{ "id": 1224594, "name": "Bennie GARCIA, Plaintiff-Appellant, v. Officer J. GORDON, Valencia County Sheriffs Department and Valencia County, Defendants-Appellees", "name_abbreviation": "Garcia v. Gordon", "decision_date": "2004-07-22", "docket_number": "No. 23,933", "first_page": "394", "last_page": "398", "citations": [ { "type": "official", "cite": "136 N.M. 394" }, { "type": "parallel", "cite": "98 P.3d 1044" }, { "type": "parallel", "cite": "2004-NMCA-114" } ], "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": "113 N.M. 471", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723189 ], "weight": 2, "pin_cites": [ { "page": "474-75" }, { "page": "862-63" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0471-01" ] }, { "cite": "118 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563538 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "4", "parenthetical": "holding negligence of business owner and its employee in failing to protect patron from injury caused by intentional tortfeasor to be compared with fault of patron who was attacked and patron who attacked her to reduce liability of owner and employee" }, { "page": "322", "parenthetical": "holding negligence of business owner and its employee in failing to protect patron from injury caused by intentional tortfeasor to be compared with fault of patron who was attacked and patron who attacked her to reduce liability of owner and employee" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0001-01" ] }, { "cite": "117 N.M. 623", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552530 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "627" }, { "page": "383" }, { "page": "625" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0623-01" ] }, { "cite": "569 N.W.2d 633", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1997, "pin_cites": [ { "page": "636", "parenthetical": "stating that generally where act complained of is one of omission rather than commission, it is not an intentional tort" } ], "opinion_index": 0 }, { "cite": "224 Mich.App. 422", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 485692 ], "year": 1997, "pin_cites": [ { "parenthetical": "stating that generally where act complained of is one of omission rather than commission, it is not an intentional tort" } ], "opinion_index": 0, "case_paths": [ "/mich-app/224/0422-01" ] }, { "cite": "751 N.E.2d 1126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "256 Ill.Dec. 289", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 2001, "opinion_index": 0 }, { "cite": "196 Ill.2d 288", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351236 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-2d/196/0288-01" ] }, { "cite": "724 N.E.2d 1276", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1282", "parenthetical": "stating \"intentional conduct is purposeful and directed toward a specific end, while negligent conduct is careless or accidental\"" } ], "opinion_index": 0 }, { "cite": "244 Ill.Dec. 192", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 2000, "pin_cites": [ { "parenthetical": "stating \"intentional conduct is purposeful and directed toward a specific end, while negligent conduct is careless or accidental\"" } ], "opinion_index": 0 }, { "cite": "311 Ill.App.3d 649", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415374 ], "year": 2000, "pin_cites": [ { "parenthetical": "stating \"intentional conduct is purposeful and directed toward a specific end, while negligent conduct is careless or accidental\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0649-01" ] }, { "cite": "6 Kan.App.2d 308", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 390967 ], "weight": 2, "year": 1981, "pin_cites": [ { "parenthetical": "holding it was proper for the jury to allocate responsibility for landowner's damages as between city and landowner where evidence only showed that the city's conduct created a condition posing an undue risk of harm and not that it had intended to damage the plaintiff" }, { "page": "248", "parenthetical": "holding it was proper for the jury to allocate responsibility for landowner's damages as between city and landowner where evidence only showed that the city's conduct created a condition posing an undue risk of harm and not that it had intended to damage the plaintiff" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/6/0308-01" ] }, { "cite": "953 P.2d 796", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "799" } ], "opinion_index": 0 }, { "cite": "134 Wash.2d 761", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 452317 ], "opinion_index": 0, "case_paths": [ "/wash-2d/134/0761-01" ] }, { "cite": "2002-NMCA-084", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260677 ], "weight": 3, "pin_cites": [ { "page": "\u00b640" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0631-01" ] }, { "cite": "98 N.M. 152", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582523 ], "weight": 4, "pin_cites": [ { "page": "159" }, { "page": "586" }, { "page": "159" }, { "page": "586", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0152-01" ] }, { "cite": "96 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577286 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "690" }, { "page": "1242" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0682-01" ] }, { "cite": "952 S.W.2d 239", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11899328 ], "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/sw2d/952/0239-01" ] }, { "cite": "387 N.W.2d 168", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10652917 ], "year": 1986, "pin_cites": [ { "page": "176, n. 7" } ], "opinion_index": 0, "case_paths": [ "/nw2d/387/0168-01" ] }, { "cite": "104 So.2d 3", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9872585 ], "weight": 2, "pin_cites": [ { "page": "7-8" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/so2d/104/0003-01" ] }, { "cite": "18 A.L.R.5th 525", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "124 N.J. 90", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 307886 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/nj/124/0090-01" ] }, { "cite": "485 So.2d 477", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7601805 ], "weight": 2, "pin_cites": [ { "page": "480" }, { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/so2d/485/0477-01" ] }, { "cite": "87 N.M. 474", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831089 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "476", "parenthetical": "stating where liability is decided in favor of defendant, failure to give a correct instruction on damages is not reversible error" }, { "page": "1327", "parenthetical": "stating where liability is decided in favor of defendant, failure to give a correct instruction on damages is not reversible error" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0474-01" ] }, { "cite": "2001-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352478 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0532-01" ] } ], "analysis": { "cardinality": 805, "char_count": 15410, "ocr_confidence": 0.676, "pagerank": { "raw": 6.12465515849586e-08, "percentile": 0.3815763003943473 }, "sha256": "c499bd7455bc470eca792f847d4a95b8a6929de0c742c5c25b7ad952f2b27597", "simhash": "1:5f3c2aa4202135fa", "word_count": 2441 }, "last_updated": "2023-07-14T15:28:59.278788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JAMES J. WECHSLER, Chief Judge and IRA ROBINSON, Judge." ], "parties": [ "Bennie GARCIA, Plaintiff-Appellant, v. Officer J. GORDON, Valencia County Sheriffs Department and Valencia County, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} The jury found that Defendant falsely arrested and falsely imprisoned Plaintiff, resulting in $55,000 in compensatory damages. Over Plaintiffs objection, the jury was allowed to determine whether Plaintiff was comparatively negligent, and the jury found that Plaintiff was 25% negligent. Plaintiff was awarded a judgment of $41,250 in compensatory damages, plus costs, after the reduction of 25% from the gross jury verdict of $55,000. Plaintiff assumes the evidence is sufficient to support the jury\u2019s finding and he does not challenge the jury\u2019s factual finding of 25% comparative negligence. However, he appeals, arguing that false arrest and false imprisonment are intentional torts, and comparative negligence is not available as a defense to reduce damages caused in whole or in part by an intentional tort. We affirm on the basis that the jury did not find Defendant acted intentionally in this case.\nFACTS\n{2} Defendant, a Deputy Sheriff with the Valencia County Sheriffs Department, was in the process of issuing Plaintiffs girlfriend a traffic citation. Her car was parked on the side of the road, with Defendant\u2019s vehicle parked behind it. Plaintiff drove up to the two vehicles, parked his truck in front of his girlfriend\u2019s ear, got out of his truck, and started approaching his girlfriend\u2019s car. Defendant was in his vehicle writing the citation, and not knowing who Plaintiff was or his intentions, he repeatedly instructed Plaintiff to return to his truck over the loudspeaker on his police vehicle. Plaintiff did not comply and continued to approach his girlfriend\u2019s ear. Plaintiffs girlfriend got out of her car and told him to return to his truck by using arm motions. Defendant saw this and realized that Plaintiff was either deaf or had a hearing problem. He then got out of his police car, approached Plaintiff, and gestured in a pointing motion from Plaintiffs body to his truck several times to instruct Plaintiff to return to his truck. Plaintiff still refused to comply, and he continued to demand that Defendant tell him why he had stopped his girlfriend. Because Plaintiff is deaf, he spoke in a loud and somewhat aggressive manner, while also using hand gestures. At one point while standing within several feet of Defendant, Plaintiff made a hand gesture Defendant found to be threatening. Defendant arrested Plaintiff for resisting, evading, or obstructing an officer.\n{3} Plaintiff sued Defendant. The Valencia County Sheriffs Department and Valencia County were named defendants on the basis of respondeat superior. Claims of malicious prosecution, false arrest, false imprisonment, and battery were submitted to the jury. The jury found that Defendant did not maliciously prosecute Plaintiff, and that while Defendant committed a battery, it did not proximately cause any damages to Plaintiff. Defendant was found to have committed a false arrest and false imprisonment of Plaintiff, proximately causing $55,000 in damages. The jury found Defendant 75% negligent and Plaintiff 25% negligent.\n{4} The jury was instructed in pertinent part that to establish his claim of false arrest and false imprisonment Plaintiff had the burden of proving, \u201c[Defendant] arrested and confined Plaintiff without probable cause,\u201d and that \u201c[f]or a law enforcement officer to make a \u2018lawful arrest\u2019 he must have \u2018probable cause\u2019 that a crime has been committed and that the person to be arrested committed it. \u2018Probable Cause\u2019 is a reasonable ground for belief that a crime has been committed.\u201d The jury was told in pertinent part that Defendant claimed that, \u201cPlaintiff was comparatively negligent and that such comparative negligence was a proximate cause of Plaintiffs alleged damages.\u201d The jury was also instructed that to establish his claim of comparative negligence, \u201cDefendant must show that Plaintiff did not act with ordinary care, was negligent in failing to return to his vehicle when told to do so, and that such was a proximate, cause of Plaintiffs arrest and subsequent damages.\u201d The jury found that Plaintiff was comparatively at fault in failing to return to his vehicle when told to do so, and that his comparative fault was a proximate cause of his injuries and damages. DISCUSSION\n{5} Plaintiff states that the issue presented in this case is whether a jury can properly apportion fault between a defendant who commits an intentional tort and a plaintiff who is negligent. We are therefore asked to decide whether the trial court fairly instructed the jury on comparative fault, a question of law we review de novo. Chamberland, v. Roswell Osteopathic Clinic, Inc., 2001-NMCA-045, \u00b6 11,130 N.M. 532, 27 P.3d 1019. Plaintiff argues that \u201cComparative negligence is not available as a defense to reduce damages caused in whole or in part\u201d by \u201cfalse arrest [or] false imprisonment.\u201d Plaintiffs argument relates to damages. Since the jury found against Plaintiff on his malicious prosecution and battery claims, we do not address his argument as it relates to these claims. See Britton v. Boulden, 87 N.M. 474, 476, 535 P.2d 1325, 1327 (1975) (stating where liability is decided in favor of defendant, failure to give a correct instruction on damages is not reversible error).\n{6} No New Mexico cases directly address when a jury has properly apportioned fault between a defendant who commits an intentional tort and a plaintiff who is negligent. Courts which have addressed this issue have arrived at divergent conclusions. Compare Mazzilli v. Doud, 485 So.2d 477, 480 (Fla. Dist.Ct.App.1986) (holding that comparative negligence cannot be used as a defense to an intentional tort where a defendant indisputably intended to shoot plaintiffs thereby committing assault and battery) with Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222, 231 (1991) (holding that responsibility for a plaintiffs claimed injuries is to be apportioned according to each party\u2019s relative degree of fault, including the fault attributable to an intentional tort, because intentional wrongdoing is different in degree, not different in kind, from negligent conduct). The cases addressing this issue are collected and discussed in Allan L. Schwartz, Annotation, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525 (1994).\nThe clearly prevailing view is that comparative negligence principles are not applicable to intentional torts (\u00a7 3[a]). The rationale for this view rests on the general assumption that comparative negligence evolved to provide compensation to tort victims, who were barred by the harsh doctrine of contributory negligence, and should not be used to diminish recovery where the common law had previously treated an intentional tort victim\u2019s contributory fault as irrelevant to damage recovery where an intentional tort was inflicted.\nId. \u00a7 2[a], at 533. New Mexico has statutorily adopted the majority view as articulated in Section 41-3A-1(C)(1) which states that joint and several liability \u201cshall apply to any person or person who acted with the intention of inflicting injury or damage.\u201d The reasoning justified in the majority view is the concept of what constitutes an \u201cintentional tort.\u201d For example, Deane v. Johnston, 104 So.2d 3, 7-8 (Fla.1958) states that a plaintiffs contributory negligence will not bar the action where the character of a defendant\u2019s intent is ' \u201cintentional,\u201d in the following sense:\nIntent in the law of torts means that the actor acts for the purpose of causing an invasion of another\u2019s interest or knows that such an invasion is resulting, or is substantially certain to result, from his conduct. It is not enough that the act itself is intentionally done.\nId. at 8. Mazzilli incorporates this concept of intent in describing an intentional tort for which comparative negligence is not a defense. 485 So.2d at 480. The reasoning for not comparing the fault attributable to the negligence of a plaintiff with the fault attributable to the commission of such an \u201cintentional tort\u201d is succinctly stated in Florenzano v. Olson, 387 N.W.2d 168, 176, n. 7 (Minn. 1986) as follows:\nIt is the rule of law in virtually all states that fault should not be apportioned between an intentional tortfeasor and a merely negligent victim. The reasons underlying this rule are persuasive. Intentional torts are punished not because the actor failed to use reasonable care, but because the actor intended the act. The difference between the victim\u2019s actions and the defendant\u2019s action is not one of degree, but of kind, and they are therefore not comparable.\n(citations omitted). See also Schwartz, supra, note 3, at 532 (stating \u201can \u2018intentional tort\u2019 requires more than an intentional act, in that an \u2018intentional tort\u2019 by its very nature intends to harm\u201d); Gibson v. Brewer, 952 S.W.2d 239, 248 (Mo.1997) (\u201cIntent denotes \u2018that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.\u2019 \u201d (quoting Restatement (Second) of Torts, \u00a7 8A (1965))).\n{7} Plaintiffs argument requires us to assume that false arrest and false imprisonment are \u201cintentional torts\u201d in the foregoing sense. However, the jury was not required to determine that Defendant acted \u201cintentionally\u201d under its instructions. The jury was instructed that it had to find that Defendant arrested and confined Plaintiff without \u201cprobable cause,\u201d and it was further instructed that \u201cprobable cause\u201d is \u201ca reasonable ground for belief that a crime has been committed.\u201d The jury was therefore only required to find that Defendant\u2019s belief that Plaintiff was resisting, evading, or obstructing an officer was \u201cunreasonable\u201d to find him liable for false arrest and false imprisonment. It did not have to find \u201cintentional\u201d conduct. In contrast, the instructions on battery required a finding that Defendant \u201cintentionally touched or applied force to [P]laintiffs body without justification\u201d when he \u201cforcefully grabbed Plaintiffs face,\u201d when he used \u201cexcessive force to place Plaintiffs hands behind Plaintiffs back,\u201d and when he used \u201cexcessive force in squeezing the handcuffs onto Plaintiffs wrists.\u201d\n{8} We hold that it was proper for the jury to consider whether Plaintiff was comparatively at fault in this ease. In Scott v. Rizzo, 96 N.M. 682, 690, 634 P.2d 1234, 1242 (1981), our Supreme Court adopted the doctrine of \u201cpure comparative negligence.\u201d \u201cPure comparative negligence denies recovery for one\u2019s own fault; it permits recovery to the extent of another\u2019s fault; and it holds all parties fully responsible for their own respective acts to the degree that those acts have caused harm.\u201d Id. In Bartlett v. New Mexico Welding Sttpply, Inc., 98 N.M. 152, 159, 646 P.2d 579, 586 (Ct.App.1982), joint and several liability between negligent tortfeasors was abolished, and we reiterated the foregoing statement from Rizzo. We added that under pure comparative negligence, \u201c[t]he jury must ascertain the percentage of negligence of all participants to an occurrence.\u201d Id. at 159, 646 P.2d at 586 (internal quotation marks and citation omitted).\n{9} The doctrine of pure comparative negligence adopted in New Mexico simply recognizes that the fault of two or more parties may combine to cause an injury. It denies recovery to a plaintiff to the extent his fault contributed to his own injury. The instructions in this case defining the elements of false arrest and false imprisonment were not objected to and they are the law of the case. See Couch v. Astec Indus., Inc., 2002-NMCA-084, \u00b640,132 N.M. 631, 53 P.3d 398 (stating that \u201c[j]ury instructions not objected to become the law of the case\u201d). Under the instructions, Defendant\u2019s belief that Plaintiff was resisting, evading, or obstructing an officer was determined by the jury to be \u201cunreasonable.\u201d Such a finding is more closely related to negligence than an intentional tort. See White River Estates v. Hiltbruner, 134 Wash.2d 761, 953 P.2d 796, 799 (Wa.1998) (\u2018When a person acts \u2018unreasonably\u2019 in light of the circumstances such action is similar to negligence, not an intentional tort.\u201d). Sandifer Motors, Inc. v. City of Roeland Park, 6 Kan.App.2d 308, 628 P.2d 239, 248 (1981) (holding it was proper for the jury to allocate responsibility for landowner\u2019s damages as between city and landowner where evidence only showed that the city\u2019s conduct created a condition posing an undue risk of harm and not that it had intended to damage the plaintiff). See also Voyles v. Sandia Mortgage Corp., 311 Ill.App.3d 649, 244 Ill.Dec. 192, 724 N.E.2d 1276, 1282 (2000) (stating \u201cintentional conduct is purposeful and directed toward a specific end, while negligent conduct is careless or accidental\u201d), rev\u2019d on other grounds by 196 Ill.2d 288, 256 Ill.Dec. 289, 751 N.E.2d 1126 (2001); Stott v. Wayne County, 224 Mich.App. 422, 569 N.W.2d 633, 636 (1997) (stating that generally where act complained of is one of omission rather than commission, it is not an intentional tort).\n{10} Plaintiff and Defendant both argue that Reichert v. Atler, 117 N.M. 623, 875 P.2d 379 (1994) supports their respective position. Reichert is not directly on point. Reichert does not involve the comparison of a defendant\u2019s intentional tort with a plaintiffs negligent act. It held that where the owner or operator of a business is negligent in failing to protect patrons from foreseeable harm, its fault can be compared to the actions of the perpetrator of that harm, even though the perpetrator acts intentionally. Id. at 627, 875 P.2d at 383. See also Barth v. Coleman, 118 N.M. 1, 4, 878 P.2d 319, 322 (1994) (holding negligence of business owner and its employee in failing to protect patron from injury caused by intentional tortfeasor to be compared with fault of patron who was attacked and patron who attacked her to reduce liability of owner and employee); Medina v. Graham\u2019s Cowboys, Inc., 113 N.M. 471, 474-75, 827 P.2d 859, 862-63 (Ct. App.1992) (holding employer who is liable for negligently hiring an intentional tortfeasor vicariously hable for the fault attributed to the tortfeasor employee). However, we do find the following statement from Reichert instructive in deciding this case: \u201cIn New Mexico comparative-fault principles apply unless such application would be inconsistent with public policy.\u201d Reichert, 117 N.M. at 625, 875 P.2d at 381. We find the applicable New Mexico public policy expressed in Section 41-3A-1. This expression of public policy is consistent with our prior description of what constitutes an \u201cintentional tort.\u201d Since the jury only found that Defendant\u2019s belief that Plaintiff was resisting, evading, or obstructing an officer was \u201cunreasonable\u201d and it did not find that Defendant acted with the intention of inflicting injury or damage, application of comparative-fault principles in this case is not inconsistent with public policy-\nCONCLUSION\n{11} The order of the district court is affirmed.\n{12} IT IS SO ORDERED.\nWE CONCUR: JAMES J. WECHSLER, Chief Judge and IRA ROBINSON, Judge.", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Michael R. Griego, Pedro G. Rael, Rael and Sanchez, Los Lunas, NM, for Appellant.", "Lisa P. Ford, Wagner, McBride, Ford & Associates, P.A., Albuquerque, NM, for Appellees." ], "corrections": "", "head_matter": "2004-NMCA-114\n98 P.3d 1044\nBennie GARCIA, Plaintiff-Appellant, v. Officer J. GORDON, Valencia County Sheriffs Department and Valencia County, Defendants-Appellees.\nNo. 23,933.\nCourt of Appeals of New Mexico.\nJuly 22, 2004.\nMichael R. Griego, Pedro G. Rael, Rael and Sanchez, Los Lunas, NM, for Appellant.\nLisa P. Ford, Wagner, McBride, Ford & Associates, P.A., Albuquerque, NM, for Appellees." }, "file_name": "0394-01", "first_page_order": 426, "last_page_order": 430 }