CROSS V. CITY OF CLOVIS, 1988-NMSC-045,
107 N.M. 251, 755 P.2d 589 (S. Ct. 1988)
JAMES CROSS, Personal Representative of
the Estate of Alan
Gait "Gaitor" Cross, Deceased, Petitioner,
vs.
CITY OF CLOVIS, Respondent
SUPREME COURT OF NEW MEXICO
1988-NMSC-045, 107 N.M. 251, 755 P.2d 589
ORIGINAL PROCEEDING ON CERTIORARI,
Rueben E. Nieves, District Judge.
Charles A. Deason, Jr., El Paso, Texas.
Lamar D. Treadwell, II, Santa Fe, New
Mexico, for Petitioner.
Keleher & McLeod, P.A., Phil
Krehbiel, Paula Z. Hanson, Albuquerque, New Mexico, for Respondent.
Ransom, Justice, Scarborough, Chief
Justice, Concurs, Sosa, Jr., Senior Justice, Concurs, Walters, Justice,
Concurs, Stowers, Jr. (Dissenting)
{1} In this action for the
wrongful death of plaintiff's thirteen-year-old son, Alan Cross, we granted
certiorari to review the decision of the court of appeals that upheld a
directed verdict for defendant City of Clovis. As personal representative,
James Cross had brought suit under the Tort Claims Act, NMSA 1978, Sections
41-4-1 to -27 (Repl. Pamp.1986), alleging negligence of two city police
officers in maintaining a police roadblock.
{2} On September 30, 1983,
Alan was fatally struck by a stolen Mercedes after it crashed through a police
roadblock, veered around another vehicle, and then careened off the road,
striking and killing Alan instantly. The automobile had been speeding at 100 miles
per hour. Prior to the crash, Alan had been standing next to his motorbike,
approximately 400 feet behind the roadblock, about thirty to forty-five feet
off the roadway alongside a ditch.
{3} The roadblock had been
established on State Highway 18, at the north end of the city of Clovis, by two
Clovis police officers, David Williams and Kevin Clements. They had responded
to a request by the Curry County Sheriff's Department for assistance in apprehending
the driver of the stolen vehicle. The officers initially set up a roadblock
further south on State Highway 18 at Pleasant Hill Road but abandoned their
efforts after a request to proceed to a roadblock being established by a deputy
north of the city. While enroute, the officers were informed that the suspect
had already broken through the deputy's roadblock; therefore, they established
a roadblock at the next available intersection a mile north of Pleasant Hill
Road.
{4} During the less than two
minutes which elapsed before the Mercedes was on the scene, both officers
reconnoitered the area behind the roadblock. Officer Clements testified that
during his initial surveillance he observed a vehicle which Officer Williams
was diverting. He did not remember looking toward the area where Alan would
have been standing. When he looked back a second time, Officer Clements saw
Alan standing next to his motorbike. He did nothing to alert Alan to vacate the
area. After seeing Alan, he returned his gaze toward the oncoming Mercedes.
Officer Williams did not see Alan until after the accident.
{5} The immunity from tort
liability granted a governmental entity and its employees pursuant to Section
41-4-4 of the Tort Claims Act does not apply to liability for wrongful death
"resulting from assault * * * or deprivation of any rights * * * secured
by the * * * laws of * * * New Mexico when caused by law of * * * New Mexico
when caused by law enforcement officers while acting within the scope of their
duties." § 41-4-12. It is clear that the phrase "when caused by law
enforcement officers" includes "those [third-party] acts enumerated
in * * * [Section 41-4-12] which were caused by the
negligence of law
enforcement officers while acting within the scope of their duties."
Methola
v. County of Eddy, 95 N.M. 329, 333,
622 P.2d 234, 238 (1980).
1 "A finding of negligence,
{*253} however, is dependent upon the
existence of a duty * * *. Whether a duty exists is a question of law for the
courts to decide."
Schear v. Board of County Comm'rs, 101 N.M. 671,
672,
687 P.2d 728, 729 (1984) (citations omitted).
{6} In a lengthy 2-to-1
unpublished majority opinion, the court of appeals attempted to articulate a
complete statement as to what responsibilities law enforcement officers have to
members of the public who are at risk of injury by a criminal offender when the
officers are performing or attempting to perform their duties. As developed
more fully in this opinion, we hold quite simply that a law enforcement officer
has the duty in any activity actually undertaken
2
to exercise for the safety of others that care ordinarily exercised by a
reasonably prudent and qualified officer in light of the nature of what is
being done.
3 The jury should be so instructed as
a modification of SCRA 1986, 13-1604 ("Every person has a duty to exercise
ordinary care for the safety and the property of others.").
{7} At issue on this appeal
is whether a jury reasonably could have found that Alan's death was proximately
caused by negligence of the law enforcement officers.
See Archuleta v. Pina,
86 N.M. 94, 95,
519 P.2d 1175, 1176 (1974) (the evidence, together with all
reasonable inferences deducible therefrom, must be viewed in the light most
favorable to the party resisting a directed verdict).
{8} The plaintiff claims that
Officers Clements and Williams were negligent at the initial roadblock in
failing to keep a proper lookout for motorists, such as Alan, who were
traveling toward the danger, and in failing to warn or divert such traffic. The
plaintiff further maintains that these officers were negligent at their second
roadblock in failing to utilize citizens to warn or divert others approaching
the roadblock,
4 in failing to maintain a proper
lookout, and, after observing Alan, in failing to use the police car's public
address system, wave, or otherwise warn him of the approaching Mercedes.
{9} A witness, Danny Henry,
who had observed the officers' initial roadblock attempt, testified that one of
the officers removed a shotgun from his trunk and pointed it north. Henry
testified further that Alan had been riding his motorbike in the vicinity and
opined that the path of Cross' motorbike crossed the field of vision
{*254} of the police officers. Both officers,
however, denied seeing Alan at the Pleasant Hill intersection. We believe that
if there is a cause of action in this case, it is based upon the acts and
omissions of the officers at the second roadblock, and that their conduct at
the initial roadblock is too remote for a finding of liability independent of
conduct at the second roadblock. We therefore limit our consideration of
negligence and proximate cause to the plaintiff's claims regarding conduct of
the officers at the second roadblock.
{10} With respect to failure
to utilize citizen assistance, failure to maintain a proper lookout, and, after
observing Alan, failure to use the police car's public address system, wave, or
otherwise warn him of the approaching Mercedes, we are mindful that a failure
to act, to be negligent, must be a failure to do an act which a reasonably
prudent and qualified law enforcement officer, in the exercise of ordinary
care, would do in order to prevent injury to a person whom the officer would
foresee to be exposed to risk of injury. As the risk of danger that reasonably
should be foreseen increases, the amount of care required also increases. If,
without negligence on his part, the officer is suddenly and unexpectedly
confronted with peril and does what appears to him to be the best thing to do,
and if his choice and manner of action are the same as might have been followed
by any reasonably prudent and qualified officer under the same conditions, then
he has done all that the law requires of him, even though, in the light of
after events, it might appear that a different course would have been better
and safer. This statement of the law appears clear enough from Uniform Jury
Instructions, SCRA 1986, 13-1601, 1603 and 1617.
{11} From evidence of the
nature of what the law enforcement officer was doing, in light of all the
surrounding circumstances, counsel may argue liability and freedom from
liability. With appropriate modifications to Uniform Jury Instructions 13-1601,
1603, and 1617, jurors can be relied upon to understand that law enforcement
officers can be expected to exercise only the care that a reasonably prudent
and qualified officer would exercise in the same situation. Evidence relevant
and material to that issue, including expert testimony, is to be admitted.
{12} We cannot agree with the
court of appeals that the evidence established, as a matter of law, that Alan's
death was not proximately caused by any failure of the officers to exercise
reasonable care in maintaining the second roadblock. In determining the
reasonableness of the officers' conduct, the court of appeals narrowly
concentrated on the seconds between Officer Clements' sighting of Alan and the
Mercedes' collision with the roadblock. However, it was not undisputed that
Officer Clements had only a few seconds in which to warn Alan. His testimony
was that a few seconds transpired between the moment he initially saw Alan and
the time he returned his gaze toward the oncoming car.
Q: How much time did that take for you to look around and
actually see the Cross boy and then turn around and see what was coming toward
you?
A: Just a matter of a few seconds.
{13} At that point in time,
the Mercedes was between one-quarter and one-half mile away; several more
seconds must have elapsed before the car crashed through the roadblock. The
reasonableness of Officer Clements' decision to do nothing to warn Alan under
these circumstances cannot be established as a matter of law. The evidence
indicates that Officer Clements was aware of the Mercedes' position through the
radioed communications of the pursuing officer. When he first saw the boy,
Officer Clements knew or should have known that the Mercedes was approaching
some distance away. Rather than make any attempt to alert Alan of the impending
danger, Officer Clements turned around to observe the approach of the speeding
Mercedes. Officer Clements' deposition testimony indicates that he did not warn
Alan because he did not think it was necessary, not because there was
insufficient time.
Q: "[I]f the little boy would have been on the shoulder
of the road, would {*255} you have felt
the need to tell him something?
A: "If he had been right next to the roadway, it's
possible that I would have said something to him."
{14} Furthermore, the breach
of duty here was not only whether there was sufficient time for Officer
Clements to warn Alan once he was spotted, but also whether a proper lookout by
either officer would have revealed his presence sooner. The plaintiff presented
testimony from which it reasonably could be inferred that the officers were on
notice that Alan was traveling toward the area where they eventually established
their second roadblock. As pointed out in the dissent of Judge Apodaca of the
court of appeals, a jury could find that with such notice the officers should
have watched for the arrival of the boy. Alan was either already in the area
during Officer Clements' initial surveillance, or he was able to approach
within approximately 400 feet of the roadblock, to dismount, and to stand
alongside his motorbike without either officer seeing or hearing him.
{15} The court of appeals
concluded that evidence that the officers waved two or three cars through the
roadblock and diverted another vehicle away from it demonstrates the officers
maintained a proper lookout. The fact that the officers may have kept some
lookout does not establish conclusively that they maintained a proper lookout
with respect to Alan.
{16} In resolving all
reasonable inferences to be drawn from the evidence in favor of the party
resisting the motion for a directed verdict, we conclude that the evidence
reasonably could indicate a breach of duty. A jury reasonably could have found
that the officers failed to maintain a proper lookout because Alan was able to
enter the zone of foreseeable danger unnoticed. Further, a jury reasonably
could have found it was negligent not to have attempted to warn Alan of
impending danger once Officer Clements finally spotted him.
{17} There still remains the
issue of causation. The issue of proximate cause should be removed from the
fact finder only when the facts are undisputed and all reasonable inferences
are plain, consistent, and uncontradictory.
Chavira v. Carnahan, 77 N.M.
467,
423 P.2d 988 (1967). The directed verdict can be sustained only if
reasonable minds could not differ on whether the officers' failure to exercise
reasonable care was an actual and proximate cause of Alan's death.
See New
Mexico State Highway Dep't v. Van Dyke, 90 N.M. 357,
563 P.2d 1150 (1977).
{18} Officer Williams himself
testified that the area where Alan was standing was within the zone of
foreseeable danger. A proximate cause requires only a result that proceeds in a
natural and continuous sequence from the act or omission in question. SCRA
1986, 13-305. The jury reasonably could have found that the officers' failure
to keep a proper lookout and failure to warn Alan proximately caused the death
of one in the zone of the danger in question. If the officers negligently
deprived Alan of a chance to escape harm, they cannot argue that the jury could
only speculate as to whether Alan would have responded successfully to their
warnings or directions.
{19} Because the issue of
breach and proximate cause cannot be decided as a matter of law, the trial
court erred in removing those issues from the jury. We reverse the court of
appeals and remand to the trial court.
SCARBOROUGH, C.J., SOSA, Senior J., and WALTERS, J., concur.
STOWERS, Justice, dissenting.
{21} I respectfully dissent
and would affirm the judgment of the trial court, which granted a directed
verdict in favor of defendant City of Clovis, after plaintiff presented all of
his evidence. I am of the opinion that the evidence established, as a matter of
law, that the officers were not negligent under the circumstances and facts of
this case. The majority opinion, by
{*256} extending
the liability of the police officers for the negligence of third party actions,
creates an additional exception within Section 41-4-12 of the Tort Claims Act,
NMSA 1978, Sections
41-4-1 to -29 (Repl. Pamp. 1986). A party claiming an exception
to the Tort Claims Act must establish that the exception is within the words of
and the reason for the exception.
Smith v. Village of Corrales, 103 N.M.
734, 737,
713 P.2d 4, 7 (Ct. App. 1985),
cert. denied, 103 N.M. 740,
713
P.2d 556 (1986).
{22} An appellate court in
reviewing the evidence on appeal from a judgment pursuant to a directed verdict
must review all the evidence, but, where there are conflicts or contradictions
in the evidence, these conflicts must be resolved in favor of the party resisting
the motion.
Skyhook Corp. v. Jasper, 90 N.M. 143, 146,
560 P.2d 934, 937
(1977). Thus, the question for us to resolve is whether plaintiff's claim was
legally sufficient, as a matter of law, to withstand a directed verdict.
See
Hood v. Fulkerson, 102 N.M. 677, 681,
699 P.2d 608, 612 (1985). I agree
with the majority opinion of the court of appeals that the record is devoid of
evidence to indicate that the City of Clovis' police officers were negligent in
the manner in which they set up the roadblocks.
{23} Plaintiff has raised the
following two issues: The officers were negligent at the first roadblock by
failing to keep a proper lookout for motorists travelling north toward the
danger and in failing to warn or divert such traffic; and the officers were
negligent at the second roadblock by failing to utilize citizens to warn or
divert motorists or others coming from the south, and, after observing the
victim, for their failure to warn him of the approaching vehicle.
{24} Whether the officers
were negligent depends upon the existence of a duty of care owed plaintiff.
See
Schear v. Board of County Comm'rs, 101 N.M. 671,
687 P.2d 728 (1984).
Police officers have a duty to exercise reasonable care under the
circumstances,
i.e., maintain a proper lookout, divert traffic and
protect the people. This, however, must be balanced against their paramount
duty to apprehend violators of the law by utilizing all reasonable means at
their disposal.
{25} Officers Williams and
Clements proceeded to the intersection of Pleasant Hill highway and State Road
18 to set up the first roadblock. When they arrived at the intersection,
Officer Williams got his gun from the trunk and Clements got his from the front
passenger area. But, before they established this roadblock, the officers
received a radioed request to assist another officer, Deputy Hamner, at a
roadblock being set up north of the city. During the few minutes spent setting
up the first roadblock, neither officer saw the plaintiff. A truckdriver, who
knew the victim's family, observed plaintiff riding his off-the-road motorbike
on Pleasant Hill highway. Nonetheless, before plaintiff reached the
intersection of State Road 18, he veered off to the north cutting across a
parking lot, which prevented the officers from seeing him. There was no
evidence presented at trial from which a jury could have found a breach of duty
of care by the officers at this first roadblock.
{26} While en route to assist
Deputy Hamner, Officers Clements and Williams were advised by radio that Muhammad,
the driver of the oncoming Mercedes, had already broken through the roadblock
set up by Deputy Hamner. The two officers immediately began to establish a
roadblock at the next intersection, one mile north of Pleasant Hill highway and
State Road 18, in accordance with proper police procedures. This second
roadblock was north of the intersection to permit northbound traffic to be
diverted onto the section line road. The officers positioned their vehicles in
such a way that enough room was left between the vehicles for a car to pass in
the middle of the road. Less than two minutes elapsed between the time the
Mercedes crashed through the roadblock set up by Deputy Hamner and when the
officers looked toward the area behind the roadblock they set up. Officer
Williams observed one vehicle, which he diverted off onto the section line
road, but he never saw the plaintiff. Officer Clements observed two vehicles
and waived them through the roadblock. When he
{*257}
glanced back again to the area behind the roadblock, he observed the
plaintiff for the first time. Plaintiff was more than 400 feet from the
roadblock, standing opposite the northbound lane thirty feet off the roadway in
the bar ditch behind a telephone pole. Immediately upon observing the
plaintiff, Clements looked to the north and saw the Mercedes approaching. The
Mercedes had been travelling in the southbound lane hidden from view behind
another vehicle. After pulling out to pass that vehicle, the Mercedes straddled
the centerline. Travelling at excessive speed, it crashed through the
roadblock, veered around a hay truck, then headed off the roadway. The
plaintiff turned around, took several steps in the direction of the oncoming
vehicle and was struck and killed.
{27} The total time the
officers were at this second roadblock was less than two minutes. There was no
time for the officers to use their public address system to warn or to
otherwise attempt to divert the victim from the area. From the time Officer
Clements saw the victim, turned forward, saw the Mercedes and then watched it
travel through the roadblock, a few seconds had elapsed, which was not time
enough to have warned plaintiff. There can be no liability based on the
officer's failure to have acted differently in this stressful, emergency
situation when only a few moments elapsed between the time the officer first
saw plaintiff and the time the car crashed through the roadblock.
{28} Although generally,
questions of negligence are determined by the fact finder, where reasonable
minds cannot differ the question is one of law to be resolved by the trial
judge as was done in this case.
Montoya v. Williamson, 79 N.M. 566, 568,
446 P.2d 214, 216 (1968);
Bouldin v. Sategna, 71 N.M. 329, 334,
378 P.2d
370, 373 (1963). Under the facts herein, the officers were not negligent.
{29} Section 41-4-12 of the
Tort Claims Act provides an exception for law enforcement officers to the
immunity granted governmental entities in Subsection A of Section 41-4-4. This
immunity "does not apply to liability for personal injury, bodily injury,
wrongful death or property damage resulting from assault * * * 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." NMSA 1978, §
41-4-12 (Repl.
Pamp.1986). The term "caused by" in Section 41-4-12 includes those
acts enumerated in that section which were caused by the negligence of law
enforcement officers while acting within the scope of their duties.
Methola
v. County of Eddy, 95 N.M. 329, 333,
622 P.2d 234, 238 (1980). Nowhere is
it stated in that section that an officer's liability extends to the negligence
of third party actions as suggested in the majority opinion. The majority
attempts to interject causes of action into an exception to the Tort Claims Act
where none exists. And, as I previously noted, any party claiming an exception
to the Tort Claims Act must show that this exception exists within the words of
and reason for that exception.
{30} Since the officers in
the instant case were not negligent, as a matter of law, the City of Clovis is
immune from liability pursuant to Section 41-4-4(A) of the Tort Claims Act.
{31} For these reasons, I
would affirm the judgment of the trial court.
1
The parties do not question whether this death resulted from one of the acts
enumerated in Section 41-4-12, and we consequently do not address whether a
person killed by a recklessly operated motor vehicle, regardless of whether he
is the victim of an assault in any technical sense, has been deprived of a
right secured by the laws of New Mexico within the legislative intent of the
waiver provision. See Wittkowski v. State, 103 N.M. 526, 529 n.1, 710
P.2d 93, 96 n. 1, (Ct. App.), cert. quashed, 103 N.M. 446, 708 P.2d 1047
(1985) overruled on other grounds, Silva v. State, 106 N.M. 472, 745
P.2d 380 (1987); 6 Am. Jur.2d Assault and Battery § 117 (1963). This
issue must be definitively addressed when properly raised, briefed and argued
under appropriate facts.
2
As to any specific duty to undertake positive action, see, e.g., Schear v.
Board of County Comm'rs, 101 N.M. 671, 687 P.2d 728 (1984) (an officer's
statutory duty to investigate violations of the criminal law called to his
attention, e.g., a call reporting a crime in progress and requesting
assistance).
3
The City does not dispute that it owed a duty of reasonable care in its
undertakings. Specifically, law enforcement officers maintaining a roadblock in
the performance of their duties owe a duty to exercise ordinary care for the
safety of others. See, e.g., Brooks v. Lundeen, 49 Ill. App.3d 1, 7 Ill.
Dec. 262, 364 N.E.2d 423 (1977). In their testimony, the officers here
acknowledged that in manning a roadblock they had a duty to maintain a proper
lookout in order to warn approaching people of impending danger and to divert
them from the protected area. We do not agree with the court of appeals that
financial limitations within which a governmental entity must exercise
authority determines the standard of care. While we do not pass on whether
evidence of financial limitations may in the appropriate case be admitted as
relevant and material to the issue of ordinary care under the circumstances, we
agree with the court of appeals' dissent to the effect that no issue concerning
financial limitations was presented here so as to give meaning to the
majority's statement that "[d]etermination of the standard of care should
be made with the knowledge that each governmental entity has financial
limitations within which it must exercise authority."
4
Under NMSA 1978, Section 30-22-2 (Repl. Pamp.1984), a citizen who refuses to
assist any peace officer in the preservation of peace when called upon by such
officer in the name of the state of New Mexico is guilty of a petty
misdemeanor.