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Frappier v. Mergler3/15/1988
GARCIA, Judge.
This appeal comes before the court for decision following its submission to an advisory committee pursuant to an experimental plan. See Patterson v. Environmental Improvement Div., 105 N.M. 320, 731 P.2d 1364 (Ct. App.1986); Stoll v. Dow, 105 N.M. 316, 731 P.2d 1360 (Ct. App.1986); Boucher v. Foxworth-Galbraith Lumber Co., 105 N.M. 442, 733 P.2d 1325 (Ct. App.1986). The committee rendered a unanimous decision and the parties were so notified. We acknowledge the aid of attorneys Daniel R. Cron, William R. Federici and Joel V. Burstein, who devoted both time and effort. We express our gratitude for their voluntary service. This court has considered the transcript and briefs in this case, together with the opinion of the advisory committee. We adopt the opinion of the advisory committee in modified form. We affirm in part and reverse in part.
ISSUES
Initially, Frappier raised three issues on appeal. Frappier, however, failed to cite authority in support of her first issue and, thus, we will not address it. See In re Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984). Accordingly, the following issues are properly before us: (1) whether there exist genuine issues of material fact concerning whether defendants had actual notice provided by the New Mexico Tort Claims Act; and (2) whether summary judgment should be reversed as it relates to individual defendants named by plaintiff.
FACTS
Plaintiff Emiline Frappier (Frappier) filed a complaint for personal injury and monetary damages against John Mergler (Mergler); the Village of Corrales (Village); Thomas Gentry, individually and in his capacity as Mayor of the Village of Corrales (Mayor); Benjie Torres, individually and in his capacity as Chief of Police for the Village of Corrales Police Department (Chief); and the Village of Corrales Police Department (Department).
The lawsuit arose out of an intersection accident occurring on December 29, 1982. Frappier was traveling north on Corrales Road within the Village while Mergler, an on-duty police officer, was responding to an emergency call. At the time of impact, Mergler was proceeding with his emergency equipment, including flashing lights, siren and headlights fully engaged. He was passing in northbound traffic by driving in the southbound lane. Frappier was at the intersection, and while making a left-hand turn from her northbound lane, the vehicles collided.
The Bernalillo County Sheriff's Department responded to the accident, conducted an investigation and issued a police report. The narrative section of the report recited:
Vehicle # 1 [police car] was responding to call, emergency lights, siren operating, overtook vehicle # 2 [Frappier vehicle] on left side, vehicle # 2 driver did not hear siren, or see lights behind her, turned left into path of vehicle # 1[.] Vehicles collided. Vehicle # 1 also struck telephone pole and fence posts.
The police report indicated that neither Frappier nor Mergler complained of any injuries at the scene. The report did indicate, however, that each of the vehicles had sustained damage in excess of $100. Within minutes of the accident, the Chief arrived at the scene and observed that each vehicle had sustained heavy damage. The Mayor, who is a member of the fire department's rescue unit, also appeared at the accident scene.
Within ten days of the accident, the Vill
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