dissenting.
I dissent.
The majority has misconstrued both the application of the Duran Consent Decree and the application of the Tort Claims Act.
It is important to lay to rest once and for all that the Duran Consent Decree by its terms can have no application to any cause external to the Duran case.
It is equally clear that the issues involving the Tort Claims Act were properly construed and applied by the court of appeals in its opinion which I adopt, and I direct that said opinion of the court of appeals be printed in its entirety as part of my dissent.
No. 9267
Court of Appeals of New Mexico.
Dec. 4, 1986.
OPINION
MINZNER, Judge.In response to separate motions by the parties, the memorandum opinion issued on October 9, 1986 is withdrawn, and the following formal opinion is substituted. See NMSA 1978, SC Misc.R. 7 (Repl.1984).
Plaintiffs appeal the dismissal of all claims filed by them as administrators of the estate of Manuel Silva against the State of New Mexico (State) and the Corrections and Criminal Rehabilitation Department of the State of New Mexico (CCRD), as well as claims filed by them against Secretary of Corrections Michael Francke (Francke) under the New Mexico Tort Claims Act, NMSA 1978, Sections 41-4-1 through -29 (Repl.1986) (Act). All claims arose out of the death of Manuel Silva, who committed suicide by hanging while incarcerated at the Central Correctional Facility in Los Lunas. Plaintiffs also appeal the denial of their motion for partial summary judgment against these defendants and others. Although both parties requested oral argument, in the judgment of the panel, argument was not necessary. The motion is denied. We affirm.
BACKGROUND.
Plaintiffs’ appellate claims arise out of a suit filed against the state, CCRD, Francke, the Reception and Diagnostic Center Classification Committee, and several individuals employed by the Department of Corrections (defendants). The complaint included three counts under the Act and one count under 42 U.S.C. Section 1983 (Supp.III 1979).
Plaintiffs moved for partial summary judgment as to liability, contending as a result of Duran v. Anaya, U.S. District Court Case No. CIV-77-721-JB {Duran), that defendants were precluded from disputing the issue of liability. The trial court denied the motion and granted defendants’ motion to strike all exhibits relating to Duran that had been attached to plaintiffs’ motion. Subsequently, Francke, CCRD, and State moved to dismiss all claims under the Act. The trial court granted this motion and entered final judgment as to Francke under NMSA 1978, Civ.P. Rule 54(b)(1) (Repl.1980) and as to CCRD and State under Civ.P. Rule 54(b)(2).
This court granted plaintiffs’ application for interlocutory appeal and, on plaintiffs’ motion, consolidated the interlocutory appeal with the appeal from the final judgments that had been entered. We address first plaintiffs’ appeal from the final judgments.
THE APPEAL OF RIGHT: WHETHER THE TRIAL COURT ERRED IN DISMISSING PLAINTIFFS’ CLAIMS UNDER THE TORT CLAIMS ACT.
After the supreme court abolished common law sovereign immunity, the legislature provided a statutory version in the Act. See Begay v. State, 104 N.M. 483, 723 P.2d 252 (Ct.App.1985), rev’d on other grounds, Smialek v. Begay, 104 N.M. 375, 721 P.2d 1306 (1986). Consequently, a cause of action against a governmental entity or public employee must lie within one of the express exceptions to the statutory form of immunity contained in the Act. Id. We discuss separately plaintiffs’ claims against the State, CCRD, and Francke.
A.Claims Against the State.
Under the Act, the particular agency that caused the alleged harm is the party that may be held liable and against whom a judgment may be entered. See Begay; Wittkowski v. State, 103 N.M. 526, 710 P.2d 93 (Ct.App.1985). In this case, plaintiffs allege negligence as to CCRD. The district court properly dismissed the claims against the State. Id.
A prior opinion of the court of appeals, authored by Judge Wood, sets out in greater detail our rationale. That decision was overruled on other grounds. See generally Clothier v. Lopez, 103 N.M. 593, 711 P.2d 870 (1985) (overruling Lopez v. State, 24 SBB 193 (Ct.App.1985) as to the proper venue for claims under the Act). We take this opportunity to paraphrase a portion of Judge Woods’ reasoning in Lopez v. State as our rationale for this issue. That reasoning is as follows:
Section 41-4-17, concerning the Act as an exclusive remedy, is written in terms of the governmental entity “whose act or omission gave rise to the suit or claim.” Section 41-4-19 refers in Paragraph A to an action against a governmental entity and in Paragraph B to a judgment against a governmental entity. Section 41-4-23, concerning the public liability fund, refers in Paragraph B to liability insurance for state agencies, the defense of “any” state agency, and the payment of judgments against governmental entities.
The statutory provisions cited in the preceding paragraph indicate that the negligent agency is the entity that may be held liable. New Mexico State Highway Commission v. Ferguson, 98 N.M. 680, 652 P.2d 230 (1982), reached a similar result in considering a notice question. Ferguson held: “the statute means the particular agency that caused the alleged harm must have actual notice before written notice is not required.” 98 N.M. at 681, 652 P.2d 230. We hold that the Act means that the particular agency that caused the alleged harm is the party that may be held liable and against whom a judgment may be entered.
B. Claims Against CCRD.
Plaintiffs make two contentions as to CCRD. The first relies on Section 41-4-2(B), which states that “[ljiability for acts or omissions under the Tort Claims Act shall be based upon the traditional tort concepts of duty and the reasonably prudent person’s standard of care in the performance of that duty.” Plaintiffs contend that the principle of respondeat superior is a traditional tort concept of duty.
The phrase “traditional tort concepts of duty and the reasonably prudent person’s standard of care,” however, refers to theories of negligence. Respondeat superior is a doctrine that imposes vicarious liability. Under the doctrine, one is held liable for the negligence of another, because of a special relationship. It applies when there has been an act or omission, by the other person, that breaches a tort concept of duty. Plaintiffs may not, by relying on the doctrine, avoid the need to identify a right to sue the entity against whom liability is asserted.
Under the Act, plaintiffs must identify an act or omission that is negligent and one that is expressly stripped of immunity. Plaintiffs’ second argument acknowledges this obligation.
Plaintiffs contend that CCRD is liable under Sections 41-4-6, -9, and -10. Each of these sections waives immunity for negligence of “public employees.” A “public employee” is defined as an officer, employee, or servant of a governmental entity. § 41-4-3(E). The corrections department is a governmental entity under the Tort Claims Act, not an employee of a governmental entity. See Wittkowski. Therefore, CCRD does not fall within any of these sections, and the trial court properly dismissed the claims against CCRD.
C. Claims Against Francke.
Section 41-4-6 waives immunity for negligence of “public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings.” Section 41-4-9 waives immunity for negligence of public employees “in the operation of any hospital, infirmary * * * * ” Under Section 41-4-10 immunity is waived for “public employees licensed by the state or permitted by law to provide health care services.”
Francke is clearly a “public employee,” but that is not sufficient to establish on the part of plaintiff of a right to sue. The language on which plaintiffs rely must cover his acts or omissions.
Plaintiffs argue Francke falls within Section 41-4-6 as an employee negligent in the operation or maintenance of a building or machinery. Plaintiffs contend that decedent’s clothing was “machinery” within the terms of the Act because he hanged himself with his shirt; in not removing the clothing from decedent’s possession, correctional facility employees failed to properly maintain machinery. Plaintiffs suggest as well that the design of the building enabled decedent to hang himself, and such a defect in design is encompassed by the relevant phrase.
Plaintiffs also claim in effect that there was not an adequate health-care system in place. Consequently, they ask us to hold that Francke is liable under Section 41-4-9, for operation of a facility comparable to a hospital, and under Section 41-4-10, as one of the “public employees licensed by the state or permitted by law to provide health care services.”
Statutory words are to be used in their ordinary and usual sense unless the contrary is apparent, see Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980), and, as a statute in derogation of the common law, the Act is to be strictly construed. See State ex rel. Miera v. Chavez, 70 N.M. 289, 373 P.2d 533 (1962). We hold that plaintiffs’ claims under Section 41-4-6, -9, and -10 do not lie within the plain meaning of those exceptions. See generally Anchondo v. Corrections Dept., 100 N.M. 108, 666 P.2d 1255 (1983) (duties of secretary of corrections are primarily administrative). See also Begay; Wittkowski.
Finally, plaintiffs argue that Francke acted unconstitutionally and therefore outside the scope of his duties, and that having done so, he subjected himself to personal liability and may be sued under the Act. This contention must be rejected. A cause of action under the Act must fit into one of the exceptions listed in the Act; all the exceptions are for employees acting within the scope of their duties. It follows that any claim against an individual not acting., within the scope of his duties is not a claim under the Act.
Plaintiffs contend generally that Francke might be liable for negligent supervision or other negligence in failing to ensure compliance with the 1980 Duran consent decree. For the reasons stated above, we are not persuaded that any of the statutory provisions on which plaintiffs rely support the claim. Thus, the trial court did not err in dismissing plaintiffs’ claims against Francke under the Act. See C & H Construction & Paving, Inc. v. Foundation Reserve Insurance Co., 85 N.M. 374, 512 P.2d 947 (1973).
THE INTERLOCUTORY APPEAL.
As to claims under the Act against the individual employees and the claim under 42 U.S.C. Section 1983 against those employees and Francke, all of which are still pending in the district court, plaintiffs argue that they should have been granted partial summary judgment on liability as a result of the special master’s findings and Judge Burciaga’s order in Duran. We are not able to agree.
Plaintiffs’ argument on appeal relies on events subsequent to the order approving a partial consent decree. They are as follows: in May 1984, Judge Juan Burciaga ordered a hearing by a special master to inquire into Silva’s death in order to enable the court to determine whether noncompliance with the consent decree had contributed to the circumstances resulting in the death. After an evidentiary hearing, the special master filed a report which was confirmed by order of the court on August 15, 1984. In confirming the report, Judge Burciaga found that provisions of the consent decree had been violated, and ordered Francke to identify the persons who violated the decree and show cause why they should not be held in contempt. Subsequently plaintiffs moved to intervene; their motion was denied.
The rules of res judicata are applicable when a final judgment has been entered. See Berlint v. Bonn, 102 N.M. 394, 696 P.2d 482 (Ct.App.1985); C & H Construction & Paving Co. v. Citizens Bank, 93 N.M. 150, 597 P.2d 1190 (Ct.App.1979). In addition, the second suit must be identical with the prior suit, in several respects, particularly, there must be identity of subject matter, cause of action, and parties. Torres v. Village of Capitan, 92 N.M. 64, 582 P.2d 1277 (1978). A judgment or order is not final unless all issues of law and fact necessary to be determined have been determined, and the case has been completely disposed of to the extent the court has power to dispose of it. Clancy v. Gooding, 98 N.M. 252, 647 P.2d 885 (Ct.App.1982). Where no further judicial action on the part of the court is essential, then the decree entered by the court is a final one. In re Estate of Foster, 102 N.M. 707, 699 P.2d 638 (Ct.App.1985).
Collateral estoppel also applies only where there has been a final judgment. C & H Construction & Paving Co. v. Citizens Bank. It involves issue preclusion, rather than a bar to the second proceeding, see Torres; the issue precluded from relitigation must have been actually litigated and necessarily determined in the prior case between parties or their privies. International Paper Co. v. Farrar, 102 N.M. 739, 700 P.2d 642 (1985). An issue is actually litigated when it is properly raised, by the proceedings or otherwise, and is submitted for determination and is determined. Paulos v. Janetakos, 46 N.M. 390, 129 P.2d 636 (1942).
The special master was instructed “to enable the Court to consider” whether violations of the consent decree “contributed in a material way to the circumstances resulting in” Silva’s death. The order entered by Judge Burciaga directed Francke to make further fact finding and gave him an opportunity to argue that contempt had not occurred.
We conclude that the order was not final for purposes of either res judicata or collateral estoppel. We also conclude that plaintiffs have not shown that the subject matter of the contempt hearing was the same as that of the present lawsuit or identified issues in the present suit that were actually litigated and determined in the prior one. There was no finding on proximate cause, and the employees who violated the standards were not identified. Thus, we do not reach the more difficult issues briefed by the parties.
We hold that plaintiffs did not make the requisite prima facie showing. See International Paper Co. v. Farrar; Edwards v. First Federal Savings & Loan Assoc. of Clovis, 102 N.M. 396, 696 P.2d 484 (Ct.App.1985). The trial court acted properly in denying plaintiffs’ motion for partial summary judgment.
In support of their motion for partial summary judgment, plaintiffs submitted portions of the transcript of the hearing before the special master, as well as various records. The trial court granted defendants’ motion to strike. In view of our disposition as to the motion for summary judgment, any issue as to the motion to strike is moot. On remand, plaintiffs should not be precluded from offering at trial any relevant exhibits and testimony otherwise admissible to support their theory of liability.
Plaintiffs had the burden, in moving for summary judgment, to show the finality of the order upon which they relied. See Ballard v. Markey, 66 N.M. 265, 346 P.2d 1045 (1959). Until a prima facie showing was made, appellees had no obligation to dispute finality. See Security Bank & Trust v. Parmer, 97 N.M. 108, 637 P.2d 539 (1981). Because finality was part of plaintiffs’ burden in moving for summary judgment, and because we conclude that burden was not sustained, the trial court’s decision to deny partial summary judgment should be affirmed.
CONCLUSION.
We conclude that the district court was correct in denying the motion for partial summary judgment, as well as in granting the motion to dismiss. The trial court is affirmed, and the cause remanded for trial on the merits.
IT IS SO ORDERED.
HENDLEY, C.J., and DONNELLY, J., concur.