By Scott Sandlin
Albuquerque Journal
Mistakes were made leading up to the death in 2007 of a 1-year-old child from exposure in a field near Encino. Whether they add up to liability for the state is a question for New Mexico courts, and it is unlikely to be answered anytime soon.
A three-judge panel took the matter under advisement, and their questioning suggests the case might be sent back to the state District Court to develop a better factual record.
The boy’s young mother, experiencing her first, severe psychotic delusions that September night, thought she was protecting herself and her child from giant spiders when she got out of her car, tore off her clothes and ran naked down U.S. 285 with her child. She later put him down but couldn’t find him again. By the time searchers did find him a day later, he was dead of exposure.
Criminal charges were filed against the mother but later dropped based on her mental state at the time.
A family who passed Diana Willis on the highway used a cell phone to call 911, which was answered by an emergency dispatcher in Encino. The dispatcher called the State Police but mistakenly gave the wrong location, and when an officer went to the place she had identified and found nothing, nothing more was done.
The question Tuesday for the New Mexico Court of Appeals was whether the dispatcher could be considered a member of law enforcement, and thus able to be sued under the Tort Claims Act.
But as one judge on the hearing panel said repeatedly, “You’re talking to the wrong court.”
A wrongful death lawsuit was filed on behalf of the child’s estate in October 2009, alleging that if matters had been conducted as they should have been, Richie Brown would have survived.
Seventh Judicial District Judge Kevin Sweazea dismissed the lawsuit four months later and denied the plaintiffs’ request to conduct discovery.
Judges Roderick Kennedy, Cynthia Fry and Tim Garcia questioned both sides about the dearth of facts from which they could make a ruling.
“It sounds like you’re reciting evidence not presented to the trial court,” Fry said to Mia Touchet, who argued on behalf of the boy’s estate that the dispatcher can be sued.
Later, she said to Brandon Huss, who argued that Torrance County and its dispatcher are immune from being sued under the Enhanced 911 Act, which gives immunity to dispatchers, “We can’t rely on that because you didn’t raise it below, either.”
Torrance County asked for the lawsuit to be dismissed because it lacked sufficient detail to state a claim, and urged the appeals court to make a decision without sending it back, which would cause still more delays.
Kennedy’s comment at one point suggested that the court may do that, however.
“It looks to me,” he said, “like you jumped the gun by asking for dismissal instead of waiting around for a little discovery.”
Copyright 2011
Albuquerque Journal