Gallegos v. Las Lomas Apartments Limited Partnership
Filing
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MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING 5 MOTION to Dismiss and For Costs and Fees. IT IS THEREFORE ORDERED that Defendant's Motion to Dismiss [Doc. 5 ] is GRANTED, as follows: Plaintiff's Complaint is dismissed with prejudice. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOEY M. GALLEGOS,
Plaintiff,
v.
CV 17-CV-27-MV/SCY
LAS LOMAS APARTMENTS LIMITED
PARTNERSHIP, a New Mexico Limited
Partnership,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Motion to Dismiss for Failure to State a
Claim filed by Las Lomas Apartments Limited Partnership (“Las Lomas”). [Doc. 5]. The Court,
having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds
that the Motion is well-taken and will be granted.
BACKGROUND
On October 24, 2013, during the course of his duties as a New Mexico State Police
trooper, Plaintiff Joey M. Gallegos went to the Las Lomas Apartments, Apartment No. 323 (the
“Apartment”), in order to execute a warrant against Rogelio Cisneros-Chavez. [Doc. 1-2, ¶ 3].
While in the performance of his duties, Plaintiff was shot and seriously and critically wounded
by Mr. Cisneros-Chavez. Id.
The Apartment was leased to Angelica Romero, Mr. Cisneros-Chavez’s mother. Id., ¶ 4.
Defendant Las Lomas, through its management, was aware that Mr. Cisneros-Chavez was not an
authorized resident of the Los Lomas Apartments, and was also aware of his frequency on the
premises, his residency there, and of his violent nature and criminal record. Id., ¶ 5. Defendant
had previously removed him from the premises. Id
Based on the October 24, 2013 incident, on October 23, 2016, Plaintiff filed suit against
Defendant in the First Judicial District Court, County of Sandoval, State of New Mexico. [Doc.
1-2]. On January 11, 2017, Defendant removed the case to federal court based on diversity of
citizenship. [Doc. 1].
In the Complaint, Plaintiff alleges that Defendant negligently failed to keep its premises
safe for his use in the performance of his duties as a New Mexico State Police trooper, and as a
result, he was shot and wounded by Mr. Cisneros-Chavez while trying to execute the warrant
against him. Specifically, the Complaint alleges that Defendant breached its duty of care by: (a)
permitting Mr. Cisneros-Chavez to come on the premises; (b) not removing him from the
premises; (c) permitting Ms. Romero and others to continue to inhabit the Apartment in spite of
the danger their presence on the premises presented to others because of the use of the Apartment
by a known violent criminal; and (d) failing to provide adequate security to monitor the premises
at all times and keep dangerous persons, and especially Mr. Cisneros-Chavez, off the premises.
Id. at ¶ 6.
On January 20, 2017, Defendant filed a Motion to Dismiss the Complaint pursuant to
Fed. R. Civ. P. 12(b)(6). [Doc. 5]. Defendant opposes the motion. [Doc. 11].
LEGAL STANDARD
Under Rule 12(b)(6), a Court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The nature of a Rule 12(b)(6) motion
tests the sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The sufficiency
of a complaint is a question of law, and when considering a Rule 12(b)(6) motion, the Court
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must accept as true all well-pled factual allegations in the complaint, view those allegations in
the light most favorable to the non-moving party, and draw all reasonable inferences in the
plaintiff’s favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007);
Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citation omitted), cert. denied, 558
U.S. 1148 (2010).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action” is
insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id.
To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff’s complaint must
contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its
face. See Twombly, 550 U.S. at 570; Mink v. Knox 613 F.3d 995, 1000 (10th Cir. 2010). “A
claim has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some
plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the
complainant must give the court reason to believe that this plaintiff has a reasonable likelihood
of mustering factual support for these claims. Ridge at Red Hawk, LLC v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007) (emphasis omitted). The Tenth Circuit has explained,
“[p]lausibility” in this context must refer to the scope of the allegations in a
complaint: If they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs “have not nudged their claims across
the line from conceivable to plausible.” The allegations must be enough that,
if assumed to be true, the plaintiff plausibly (not speculatively) has a claim for
relief.
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Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570).
DISCUSSION
On the instant motion, Defendant asserts that Plaintiff’s claim is barred by the
“firefighter’s rule.” Plaintiff disagrees, arguing that the firefighter’s rule is inapplicable because
he is a police officer, not a firefighter, and because he was not acting as a rescuer when he was
injured. As set forth herein, the Court agrees that the firefighter’s rule applies here, and that
Plaintiff’s Complaint is legally insufficient to state a claim under that rule.
A.
New Mexico Has Adopted the Firefighter’s Rule.
The “firefighter’s rule bars a firefighter, and possibly other professional rescuers, from
suing the party whose actions caused the event to which the firefighter responded.” Baldonado
v. El Paso Nat. Gas Co., 176 P.3d 277, 280 (N.M. 2008). The need for a firefighter’s rule arose
from the existence of the “rescue doctrine,” which prevents “a rescuer from being barred from
recovery because of a finding that the rescuer was contributorily negligent for the injuries he or
she received in rescuing a victim.” Id. at 281. “Because there is no general duty to rescue, the
rescue doctrine imposes a duty of care owed to rescuers.” Id. Where, however, “the rescuer has
a duty to rescue – as is the case with firefighters – the underlying rationale for imposing a duty
on the public changes, and the doctrine must change along with the policy.” Id. This is where
the firefighter’s rule comes in: the firefighter’s rule limits the “exception to traditional tort
duties” created by the rescue doctrine. Id.
In Baldonado, the New Mexico Supreme Court adopted “a two-prong test” for
determining whether the firefighter’s rule applies. Id. Under New Mexico’s test, “the person
creating a peril owes a professional rescuer no duty if the rescuer’s injury (1) was derived from
the negligence that occasioned the rescuer’s response; or (2) was derived from the reckless
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conduct that occasioned the rescuer’s response and was within the scope of risks inherent in the
rescuer’s professional duties.” Id. Because this rule thus allows recovery only “for actions that
derive from reckless or intentional behavior,” “a legally sufficient complaint must allege that
Defendant acted recklessly or intentionally.” Id. at 281-82. Further, if a plaintiff alleges that a
defendant’s behavior was reckless, rather than intentional, a legally sufficient complaint must
further allege that the plaintiff’s “injuries exceeded the normal scope of injuries inherent to [his]
profession.” Id. at 282.
B.
The Firefighter’s Rule Applies to Police Officers Acting in the Line of Duty.
Plaintiff argues that Defendant’s Motion to Dismiss must be denied because he was not
acting as a “rescuer” on the date in question when he was injured, and that “[n]o New Mexico
case has applied the firefighter’s rule to the law enforcement officers serving a warrant.” [Doc.
11 at 2]. Admittedly, New Mexico courts have not explicitly addressed whether the firefighter’s
rule extends to law enforcement officers. Every other state, however, that recognizes the
firefighter’s rule has extended the rule to law enforcement personnel, and to such personnel
acting in the line of duty, rather than acting in a rescue capacity.
Indeed, in Fordham v. Oldroyd, a case upon which the New Mexico Supreme Court
relied in part in adopting its own version of the firefighter’s rule, involved a highway patrol
trooper injured in the line of duty. 171 P.3d 411 (Utah 2007) (holding that plaintiff’s injuries
suffered when responding to scene of a car accident were within scope of risks inherent to a
highway patrol trooper’s duties and derived from alleged negligence requiring his presence, and
thus firefighter rule barred plaintiff as a matter of law from recovering damages for injuries
sustained). Similarly, in Hodges v. Yarian, a California appellate court, applying the firefighter’s
rule, rejected a claim by a sheriff’s deputy who was injured when he tried to apprehend an
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intruder at the apartment complex where he lived. The off-duty deputy, who saw signs of a
break-in in a garage, retrieved a revolver from his car, entered the garage and confronted the
intruder. 53 Cal. App. 4th 973, 977 (Cal. Ct. App. 1997). A struggle ensued, during which the
deputy was injured and the intruder was shot and killed. Id. The deputy subsequently sued the
owners and managers of the apartment building, alleging negligent failure to address certain
security and maintenance problems in the building. Id. at 977-78. The trial court granted the
defendants’ motion for summary judgment, and the deputy appealed. Id. at 978. In affirming the
trial court’s decision, the California’s First District Court of Appeal concluded that the deputy’s
claim was barred by the firefighter’s rule. Id. at 977. The appellate court stated:
It cannot be gainsaid that a peace officer is not similarly situated to an ordinary
tenant when it comes to handling the type of risk Hodges confronted. An
ordinary tenant is neither trained nor under any duty to apprehend a criminal
suspect. Those are precisely the types of “public functions” the taxpayers expect,
pay, and equip California peace officers to perform. When a peace officer
assumes responsibility for performing such functions and is injured in the process,
his or her recourse is in the system of “special public benefits” established to
compensate the officer for such injuries.
Id. at 984-85 (citation omitted).
Other courts are in accord. See, e.g., Orozco v. County of Yolo, 814 F. Supp. 885, 897-98
(E.D. Cal. 1993) (holding that firefighter’s rule barred police officer’s claim for injuries
sustained when he was shot by a drug suspect during execution of a search warrant, explaining
that plaintiff was injured by a criminal act, namely, being shot by a drug suspect, that was not
independent of the reason he was called to the scene, namely, to execute a drug search warrant);
White v. State, 202 P.3d 507, 510 (Ariz. Ct. App. 2008) (citations omitted) (“Consistent with . . .
the approach taken by a majority of courts from other jurisdictions, we hold that the firefighter’s
rule in Arizona applies to police officers.”); Furstein v. Hill, 590 A.2d 939, 943 (Conn. 2004)
(“Having reviewed the history and policy issues underlying the rule, we similarly conclude that
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the rule applies to police officers as well as firefighters.”); Kreski v. Modern Wholesale Elec.
Supply Co., 415 N.W.2d 178, 183 n. 6 (Mich. 1987) (“The fireman’s rule is actually misnamed.
Many of the cases discussing the rule present situations where police officers were injured in the
line of duty. No state adopting the fireman’s rule has declined to apply it to police officers.”)
(abrogated by statute as recognized by Lego v. Liss, 874 N.W.2d 684, n. 4 (Mich. 2016)); see
also Flowers v. Rock Creek Terrace, 520 A.2d 361 (Md. 1987); Berko v. Freda, 459 A.2d 663
(N.J. 1983); Moody v. Delta W., Inc., 38 P.3d 1139 (Alaska 2002); Thomas v. Pang, 811 P.2d
821 (Haw. 1991); Winn v. Frasher, 777 P.2d 722 (Idaho 1989). Based on the prevailing weight
of authority, the Court concludes that the New Mexico firefighter’s rule extends to law
enforcement officers acting in the line of duty.
C.
The Complaint Fails to Allege Facts Sufficient to State a Plausible Claim for Relief.
Because the firefighter’s rule applies here, in order for Plaintiff to state a plausible claim
for relief, he must allege facts that, taken as true, establish that Defendant acted intentionally or
recklessly. Baldonado, 176 P.3d at 281. Plaintiff’s Complaint contains no such allegations. To
the contrary, Plaintiff alleges that Defendant negligently failed to keep its premises safe for his
use in the performance of his duties as a New Mexico State Police trooper, and as a result, he
was shot and wounded by Mr. Cisneros-Chavez while trying to execute the warrant against him.
Specifically, the Complaint alleges that Defendant breached its duty of care by: (a) permitting
Mr. Cisneros-Chavez to come on the premises; (b) not removing him from the premises; (c)
permitting Ms. Romero and others to continue to inhabit the Apartment in spite of the danger
their presence on the premises presented to others because of the use of the apartment by a
known violent criminal; and (d) failing to provide adequate security to monitor the premises at
all times and keep dangerous persons, and especially Mr. Cisneros-Chavez, off the premises.
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Doc. 1-2 at ¶ 6. Further, it is clear from the allegations in the Complaint that Plaintiff – in the
course of his duties as a sheriff’s deputy – was searching for Mr. Cisneros-Chavez, in order to
arrest him. Id. at ¶ 3. Accordingly, Plaintiff’s allegations, if proven, would fail to establish that
his injury was derived from anything other than “the negligence that occasioned Plaintiff’s
[presence]” at the Apartment. Baldonado, 176 P.3d at 281.
The Court acknowledges that the Complaint includes the following statement: “The
conduct of Defendant was willful, reckless, and wanton, thereby justifying an award of punitive
damages against Defendant both to punish it for its conduct and to deter other apartment
complexes from similar conduct.” Id., ¶ 8. The Complaint, however, fails to allege any facts to
support this conclusory statement. See Ashbal, 556 U.S at 678. This conclusory and
unsupported statement alone is insufficient to allege that Defendant’s behavior was reckless.
Further, Plaintiff fails to allege that his “injuries exceeded the normal scope of injuries inherent
to [his] profession.” Baldanodo, 176 P.3d at 282. Specifically, the risk of being shot by a
suspect when executing a warrant is inherent to the duties of a police officer. Accordingly, based
on the firefighter’s rule, the Court finds that the Complaint fails to state a plausible claim for
relief.
D.
Defendant’s “Request” for Costs and Attorney Fees
Arguing there was no good faith basis for Plaintiff’s claim, Defendant requests that the
Court award defense costs and attorney fees against the Plaintiff. Pursuant to 28 U.S.C. § 1920,
Rule 54(d)(1) of the Federal Rules of Civil Procedure, and Local Rule 54.1, Defendant is
entitled, upon proper motion, to an award of costs. Pursuant to Rule 54(d)(2) of the Federal
Rules of Civil Procedure and Local Rule 54.5, Defendant may also file a motion for attorney
fees. If Defendant wishes to pursue costs and fees, Defendant must file, within 30 days of entry
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of this Memorandum Opinion and Order, a motion with “supporting brief and evidence
(affidavits and time records)” that complies with the application statute, federal rules, and local
rules. D.N.M. LR-Civ. 54.5.
Conclusion
Under the firefighter’s rule, Plaintiff has failed to allege claims legally sufficient to allow
him to recover against Defendant.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss [Doc. 5] is
GRANTED, as follows: Plaintiff’s Complaint is dismissed with prejudice.
DATED this 28th day of August, 2018.
MARTHA VÁZQUEZ
United States District Judge
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