{ "id": 12167759, "name": "SHERRY MILLIRON, Plaintiff-Appellant, v. THE COUNTY OF SAN JUAN, THE SAN JUAN SHERIFF'S DEPARTMENT, and RICHARD STEVENS, Defendants-Appellees", "name_abbreviation": "Milliron v. County of San Juan", "decision_date": "2016-08-04", "docket_number": "Docket No. 34,347", "first_page": "631", "last_page": "639", "citations": [ { "type": "official", "cite": "2016-NMCA-096" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "119 N.M. 609", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561326 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/119/0609-01" ] }, { "cite": "1995-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 24" }, { "page": "\u00b6\u00b6 6, 25" } ], "opinion_index": 0 }, { "cite": "2010-NMCA-056", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4247622 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0342-01" ] }, { "cite": "2009-NMCA-021", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242988 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0615-01" ] }, { "cite": "2004-NMCA-096", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224615 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0247-01" ] }, { "cite": "1996-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "weight": 4, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "\u00b6 26" }, { "page": "\u00b6 37" }, { "page": "\u00b6\u00b6 3, 38" } ], "opinion_index": 0 }, { "cite": "895 P.2d 643", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 11923042 ], "year": 1995, "pin_cites": [ { "page": "644", "parenthetical": "\"[Ijntoxicated pedestrians do not present the serious public safety hazard that results from drunk drivers.\"" } ], "opinion_index": 0, "case_paths": [ "/nev/111/0774-01" ] }, { "cite": "108 F.Supp.3d 1030", "category": "reporters:federal", "reporter": "F. Supp. 3d", "case_ids": [ 4364929 ], "year": 2015, "pin_cites": [ { "page": "1048", "parenthetical": "\"As to the intent required to commit a battery, the Restatement (Second" } ], "opinion_index": 0, "case_paths": [ "/f-supp-3d/108/1030-01" ] }, { "cite": "113 N.M. 437", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723296 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/113/0437-01" ] }, { "cite": "1992-NMCA-003", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "107 N.M. 251", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597208 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/107/0251-01" ] }, { "cite": "1988-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "326 P.3d 465", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239434 ], "pin_cites": [ { "page": "\u00b6 1" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0050-01" ] }, { "cite": "341 P.3d 1", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-005", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241417 ], "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm-app/7/0159-01" ] }, { "cite": "2007-NMCA-122", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3691625 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0583-01" ] }, { "cite": "2003-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77160 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0043-01" ] }, { "cite": "113 N.M. 492", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723188 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/113/0492-01" ] }, { "cite": "1992-NMCA-008", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "121 N.M. 646", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566689 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0646-01" ] }, { "cite": "117 N.M. 217", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552794 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/117/0217-01" ] }, { "cite": "1994-NMCA-008", "category": "reporters:neutral", "reporter": "NMCA", "weight": 8, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 12" }, { "page": "\u00b6 6" }, { "page": "\u00b6 13" }, { "page": "\u00b6 15" }, { "page": "\u00b6 15" }, { "page": "\u00b6\u00b6 4-6, 19" }, { "page": "\u00b6 19" } ], "opinion_index": 0 }, { "cite": "2008-NMCA-149", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242534 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0156-01" ] }, { "cite": "2003-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15894 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0248-01" ] }, { "cite": "335 P.3d 1243", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4240221 ], "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0683-01" ] }, { "cite": "58 N.M. 422", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587522 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/58/0422-01" ] }, { "cite": "1954-NMSC-066", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "111 N.M. 64", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715073 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/111/0064-01" ] }, { "cite": "1990-NMSC-106", "category": "reporters:neutral", "reporter": "NMSC", "weight": 10, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 2" }, { "page": "\u00b6 34, n.6" }, { "page": "\u00b6 34, n.6" }, { "page": "\u00b6 34, n.6", "parenthetical": "\"[Ijntoxicated pedestrians do not present the serious public safety hazard that results from drunk drivers.\"" }, { "page": "\u00b6 32" }, { "page": "\u00b6 3" }, { "page": "\u00b6 37" }, { "page": "\u00b6 2" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1052, "char_count": 25817, "ocr_confidence": 0.788, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2468317650951851 }, "sha256": "f437183e27dffe1cd3c3b22d23f454ccd3921857b53f7256d9188d611aafac18", "simhash": "1:08c08f89507bb644", "word_count": 4107 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Daylene Marsh, District Judge", "JAMES J. WECHSLER, Judge", "MICHAEL E. VIGIL, Chief Judge", "STEPHEN G. FRENCH, Judge" ], "parties": [ "SHERRY MILLIRON, Plaintiff-Appellant, v. THE COUNTY OF SAN JUAN, THE SAN JUAN SHERIFF\u2019S DEPARTMENT, and RICHARD STEVENS, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} Appellant Sherry Milliron appeals from the district court\u2019s dismissal of her negligence claim, brought pursuant to the New Mexico Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (1976, as amended through 2015), against Appellees San Juan County, San Juan County Sheriffs Department, and San Juan County Sheriffs Department Deputy Richard Stevens. The district court ruled that, under any legal theory, the facts alleged were insufficient to establish a waiver of the governmental immunity granted by Section 41 -4-4(A). Appellant argues on appeal that the district court\u2019s Rule 1-012(B)(6) NMRA dismissal was error because the complaint pleaded facts entitling Appellant to relief for damages caused by Appellees\u2019 negligence. Appellant also argues that the district court\u2019s ruling indicates a failure to accept the facts alleged as true as required by Rule 1-012(B)(6).\n{2} Having reviewed the complaint and applicable law, we conclude that Appellant\u2019s well-pleaded facts, while potentially sufficient to support a claim of negligence, are insufficient to establish a waiver of the governmental immunity granted by Section 41-4-4(A). Because Appellees are immune from suit under the facts of the case, Appellant has not stated a claim upon which relief may be granted. Given this conclusion, we need not review Appellant\u2019s additional Rule 1-012(B)(6) argument. We affirm.\nBACKGROUND\n{3} On or about January 1, 2012, Appellant was traveling on Highway 550 south of Bloomfield, New Mexico, when her vehicle struck a pedestrian, Jasper Lopez. Appellant, alleging negligence, brought this action for personal injuries and property damage against Appellees. Appellees filed a motion to dismiss that was granted by the district court. This appeal resulted. To avoid unnecessary repetition, we have incorporated Appellant\u2019s factual allegations into our discussion of Rule 1 -012(B)(6).\nSTANDARD OF REVIEW\n{4} In reviewing a district court\u2019s dismissal of a complaint for failure to state a claim upon which relief can be granted, we \u201caccept as true all facts well pleaded and question only whether the plaintiff might prevail under any state of facts provable under the claim.\u201d Cal. First Bank v. State, 1990-NMSC-106, \u00b6 2,111 N.M. 64, 801 P.2d 646 (internal quotation marks and citation omitted). In doing so, \u201cthe complaint must be construed in a light most favorable to [the non-moving party] and with all doubts resolved in favor of its sufficiency.\u201d Pillsbury v. Blumenthal, 1954-NMSC-066, \u00b6 6, 58 N.M. 422, 272 P.2d 326.\nAPPLICATION OF RULE 1-012(B)(6)\n{5} New Mexico is a notice pleading state. Zamora v. St. Vincent Hosp., 2014-NMSC-035, \u00b6 10, 335 P.3d 1243. While this standard generally benefits plaintiffs in civil litigation, see Credit Inst. v. Nutrition Corp., 2003-NMCA-010, \u00b6 22, 133 N.M. 248, 62 P.3d 339 (holding that \u201cour liberal rules of notice pleading do not require that specific evidentiary detail be alleged in the complaint\u201d), Rule 1-012(B)(6) nonetheless requires application of the facts pleaded in the complaint to the applicable law. Cal. First Bank, 1990-NMSC-106, \u00b6 2. This Court is required to make inferences in favor of the sufficiency of the complaint. Pillsbury, 1954-NMSC-066, \u00b6 6. But, in doing so, we are not permitted to consider facts not pleaded in order to make a plaintiff s claim provable. See Prot. and Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149, \u00b6 17, 145 N.M. 156, 195 P.3d 1 (\u201c[T]he court generally may not consider materials outside the pleadings on a [federal] Rule 12(b)(6) motion[.]\u201d).\nAppellant\u2019s Well-Pleaded Facts\n{6} The sole count alleged in Appellant\u2019s complaint was for negligence resulting in personal injuries and property damage. This allegation of negligence was predicated upon Deputy Stevens\u2019 conduct with respect to Lopez, specifically his decision to leave Lopez unsupervised near Highway 550.\n{7} In support of this allegation, Appellant\u2019s complaint pleaded the following facts: (1) a motorist called 911 to report a potentially intoxicated pedestrian \u201cwandering on\u201d Highway 550; (2) the caller expressed concern that the pedestrian would be struck by passing traffic; (3) Deputy Stevens responded and contacted the pedestrian, Jasper Lopez; (4) Deputy Stevens took Lopez into his \u201ccustody and control\u201d for the purpose of transporting him home; (5) Deputy Stevens received an emergency call related to a traffic accident; (6) Deputy Stevens told Lopez to exit the vehicle near a gas station along Highway 550; (7) Lopez did not enter the gas station, but instead reentered Highway 550, at which time he was struck by Appellant\u2019s vehicle; and (8) Appellant suffered property damage, physical injuries, and emotional injuries as a result of the collision.\n{8} Despite stating that Deputy Stevens took Lopez into his \u201ccustody and control[,]\u201d the complaint did not state as fact that the roadside interaction between Deputy Stevens and Lopez resulted in Lopez being placed under custodial arrest for any crime, or that Lopez was being transported under the authority of the Detoxification Reform Act, NMSA 1978, \u00a7\u00a7 43-2-1.1 to -23 (1976, as amended through 2005). Nor does the complaint state as fact that Lopez intentionally collided with Appellant\u2019s vehicle.\nWAIVER OF IMMUNITY UNDER THE TORT CLAIMS ACT\n{9} As a general rule, governmental entities are immune from tort liability as provided in Section 41-4-4(A). See \u00a7 41-4-4(A) (\u201cA governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort[.]\u201d). This immunity is waived with respect to law enforcement officers acting within the scope of their duties by Section 41-4-12, which provides,\n[t]he immunity granted pursuant to [Section 41-4-4(A)] does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico[.]\n{10} It is well-established that a law enforcement officer need not be the direct cause of injury to trigger a waiver of immunity under Section 41-4-12. Blea v. City of Espanola, 1994-NMCA-008, \u00b6 14, 117 N.M. 217, 870 P.2d 755. Thus, even if a third party is the direct cause of an injury, the immunity granted by Section 41-4-4(A) is waived if a plaintiff \u201cdemonstrate[s] that the defendants were law enforcement officers acting within the scope of their duties, and that the plaintiffs injuries arose out of either a tort enumerated in [Section 41-4-12] or a deprivation of a right secured by law.\u201d Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 1996-NMSC-02147, 121 N.M. 646, 916 P.2d 1313. It is, however, equally well-established that the mere negligence of a law enforcement officer is insufficient to waive the tort immunity granted by Section 41-4-4(A) unless such negligence results in one of the torts enumerated in Section 41-4-12 or a deprivation of a statutory right. See Blea, 1994-NMCA-008, \u00b6 12 (\u201c[W]e continue to hold there is no waiver of immunity under Section 41-4-12 for mere negligence of law enforcement officers that does not result in one of the enumerated acts.\u201d); Caillouette v. Hercules, Inc., 1992-NMCA-008, \u00b6 18, 113 N.M. 492, 827 P.2d 1306 (\u201c[T]he negligence complained of must cause a specified tort or violation of rights; immunity is not waived for negligence standing alone.\u201d). Against this backdrop, we determine whether Appellant\u2019s complaint pleaded facts sufficient to trigger a waiver of the immunity granted to Appellees by Section 41-4-4(A).\nDuty Owed to Appellant by Deputy Stevens\n{11} A common-law negligence claim \u201crequires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiffs damages.\u201d Herrera v. Quality Pontiac, 2003-NMSC-018, \u00b6 6, 134 N.M. 43, 73 P.3d 181. Factual determinations related to breach of duty and proximate causation are properly left to the jury. Lessard v. Coronado Paint & Decorating Ctr., 2007-NMCA-122, \u00b6 27, 142 N.M. 583, 168 P.3d 155. However, whether a defendant owes a duty to a plaintiff is a legal question to be determined by the court. Lujan v. N.M. Dep\u2019t of Transp., 2015-NMCA-005, \u00b6 8, 341 P.3d 1. Our Supreme Court recently clarified that \u201cforeseeability is not a factor for courts to consider when determining the existence of a duty[.]\u201d Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014-NMSC-014, \u00b6 1, 326 P.3d 465. Under this standard, the existence of duty is policy, rather than fact driven. Id. \u00b6\u00b6 1, 3.\n{12} After being dispatched in response to a 911 call, Deputy Sanders located and contacted the allegedly intoxicated Lopez. Deputy Stevens took Lopez into his \u201ccustody and control},]\u201d for the purpose of transporting him home. After receiving an emergency call, Deputy Stevens let Lopez out of the vehicle near a gas station. Appellant argues that Deputy Stevens\u2019 decision to provide transportation to Lopez created a duty that was breached by his subsequent decision to terminate the transportation without ensuring that Lopez no longer posed a threat to himself or others.\n{13} In Cross v. City of Clovis, our Supreme Court held that \u201ca law enforcement officer has the duty in any activity actually undertaken to exercise for the safety of others that care ordinarily exercised by a reasonably prudent and qualified officer in light of the nature of what is being done.\u201d 1988-NMSC-045, \u00b6 6, 107 N.M. 251, 755 P.2d 589 (footnote omitted). Deputy Stevens actually undertook to transport Lopez. Accepting all well-pleaded facts as true, we must view this undertaking as motivated by either a concern for the safety of Lopez himself or for that of other motorists on Highway 550. Under Cross, a reasonably prudent and qualified officer would not have released Lopez back into the dangerous situation from which he was initially removed.\n{14} This determination does not, however, conclude our inquiry. As discussed in detail below, even if Deputy Stevens breached a duty owed to Appellant, the immunity granted by Section 41-4-4(A) is only waived if Appellant suffered a tort enumerated in Section 41-4-12 or a deprivation of a statutory right. See Caillouette, 1992-NMCA-008, \u00b6 18 (\u201c[T]he negligence complained of must cause a specified tort or violation of rights; immunity is not waived for negligence standing alone.\u201d).\nWaiver of Immunity Arising From the Commission of an Enumerated Tort\n{15} With respect to the torts enumerated in Section 41-4-12, the only one that could be reasonably inferred from the complaint is battery. Appellant argued, both in a pre-trial motion hearing and at oral argument before this Court, that Lopez\u2019s conduct \u2014 that is, the act of entering Highway 550 and colliding with Appellant\u2019s vehicle \u2014 constituted a battery. Appellant\u2019s brief in chief also argues that this case is analogous to Blea, in which an intoxicated driver caused a fatal traffic accident. 1994-NMCA-008, \u00b6 6.\n{16} InBlea, EspanolaPoliceDepartment officers were alerted to a disturbance at a local gas station and instructed to search for the suspect\u2019s vehicle. Id. \u00b6 3. Within a few minutes, the vehicle was located and a traffic stop was conducted. Id. During this stop, the suspect was \u201cextremely intoxicated\u201d and \u201cexhibited impaired judgment, impaired coordination, and inability to operate a motor vehicle in a safe and lawful manner.\u201d Id. \u00b6 4. The suspect additionally admitted both consuming and possessing marijuana. Id. Instead of arresting the suspect, the officers ordered him to surrender the alcohol and marijuana in the vehicle and allowed him to continue driving his vehicle. Id. \u00b6\u00b6 4-5. The suspect subsequently caused a traffic accident, killing a young woman. Id. \u00b6 6.\n{17} At trial in Blea, the district court ruled that immunity was not waived under Section 41-4-12 because neither the officers nor the suspect had the requisite intent to prove battery. Blea, 1994-NMCA-008, \u00b6 13. This Court reversed, noting that our Supreme Court\u2019s discussion of battery in California First Bank was controlling. Blea, 1994-NMCA-008, \u00b6 15 (citing Cal. First Bank, 1990-NMSC-106, \u00b6 34, n.6).\n{18} \u201cBattery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.\u201d NMSA 1978, \u00a7 30-3-4 (1963) (emphasis added). A tortfeasor is liable for battery if \u201c(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.\u201d State v. Ortega, 1992-NMCA-003, \u00b6 12, 113 N.M. 437, 827 P.2d 152 (internal quotation marks and citation omitted). The intent required to commit battery extends only to the physical touching at issire and not to the resulting harm. See Pe\u00f1a v. Greffet, 108 F.Supp.3d 1030, 1048 (D.N.M. 2015) (\u201cAs to the intent required to commit a battery, the Restatement (Second) of Torts is ambiguous whether intent means showing merely an intent to touch that person \u2014 and that the touching turns out to be offensive or harmful need not be intended \u2014 or if the plaintiff must also show that the harm or offense was intended. It is clear, however, that an intent to touch in a way that the defendant understands is not consented to is sufficient, as is an actual intent to harm.\u201d). California First Bank, which imputed the requisite intent to commit battery to drunk drivers, and its progeny stand as exceptions to the general rule that both the crime and tort of battery require proof of intent. See 1990-NMSC-106, \u00b6 34, n.6 (stating that the intent element of battery is satisfied if \u201cthe actor believes that the consequences are substantially certain to result from the action taken.\u201d (alteration, internal quotation marks, and citation omitted)); Blea, 1994-NMCA-008, \u00b6 15 (\u201c[A]n allegation that a party is intentionally intoxicated and driving could be sufficient intent for battery because all that is necessary is the party\u2019s substantial certainty that a particular result will occur.\u201d).\n{19} While the rationale of California First Bank's footnote six clearly applies to intoxicated drivers, it is inapplicable to the facts of the present case. Lopez was not an intoxicated driver, but instead, an intoxicated pedestrian. To impute the intent to commit a battery to Lopez, as our Supreme Court discussed in California First Bank, we must conclude that injury to a passing motorist was a \u201csubstantially certain outcome\u201d of Lopez\u2019s conduct. 1990-NMSC-106, \u00b6 34, n.6. We are unwilling to draw this conclusion. See State v. Jones, 895 P.2d 643, 644 (Nev. 1995) (\u201c[Ijntoxicated pedestrians do not present the serious public safety hazard that results from drunk drivers.\u201d).\n{20} Lopez\u2019s decision to enter Highway 550 in an allegedly intoxicated state led to an accidental collision and to his untimely death. However, even reading the complaint in the manner most favorable to Appellant as required by Rule 1-012(B)(6), we are unable to infer intent on the part of Lopez to cause a collision as required to support a claim of battery under New Mexico law. Because Appellant did not suffer a battery, or any other enumerated tort, Appellees\u2019 immunity from tort liability granted by Section 41-4-4(A) is not waived on this theory.\nWaiver of Immunity Arising From the Deprivation of a Statutory Right\n{21} Appellant argues in the alternative that her injuries resulted from a deprivation of a statutory right. \u201cSection 41-4-12 of the Tort Claims Act waives immunity when injury has resulted from a deprivation of any right secured by the statutory law of the United States or New Mexico ... if caused by a law enforcement officer.\u201d Cal. First Bank, 1990-NMSC-106, \u00b6 32 (internal quotation marks omitted). A plaintiff may bring a \u201cdirect claim for personal injury ... arising from a violation of a statutory right.\u201d Weinstein, 1996-NMSC-021, \u00b6 26. Such personal injury need not arise from one of the torts enumerated in Section 41-4-12. See Weinstein, 1996-NMSC-021, \u00b6 26 (citing favorably the proposition that damages for emotional distress are recoverable under Section 41-4-12 if arising from a violation of a statutory right). NMSA 1978, Section 29-1-1 (1979), which requires that law enforcement officers \u201cinvestigate all violations of the criminal laws of the state which are called to the attention of any such officer or of which he is aware,\u201d is commonly invoked to demonstrate the deprivation of a statutory right and has been described by our Supreme Court as \u201cdesigned to protect individual citizens from harm.\u201d Weinstein, 1996-NMSC-021, \u00b6 37.\n{22} For example, in California First Bank, deputies observed an intoxicated individual, Harrison Shorty, fire several gun shots outside a bar in Gallup, New Mexico. 1990-NMSC-106, \u00b6 3. Despite observing conduct in violation of New Mexico law, the deputies elected not to arrest Shorty. Id. Shorty subsequently left the bar and, while driving through a marked intersection, crossed the center line and collided with another vehicle, killing three people. Id. \u00b6 4. Applying Section 29-1-1, our Supreme Court held that the deputies\u2019 failure \u201cto apprehend Shorty or investigate the disturbance at [the] bar\u201d proximately caused the injuries and constituted \u201ca negligent violation of a right secured under New Mexico law[.]\u201d Cal. First Bank, 1990-NMSC-106, \u00b6 37. Since California First Bank, our appellate courts have applied Section 29-1-1 in this manner. See, e.g., Blea, 1994-NMCA-008, \u00b6\u00b6 4-6, 19 (applying Section 29-1-1 in holding tort immunity to be waived when law enforcement officers detained but failed to arrest an \u201cextremely intoxicated\u201d driver who, later the same evening, caused a collision that killed a young woman); Weinstein, 1996-NMSC-021, \u00b6\u00b6 3, 38 (applying Section 29-1-1 in holding tort immunity to be waived when law enforcement officers\u2019 failure to diligently file a criminal complaint resulted in the release of a rape suspect who subsequently raped the plaintiffs\u2019 daughter).\n{23} Appellant argues that Deputy Stevens\u2019 failure to detain or arrest the allegedly intoxicated Lopez constituted a breach of a statutory duty imposed by Section 29-1-1. Given the pleaded facts, Deputy Stevens\u2019 duty to detain or arrest could arguably derive from either the Detoxification Reform Act or the Motor Vehicle Code, NMSA 1978, \u00a7\u00a7 66-1-1 to -8-141 (1978, as amended through 2015). We discuss the interplay between these statutes and Section 29-1-1 in turn.\nA. The Detoxification Reform Act\n{24} Appellant\u2019s complaint alleged that Lopez was \u201cwandering on\u201d Highway 550 in an intoxicated state. See Cal. First Bank, 1990-NMSC-106, \u00b6 2 (requiring this Court to accept as true all well-pleaded facts in the complaint). Our Legislature has not enacted a criminal statute prohibiting public intoxication. See \u00a7 43-2-3 (\u201cIt is the policy of this state that intoxicated and incapacitated persons may not be subjected to criminal prosecution, but rather should be afforded protection.\u201d). As such, Lopez was not in violation of a criminal statute, and therefore subject to custodial arrest, simply because he was intoxicated.\n{25} In her reply brief and during oral argument before this Court, Appellant argued that the Detoxification Reform Act creates a duty on the part of law enforcement officers to detain and transport intoxicated persons to safety. We disagree. Section 43-2-8(A)(l)-(7) provides that\n[a]n intoxicated or incapacitated person may be committed to a treatment facility at the request of an authorized person for protective custody, if the authorized person has probable cause to believe that the person to be committed:\n(1) is disorderly in a public place;\n(2) is unable to care for the person's own safety;\n(3) has threatened, attempted or inflicted physical harm on himself or another;\n(4) has threatened, attempted or inflicted damage to the property of another;\n(5) is likely to inflict serious physical harm on himself;\n(6) is likely to inflict serious physical harm on another; or\n(7) is incapacitated by alcohol or drugs.\n(Emphasis added). The Legislature\u2019s use of the permissive \u201cmay\u201d rather than the mandatory \u201cshall\u201d indicates the discretionary nature of a law enforcement officer\u2019s authority under Section 43-2-8(A). See Cerrillos Gravel Prods., Inc. v. Bd. of Cty. Comm\u2019rs of Santa Fe Cty., 2004-NMCA-096, \u00b6 10, 136 N.M. 247, 96 P.3d 1167 (\u201cThe word \u2018may\u2019 is permissive, and is not the equivalent of\u2018shall,\u2019 which is mandatory.\u201d). In State v. Phillips, this Court held that Section 43-2-8(A) provided law enforcement officers with \u201cactual authority\u201d to take intoxicated persons into protective custody. 2009-NMCA-021, \u00b6 23, 145 N.M. 615, 203 P.3d 146. Contrary to Appellant\u2019s argument, however, Phillips makes no comment on a law enforcement officer\u2019s obligation to do so. See generally id.\n{26} Because Deputy Stevens was under no statutory obligation to detain or transport Lopez under Section 43-2-8(A), his decision to discontinue such transportation cannot constitute a deprivation of a statutory right imposed by Section 29-1-1. Because Deputy Stevens\u2019 conduct did not breach a statutory duty owed to Appellant, Appellees\u2019 immunity from tort liability granted by Section 41-4-4(A) is not waived on this theory.\nB. The Motor Vehicle Code\n{27} Appellant additionally argues that Deputy Stevens\u2019 failure to arrest Lopez for violations of the Motor Vehicle Code constituted a breach of a statutory duty imposed by Section 29-1-1. We review the Motor Vehicle Code to determine whether Lopez\u2019s alleged conduct justified his being placed under custodial arrest by Deputy Stevens.\n{28} Applying again the language of the complaint, violation of certain traffic statutes would subject Lopez to citation for \u201cwandering on\u201d Highway 550. See \u00a7 66-7-339 (describing required conduct while walking along highways that lack sidewalks); Section 66-7-334(B) (prohibiting pedestrians from \u201cwalk[ing] or run[ing] into the path of a vehicle\u201d). However, a violation of one or both of these statutes, particularly a violation that was not witnessed by a law enforcement officer, would not subject Lopez to custodial arrest. See NMSA 1978, \u00a7 66-8-123 (2013) (requiring, subject to specific exceptions, that an individual arrested for a misdemeanor violation of the Motor Vehicle Code be cited and released); State v. Reger, 2010-NMCA-056, \u00b6 13, 148 N.M. 342, 236 P.3d 654 (\u201cThe [misdemeanor arrest] rule provides that generally, in New Mexico, an officer may execute a warrantless misdemeanor arrest only if the offense was committed in the officer\u2019s presence.\u201d (alteration, internal quotation marks, and citation omitted)).\n{29} Cases cited by Appellant, including Blea and Torres v. State, 1995-NMSC-025, \u00b6 24, 119 N.M. 609, 894 P.2d 386 (holding that the duty to investigate applied to a specific murder suspect), in support of her argument that Deputy Stevens breached a statutory duty imposed by 29-1-1 are distinguishable. In Blea, the defendant officers had probable cause to arrest the suspect for numerous statutory violations during the initial traffic stop; a course of action that would have removed a significant threat to the public from the roadways. 1994-NMCA-008, \u00b6 19. Similarly, in Torres, our Supreme Court held that the defendant officers had a statutory duty to investigate a specific murder suspect prior to his flight to Los Angeles where he murdered two additional people. 1995-NMSC-025, \u00b6\u00b6 6, 25.\n{30} In the present case, Deputy Stevens investigated a report of a potentially intoxicated pedestrian \u201cwandering on\u201d Highway 550. Applying these facts as pleaded, Deputy Stevens lacked statutory authority to place Lopez under custodial arrest for a violation of the Motor Vehicle Code.\n{31} Absent the authority to place Lopez under custodial arrest for a statutory violation, Deputy Stevens did not breach a statutory duty imposed by Section 29-1 -1 by releasing Lopez from his vehicle. Because Deputy Stevens\u2019 conduct did not breach a statutory duty owed to Appellant, Appellees\u2019 immunity from tort liability granted by Section 41-4-4(A) is not waived on this theory.\nCONCLUSION\n{32} Because Appellant\u2019s complaint did not allege facts sufficient to establish a waiver of the governmental immunity granted by Section 41-4-4(A), Appellees are immune from tort liability. We therefore affirm the district court\u2019s Rule 1-012(B)(6) dismissal.\n{33} IT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nWE CONCUR:\nMICHAEL E. VIGIL, Chief Judge\nSTEPHEN G. FRENCH, Judge\nSee NMSA 1978, \u00a7 30-7-4 (1979, amended 1993) (prohibiting the negligent use of a deadly weapon).\nWhile Deputy Stevens\u2019 decision to transport Lopez could be interpreted as action under Section 43-2-8(A), Appellant\u2019s factual allegations contradict this argument. Section 43-2-8(A) authorizes a law enforcement officer to transport an intoxicated or incapacitated person to \u201ca treatment facility.\u201d Appellant\u2019s complaint alleged that Deputy Stevens was transporting Lopez \u201chome.\u201d", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gilpin Law Firm, LLC Donald G. Gilpin Albuquerque, NM for Appellant", "Potts & Associates Amy L. Glasser Albuquerque, NM Law Offices of Mark J. Klecan Mark J. Klecan Albuquerque, NM for Appellees" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-096\nFiling Date: August 4, 2016\nDocket No. 34,347\nSHERRY MILLIRON, Plaintiff-Appellant, v. THE COUNTY OF SAN JUAN, THE SAN JUAN SHERIFF\u2019S DEPARTMENT, and RICHARD STEVENS, Defendants-Appellees.\nDaylene Marsh, District Judge\nGilpin Law Firm, LLC Donald G. Gilpin Albuquerque, NM for Appellant\nPotts & Associates Amy L. Glasser Albuquerque, NM Law Offices of Mark J. Klecan Mark J. Klecan Albuquerque, NM for Appellees" }, "file_name": "0631-01", "first_page_order": 647, "last_page_order": 655 }