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Brenneman v. Board of Regents of the University of New Mexico11/17/2003
the other hand, the legislature recognizes that while a private party may readily be held liable for his torts within the chosen ambit of his activity, the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done.
Section 41-4-2(A). The Legislature achieved this balance by waiving sovereign immunity with respect to specific people and places which, in the performance of certain governmental functions, give rise to traditional duties to the public. Once a duty is established, loss of consortium damages flow from the principles of tort liability. As loss of consortium is a damage resulting from bodily injury and our courts have repeatedly held that loss of consortium plaintiffs are foreseeable, we believe that loss of consortium is exactly the type of damage "based upon the traditional tort concepts of duty" that the Legislature intended to include under the applicable waivers of sovereign immunity in the Act.
In the present case, UNMHSC does not contest that it acted in the scope of the Act's exceptions when it treated Ms. Brenneman and owed her a duty of reasonable care. It was foreseeable that Ms. Brenneman's spouse and minor children would suffer loss of consortium as a result of any bodily injury that Defendant's negligence caused Ms. Brenneman. The plain language of the Act, our cases interpreting it, and its legislative history all indicate that loss of consortium damages should be recoverable under Sections 41-4-9 and -10. The trial court erred in granting Defendant's motion to dismiss the loss of consortium claims.
CONCLUSION
We reverse the grant of Defendant's motion to dismiss the loss of consortium claims.
IT IS SO ORDERED.
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
MICHAEL E. VIGIL, Judge
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