DISSENT
STOWERS, Justice,dissenting.
I respectfully dissent and would affirm the judgment of the trial court, which granted a directed verdict in favor of defendant City of Clovis, after plaintiff presented all of his evidence. I am of the opinion that the evidence established, as a matter of law, that the officers were not negligent under the circumstances and facts of this case. The majority opinion, by extending the liability of the police officers for the negligence of third party actions, creates an ádditional exception within Section 41-4-12 of the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -29 (Repl.Pamp. 1986). A party claiming an exception to the Tort Claims Act must establish that the exception is within the words of and the reason for the exception. Smith v. Village of Corrales, 103 N.M. 734, 737, 713 P.2d 4, 7 (Ct.App.1985), cert. denied, 103 N.M. 740, 713 P.2d 556 (1986).
An appellate court in reviewing the evidence on appeal from a judgment pursuant to a directed verdict must review all the evidence, but, where there are conflicts or contradictions in the evidence, these conflicts must be resolved in favor of the party resisting the motion. Skyhook Corp. v. Jasper, 90 N.M. 143, 146, 560 P.2d 934, 937 (1977). Thus, the question for us to resolve is whether plaintiff’s claim was legally sufficient, as a matter of law, to withstand a directed verdict. See Hood v. Fulkerson, 102 N.M. 677, 681, 699 P.2d 608, 612 (1985). I agree with the majority opinion of the court of appeals that the record is devoid of evidence to indicate that the City of Clovis’ police officers were negligent in the manner in which they set up the roadblocks.
Plaintiff has raised the following two issues: The officers were negligent at the first roadblock by failing to keep a proper lookout for motorists travelling north toward the danger and in failing to warn or divert such traffic; and the officers were negligent at the second roadblock by failing to utilize citizens to warn or divert motorists or others coming from the south, and, after observing the victim, for their failure to warn him of the approaching vehicle.
Whether the officers were negligent depends upon the existence of a duty of care owed plaintiff. See Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728 (1984). Police officers have a duty to exercise reasonable care under the circumstances, i.e., maintain a proper lookout, divert traffic and protect the people. This, however, must be balanced against their paramount duty to apprehend violators of the law by utilizing all reasonable means at their disposal.
Officers Williams and Clements proceeded to the intersection of Pleasant Hill highway and State Road 18 to set up the first roadblock. When they arrived at the intersection, Officer Williams got his gun from the trunk and Clements got his from the front passenger area. But, before they established this roadblock, the officers received a radioed request to assist another officer, Deputy Hamner, at a roadblock being set up north of the city. During the few minutes spent setting up the first roadblock, neither officer saw the plaintiff. A truckdriver, who knew the victim’s family, observed plaintiff riding his off-the-road motorbike on Pleasant Hill highway. Nonetheless, before plaintiff reached the intersection of State Road 18, he veered off to the north cutting across a parking lot, which prevented the officers from seeing him. There was no evidence presented at trial from which a jury could have found a breach of duty of care by the officers at this first roadblock.
While en route to assist Deputy Hamner, Officers Clements and Williams were advised by radio that Muhammad, the driver of the oncoming Mercedes, had already broken through the roadblock set up by Deputy Hamner. The two officers immediately began to establish a roadblock at the next intersection, one mile north of Pleasant Hill highway and State Road 18, in accordance with proper police procedures. This second roadblock was north of the intersection to permit northbound traffic to be diverted onto the section line road. The officers positioned their vehicles in such a way that enough room was left between the vehicles for a car to pass in the middle of the road. Less than two minutes elapsed between the time the Mercedes crashed through the roadblock set up by Deputy Hamner and when the officers looked toward the area behind the roadblock they set up. Officer Williams observed one vehicle, which he diverted off onto the section line road, but he never saw the plaintiff. Officer Clements observed two vehicles and waived them through the roadblock. When he glanced back again to the area behind the roadblock, he observed the plaintiff for the first time. Plaintiff was more than 400 feet from the roadblock, standing opposite the northbound lane thirty feet off the roadway in the bar ditch behind a telephone pole. Immediately upon observing the plaintiff, Clements looked to the north and saw the Mercedes approaching. The Mercedes had been travelling in the southbound lane hidden from view behind another vehicle. After pulling out to pass that vehicle, the Mercedes straddled the center-line. Travelling at excessive speed, it crashed through the roadblock, veered around a hay truck, then headed off the roadway. The plaintiff turned around, took several steps in the direction of the oncoming vehicle and was struck and killed.
The total time the officers were at this second roadblock was less than two minutes. There was no time for the officers to use their public address system to warn or to otherwise attempt to divert the victim from the area. From the time Officer Clements saw the victim, turned forward, saw the Mercedes and then watched it travel through the roadblock, a few seconds had elapsed, which was not time enough to have warned plaintiff. There can be no liability based on the officer’s failure to have acted differently in this stressful, emergency situation when only a few moments elapsed between the time the officer first saw plaintiff and the time the car crashed through the roadblock.
Although generally, questions of negligence are determined by the fact finder, where reasonable minds cannot differ the question is one of law to be resolved by the trial judge as was done in this ease. Montoya v. Williamson, 79 N.M. 566, 568, 446 P.2d 214, 216 (1968); Bouldin v. Sategna, 71 N.M. 329, 334, 378 P.2d 370, 373 (1963). Under the facts herein, the officers were not negligent.
Section 41-4-12 of the Tort Claims Act provides an exception for law enforcement officers to the immunity granted governmental entities in Subsection A of Section 41-4-4. This immunity “does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault ... or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.” NMSA 1978, § 41-4-12 (Repl.Pamp.1986). The term “caused by” in Section 41-4-12 includes those acts enumerated in that section which were caused by the negligence of law enforcement officers while acting within the scope of their duties. Methola v. County of Eddy, 95 N.M. 329, 333, 622 P.2d 234, 238 (1980). Nowhere is it stated in that section that an officer’s liability extends to the negligence of third party actions as suggested in the majority opinion. The majority attempts to interject causes of action into an exception to the Tort Claims Act where none exists. And, as I previously noted, any party claiming an exception to the Tort Claims Act must show that this exception exists within the words of and reason for that exception.
Since the officers in the instant case were not negligent, as a matter of law, the City of Clovis is immune from liability pursuant to Section 41-4-4(A) of the Tort Claims Act.
For these reasons, I would affirm the judgment of the trial court.