dissenting.
We dissent.
This case is before this Court on a petition for writ of certiorari to determine whether the Court of Appeals erred in affirming the trial court’s dismissal of the petitioner’s complaint. The majority, in reversing the trial court and the Court of Appeals, today holds that the petitioner’s complaint states a claim for relief against the respondents. In so doing, the majority has concluded that there is no distinction between the public or private duties of governmental employees. In reaching this conclusion, the majority disregards existing case law in which this very issue was previously decided.
In the case of Doe v. Hendricks, 92 N.M. 499, 590 P.2d 647 (Ct.App.1979) under a similar set of facts involving a failure by the police to respond to a citizen’s request for assistance, the Court of Appeals held that the lack of a special duty running from the police to the victim precluded any recovery. The court in Doe went on to distinguish between the duties owed to the general public from those owed to individuals. Id. at 501-502, 590 P.2d at 649-50. Therefore, Doe stands for the proposition that where a duty is owed to an individual, as opposed to the general public, a failure to perform that duty could result in an individual action for damages.
The majority, however, arbitrarily determines that Doe is not controlling, claiming that the operative statute in that case was the repealed Peace Officers Liability Act, NMSA 1953, 2d Repl.Vol. 6 (1972), Sections 39-8-1 to -17 (Supp.1975), and not the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -29 (Repl.Pamp.1982 and Supp.1983). This is incorrect.
The majority effort to distinguish Doe is misplaced. The decision in Doe was not based on the Peace Officers Liability Act. The Peace Officers Liability Act was cited in Doe as an example of law which protected law enforcement officers from liability while in the performance of public duties. The main focus of Doe was the common law distinction between public duty and special duty. The majority fails to recognize that the issue in the present case is not one of immunity, but rather a question of duty.
The majority opinion mistakenly states that “liability in this case is dependent upon an interpretation of the Tort Claims Act.” In citing Sections 41-4-2(B) and 41-4-12, the majority concludes that “[nothing in the statute refers to performance of either public or special duties.” In reaching this conclusion, the majority fails to recognize that Section 41-4-2(B) provides in pertinent part:
Liability 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.
Nevertheless, the majority persists in claiming that the public duty/special duty distinction in Doe arose from a statutory provision and that the repeal of the statute undercuts the precedential importance of Doe. We disagree. The public versus special duty distinction is a doctrine based on traditional tort concepts of duty which the Tort Claims Act specifically adopts in Section 41-4-2(B).
Moreover, Section 41-4-12 provides:
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights 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. (Emphasis added.)
This section of the Tort Claims Act specifically lists those acts for which liability attaches. However, the type of liability created by the majority opinion is not found in this section. The Legislature intended for law enforcement officers to be responsible for certain actions caused by officers acting within the scope of their duties. In enacting this statute, we presume that the Legislature was informed as to existing common law. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971). Therefore, had the Legislature intended that law enforcement officers be subject to any additional type of liability, the Legislature would have so indicated.
The majority points out that in Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980), this Court construed the term “caused by” to allow recovery against jail officials for injuries to a prisoner caused by other inmates. However, in Methola, the negligent officers had undertaken a specific duty to protect those inmates in their custody. The majority states that the “duty of custodial care discussed in Methola could as well have been characterized as a duty to a certain segment of the public, i.e., the jail population.” This is incorrect. The population of a jail is in no way comparable to the general public. In the present case, the duty owed to the petitioner could only be characterized as a duty owed to the general public. The majority fails to recognize that no liability arises from this type of duty.
It is well settled that a finding of negligence is dependent on the existence of a duty on the part of the defendant. See NMSA 1978, UJI Civ. 16.1 (Repl.Pamp. 1980); White v. City of Lovington, 78 N.M. 628, 435 P.2d 1010 (Ct.App.1967). Whether a duty exists is a question of law for the courts to decide. Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958). Furthermore, on a motion to dismiss under NMSA 1978, Civ.P. Rule 12(b)(6) (Repl.Pamp.1980), the appellate court assumes the truth of the facts alleged in the complaint. Buhler v. Marrujo, 86 N.M. 399, 524 P.2d 1015 (Ct.App.1974). In the present case, the Court of Appeals properly affirmed the dismissal of the petitioner’s complaint, and correctly held that under the facts pled in this case the duty owed was to the general public and the failure to perform that duty did not give rise to a private cause of action. The majority today creates a new cause of action. In so doing, the majority ignores the law and provides no guidance as to what actions by a law enforcement officer can now be considered negligent. The order dismissing the petitioner’s complaint should be affirmed.
For these reasons, we dissent.
STOWERS and RIORDAN, JJ., dissent.