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McDermitt v. Corrections Corp.3/28/1991
decision and its progeny in Ortiz. We point out only that in , the personal injury clearly was caused by a tort listed in Section 41-4-12; and in , the supreme court focused on the fact that the personal injury resulted from a violation of a right secured under New Mexico statutory law. We reject the overly broad construction of Section 41-4-12 stated in the district court's letter opinion. In this case plaintiff cannot recover for negligent training or supervision in the absence of either a tort listed in Section 41-4-12 or a deprivation of a right secured by the federal or state constitution or laws.
Despite our disagreement with the district court's reasoning, we do not reverse the denial of defendants' motion to dismiss the second cause of action. The second cause of action incorporates the allegations in the first cause of action. In our view the complaint can reasonably be construed as alleging that defendants' negligent training and supervision of their subordinates caused the subordinates to deprive plaintiff's son of rights secured under the United States and New Mexico Constitutions and that the deprivation of rights resulted in personal injury and death to her son. See ) (all doubts are to be resolved in favor of sufficiency of complaint). In Ortiz we are holding that the Tort Claims Act waives immunity for negligent training and supervision by a law enforcement officer that causes the commission by a subordinate law enforcement officer of a tort listed in Section 41-4-12. That holding, together with the language of Section 41-4-12--which treats identically the commission of a listed tort and the deprivation of rights secured by federal or state law--requires affirming the sufficiency of plaintiff's second cause of action against the challenge raised in defendants' appeal. Our affirmance, of course, is without prejudice to further factual or legal challenges to plaintiff's second cause of action.
Conclusion
For the above reasons we affirm the district court's denial of defendants' motion to dismiss the second cause of action and remand for further proceedings consistent with this opinion.
IT IS SO ORDERED.
WILLIAM W. BIVINS, Judge (Dissenting).
I respectfully dissent and adopt my dissent in .
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