This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
A minor was attacked and bitten in the face by a narcotics-detection dog owned by a municipal police department. The dog escaped from the officer's home and attacked the minor while she was walking home from school. The injuries required medical treatment, including surgeries, leaving a scar. The police chief initially promised to cover the medical expenses but later failed to pay all the bills (paras 2-6).
Procedural History
- District Court of Lincoln County: The trial court denied the defendant's motion for summary judgment on negligence and contract claims, granted summary judgment on the misrepresentation claim, and instructed the jury on strict liability under UJI 13-506. The jury awarded $50,000 in damages to the plaintiff (paras 7, 37).
Parties' Submissions
- Defendant (Village of Ruidoso): Argued that the trial court erred in instructing the jury on strict liability under UJI 13-506, as the Tort Claims Act only permits negligence claims. Contended that the contract claim lacked consideration and that mediation fees should not be awarded as costs. Also challenged the award for future pain and suffering due to insufficient evidence (paras 1, 9, 30, 38-39, 42).
- Plaintiff (Deborah Smith): Asserted that the dog-bite instruction was consistent with her negligence theory and that the police chief's promise to pay medical bills constituted a binding contract. Argued that future pain and suffering damages were supported by evidence and that mediation fees were recoverable as costs (paras 13, 30-31, 38-39).
Legal Issues
- Whether the trial court erred in instructing the jury under UJI 13-506, a strict liability dog-bite instruction, instead of a negligence theory as required under the Tort Claims Act.
- Whether the trial court erred in submitting the plaintiff's contract claim to the jury.
- Whether the trial court erred in awarding damages for future pain and suffering without sufficient evidence.
- Whether the trial court erred in awarding mediation fees as costs (paras 1, 9, 38, 42).
Disposition
- The Court of Appeals reversed the trial court's decision and remanded the case for a new trial on negligence.
- The Court held that the contract claim should not have been submitted to the jury.
- The Court upheld the award of damages for future pain and suffering.
- The Court reversed the award of mediation fees as costs (paras 18-19, 35, 39, 42-43).
Reasons
Per Sutin J. (Donnelly and Armijo JJ. concurring):
Dog-Bite Liability: UJI 13-506 is a strict liability instruction and does not align with the negligence theory required under the Tort Claims Act. The trial court erred in instructing the jury under UJI 13-506. However, the plaintiff may pursue a negligence claim on remand, as negligence is a valid theory of recovery for dog-bite injuries under the Act (paras 8-19, 23-28).
Contract Claim: The police chief's promise to pay medical bills lacked consideration and was a gratuitous promise. Therefore, no enforceable contract was formed, and the trial court erred in submitting this claim to the jury (paras 30-35).
Future Pain and Suffering: The evidence presented, including the nature of the injuries and medical procedures, was sufficient to support the jury's award for future pain and suffering. The defendant's arguments regarding the need for expert testimony and overlap with disfigurement damages were not preserved for appeal (paras 38-39).
Mediation Fees: The mediation was conducted by agreement of the parties, not by court order. Absent an enforceable agreement, the mediator's fee should not have been taxed as a cost. The trial court abused its discretion in awarding this expense (paras 40-43).