Products Liability Law Daily Wrap Up, DAMAGES—WEAPONS AND FIREARMS—D.N.M.: Court sustains loss of consortium claims by decedent’s children against maker of police tactical equipment, (Feb 23, 2022)

By: David Yucht, J.D.

In New Mexico, a party may recover for loss of consortium if the party’s relationship with the injured party or decedent was “sufficiently close” financially and/or socially.

A federal judge in New Mexico sustained loss of consortium claims brought by the adult children of an elderly decedent against the manufacturer of a chemical projectile system that was used by law enforcement to subdue the father, resulting in his death. The court found that the decedent’s children presented sufficient facts to show they and their father were in “mutually dependent” relationships. They had intimate, protective, interdependent, and intertwined lives with their father (Duran v. United Tactical Systems, LLC, February 16, 2022, Strickland, S.).

The PepperBall® system, manufactured by United Tactical Systems, LLC, generally consists of semi-automatic, high-pressure air guns that use compressed air to propel ball-shaped projectiles containing chemical agents against human targets for law enforcement purposes. The projectiles were designed to affect a target’s “sensory glands” and to cause “pain compliance.”

An 88-year-old father of two surviving adult children, who lost his wife the previous day, had a negative interaction with police who had responded to a report that the man appeared disturbed and was holding a knife. Because he refused to drop the knife, police deployed several PepperBall system projectiles. After the PepperBall rounds failed to cause the man to drop the knife, the police released a muzzled dog to knock him down. The man died about a month later, in part due to wounds he sustained from the PepperBall rounds. His estate sued the gun manufacturer for wrongful death, and his adult son and daughter included claims for loss of consortium under New Mexico law. The manufacturer moved for partial summary judgment dismissing the loss of consortium claims.

Loss of consortium. The court denied the manufacturer’s motion. The judge indicated that New Mexico courts have recognized common-law loss of consortium in a variety of contexts, including the loss of spouses, unmarried cohabitants, grandparents, parents, and siblings. Generally, a party may recover for loss of consortium if the party’s relationship with the injured party or decedent was “sufficiently close” financially and/or socially and it was foreseeable that the injury would harm the relationship. The determination of who can recover for loss of consortium is based on the quality of the relationship and not on a legal definition. Here, given the facts illustrating the immense closeness that the adult children shared with their father in the years leading up to his death, the court could not conclude that they failed to establish loss of consortium under New Mexico law.

The decedent’s daughter presented sufficient facts to show that she and her father were in a “mutually dependent” relationship. She had an intimate, protective, interdependent, and intertwined life with her father, in multiple ways. She saw or spoke with him daily, particularly in the months and years leading up to his death. She shared routine household responsibilities with her father, contributed to the cost of food, and would help her father prepare food for the household on a regular basis. She relied on her father to help her with various things, including car troubles, routine car maintenance, cooking food for her on an almost daily basis for many years, and giving her advice on important life decisions. Other than her mother and brother (who lived in the same household as her father), she had no significant close relationships.

The son also had a “mutually dependent” relationship with his late father. He lived at his parents’ home his entire life. He took care of his parents, particularly during the years preceding their deaths. When his father could no longer drive, he drove his father and mother everywhere they needed to go. He shared other household responsibilities with his father, including cleaning and yard work. He paid his parents’ bills using both his and their money, and he contributed to the cost of food that he and his family ate together. As his parents aged, he stopped working completely in order to help his father take care of his mother. He was unmarried and did not have children.

The court concluded that the children set forth sufficient facts showing that the harm to their relationship with their father was sufficiently foreseeable, and New Mexico law supported that conclusion. Accordingly, the manufacturer’s motion for partial summary judgment was denied.

The case is No. 1:18-cv-01062-MIS/LF.

Attorneys: Adam C. Flores (Ives & Flores, PA) for Celestina Sally Duran. Jeffrey M. Croasdell (Rodey, Dickason, Sloan, Akin, & Robb, P.A.) for United Tactical Systems, LLC d/b/a PepperBall.

Companies: United Tactical Systems, LLC d/b/a PepperBall

Cases: CourtDecisions DamagesNews WeaponsFirearmsNews NewMexicoNews