory right and the [L]egislature can
reasonably restrict that right”); see also Best, 689 N.E.2d at 1072 n.3 (stating that
when considering rights founded in statute, the “[L]egislature’s right to limit the
maximum recovery could not be questioned”).
{47} 	The Wachockis overstate the breadth of the separation of powers clause. Citing
Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 312, 551 P.2d 1354, 1359
(1976), they argue generally that the Legislature lacks power to regulate practice and
procedure in our state courts. In Ammerman, our Supreme Court found a separation
of powers issue because the legislature had imposed a standard of review in certain
criminal cases entirely inconsistent with the standard of review required by the
Court’s appellate rules. Where legislation does not create such a direct conflict, “the
Legislature is not categorically prohibited from enacting legislation affecting practice
and procedure.” Grassie v. Roswell Hosp. Corp., 2008-NMCA-076, ¶ 10, 144 N.M.

28
241, 185 P.3d 1091, cert. quashed, 2009-NMCERT-005, 146 N.M. 728, 214 P.3d 793.
In order to determine whether the TCA cap violates separation of powers, we must
determine whether it is in irreconcilable conflict with the power of the courts to grant
remittitur.
{48} 	A district court may enter “[a]n order granting a remittitur or, in the alternative
a new trial, . . . [where] the jury’s award of damages is so grossly out of proportion to
the injury received as to shock the conscience [of the court].” 	Sandoval, 1998-
NMCA-085, ¶ 9 (alterations omitted) (internal quotation marks and citation omitted).
The court determines whether an award is excessive so as to shock the conscience by
considering: “(1) whether the evidence, viewed in the light most favorable to [the]
plaintiff, substantially supports the award[,] and (2) whether there is an indication of
passion, prejudice, partiality, sympathy, undue influence or a mistaken measure of
damages on the part of the fact finder.” 	Id. (internal quotation marks and citation
omitted).
{49} 	The TCA cap, as a limit on damages for a cause of action created by statute,
does not interfere with “the judicial machinery administered by the courts for
determining the facts upon which the substantive rights of the litigant rest and are
resolved.” Ammerman, 89 N.M. at 310, 551 P.2d at 1357. Unlike Ammerman, where
the legislative rule directly eclipsed the Court’s authority, the TCA cap does not

29
eclipse a district court’s authority to order remittitur. We agree with the conclusion
of the district court that the TCA cap is based on a broad legislative policy, rather than
on any consideration of whether a damages award is unsupported by evidence or the
result of some undue influence. Such considerations remain within the authority of
the district court and the TCA cap does not prevent a district court from ordering
remittitur under proper circumstances. Thus, we are unconvinced that the cap creates
a separation of powers violation.
Loss of Consortium
{50} 	Jason’s brother, Bill Wachocki (Bill), cross appeals the district court’s denial
of his loss of consortium claim, arguing that he and his brother shared a close
relationship meeting the requirements for recovery. As a preliminary matter, we note
that damages for loss of consortium may be recovered under the Section 41-4-2(A)
waiver of sovereign immunity. Brenneman v. Bd. of Regents of Univ. of N.M., 2004-
NMCA-003, ¶ 19, 135 N.M. 68, 84 P.3d 685. It is a “method of compensation for one
who has suffered the loss of a significant relational interest.” Castillo v. City of Las
Vegas, 2008-NMCA-141, ¶ 25, 145 N.M. 205, 195 P.3d 870 (internal quotation marks
and citation omitted). Generally, a party may “recover for loss of consortium if the
evidence shows that their relationship[] with [the d]ecedent was sufficiently close
financially, socially, or both, and if it was foreseeable that the injury to [the d]ecedent

30
would harm the relationship[].” 	Fitzjerrell v. City of Gallup, ex rel. Gallup Police
Dep’t, 2003-NMCA-125, ¶ 14, 134 N.M. 492, 79 P.3d 836.
{51} 	Our Supreme Court has outlined factors tending to prove or disprove the
forseeability of harm to a relational interest in the context of minor children. 	For
example, in Fernandez v. Walgreen Hastings Co., 1998-NMSC-039, 126 N.M. 263,
968 P.2d 774, the Court concluded that a grandmother might be able to recover for
loss of consortium where she had been the guardian, caretaker, and provider of
parental affection to her deceased twenty-two-month-old granddaughter. Under those
facts, the Court stated that a loss of consortium claimant could be foreseeable given
that:
(1) the victim was a minor; (2) the plaintiff was a familial care-taker,
such as a parent or grandparent, who lived with and cared for the child
for a significant period of time prior to the injury or death; (3) the child
was seriously physically injured or killed; and (4) the plaintiff suffered
emotional injury as a result of the loss of the child’s companionship,
society, comfort, aid, and protection.
Id. ¶ 31.
{52} 	The Court has also outlined factors, although not exhaustively, that may be
considered in determining the existence of a sufficiently close relational interest in
domestic partnerships. In Lozoya v. Sanchez, 2003-NMSC-009, 133 N.M. 579, 66
P.3d 948, abrogated on other grounds by Heath v. La Mariana Apartments, 2008-
NMSC-017, ¶ 21, 143. N.M. 657, 180 P.3d 644, the Court concluded that two

31
unmarried persons were not precluded from recovering for loss of consortium where
they had lived in a spousal-type relationship for over thirty years, had three children
together, lived in a jointly owned home, shared a last name, and filed joint tax returns.
Id. ¶ 9. The Court stated that relevant factors indicating whether or not such persons
had an intimate familial relationship giving rise to a claim for loss of consortium
were: duration of the relationship, mutual dependence, common contributions to a life
together, shared experience, living in the same household, financial support and
dependence, 	emotional 	reliance 	on 	each 	other, 	qualities 	of 	their 	day-to-day
relationship, and the manner in which they related to each other in attending to life’s
mundane requirements. See id. ¶ 27.
{53} 	This Court has also been unwilling to foreclose, as a matter of law, the ability
to recover for other types of lost relationships. In Fitzjerrell, the surviving parents and
sisters of a deceased twenty-five-year-old man attempted to recover for the loss of
their relational interest with their son and brother. We concluded that they were not
legally barred from asserting their claims. 	2003-NMCA-125, ¶ 13. 	Such a
determination can properly be made only after considering foreseeability and “mutual
dependence” factors such as those outlined in Lozoya. Fitzjerrell, 2003-NMCA-125,
¶ 12. This approach “allows inquiry into the nature and quality of the relationship to
determine whether a claim is compensable rather than relying on the existence of a

32
particular legal relationship as a dividing point.” 	State Farm Mut. Auto. Ins. Co. v.
Luebbers, 2005-NMCA-112, ¶ 44, 138 N.M. 289, 119 P.3d 169.
{54} 	We have not previously reviewed a fully litigated case involving the loss of a
sibling. Although not directly on point, we find both Fernandez and Lozoya helpful
in our analysis of whether Bill has met the burden of showing: 	(1) that it was
foreseeable that he would be harmed as a result of the injury to Jason, and (2) that his
and Jason’s relationship was sufficiently close. We concur with the district court that
Bill did not meet this burden, noting that the status of the two as brothers is not itself
determinative but provides some evidence of the existence of a relational interest.
Lozoya, 2003-NMSC-009, ¶ 19.
{55} 	In Fernandez, our Supreme Court determined that a sufficient level of mutual
dependence is foreseeable in a relationship between a toddler and her primary care
giver. 	Clearly, a small child depends almost entirely on her primary care giver to
provide for her needs. Similarly, it can be expected that one who assumes such a role
in the life of a small child is largely consumed by the responsibility and that the
obligation to the child becomes a defining component in one’s life. Bill points to no
evidence that would demonstrate the foreseeability of an equivalently powerful bond
between him and his then twenty-two-year-old brother, Jason. 	See Solon v. WEK
Drilling Co., 113 N.M. 566, 571, 829 P.2d 645, 650 (1992) (concluding that it was not

33
foreseeable that a twenty-five-year-old would live with his parents, enjoy a close
relationship with them, and contribute to their economic support).
{56} 	Even assuming that the relational injury to Bill was foreseeable, Bill has not
demonstrated that the relationship with his brother was so mutually dependent that he
should be allowed to recover for loss of consortium. The fact that the two shared an
apartment for several months and split bills does not demonstrate significant “mutual
dependence [or] common contributions to a life together” as contemplated in Lozoya,
2003-NMSC-009, ¶ 27 (internal quotation marks and citation omitted). For example,
in Lozoya, the claimant had shared a jointly owned home with the injured party for
fifteen years, and they had been companions for over thirty. Conversely, a roommate
situation between two young brothers is presumably much more temporary in nature
and, absent more, it is hard to envision how these unremarkable facts contributed
toward the development of a mutual life together.
{57} 	Finally, even after adding facts that the two shared legal status as brothers,
shared friendship, and socialized, the lost relational interest does not rise to the level
of what is required to prove a claim for loss of consortium. 	These facts do not
describe significant mutual dependence in the form of emotional reliance on each
other, the qualities of their day-to-day relationship, or the manner in which they
related to each other in attending to life’s mundane requirements in the same sense as

34
the life-defining types of relationships previously recognized. 	To hold otherwise
would be to open up broad liability based essentially exclusively on familial
relationship rather than other qualities exemplified by the “mutual dependence”
factors described in Lozoya. This opinion should not be construed as a retreat from
current New Mexico law on who may recover for loss of consortium. We recognize
that under some set of facts, recovery by a sibling may be proper, but this is not that
case. The factual basis simply falls short.
CONCLUSION
{58} 	For the foregoing reasons, we affirm the decision of the district court.
{59} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
CYNTHIA A. FRY, Chief Judge

RODERICK T. KENNEDY, Judge
35