(dissenting).
I am unable to agree with the majority that Section 41-4-12 of the New Mexico Tort Claims Act (NMSA 1978, Sections 41-4-1 through 41-4-27 (Repl.Pamp.1989)) does not provide immunity to supervisory law enforcement officers whose alleged negligent supervision and training of their subordinates, also law enforcement officers, causes the commission by those subordinates of enumerated torts which results in personal injury to plaintiff. This holding, in my view, disregards the plain meaning of the statute, the structure of the Act and the teachings of decisions of the supreme court and of this court.
Since this matter comes before us on the denial of a SCRA 1986, 1-012(B)(6) motion, we must accept as true, as the majority states, all facts well pleaded. Plaintiff claims three state police officers, while acting within the scope of their duties, committed the torts of assault and battery on him while making a false arrest, and then maliciously prosecuted him. Plaintiff named the three officers as defendants and claimed waiver of immunity under Section 41-4-12. He also named as defendants the New Mexico State Police Department, the governmental entity which employed the three officers, and the chief of the state police and the district commander, alleging these supervisory officers were responsible for the hiring, training and supervision of the three officers. Count VI of the complaint seeks damages against the supervisory officers based on negligent hiring, training and supervision of the three subordinate officers. Contrary to the majority opinion, plaintiff does not allege that negligent hiring, training and supervision caused the misconduct of the subordinates; rather, he alleges the alleged negligence was the cause of his injuries. While that allegation does not state a claim under Section 41-4-12, I do not quarrel with this technical defect. The claim against the department is based on respondeat superior for the acts or omissions of both the supervisory and subordinate officers. Defendants do not deny the three officers who allégedly committed the enumerated torts were acting within the scope of their duties.
Without repeating the applicable statutes, it would seem clear that Sections 41-4-4(A) and 41-4-12, when read together, mean that a governmental entity and any public employee, while acting within the scope of duty, are granted immunity for any tort, except this immunity does not apply to liability for bodily injury (1) that results from certain enumerated torts, which include the torts alleged by plaintiff; (2) caused by law enforcement officers; (3) while acting within the scope of their duties. We are not concerned here with waiver of immunity for the three subordinate officers. Nor are we concerned that the complaint states a cause of action against the state police, the governmental entity which employed these officers. We are only concerned with whether Section 41-4-12 waives immunity for the chief of the state police and district commander for their alleged negligent hiring, training and supervision of the three subordinate officers. Notwithstanding the absence from Section 41-4-12 of any mention of negligent hiring, supervision or training, the majority concludes that it “suffices that the law enforcement officer, while acting within the scope of duty, negligently or intentionally causes the commission of certain listed torts by a third person.” (emphasis added). I would agree with that conclusion if that third person was someone other than a law enforcement officer.
The majority relies on Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980). Looking for legislative intent, the supreme court in Methola interpreted “cause” in Section 41-4-12 to include negligent as well as intentional acts. So interpreted, the court was able to take the next step that law enforcement officers, although not committing the tortious acts, caused it by not exercising their duties of due care for the protection of the inmates.
I do not believe the same statutory interpretation holds for recognizing an alternative and additional cause of action or theory of liability where the actors are law enforcement officers. Why would the legislature intend to provide alternative theories when, through respondeat superior, immunity is waived against the governmental entity? I can glean no such intent.
It is significant that in the other supreme court decisions cited by the majority, the actors committing the enumerated torts were not law enforcement officers. See Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728 (1984) (sheriffs officers negligently failed to respond to emergency call from victim tortured and raped by criminal); California First Bank v. State, 111 N.M. 64, 801 P.2d 646 (1990) (drunk struck victims after officers negligently failed to enforce liquor control and drunk driving laws).
It is also worth noting that in Cross v. City of Clovis, 107 N.M. 251, 252, 755 P.2d 589, 590 (1988) (citing Methola), the supreme court said, in discussing Section 41-4-12, “[i]t is clear that the phrase ‘when caused by law enforcement officers’ includes ‘those [third party] acts enumerated in * * * [Section 41-4-12] which were caused by the negligence ,of law enforcement officers while acting within the scope of their duties.’ ” Does the bracketed phrase “third-party” in that quote refer to the enumerated torts or to the actor who commits them? I would read it to refer to the actor since there would be no reason to qualify the torts. Cross, as with the other supreme court decisions discussed above, involved a third-party actor, the driver of a stolen car who crashed through a roadblock.
In analyzing a waiver of immunity, we apply a two-step approach: we determine the legislative intent and then interpret the language of the waiver according to its plain meaning. Miller v. New Mexico Dept. of Transp., 106 N.M. 253, 741 P.2d 1374 (1987). We do not read into the statute language that is not there. Smith v. Village of Corrales, 103 N.M. 734, 713 P.2d 4 (Ct.App.1985). I find it difficult to discern a legislative intent to recognize a discrete additional theory of liability when the plain meaning of Section 41-4-12 sets forth the circumstances under which waiver is allowed. The majority has, I believe, read into the statute language which simply is not there.
To be sure, Methola determined the statute implied “negligence,” a term which is not expressly contained in the section. From that point the majority makes a leap that goes too far. It is one thing to say the legislature could not have intended that law enforcement officers could escape liability when they violate their duties by allowing the objects of their care to suffer at the hands of third parties, see Methola; Schear; it is quite another to say the legislature could not have intended that law enforcement officers, who lose immunity on one clear ground, must also lose it on as many alternative grounds as the fertile mind can conceive as long as it is called negligence. If negligent supervision can be implied under Section 41-4-12, can, for example, negligent entrustment by supervisory employees be implied under NMSA 1978, Section 41-4-5 (waiver for operation or maintenance of motor vehicles)?
Further, negligent hiring, training and supervision is a direct action that is not dependent on respondeat superior. See Valdez v. Warner, 106 N.M. 305, 307, 742 P.2d 517, 519 (Ct.App.1987). Section 41-4-12 clearly requires the enumerated torts be committed by law enforcement officers “while acting within the scope of their duties.” That ¡ language not only is a prerequisite to waive immunity for the law enforcement officers, it attaches liability to the governmental entity through respondeat superior. See Silva v. State, 106 N.M. 472, 745 P.2d 380 (1987) (when the act of the employee is the act of the public entity, let the master answer). The majority might counter by saying the governmental entity does answer when a supervisory officer acting within the scope of his duty, negligently hires, trains or supervises another subordinate officer who commits the torts. If we were developing the common law, I would have no difficulty with that argument. We are not; we are interpreting unambiguous statutory language, nothing more.
What the expansive reading of Section 41-4-12 and Methola accomplishes is to not only graft on another theory of liability not present in the statute, but also to include additional and unnecessary parties. In discussing waiver, the supreme court in Silva v. State, quoted from Abalos v. Bernalillo County Dist. Attorney’s Office, 105 N.M. 554, 734 P.2d 794 (Ct.App.), cert. quashed, 106 N.M. 35, 738 P.2d 907 (1987):
To name a particular entity in an action under the Tort Claims Act requires two things: (1) a negligent public employee who meets one of the waiver exceptions under Section 41-4-5 to -12; and (2) an entity that has immediate supervisory responsibilities over the employee. If a public employee meets an exception to immunity, then the particular entity that supervises the employee can be named as a defendant in an action under the Tort Claims Act. If the city or state directly supervises the employee, then the city or state can be named.
Silva v. State, 106 N.M. at 477, 745 P.2d at 385. The Silva court interpreted the last sentence of the quote to include “the right of control regardless of whether exercised.” Id. The point in Abalos was to discourage suing up and down the line all conceivable governmental entities. Implicit in that result were economic concerns. The injured party should not have to sue every conceivable governmental entity, and Risk Management should not have to hire separate counsel for each entity named. The injured party can only recover once. Abalos.
Similarly, for the same reason we should discourage multiple-laid theories or causes of action for waiver of immunity. It is messy, unnecessary and it confuses the jury-
In California First Bank v. State the supreme court said:
To interpret Section 41-4-12 to extend its waiver of immunity to any and all governmental actors who caused the injury producing conduct of a law enforcement officer would run counter to the structure of the Act that is quite specific with respect to the employee conduct for which the immunity of an employee and his or her agency is waived. Had the Legislature intended to waive immunity for all governmental entities whose conduct concurrently caused the non-immune act of a law enforcement officer, we believe it would have enacted clear provisions to effect that intent.
Id. at 68, 801 P.2d at 650.
Paraphrasing the last sentence of that quote, had the legislature intended to waive immunity for law enforcement officers on a theory of direct liability for negligent hiring, training and supervision, I believe it would have enacted clear provisions to effect that intent. It did not, and we should not.
For the above reasons, I respectfully dissent.