PARRISH V. CITY OF CLOVIS
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ABBY PARRISH,
Plaintiff-Appellant,
v.
CITY OF CLOVIS, CLOVIS POLICE
DEPARTMENT, and ADRIANA
MUNOZ-WOODS, INDIVIDUALLY AND
IN HER OFFICIAL CAPACITY
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY, Fred T.
Van Soelen, District Judge
Lindsey Law Firm, L.L.C., Daniel R.
Lindsey, Clovis, NM, for Appellant
Miller Statvert, PA, Virginia Anderman,
Albuquerque, NM, for Appellees
JAMES J. WECHSLER, Judge. WE CONCUR: LINDA
M. VANZI, Judge, J. MILES HANISEE, Judge
AUTHOR: JAMES J. WECHSLER
{1} Plaintiff
Abby Parrish (Plaintiff) appeals from the district court’s order granting
summary judgment in favor of Defendants City of Clovis, Clovis Police
Department, and Adriana Munoz-Woods (Defendants). [RP 394] This Court issued a
notice proposing to affirm. Plaintiff filed a motion to amend his docketing
statement in which he responded to this Court’s notice. We construe this motion
as a memorandum in opposition and have duly considered it. Unpersuaded, we
affirm.
{2} In this Court’s
notice, we proposed to hold that Plaintiff failed to raise any genuine issue of
material fact that Defendants’ immunity under the Tort Claims Act was waived
for his claims of negligence, assault, defamation, and negligent or intentional
infliction of emotional distress. [CN 2] We address in turn Plaintiff’s
responses regarding each of his claims.
{3} Negligence:
Plaintiff continues to argue that ‘“his heart began beating very rapidly, he
had a sweaty feeling, and he felt physical discomfort and thought he was going
to die,”’ [Motion 3; DS 4] and that these sensations constitute bodily injury.
[Motion 3–7] While Plaintiff makes citations to authority mentioning bodily
injury under various other causes of action, none of the authority Plaintiff
cites equates the temporary sensations he describes with bodily injury, and we
are aware of no such authority. Thus, Plaintiff has provided insufficient
reason for us to depart from the standard definition of bodily injury provided
by
Black’s Law Dictionary, as cited in our notice of proposed
disposition [CN 6]. We therefore conclude Plaintiff has not shown the genuine
existence of material fact that rapid heartbeat, a sweaty feeling, physical
discomfort, and fear of death constitute bodily injury resulting from
negligence in the operation of a motor vehicle, and support a waiver of
Defendants’ immunity under NMSA 1978, §
41-4-5 (1977).
{4} Assault:
Plaintiff continues to assert that Defendant Munoz-Woods’ distraction while
driving was sufficient to satisfy the intent element of assault. Again,
Plaintiff cites numerous authorities but cites no relevant authority holding a
distracted state of mind is sufficient to establish intent. In fact, Plaintiff
cites to
Kabella v. Boushchelle,
1983-NMCA-125,
100 N.M. 461,
672 P.2d
290, in which this Court specifically distinguished recklessness from assault.
Id.
¶ 13. As we pointed out in our notice, New Mexico case law allows recovery for
an officer’s negligent conduct only when that negligence causes a third party
to commit assault or battery or some other tort enumerated in NMSA 1978, §
41-4-12 (1977).
See Lessen v. City of Albuquerque,
2008-NMCA-085, ¶ 39,
144 N.M. 314,
187 P.3d 179 (“[W]ith respect to the torts enumerated in Section
41-4-12, allegations of negligence are appropriate only to the extent that a
law enforcement officer's negligence is alleged to have caused a third party to
commit one of the specified intentional torts.”). [CN 8] That is not the case
here, and we therefore hold that the officer’s allegedly gross negligence while
driving did not constitute an assault as contemplated by Section 41-4-12.
{5} Defamation:
Plaintiff concedes that he does not assert any facts showing actual damage to
his reputation and which could support a waiver of Defendants’ immunity.
[Motion 11] Plaintiff argues instead that summary judgment was premature and
that depositions would lead to facts establishing damages. [Motion 11–12] As we
noted in our proposed disposition, evidence of actual injury to Plaintiff’s
reputation lies with Plaintiff himself, and he has failed to assert any actual
injury. [CN 12] Therefore, we conclude there is no genuine issue of fact that
Defendants’ immunity from defamation should be waived.
{6} Negligent or
Intentional Infliction of Emotional Distress: Plaintiff concedes that the
Tort Claims Act does not contain a waiver of immunity from claims of either
negligent or intentional infliction of emotional distress. [Motion 13] We
conclude that the district court appropriately granted summary judgment on
Plaintiff’s claims for negligent or intentional infliction of emotional
distress.
{7} Prematurity of
Summary Judgment: In this Court’s notice, we cited the factors to be
considered in determining whether summary judgment was premature as laid out in
Bierner v. City of Truth or Consequences,
2004-NMCA-093, ¶ 25,
136 N.M.
197,
96 P.3d 322. [CN 11] We noted that Plaintiff did not cite either any facts
supporting application of the
Bierner factors in his favor or any other
authority showing the district court prematurely granted summary judgment. [CN
11–12] Plaintiff cites
Bierner in his motion and argues that summary
judgment of his defamation claim was premature. [Motion 13] Plaintiff makes the
generalized assertion that the record shows “that both parties had not even
been able to reach the point of deposing witnesses[.]” [Motion 13] Plaintiff
asserts that his response to the motion for summary judgment “sets forth
numerous facts regarding the Plaintiff’s reputation and Plaintiff mentioned
that depositions were important to develop the information[.]” [Motion 13–14]
Plaintiff goes on to argue that Defendants did not respond to some discovery
and that Plaintiff sought a continuance at the summary judgment hearing.
[Motion 14] Beyond these generalized assertions, Plaintiff does not
specifically address how the time allowed for discovery was insufficient.
Notably, Plaintiff’s response to the motion for summary judgment asserts that
his personal humiliation was sufficient to show actual damages from defamation.
[RP 240] Plaintiff’s motion does not indicate that particular evidence, aside
from personal humiliation, was still needed to show that he suffered
compensable damages. We therefore conclude Plaintiff has not demonstrated that
the district court’s entry of summary judgment was premature.
{8} Consequently, for
the reasons stated above and in this Court’s notice of proposed disposition, we
affirm.