respondeat superior doctrine in New Mexico

2024Inc., 2007- NMCA-122, ¶ 11, 142 N.M. 583 , 168 P.3d 155 (“Under the doctrine of respondeat superior, an employer can be held vicariously liable for the negligent actions of an employee who is acting within the scope of his employment.”).

2023See Lessard, 13 2007-NMCA-122, ¶ 11 (“Generally, whether an employee is acting in the course 14 and scope of employment is a question of fact, unless only one reasonable conclusion 15 can be drawn from the facts presented.” (alteration, internal quotation marks, and 16 citation omitted)). 17 {12} “Under the doctrine of respondeat superior, an employer can be held 18 vicariously liable for the negligent actions of an employee who is acting within the 19 scope of his employment.” Id.

2026While vicarious liability is a form of derivative liability rooted in the 12 actions of an agent, who might not be a QHP, if the agent’s actions constitute the 096, ¶ 10, 114 N.M. 452 , 840 P.2d 599 (“Under the doctrine of respondeat superior, the master is liable for the negligent acts of the servant when committed during the course and scope of the servant’s employment or agency.”); see also Baer v. Regents of Univ. of Cal., 1994-NMCA-124 , ¶ 18, 118 N.M. 685 , 884 P.2d 841 (“The law in New Mexico is well settled that, under the doctrine of respondeat superior, an employer can be held vicari

2026While vicarious liability is a form of derivative liability rooted in the 12 actions of an agent, who might not be a QHP, if the agent’s actions constitute the 096, ¶ 10, 114 N.M. 452 , 840 P.2d 599 (“Under the doctrine of respondeat superior, the master is liable for the negligent acts of the servant when committed during the course and scope of the servant’s employment or agency.”); see also Baer v. Regents of Univ. of Cal., 1994-NMCA-124 , ¶ 18, 118 N.M. 685 , 884 P.2d 841 (“The law in New Mexico is well settled that, under the doctrine of respondeat superior, an employer can be held vicari

2007While we recognize that a theory of enterprise liability, including benefit to the employer, may support the doctrine of respondeat superior, see generally Medina, 113 N.M. at 475-76 , 827 P.2d at 863-64 (discussing justifications for the doctrine of respondeat superior), we do not read New Mexico law to support a finding that an employee is acting within the scope of his employment under the facts of this case.

2007While we recognize that a theory of enterprise liability, including benefit to the employer, may support the doctrine of respondeat superior, see generally Medina, 113 N.M. at 475-76 , 827 P.2d at 863-64 (discussing justifications for the doctrine of respondeat superior), we do not read New Mexico law to support a finding that an employee is acting within the scope of his employment under the facts of this case.

2024Inc., 2007- NMCA-122, ¶ 11, 142 N.M. 583 , 168 P.3d 155 (“Under the doctrine of respondeat superior, an employer can be held vicariously liable for the negligent actions of an employee who is acting within the scope of his employment.”).

2023Applying the three-part test 10 set forth in Lessard v. Coronado Paint & Decorating Center, Inc., 2007-NMCA- 11 122, ¶ 14, 142 N.M. 583 , 168 P.3d 155 , the district court concluded as a matter of 12 law that Smith was not acting within the scope of employment when the accident 13 occurred, and thus, Defendant could not be held vicariously liable for Smith’s 14 negligence.

1993See Gallegos v. State, 107 N.M. 349, 353-54 , 758 P.2d 299, 303-04 (Ct.App.1987) (Section 1983 liability “cannot be based on the doctrine of respondeat superior,” and a Section 1983 plaintiff “must show some direct personal involvement by defendants in the violation of plaintiff’s rights.”), cert. quashed, 107 N.M. 314 , 757 P.2d 370 (1988). 3.

1993See Gallegos v. State, 107 N.M. 349, 353-54 , 758 P.2d 299, 303-04 (Ct.App.1987) (Section 1983 liability “cannot be based on the doctrine of respondeat superior,” and a Section 1983 plaintiff “must show some direct personal involvement by defendants in the violation of plaintiff’s rights.”), cert. quashed, 107 N.M. 314 , 757 P.2d 370 (1988). 3.

2013See Harrison v. Lucero, 1974-NMCA-085 , ¶ 12, 86 N.M. 581 , 525 P.2d 941 , (“[T]he exoneration of the servant removes the foundation upon which to impute negligence to the master.” (internal quotation marks and citation omitted)), holding modified on other grounds by Vidal v. Am.

1982This court dispensed of the issue as follows: Since under * * * [the doctrine of respondeat superior] “* * * [t]he liability of the master to a third person for injuries by a servant in the course of his employment and within the scope of his authority, is derivative and secondary, while that of the servant is primary, and absent any delict of the master other than through the servant, exoneration of the servant removes the foundation upon which to impute negligence to the master.” 86 N.M. at 584, 525 P.2d 941 (citing Jacobson v. Parrill, 186 Kan. 467 , 351 P.2d 194 (1960)).

2008See generally Los Ranchitos v. Tierra Grande, Inc., 116 N.M. 222, 228 , 861 P.2d 263, 269 (Ct.App.1993) (holding that “[a]n individual or entity may be held liable in tort for negligent hiring, negligent supervision, or negligent retention of an employee even though it is not responsible for the wrongful acts of the employee under the doctrine of respondeat superior”).

2008See generally Los Ranchitos v. Tierra Grande, Inc., 116 N.M. 222, 228 , 861 P.2d 263, 269 (Ct.App.1993) (holding that “[a]n individual or entity may be held liable in tort for negligent hiring, negligent supervision, or negligent retention of an employee even though it is not responsible for the wrongful acts of the employee under the doctrine of respondeat superior”).

2007Cf. Fuller, 1999-NMCA-011, ¶¶ 19-20 , 126 N.M. 460 , 971 P.2d 851 (discussing with approval a California case in which the court relied on benefit to the employer and the enterprise liability theory); Carter, 815 A.2d at 469-70 (declining to adopt California's "broad enterprise liability theory").

2007Cf. Fuller, 1999-NMCA-011, ¶¶ 19-20 , 126 N.M. 460 , 971 P.2d 851 (discussing with approval a California case in which the court relied on benefit to the employer and the enterprise liability theory); Carter, 815 A.2d at 469-70 (declining to adopt California’s “broad enterprise liability theory”).

1993See Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir.1985) (state officers may be held only for their alleged individual wrongdoing; Section 1983 does not encompass doctrine of respondeat superior), cert. denied, 479 U.S. 816 , 107 S.Ct. 71 , 93 L.Ed.2d 28 (1986); George v. McIntosh-Wilson, 582 So.2d 1058, 1061 (Ala. 1991) (state official subject to suit in individual capacity only upon showing that official's actions amounted to deliberate indifference to his official duties and official violated clearly established statutory or constitutional rights of which reasonable person would have know

1993See Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir.1985) (state officers may be held only for their alleged individual wrongdoing; Section 1983 does not encompass doctrine of respondeat superior), cert. denied, 479 U.S. 816 , 107 S.Ct. 71 , 93 L.Ed.2d 28 (1986); George v. Mclntosh-Wilson, 582 So.2d 1058, 1061 (Ala.1991) (state official subject to suit in individual capacity only upon showing that official’s actions amounted to deliberate indifference to his official duties and official violated clearly established statutory or constitutional rights of which reasonable person would have known

1993See Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir.1985) (state officers may be held only for their alleged individual wrongdoing; Section 1983 does not encompass doctrine of respondeat superior), cert. denied, 479 U.S. 816 , 107 S.Ct. 71 , 93 L.Ed.2d 28 (1986); George v. McIntosh-Wilson, 582 So.2d 1058, 1061 (Ala. 1991) (state official subject to suit in individual capacity only upon showing that official's actions amounted to deliberate indifference to his official duties and official violated clearly established statutory or constitutional rights of which reasonable person would have know

1993See Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir.1985) (state officers may be held only for their alleged individual wrongdoing; Section 1983 does not encompass doctrine of respondeat superior), cert. denied, 479 U.S. 816 , 107 S.Ct. 71 , 93 L.Ed.2d 28 (1986); George v. Mclntosh-Wilson, 582 So.2d 1058, 1061 (Ala.1991) (state official subject to suit in individual capacity only upon showing that official’s actions amounted to deliberate indifference to his official duties and official violated clearly established statutory or constitutional rights of which reasonable person would have known

1993See Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir.1985) (state officers may be held only for their alleged individual wrongdoing; Section 1983 does not encompass doctrine of respondeat superior), cert. denied, 479 U.S. 816 , 107 S.Ct. 71 , 93 L.Ed.2d 28 (1986); George v. Mclntosh-Wilson, 582 So.2d 1058, 1061 (Ala.1991) (state official subject to suit in individual capacity only upon showing that official’s actions amounted to deliberate indifference to his official duties and official violated clearly established statutory or constitutional rights of which reasonable person would have known

1993See Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir.1985) (state officers may be held only for their alleged individual wrongdoing; Section 1983 does not encompass doctrine of respondeat superior), cert. denied, 479 U.S. 816 , 107 S.Ct. 71 , 93 L.Ed.2d 28 (1986); George v. Mclntosh-Wilson, 582 So.2d 1058, 1061 (Ala.1991) (state official subject to suit in individual capacity only upon showing that official’s actions amounted to deliberate indifference to his official duties and official violated clearly established statutory or constitutional rights of which reasonable person would have known

2026While vicarious liability is a form of derivative liability rooted in the 12 actions of an agent, who might not be a QHP, if the agent’s actions constitute the 096, ¶ 10, 114 N.M. 452 , 840 P.2d 599 (“Under the doctrine of respondeat superior, the master is liable for the negligent acts of the servant when committed during the course and scope of the servant’s employment or agency.”); see also Baer v. Regents of Univ. of Cal., 1994-NMCA-124 , ¶ 18, 118 N.M. 685 , 884 P.2d 841 (“The law in New Mexico is well settled that, under the doctrine of respondeat superior, an employer can be held vicari

2026While vicarious liability is a form of derivative liability rooted in the 12 actions of an agent, who might not be a QHP, if the agent’s actions constitute the 096, ¶ 10, 114 N.M. 452 , 840 P.2d 599 (“Under the doctrine of respondeat superior, the master is liable for the negligent acts of the servant when committed during the course and scope of the servant’s employment or agency.”); see also Baer v. Regents of Univ. of Cal., 1994-NMCA-124 , ¶ 18, 118 N.M. 685 , 884 P.2d 841 (“The law in New Mexico is well settled that, under the doctrine of respondeat superior, an employer can be held vicari

2007Cf. Fuller, 1999-NMCA-011, ¶¶ 19-20 , 126 N.M. 460 , 971 P.2d 851 (discussing with approval a California case in which the court relied on benefit to the employer and the enterprise liability theory); Carter, 815 A.2d at 469-70 (declining to adopt California’s “broad enterprise liability theory”).

2007Cf. Fuller, 1999-NMCA-011, ¶¶ 19-20 , 126 N.M. 460 , 971 P.2d 851 (discussing with approval a California case in which the court relied on benefit to the employer and the enterprise liability theory); Carter, 815 A.2d at 469-70 (declining to adopt California’s “broad enterprise liability theory”).

1990The public entity can act only through its employees, and the act of the offending employee is the act of the public entity under [the] traditional tort [doctrine of respondeat superior].’’ Silva v. State, 106 N.M. 472, 477 , 745 P.2d 380, 385 (1987).

1990The public entity can act only through its employees, and the act of the offending employee is the act of the public entity under [the] traditional tort [doctrine of respondeat superior].’’ Silva v. State, 106 N.M. 472, 477 , 745 P.2d 380, 385 (1987).

2006Safety, 119 N.M. 405, 410-12 , 891 P.2d 546, 551-53 (Ct.App.1994) (discussing the differences in procedure and remedies between TCA claims and civil rights claims and pointing out that sovereign immunity is waived under the TCA for government entities sued under a doctrine of respondeat superior).

2006Safety, 119 N.M. 405, 410-12 , 891 P.2d 546, 551-53 (Ct.App.1994) (discussing the differences in procedure and remedies between TCA claims and civil rights claims and pointing out that sovereign immunity is waived under the TCA for government entities sued under a doctrine of respondeat superior).

2004See State v. Fish, 102 N.M. 775, 777 , 701 P.2d 374, 376 (Ct.App.1985) (stating that issues raised in the docketing statement, but not briefed, are abandoned).

2004See State v. Fish, 102 N.M. 775, 777 , 701 P.2d 374, 376 (Ct.App.1985) (stating that issues raised in the docketing statement, but not briefed, are abandoned).

1998See Reynolds v. Swigert, 102 N.M. 504, 507-08 , 697 P.2d 504, 507-08 (Ct.App.1984); see also Romero v. Mervyn's, 109 N.M. 249, 254 , 784 P.2d 992, 997 (1989) (respondeat superior applies "when the claim is based in tort and the plaintiff alleges the employer is liable for the conduct of an employee because the employee was acting within the scope of employment.") A. Right of Control {12} In determining whether an employer-employee relationship exists, the employer must have someone perform work or a service and must have the "right to control the manner in which the details of the work are to

1998See Reynolds v. Swigert, 102 N.M. 504, 507-08 , 697 P.2d 504, 507-08 (Ct.App.1984); see also Romero v. Mervyn's, 109 N.M. 249, 254 , 784 P.2d 992, 997 (1989) (respondeat superior applies "when the claim is based in tort and the plaintiff alleges the employer is liable for the conduct of an employee because the employee was acting within the scope of employment.") A. Right of Control {12} In determining whether an employer-employee relationship exists, the employer must have someone perform work or a service and must have the "right to control the manner in which the details of the work are to

1998See Reynolds v. Swigert, 102 N.M. 504, 507-08 , 697 P.2d 504, 507-08 (Ct.App.1984); see also Romero v. Mervyn's, 109 N.M. 249, 254 , 784 P.2d 992, 997 (1989) (respondeat superior applies "when the claim is based in tort and the plaintiff alleges the employer is liable for the conduct of an employee because the employee was acting within the scope of employment.") A. Right of Control {12} In determining whether an employer-employee relationship exists, the employer must have someone perform work or a service and must have the "right to control the manner in which the details of the work are to

1998See Reynolds v. Swigert, 102 N.M. 504, 507-08 , 697 P.2d 504, 507-08 (Ct.App.1984); see also Romero v. Mervyn's, 109 N.M. 249, 254 , 784 P.2d 992, 997 (1989) (respondeat superior applies "when the claim is based in tort and the plaintiff alleges the employer is liable for the conduct of an employee because the employee was acting within the scope of employment.") A. Right of Control {12} In determining whether an employer-employee relationship exists, the employer must have someone perform work or a service and must have the "right to control the manner in which the details of the work are to

1998See UJI 13-406 NMRA 1998; Richardson v. Glass, 114 N.M. 119, 122 , 835 P.2d 835, 838 (1992); Benham, 101 N.M. at 638 , 686 P.2d at 980 .

1998See UJI 13-406 NMRA 1998; Richardson v. Glass, 114 N.M. 119, 122 , 835 P.2d 835, 838 (1992); Benham, 101 N.M. at 638 , 686 P.2d at 980 .

1996See Abalos, 105 N.M. at 559 , 734 P.2d at 799 ; Silva, 106 N.M. at 477 , 745 P.2d at 385 ; California First Bank, 111 N.M. at 69-70 , 801 P.2d at 651-52 .

1996See Abalos, 105 N.M. at 559 , 734 P.2d at 799 ; Silva, 106 N.M. at 477 , 745 P.2d at 385 ; California First Bank, 111 N.M. at 69-70 , 801 P.2d at 651-52 .

1993See Pittard v. Four Seasons Motor Inn, Inc., 101 N.M. 723, 729 , 688 P.2d 333, 339 (Ct.App.) (negligent hiring and retention constitutes alternative theory of liability against employer for employee’s assault outside scope of employment), cert. quashed, 101 N.M. 555 , 685 P.2d 963 (1984); J.H. ex rel.

1993See Pittard v. Four Seasons Motor Inn, Inc., 101 N.M. 723, 729 , 688 P.2d 333, 339 (Ct.App.) (negligent hiring and retention constitutes alternative theory of liability against employer for employee’s assault outside scope of employment), cert. quashed, 101 N.M. 555 , 685 P.2d 963 (1984); J.H. ex rel.