Silva v. State , 106 N.M. 472 ( 1987 )

SCARBOROUGH, Chief Justice,

dissenting.

I dissent.

The trial court properly refused to enter partial summary judgment in favor of plaintiffs because the issue of fact resolved in the prior action is not the same issue of fact that is involved in this case, because no final judgment was entered in the prior action, and because the Duran Decree and actions thereunder cannot establish the standard of culpability for civil liability. Furthermore, the trial court properly dismissed plaintiffs’ Tort Claims Act claims against the State of New Mexico (State), the Corrections and Criminal Rehabilitation Department (CCRD) and Secretary of Corrections Michael Francke (Francke) because sovereign immunity precludes plaintiffs’ claims against these defendants. I would therefore affirm the trial court and the Court of Appeals.

The doctrine of collateral estoppel can only be invoked where an identical issue of fact is involved in prior and subsequent actions. International Paper Co. v. Farrar, 102 N.M. 739, 741, 700 P.2d 642, 644 (1985); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979) (one purpose of collateral estoppel is to protect litigants from burden of relitigating identical issues). In this case, the federal action only decided that the terms of the Duran Decree were violated, it did not decide that defendants were liable for Silva’s alleged wrongful death. The federal action therefore cannot preclude defendants from litigating, for the first time, their alleged liability for Silva’s death.

Moreover, the doctrine of collateral estoppel can only be invoked where a final judgment has been entered. C & H Constr. & Paving Co. v. Citizens Bank, 93 N.M. 150, 597 P.2d 1190 (Ct.App.1979). No final judgment has been entered in the federal action. The federal court merely found that the terms of the Duran Decree had been violated and ordered Francke to identify the persons who violated the decree and show cause why they should not be held in contempt.

In any event, the order which adopted the Duran Decree, dated July 14, 1980, specifically states that “[t]he agreement and the policies attached thereto and the partial consent decrees on file herein are not to be construed to establish or change the standard of culpability for civil or criminal liability * * * * ” One unambiguous thrust of the July 14, 1980 order is to preclude the specific abuse of Duran sanctioned today by the majority.

The State is not a proper party defendant under the Tort Claims Act. Wittkowski v. State, 103 N.M. 526, 710 P.2d 93 (Ct.App.), cert. quashed, 103 N.M. 446, 708 P.2d 1047 (1985). The trial court therefore did not err in dismissing plaintiffs’ Tort Claims Act claim against the State. I note that there is no legislative, Court of Appeals or Supreme Court authority to support the position taken by the majority concerning the circumstances under which the State may be sued under the Tort Claims Act.

NMSA 1978, Section 41-4-4(A) (Repl. Pamp.1986) provides: “A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by Sections 41-4-5 through 41-4-12 NMSA 1978.” Sections 41-4-5 through 41-4-12 only waive liability for the torts of public employees and law enforcement officers. Since the CCRD is neither a public employee nor a law enforcement officer, the trial court properly dismissed plaintiffs’ Tort Claims Act claim against the CCRD.

NMSA 1978, Section 41-4-2(B) (Repl. Pamp.1986) provides that “[ljiability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty * * * * ” As Judge Minzner pointed out in the Court of Appeals’ opinion in this case, respondeat superior is not a traditional tort concept of duty; it is a tort concept of vicarious liability. The majority therefore errs in employing the doctrine of respondeat superior in a Tort Claims Act context.

Finally, the statutory waivers of immunity contained in Sections 41-4-6 (relating to public employee negligence in the operation or maintenance of any building, public park, machinery, equipment or furnishings), 41-4-9 (relating to public employee negligence in the operation of any hospital, infirmary, mental institution, clinic, dispensary, medical care home or like facilities), and 41-4-10 (relating to public employee negligence in the provision of health care services) cannot be reasonably interpreted to encompass the actions of Francke acting within the scope of his duties as Secretary of Corrections. The trial court therefore properly dismissed plaintiffs’ Tort Claims Act claim against Francke.

In sum, the majority opinion, insofar as it concerns the doctrine of collateral estoppel, is entirely superfluous; and insofar as it relates to the concept of sovereign immunity under the Tort Claims Act, it completely ignores the clear intent of the legislature. I therefore dissent.