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Torres v. New8/26/1993
Opinion
Plaintiffs appeal from a district court order dismissing with prejudice their amended complaint against Defendants, State of New Mexico, New Mexico Department of Public Safety (DPS), Robert Vanderhee (Vanderhee) an employee of DPS (collectively State Defendants), the City of Albuquerque, Albuquerque Police Department (APD), Ruth Lowe (Lowe) and Sam Baca (Baca), both police officers employed by APD (collectively City Defendants). Plaintiffs raise two interrelated issues on appeal: (1) whether Defendants owed a duty to Plaintiffs' decedents, Armando Torres (Torres) and Jeren Beeks (Beeks), and (2) whether the murders of Torres and Beeks were reasonably foreseeable. We affirm the order of dismissal.
BACKGROUND
This case arises from the shooting deaths of Torres and Beeks. Both deaths occurred on December 1, 1988 in Universal City, California. Plaintiff Esperio Torres is the father and personal representative of the estate of Torres, and Plaintiff John Beeks is the father and personal representative of the estate of Beeks.
Plaintiffs brought an action for wrongful death, pursuant to the New Mexico Tort Claims Act, NMSA 1978, ยงยง 41-4-1 to -27 (Repl.Pamp.1989), claiming that as a direct and proximate result of Defendants' negligence in investigating certain killings committed in Albuquerque on November 29, 1988, Torres and Beeks were murdered in Universal City, California on December 1, 1988.
Plaintiffs filed their complaint on November 29, 1990 and their amended complaint on December 3, 1990. Defendants filed motions to dismiss the amended complaint
for failure to state a claim. On April 8, 1991, the district court granted Defendants' motions and dismissed the amended complaint with prejudice, stating that "as a matter of law, the injured parties were not foreseeable plaintiffs and the defendants owed no duty to plaintiff ." It is from this order of dismissal that Plaintiffs appeal.
The amended complaint alleges the following material facts: On the morning of November 29, 1988, a lone gunman killed three people in an Albuquerque bagel shop. No robbery occurred. A description of the killer was made available to the APD. Ken Schultz, then Albuquerque mayor, told Baca, then chief of police, to put as many officers as needed on the case, and he also authorized as much overtime as needed to apprehend the killer. APD informed the press that police officers were guarding the airport and train and bus stations to prevent the killer from leaving Albuquerque. The killer's description appeared in the news media that same day.
On the afternoon of November 29, an employee of an Albuquerque gun shop, the Gun Room, telephoned Defendant DPS and spoke to Vanderhee. He informed Vanderhee that a man matching the killer's description had purchased a .38 caliber handgun at the gun shop on November 28, 1988. He also gave Vanderhee the suspect's name and address: Nathan Trupp (Trupp), Shalako Apartments, 12899 Central, NE, Albuquerque, New Mexico. Vanderhee telephoned APD and attempted to speak to Sergeant Desi Garcia (Garcia), Vanderhee's liaison at APD. Garcia was not in, and Vanderhee attempted to speak to Lowe, who was in charge of the investigation of the bagel shop killings. Lowe had left for the day, so Vanderhee left a message for her and went home. He did nothing further that day to follow up on the information he received. Lowe received Vanderhee's message during the evening of November 29 and tried to reach him at his office. Vanderhee had already gone home.
On the mor
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