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New Mexico Supreme Court Upholds Claim for Loss of Consortium Damages Brought by Minor Children on Behalf of Fatally Injured Father

Law Office of Matthew Vance, P.C.

A recent case before the New Mexico Supreme Court addressed whether the children of a fatally wounded parent could bring a lawsuit under state law, even though the parent’s estate had not brought a lawsuit for wrongful death. The court determined that the children had the right to bring the lawsuit, since they were suing for personal injury or bodily injury damages, and the children were in a “sufficiently close relationship” to their father that it supported their claim.After Albuquerque police officers responded to information regarding a suspected stolen vehicle, they found the decedent at the scene of the crime, inside a parked vehicle next to the suspected stolen vehicle. After surrounding his vehicle, the officers approached the decedent’s car on foot, and he drove away. An officer began shooting at the car and eventually shot and killed the decedent.

The decedent’s minor children brought a lawsuit against the defendants (the Albuquerque Police Department) for loss of consortium damages. They alleged that since the defendants caused the wrongful death of their father, they would grow without the support and love of their father. The defendants filed a motion to dismiss, and the court granted the motion, finding that the law enforcement officers were entitled to immunity for the claim. The court of appeals reversed the judgment.

On appeal, the Supreme Court stated that the Tort Claims Act (TCA) provides immunity from tort lawsuits to government entities and public employees who are acting in their official capabilities. The TCA does set forth specific waivers of immunity, including liability for personal injury or wrongful death resulting from assault, battery, and other legal claims.

The issue before the court was whether the defendants were entitled to immunity for loss of consortium, as a claim not enumerated in the statute setting forth waivers under the TCA. The appellate court stated that according to the language of the statute, loss of consortium fits within personal injury as an element of damages. This claim is for damages, which are related to the plaintiffs’ emotional distress that resulted because there was a sufficiently close relationship.

Additionally, the court stated that here, the plaintiffs had alleged that battery was the underlying tort from which the loss of consortium damages arose. The court stated that battery is listed in the statute setting forth the torts for which law enforcement officers’ immunity may be waived. Therefore, the court concluded, the injury and the tort alleged by the plaintiffs are both listed under the statute.

The court turned to precedent, which upheld the finding that immunity can be waived for loss of consortium damages, as a claim deriving from a tort under the TCA. They rejected the defendants’ argument that the tort may not be intentional and that other courts only recognized the claim when arising from negligence. In fact, the court stated that the loss of consortium claim here was independent of the underlying battery claim.

Next, the court stated that plaintiffs alleging loss of consortium damages must prove that they were in a sufficiently close relationship to the decedent. But, the court stated, this does not require that a loss of consortium claim must always be bought with an underlying tort claim, or that recovery for the tort is necessary in order to recover for loss of consortium damages.

Here, the court noted that the plaintiffs sufficiently pled their battery claim, and that meant the waiver had been invoked, so the state could be treated like a private party. The law waives immunity for claims for loss of consortium damages that arise from a battery, and the court stated that the claim was therefore permissible. The case was remanded to the district court.

At the Law Office of Matthew Vance, P.C., we represent families and loved ones as they seek justice following a wrongful death. After a fatal accident or catastrophic event in the Albuquerque area, personal injury attorney Matthew Vance can work to pursue compensation from the responsible parties. To learn more about your legal claim, contact our office by calling (505) 242-6267 or filling out our online form. We provide a no-obligation consultation.

More Blog Posts:

New Mexico Court Denies Plaintiff’s Motions in Lawsuit Following Car Accident, Finds She Had Not Been Forthcoming Regarding Medical History, But Dismissal Not Appropriate, New Mexico Injury Lawyer Blog, May 12, 2017

New Mexico Supreme Court Holds that Fraudulent Concealment May Apply to Wrongful Death Actions; Defendants Cannot Benefit from Concealing a Cause of Action and Asserting the Statute of Limitations as a Defense, New Mexico Injury Lawyer Blog, February 12, 2017

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