|
Summaries
of Recent New Mexico Appellate Opinions - Civil Cases
|
|
|
Full Opinions - Hard
Copy
|
Civil Cases: December 2007 (most
recent cases listed first)
Vallegos v. Marquez, SC 30,242 (Chavez) Dec 20, 2007
Meritorious deduction rate (50% or 85%) applies to entire sentence, including habitual portion.
Moya v. City of Albuquerque, CA 26,382 (Castillo) Mar 16, 2007, rev’d in part, SC 30,343 (Serna) Dec 20, 2007
Where worker was injured and then fired and got a job with another employer, the first employer was not entitled to an offset of benefits for the wages paid by the second employer; Section 52-1-47.1, providing for offsets for wages and benefits provided by the employer, applies only to the employer at the time of the injury; nor does Section 52-1-25.1, which absolves an employer from disability payments when a worker gets another job at his pre-injury wage, apply because that statute was not in effect at the time of the injury; in addition, worker’s new job was not at his pre-injury wage; worker’s job of correctional officer was properly characterized as medium duty, even though it was dangerous and on rare occasions involved lifting of bodies.
Rev’d on the issue of characterization of duty because statute says “heavy” is when workers have to have ability to lift more than 50 pounds occasionally and worker here has to do that.
Citizen Action v. Sandia Corp., CA 25,896 (Castillo) Dec 19, 2007
In connection with a proceeding to modify a waste permit, a citizens’ committee contended that the permit was improperly issued to begin with and therefore the only proper remedy was to close the facility and the lack of a permit deprived the agency of jurisdiction, but if there was no jurisdiction, the appellate court would not have jurisdiction so the appellate court reviews to see if the proceedings were erroneous, but the issues raised on appeal were not the ones raised in the agency, so the Court limits review to issues properly raised; substantial evidence supported the hearing officer’s findings and this case is not like Atlixco; hearing officers do not need to make explicit findings on every issue or on every question that they articulate at hearing; there was no evidence that the hearing officer did not give due consideration to public comments.
Cherino v. Cherino, CA 26,970 (Fry) Dec 18, 2007
Trial court erred in granting tribe’s motion to transfer jurisdiction of child custody dispute in context of divorce case to tribal court because Indian Child Welfare Act, by its terms, does not apply to divorce proceedings where custody is awarded to one parent.
Gates v. State Tax. & Rev. Dep’t, CA 26,727 (Wechsler) Dec 17, 2007
Although Rule 1-041(A) only allows for dismissal of entire actions and not individual claims, party could dismiss claims under Rule 1-015(A) and thereby attain finality sufficiently to appeal; where TRD made several efforts to locate the taxpayers, but did not use a free internet search engine that he had used before and did not contact the electric company and did not red tag the property, all of which would have eventually resulted in finding taxpayers, constitutional due process requires the tax sale to be voided.
Baldonado v. El Paso Natural Gas Co., CA 24,891 (Alarid) Jun 29, 2006, rev’d, SC 29,941 (Chavez) Dec 4, 2007
Lead opinion disavows fireman’s rule to the extent it creates an exception to general rules of duty of care, determines that tort of negligent infliction of emotions distress should not be expanded and that Plaintiffs failed to state a claim because they were not family members of victims of horrific natural gas explosion, determines that tort of intentional or reckless infliction of emotional distress should not be narrowed by adding elements such as that the defendant’s conduct be directed at the particular plaintiffs or that the plaintiffs had to be present at the time of injury to a third person, and concludes that Plaintiffs adequately pleaded outrageous conduct when they pleaded that Defendant undertook a cost-benefit (“Pinto”) analysis in deciding whether to make its old and corroding pipelines safe from inevitable devastating explosions (Sutin, specially concurring on the ground that fireman’s rule should not be addressed (because it does not apply to intentional acts) and if addressed should not be abandoned; agrees with result because there is no reason to grant immunity to one who intentionally causes a fire to which a firefighter responds) (Castillo, specially concurring, also because firefighter’s rule need not be addressed because Plaintiffs’ negligent infliction of emotional distress claim fails because of lack of familial relationship and firefighter’s rule goes to duty, which is not an element of intentional tort of intentional infliction of emotional distress).
Rev’d, the Supreme Court holding that the firefighter’s rule has a place in NM law and a firefighter may recover damages proximately caused by intentional conduct or reckless conduct, provided the harm caused exceeds the scope of risks inherent in firefighters’ duties; Plaintiffs here alleged damages that exceeded the normal scope of distress inherent in the profession; they also alleged facts that would sustain a cause of action for first-party intentional infliction of emotional distress because there was a relationship required by law between the pipeline and the firefighters in that federal regulations required coordination and planning in responses to emergencies and Defendant pipeline did not notify the firefighters of problems with the line or past explosions and this conduct could be deemed extreme and outrageous given the relationship between the parties.
Bd. of County Comm’rs v. Chavez, CA 26,800 (Vigil) Dec 3, 2007
Where mayor of Albuquerque timely wrote a letter terminating the joint powers agreement pursuant to which the city and county jointly operated the jail and where the city council later ratified that decision, although in not very clear language because the ratification resolution referred to transferring the jail to the county, it was effective to terminate the JPA and summary judgment was properly granted to the city.
|
