{ "id": 1577352, "name": "John DOE, Plaintiff-Appellee, v. The CITY OF ALBUQUERQUE, Defendant-Appellant; Christopher HOOTON, Plaintiff-Appellee, v. The CITY OF ALBUQUERQUE, Defendant-Appellant", "name_abbreviation": "Doe v. City of Albuquerque", "decision_date": "1981-04-14", "docket_number": "No. 4213", "first_page": "433", "last_page": "439", "citations": [ { "type": "official", "cite": "96 N.M. 433" }, { "type": "parallel", "cite": "631 P.2d 728" } ], "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": "77 N.M. 747", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802154 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0747-01" ] }, { "cite": "14 A.L.R.2d 353", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1950, "opinion_index": 0 }, { "cite": "387 A.2d 731", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8060000 ], "opinion_index": 0, "case_paths": [ "/a2d/387/0731-01" ] }, { "cite": "224 Miss. 96", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1856784 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/miss/224/0096-01" ] }, { "cite": "81 N.M. 92", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365264 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0092-01" ] }, { "cite": "88 N.M. 527", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839428 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0527-01" ] }, { "cite": "88 N.M. 170", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838995 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0170-01" ] }, { "cite": "93 N.M. 601", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568725 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0601-01" ] }, { "cite": "90 N.M. 246", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872833 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0246-01" ] }, { "cite": "85 N.M. 668", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772967 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0668-01" ] }, { "cite": "71 N.M. 338", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5349312 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0338-01" ] }, { "cite": "91 N.M. 599", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571143 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0599-01" ] }, { "cite": "81 N.M. 734", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358925 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0734-01" ] }, { "cite": "82 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331628 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/82/0275-01" ] }, { "cite": "69 N.W.2d 183", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1955, "opinion_index": 0 }, { "cite": "342 Mich. 36", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1853948 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/mich/342/0036-01" ] }, { "cite": "95 N.M. 329", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575588 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/95/0329-01" ] } ], "analysis": { "cardinality": 865, "char_count": 15026, "ocr_confidence": 0.792, "pagerank": { "raw": 2.2147620826066457e-07, "percentile": 0.7769354506768541 }, "sha256": "72a0309f8acd74f4ccb91e32fb379a6b486d4a364a9e5a13d52ef58b2eaa0edf", "simhash": "1:255cf7cde4f85962", "word_count": 2484 }, "last_updated": "2023-07-14T16:25:27.930698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, C. J., and ANDREWS, J., concur." ], "parties": [ "John DOE, Plaintiff-Appellee, v. The CITY OF ALBUQUERQUE, Defendant-Appellant. Christopher HOOTON, Plaintiff-Appellee, v. The CITY OF ALBUQUERQUE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWALTERS, Judge.\nThe majority of a panel of the Court of Appeals (Walters, J., dissenting) previously held in this case that \u00a7 41-4-12 of the Tort Claims Act, N.M.S.A. 1978, prohibited recovery by injured jail inmates against negligent city law enforcement officers. The Supreme Court reversed, declaring that the governmental entity and its law enforcement officers, the city jailers, were not immune from suit for personal or bodily injury caused by the jailers\u2019 negligence. The cause was remanded to this Court for determination of other issues raised by the City in its appeal.\nThe facts of this case are fully recited in the Court of Appeals decision appearing in 19 N.M.S.B.B. 775 (1980) and in the opinion of the Supreme Court published at 20 N.M. S.B.B. 139, 95 N.M. 329, 622 P.2d 234 (1981).\nAside from the question of immunity now disposed of by the Supreme Court\u2019s opinion, the city claims it is entitled to a new trial because of errors committed in consolidating the cases for trial, denying a motion for directed verdict, refusing requested instructions, and excluding certain evidence. We discuss the claimed errors in order.\n1. Consolidation.\nRule 42(a), N.M.R.Civ.P., permits consolidation when actions involve common questions of law or fact. Of course, each plaintiff would have to show discrete facts pertinent only to the event giving rise to his claim; nevertheless, the underlying common facts alleged were the same: plaintiffs had been imprisoned within weeks of each other in the Bernalillo County jail; the jail was under control and responsibility of the City; plaintiffs were seriously injured by other inmates while so jailed; the City was aware for a substantial period of time before the plaintiffs were assaulted and injured of the potential for injury to them. The common issue of law was whether the City was negligent in failing to provide adequate supervision and protection for plaintiffs\u2019 safety.\nIf there were questions common to both cases at the time consolidation was ordered, Blumenthal v. Berkley Homes, Inc., 342 Mich. 36, 69 N.W.2d 183 (1955), the order is reviewable only if the court abused its discretion in entering the order. Hanratty v. Middle Rio Grande Conservancy Dist., 82 N.M. 275, 480 P.2d 165 (1970). Defendant\u2019s argument that the jury could not assess the separate claims of the plaintiffs free from a prejudicial influence of evidence heard on the claim of the other plaintiff, is purely speculative. It presumes the jury was unable or refused to follow the detailed instructions. The only proof suggested to support the argument is the $23,-000 difference in verdicts returned, which defendant describes as verdicts \u201creasonably close together.\u201d It argues that the \u201cgreat disparity between the extent of injuries\u201d suffered by the plaintiffs, and the difference in the periods of time over which the injuries were inflicted, call for a wider spread in the damages awarded.\nThere is no touchstone beyond the instructions given for measuring the damage amounts which juries, in the exercise of their judgments, award. Baca v. Baca, 81 N.M. 734, 472 P.2d 997 (Ct.App.1970). Reviewing courts do not disturb awards supported by evidence which is taken in its most favorable light, and which awards are not shown to be the result of passion, prejudice, sympathy, undue influence, or a mistaken measure of damages. Samedan Oil Corp. v. Neeld, 91 N.M. 599, 577 P.2d 1245 (1978). We see no defect in the evidence to support the verdicts; and we are led to no conviction that the awards are tainted by passion or other improper consideration that would support a belief that consolidation prejudiced the defendant. It was not error to do so.\n2. Directed verdict.\nThe City states in its Brief-in-Chief that there was insufficient evidence to submit all of plaintiffs\u2019 theories of negligence to the jury. No reference to the transcript appears in this argument; no recitation of any evidence or testimony either to support the theories or to show the inadequacy of support, is made. The City concedes, however, that it \u201crecognizes that this Honorable Court may disagree and find that there was substantial evidence of negligence as to one or more of the claims.\u201d\nThe factual and legal deficiencies in this argument are somewhat relieved by appellees\u2019 Answer Briefs, in which they attempt to guess at the basis of the City\u2019s complaint. The argument is then thoroughly presented by the City, as required by Rule 9, R.Civ.App.P., in its Reply Brief. The Reply Brief, of course, is not the place to outline, for the first time, the basis for arguing insufficient evidence; or to set forth the substance of the evidence on the issues attempted to be raised. Such a procedure forecloses a response from appellees, and leaves them with an argument directed only toward what they were able to surmise from the cryptic point stated in the Brief - in-Chief. The court will not search the record to determine whether appellant\u2019s Reply Brief arguments could be refuted, or whether the trial court committed error. See Petty v. Williams, 71 N.M. 338, 378 P.2d 376 (1963). Points of error not properly briefed or argued will not be considered, State v. Riggsbee, 85 N.M. 668, 515 P.2d 964 (1973); rather, we will indulge all presumptions in favor of the correctness of the procedures in the trial court, including submission of plaintiffs\u2019 various negligence claims to the jury.\n3. Refusal of requested instructions.\n(a) Independent Intervening Cause.\nThe City contends it was entitled to its submitted U.J.I. 13.15 [U.J.I. 3.9 in 1981 revision] on this issue, but in its Brief-in-Chief we are not cited to a single item of evidence or transcript reference in support of its argument. This violates the appellate rules; we will not search the record to find evidence that would have justified submission of the instruction to the jury. See City of Farmington v. Sandoval, 90 N.M. 246, 561 P.2d 945 (Ct.App.1977).\n(b) Contributory Negligence of Hooton.\nAccording to the undisputed evidence, Hooton\u2019s jaw was broken about an hour after he was jailed following his arrest. During that hour Hooton was threatened, intimidated, assaulted and beaten. One of the dozen inmates in that cell held a blade at his throat, and threatened to \u201cslit\u201d Hooton if he tried to call for a guard. Another inmate told Hooton it didn\u2019t matter if he killed Hooton because \u201cthey weren\u2019t going to let him [the inmate] get out for at least twenty years anyway.\u201d Still another occupant of the cell told him he might be beaten all night long, and Hooton feared if he called for a guard, he \u201cwouldn\u2019t make it . . . wouldn\u2019t see morning.\u201d\nThe City claims Hooton should have called for help before his jaw was broken, and his failure to do so w\u00e1s sufficient basis to justify a contributory negligence instruction against him.\nContributory negligence is usually an issue of fact to be determined by the jury, but when the evidence would not support such a finding it is error to submit the issue to the jury. City of Belen v. Harrell, 93 N.M. 601, 603 P.2d 711 (1979). U.J.I. Civ. 12.1 [U.J.I.Civ. 16.1 in 1981 revision] defines \u201cnegligence,\u201d in part, as a failure to do something \u201cwhich a reasonably prudent person in the exercise of ordinary care would do in order to prevent injury to himself.\u201d U.J.I.Civ. 12.2 (then in effect), instructed that \u201c[o]rdinary care is not an absolute term, but a relative one. In deciding whether ordinary care has been exercised, the conduct in question must be considered in the light of all the surrounding circumstances, as shown by the evidence.\u201d\nUnder the facts and circumstances of the immediate \u201cgang\u201d attack on Hooton, the relatively short time he was in the cell with his attackers, his well-founded fears for his life if he attempted to get help, we do not believe reasonable minds could differ on the correctness of the course Hooton chose in exercising ordinary care to prevent an even greater, more serious, and probably fatal injury to himself. Thus, as a matter of law, it was not error to refuse defendant\u2019s requested instructions. Harrell, supra; see Sandoval v. Cortez, 88 N.M. 170, 538 P.2d 1192 (Ct.App.1975).\n(c)The City\u2019s Standard of Care.\nDefendant urges that the jury should have been informed in the language of \u00a7 41-4r-2, N.M.S.A. 1978, that a governmental entity\u2019s standard of care is circumscribed by the \u201cfinancial limitations within which it must exercise authorized power, and discretion in determining the extent and nature of its activities.\u201d Such an instruction was tendered and refused. The City points to evidence that surveillance of the cells was insufficient because the jail director was without sufficient manpower. That, however, is the only evidence in the record to which we are referred regarding lack of precautions for prisoner safety, and it provides no evidence whatever on the cause for insufficient manpower. Without evidence on the issue of \u201cfinancial limitations,\u201d defendant was not entitled to the requested instruction. Archibeque v. Homrich, 88 N.M. 527, 543 P.2d 820 (1975); Garcia v. Barber\u2019s Super Markets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1969).\n4. Exclusion of evidence.\n(a) Evidence of Custom and Usage.\nThe trial court refused to permit the City to inquire about customs and usages in other correctional institutions concerning attacks among the prisoner population.\nThe questions asked by the City, to which objections were sustained, leave no doubt that the effect of the answers sought would be to suggest that sexual and violent attacks between and among prisoners is a common, foreseeable occurrence in most jails and prisons. The City argues that evidence of \u201csimilar problems\u201d in the other facilities, and how they were handled, was relevant to showing \u201cwhat an ordinary prudent man would do under similar circumstances.\u201d\nIt is not clear whether the City intended to show the conduct of plaintiffs or the jail director as the acts of a \u201cprudent man\u201d under similar circumstances, but we assume it argues that the director should have done no more than is done in other institutions where such unrest and violence may be expected. We are unaware of any rule of law that excuses a wrongdoer\u2019s negligence simply because that type of negligence is prevalent among others in the same position. We feel, instead, that doing nothing in the face of anticipated problems and with awareness of similar difficulties in other institutions under the same circumstances\u2014which was the direction taken by the City\u2019s questioning and admitted in the City\u2019s brief to be the purpose of the questioning\u2014hardly shows the conduct of a \u201cprudent\u201d person or entity.\nIf there is a failure of prison officials to provide for the safety of prisoners, generally, as the City attempted to show, the practice amounts to wholesale disregard of duty by those charged with protection of prisoners from assaults by other confined inmates. Even though other jurisdictions have held otherwise, it is the law in New Mexico that when a governmental entity through its agents, by virtue of its law enforcement powers, has arrested and imprisoned a human being, it is bound to exercise ordinary and reasonable care, under the circumstances, for the preservation of his life and health. Harrell, supra. The duty of care is one owing to a person in custody by virtue of such powers, and for a breach of that duty, the custodial entity is responsible in damages. Farmer v. State, 224 Miss. 96, 79 So.2d 528 (1955). See also Matthews v. District of Columbia, 387 A.2d 731 (D.C.App.1978); Restatement (Second), Torts, \u00a7 320; Annots. 41 A.L.R.3rd 1021, et seq. (1972), and 14 A.L.R.2d 353, et seq. (1950).\nThe stated purpose of the inquiries did not relate to a valid defense; the questions were not relevant on any other basis to any issue being litigated. The objections, therefore, were properly sustained. N.M.R.Evid. 401, 402, N.M.S.A. 1978.\n(b) \u201cRap sheet\u201d of other inmates.\nAfter Hooton was removed from the tank in which he was assaulted, he was confined in another cell with several other prisoners. The City attempted to introduce the rap sheets of the other prisoners in Hooton\u2019s second cell. On appeal, it says that the rap sheets would have shown the similarity in the criminal backgrounds of the prisoners of both cells, thus permitting the inference that foreseeability of violence in the first cell could not be based on the prisoners\u2019 types of criminal character alone.\nHooton in his Answer Brief has not challenged defendant\u2019s failure to apprise the trial court of a relevant purpose for which the rap sheets were offered. The record discloses that the only reason mentioned for offering the rap sheets was that the City intended to show that the second cell to which Hooton was assigned was not, on dates before and after his assignment, \u201cconfined to housing individuals accused of misdemeanor offenses.\u201d The relevancy of that fact was never explained; and the trial court found that the criminal character of the occupants of the second cell on dates earlier and later than the day on which Hooton was transferred there was likewise irrelevant. The reason for admission urged by the City on appeal was not articulated at trial.\nError of the trial court in excluding evidence, if it is error, must be sufficiently called to the trial court\u2019s attention to give the court an opportunity to correct its ruling. That was not done in this case; an offer of proof was not made; the City did not seek clarification of the court\u2019s ruling if it felt the evidence should not have been excluded. The alleged error was not preserved. Williams v. Yellow Checker Cab Co., 77 N.M. 747, 427 P.2d 261 (1967).\nEven had the rap sheets been introduced, what would they have proved or disproved with regard to the City\u2019s foreseeability of danger in placing Hooton in the first cell where he was assaulted? If similarity in criminal backgrounds was the only ground for alerting jail officials to the probability of injury to Hooton or other prisoners, and the rap sheets would have shown that similarity, the logical deduction would be that, as the City indicates in its brief, \u201cthere Was no safe place anywhere in the jail.\u201d Certainly exclusion of that kind of evidence could not prejudice the City when it is on trial for negligently failing to provide for the safety of prisoners in its custody.\nWe find no reversible error in the trial below. The verdicts returned in favor of plaintiffs Doe and Hooton are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ, C. J., and ANDREWS, J., concur.", "type": "majority", "author": "WALTERS, Judge." } ], "attorneys": [ "Steven H. Schiff, City Atty., Albuquerque, for defendant-appellant.", "Ray M. Vargas, Albuquerque, for plaintiff-appellee Doe.", "Dan A. McKinnon, III, Marr\u00f3n & McKinnon, Albuquerque, for plaintiff-appellee Hooton." ], "corrections": "", "head_matter": "631 P.2d 728\nJohn DOE, Plaintiff-Appellee, v. The CITY OF ALBUQUERQUE, Defendant-Appellant. Christopher HOOTON, Plaintiff-Appellee, v. The CITY OF ALBUQUERQUE, Defendant-Appellant.\nNo. 4213.\nCourt of Appeals of New Mexico.\nApril 14, 1981.\nRehearing denied May 4, 1981.\nSteven H. Schiff, City Atty., Albuquerque, for defendant-appellant.\nRay M. Vargas, Albuquerque, for plaintiff-appellee Doe.\nDan A. McKinnon, III, Marr\u00f3n & McKinnon, Albuquerque, for plaintiff-appellee Hooton." }, "file_name": "0433-01", "first_page_order": 461, "last_page_order": 467 }