OPINION
RANSOM, Justice.
In this action for the wrongful death of plaintiffs thirteen-year-old son, Alan Cross, we granted certiorari to review the decision of the court of appeals that upheld a directed verdict for defendant City of Clovis. As personal representative, James Cross had brought suit under the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl.Pamp.1986), alleging negligence of two city police officers in maintaining a police roadblock.
On September 30, 1983, Alan was fatally struck by a stolen Mercedes after it crashed through a police roadblock, veered around another vehicle, and then careened off the road, striking and killing Alan instantly. The automobile had been speeding at 100 miles per hour. Prior to the crash, Alan had been standing next to his motorbike, approximately 400 feet behind the roadblock, about thirty to forty-five feet off the roadway alongside a ditch.
The roadblock had been established on State Highway 18, at the north end of the city of Clovis, by two Clovis police officers, David Williams and Kevin Clements. They had responded to a request by the Curry County Sheriff’s Department for assistance in apprehending the driver of the stolen vehicle. The officers initially set up a roadblock further south on State Highway 18 at Pleasant Hill Road but abandoned their efforts after a request to proceed to a roadblock being established by a deputy north of the city. While en route, the officers were informed that the suspect had already broken through the deputy’s roadblock; therefore, they established a roadblock at the next available intersection a mile north of Pleasant Hill Road.
During the less than two minutes which elapsed before the Mercedes was on the scene, both officers reconnoitered the area behind the roadblock. Officer Clements testified that during his initial surveillance he observed a vehicle which Officer Williams was diverting. He did not remember looking toward the area where Alan would have been standing. When he looked back a second time, Officer Clements saw Alan standing next to his motorbike. He did nothing to alert Alan to vacate the area. After seeing Alan, he returned his gaze toward the oncoming Mercedes. Officer Williams did not see Alan until after the accident.
The immunity from tort liability granted a governmental entity and its employees pursuant to Section 41-4-4 of the Tort Claims Act does not apply to liability for wrongful death “resulting from assault * * * or deprivation of any rights * * * secured by the * * * laws of * * * New Mexico when caused by law enforcement officers while acting within the scope of their duties.” § 41-4-12. It 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.” Methola v. County of Eddy, 95 N.M. 329, 333, 622 P.2d 234, 238 (1980).1 “A finding of negligence, however, is dependent upon the existence of a duty * * *. Whether a duty exists is a question of law for the courts to decide.” Schear v. Board of County Comm’rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984) (citations omitted).
In a lengthy 2-to-l unpublished majority opinion, the court of appeals attempted to articulate a completé statement as to what responsibilities law enforcement officers have to members of the public who are at risk of injury by a criminal offender when the officers are performing or attempting to perform their duties. As developed more fully in this opinion, we hold quite simply that a law enforcement officer has the duty in any activity actually undertaken 2 to exercise for the safety of others that care ordinarily exercised by a reasonably prudent and qualified officer in light of the nature of what is being done.3 The jury should be so instructed as a modification of SCRA 1986,13-1604 (“Every person has a duty to exercise ordinary care for the safety and the property of others.”).
At issue on this appeal is whether a jury reasonably could have found that Alan’s death was proximately caused by negligence of the law enforcement officers. See Archuleta v. Pina, 86 N.M. 94, 95, 519 P.2d 1175, 1176 (1974) (the evidence, together with all reasonable inferences deducible therefrom, must be viewed in the light most favorable to the party resisting a directed verdict).
The plaintiff claims that Officers Clements and Williams were negligent at the initial roadblock in failing to keep a proper lookout for motorists, such as Alan, who were traveling toward the danger, and in failing to warn or divert such traffic. The plaintiff further maintains that these officers were negligent at their second roadblock in failing to utilize citizens to warn or divert others approaching the roadblock,4 in failing to maintain a proper lookout, and, after observing Alan, in failing to use the police car’s public address system, wave, or otherwise warn him of the approaching Mercedes.
A witness, Danny Henry, who had observed the officers’ initial roadblock attempt, testified that one of the officers removed a shotgun from his trunk and pointed it north. Henry testified further that Alan had been riding his motorbike in the vicinity and opined that the path of Cross’ motorbike crossed the field of vision of the police officers. Both officers, however, denied seeing Alan at the Pleasant Hill intersection. We believe that if there is a cause of action in this case, it is based upon the acts and omissions of the officers at the second roadblock, and that their conduct at the initial roadblock is too remote for a finding of liability independent of conduct at the second roadblock. We therefore limit our consideration of negligence and proximate cause to the plaintiffs claims regarding conduct of the officers at the second roadblock.
With respect to failure to utilize citizen assistance, failure to maintain a proper lookout, and, after observing Alan, failure to use the police car’s public address system, wave, or otherwise warn him of the approaching Mercedes, we are mindful that a failure to act, to be negligent, must be a failure to do an act which a reasonably prudent and qualified law enforcement officer, in the exercise of ordinary care, would do in order to prevent injury to a person whom the officer would foresee to be exposed to risk of injury. As the risk of danger that reasonably should be foreseen increases, the amount of care required also increases. If, without negligence on his part, the officer is suddenly and unexpectedly confronted with peril and does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by any reasonably prudent and qualified officer under the same conditions, then he has done all that the law requires of him, even though, in the light of afterevents,. it might appear that a different course would have been better and safer. This statement of the law appears clear enough from Uniform Jury Instructions, SCRA 1986, 13-1601, 1603 and 1617.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
RANSOM, Justice.
In this action for the wrongful death of plaintiffs thirteen-year-old son, Alan Cross, we granted certiorari to review the decision of the court of appeals that upheld a directed verdict for defendant City of Clovis. As personal representative, James Cross had brought suit under the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl.Pamp.1986), alleging negligence of two city police officers in maintaining a police roadblock.
On September 30, 1983, Alan was fatally struck by a stolen Mercedes after it crashed through a police roadblock, veered around another vehicle, and then careened off the road, striking and killing Alan instantly. The automobile had been speeding at 100 miles per hour. Prior to the crash, Alan had been standing next to his motorbike, approximately 400 feet behind the roadblock, about thirty to forty-five feet off the roadway alongside a ditch.
The roadblock had been established on State Highway 18, at the north end of the city of Clovis, by two Clovis police officers, David Williams and Kevin Clements. They had responded to a request by the Curry County Sheriff’s Department for assistance in apprehending the driver of the stolen vehicle. The officers initially set up a roadblock further south on State Highway 18 at Pleasant Hill Road but abandoned their efforts after a request to proceed to a roadblock being established by a deputy north of the city. While en route, the officers were informed that the suspect had already broken through the deputy’s roadblock; therefore, they established a roadblock at the next available intersection a mile north of Pleasant Hill Road.
During the less than two minutes which elapsed before the Mercedes was on the scene, both officers reconnoitered the area behind the roadblock. Officer Clements testified that during his initial surveillance he observed a vehicle which Officer Williams was diverting. He did not remember looking toward the area where Alan would have been standing. When he looked back a second time, Officer Clements saw Alan standing next to his motorbike. He did nothing to alert Alan to vacate the area. After seeing Alan, he returned his gaze toward the oncoming Mercedes. Officer Williams did not see Alan until after the accident.
The immunity from tort liability granted a governmental entity and its employees pursuant to Section 41-4-4 of the Tort Claims Act does not apply to liability for wrongful death “resulting from assault * * * or deprivation of any rights * * * secured by the * * * laws of * * * New Mexico when caused by law enforcement officers while acting within the scope of their duties.” § 41-4-12. It 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.” Methola v. County of Eddy, 95 N.M. 329, 333, 622 P.2d 234, 238 (1980).1 “A finding of negligence, however, is dependent upon the existence of a duty * * *. Whether a duty exists is a question of law for the courts to decide.” Schear v. Board of County Comm’rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984) (citations omitted).
In a lengthy 2-to-l unpublished majority opinion, the court of appeals attempted to articulate a completé statement as to what responsibilities law enforcement officers have to members of the public who are at risk of injury by a criminal offender when the officers are performing or attempting to perform their duties. As developed more fully in this opinion, we hold quite simply that a law enforcement officer has the duty in any activity actually undertaken 2 to exercise for the safety of others that care ordinarily exercised by a reasonably prudent and qualified officer in light of the nature of what is being done.3 The jury should be so instructed as a modification of SCRA 1986,13-1604 (“Every person has a duty to exercise ordinary care for the safety and the property of others.”).
At issue on this appeal is whether a jury reasonably could have found that Alan’s death was proximately caused by negligence of the law enforcement officers. See Archuleta v. Pina, 86 N.M. 94, 95, 519 P.2d 1175, 1176 (1974) (the evidence, together with all reasonable inferences deducible therefrom, must be viewed in the light most favorable to the party resisting a directed verdict).
The plaintiff claims that Officers Clements and Williams were negligent at the initial roadblock in failing to keep a proper lookout for motorists, such as Alan, who were traveling toward the danger, and in failing to warn or divert such traffic. The plaintiff further maintains that these officers were negligent at their second roadblock in failing to utilize citizens to warn or divert others approaching the roadblock,4 in failing to maintain a proper lookout, and, after observing Alan, in failing to use the police car’s public address system, wave, or otherwise warn him of the approaching Mercedes.
A witness, Danny Henry, who had observed the officers’ initial roadblock attempt, testified that one of the officers removed a shotgun from his trunk and pointed it north. Henry testified further that Alan had been riding his motorbike in the vicinity and opined that the path of Cross’ motorbike crossed the field of vision of the police officers. Both officers, however, denied seeing Alan at the Pleasant Hill intersection. We believe that if there is a cause of action in this case, it is based upon the acts and omissions of the officers at the second roadblock, and that their conduct at the initial roadblock is too remote for a finding of liability independent of conduct at the second roadblock. We therefore limit our consideration of negligence and proximate cause to the plaintiffs claims regarding conduct of the officers at the second roadblock.
With respect to failure to utilize citizen assistance, failure to maintain a proper lookout, and, after observing Alan, failure to use the police car’s public address system, wave, or otherwise warn him of the approaching Mercedes, we are mindful that a failure to act, to be negligent, must be a failure to do an act which a reasonably prudent and qualified law enforcement officer, in the exercise of ordinary care, would do in order to prevent injury to a person whom the officer would foresee to be exposed to risk of injury. As the risk of danger that reasonably should be foreseen increases, the amount of care required also increases. If, without negligence on his part, the officer is suddenly and unexpectedly confronted with peril and does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by any reasonably prudent and qualified officer under the same conditions, then he has done all that the law requires of him, even though, in the light of afterevents,. it might appear that a different course would have been better and safer. This statement of the law appears clear enough from Uniform Jury Instructions, SCRA 1986, 13-1601, 1603 and 1617.
From evidence of the nature of what the law enforcement officer was doing, in light of all the surrounding circumstances,' counsel may argue liability and freedom from liability. With appropriate modifications to Uniform Jury Instructions 13-1601, 1603, and 1617, jurors can be relied upon to understand that law enforcement officers can be expected to exercise only the care that a reasonably prudent and qualified officer would exercise in the same situation. Evidence relevant and material to that issue, including expert testimony, is to be admitted.
We cannot agree with the court of appeals that the evidence established, as a matter of law, that Alan’s death was not proximately caused by any failure of the officers to exercise reasonable care in maintaining the second roadblock. In determining the reasonableness of the officers’ conduct, the court of appeals narrowly concentrated on the seconds between Officer Clements’ sighting of Alan and the Mercedes’ collision with the roadblock. However, it was not undisputed that Officer Clements had only a few seconds in which to warn Alan. His testimony was that a few seconds transpired between the moment he initially saw Alan and the time he returned his gaze toward the oncoming car.
Q: How much time did that take for you to look around and actually see the Cross boy and then turn around and see what was coming toward you?
A: Just a matter of a few seconds.
At that point in time, the Mercedes was between one-quarter and one-half mile away; several more seconds must have elapsed before the car crashed through the roadblock. The reasonableness of Officer Clements’ decision to do nothing to warn Alan under these circumstances cannot be established as a matter of law. The evidence indicates that Officer Clements was aware of the Mercedes’ position through the radioed communications of the pursuing officer. When he first saw the boy, Officer Clements knew or should have known that the Mercedes was approaching some distance away. Rather than make any attempt to alert Alan of the impending danger, Officer Clements turned around to observe the approach of the speeding Mercedes. Officer Clements’ deposition testimony indicates that he did not warn Alan because he did not think it was necessary, not because there was insufficient time.
Q: “[If] the little boy would have been on the shoulder of the road, would you have felt the need to tell him something?
A: “If he had been right next to the roadway, it’s possible that I would have said something to him.”
Furthermore, the breach of duty here was not only whether there was sufficient time for Officer Clements to warn Alan once he was spotted, but also whether a proper lookout by either officer would have revealed his presence sooner. The plaintiff presented testimony from which it reasonably could be inferred that the officers were on notice that Alan was traveling toward the area where they eventually established their second roadblock. As pointed out in the dissent of Judge Apodaca of the court of appeals, a jury could find that with such notice the officers should have watched for the arrival of the boy. Alan was either already in the area during Officer Clement’s initial surveillance, or he was able to approach within approximately 400 feet of the roadblock, to dismount, and to stand alongside his motorbike without either officer seeing or hearing him.
The court of appeals concluded that evidence that the officers waved two or three cars through the roadblock and diverted another vehicle away from it demonstrates the officers maintained a proper lookout. The fact that the officers may have kept some lookout does not establish conclusively that they maintained a proper lookout with respect to Alan.
In resolving all reasonable inferences to be drawn from the evidence in favor of the party resisting the motion for a directed verdict, we conclude that the evidence reasonably could indicate a breach of duty. A jury reasonably could have found that the officers failed to maintain a proper lookout because Alan was able to enter the zone of foreseeable danger unnoticed. Further, a jury reasonably could have found it was negligent not to have attempted to warn Alan of impending danger once Officer Clements finally spotted him.
There still remains the issue of causation. The issue of proximate cause should be removed from the fact finder only when the facts are undisputed and all reasonable inferences are plain, consistent, and uncontradictory. Chavira v. Carnahan, 77 N.M. 467, 423 P.2d 988 (1967). The directed verdict can be sustained only if reasonable minds could not differ on whether the officers’ failure to exercise reasonable care was an actual and proximate cause of Alan’s death. See New Mexico State Highway Dep’t v. Van Dyke, 90 N.M. 357, 563 P.2d 1150 (1977).
Officer Williams himself testified that the area where Alan was standing was within the zone of foreseeable danger. A proximate cause requires only a result that proceeds in a natural and continuous sequence from the act or omission in question. SCRA 1986, 13-305. The jury reasonably could have found that the officers’ failure to keep a proper lookout and failure to warn Alan proximately caused the death of one in the zone of the danger in question. If the officers negligently deprived Alan of a chance to escape harm, they cannot argue that the jury could only speculate as to whether Alan would have responded successfully to their warnings or directions.
Because the issue of breach and proximate cause cannot be decided as a matter of law, the trial court erred in removing those issues from the jury. We reverse the court of appeals and remand to the trial court.
IT IS SO ORDERED.
SCARBOROUGH, C.J., SOSA, Senior J., and WALTERS, J., concur. STOWERS, J., dissents.