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F I S C A L I M P A C T R E P O R T

SPONSOR Swisstack

DATE TYPED 3/2/05

HB 846

SHORT TITLE Prima Facie Torts as Cause of Action

SB

ANALYST Medina

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$0.1

See Narrative

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to Civil Law

SOURCES OF INFORMATION

LFC Files

Administrative Office of the Courts (AOC)

Attorney General (AG)

SUMMARY

Synopsis of Bill

House Bill 846 prohibits the recognition of a prima facie tort as a cause of action in a filing of a

civil lawsuit or in arbitration unless it is the sole cause of action based on the facts, events or cir-

cumstances of the lawsuit. The bill would preclude a claim for prima facie tort to be joined with

another tort claim in a civil action.

Significant Issues

A prima facie (at first glance) tort is defined as a claim by a plaintiff for damages on the basis

that the defendant acted lawfully, but intended to cause the plaintiff harm and succeeded in doing

so. The elements of a prima facie tort are that the defendant:

•

intentionally acted or failed to act;

•

intended that the act or failure to act would cause harm to the plaintiff or the defendant

knew with certainty that the act or failure to act would cause harm to the plaintiff;

and

House Bill 846 -- Page 2

•

the defendant’s act or failure to act was the proximate cause of the plaintiff’s harm; and

•

the defendant’s conduct was not justifiable under the circumstances.

According to the AOC, a review of New Mexico Court of Appeals and Supreme Court cases

shows that this tort is typically one of several tots alleged in a lawsuit. AOC notes that this cause

of action has been listed in approximately twenty-five appellate decisions since 2000.

ADMINISTRATIVE IMPLICATIONS

The Attorney General notes that the bill would potentially increase the volume of litigation, in-

creasing the workload burden on the courts and Attorney General.

The AOC states that if this bill is enacted, the Uniform Jury Instructions would need to be

amended to remove this cause of action.

OTHER SUBSTANTIVE ISSUES

The Attorney General states the following:

“New Mexico first recognized a cause of action for prima facie tort in 1990 in Schmitz v.

Smentowski, 109 N.M. 386. The elements of this tort are set out in section 1.C. of the

bill and are identical to the elements contained in the Uniform Jury Instruction on prima

facie tort, 13-1631. This bill does not seek to abolish or limit the use by a plaintiff of a

prima facie tort claim; it only provides that a complaint alleging a prima facie tort can not

also allege an alternative claim based on the same facts. Under existing law, a plaintiff

may plead alternative tort claims in the same proceeding but if at the close of the proof at

trial the plaintiff’s proof fits a traditional tort category, only that traditional claim may be

submitted to the jury. A foreseeable result of this bill is to require multiple litigations.

One claim would be based on the prima facie tort and the other would be based on tradi-

tional tort theories. We do not see this as a desirable result.

Prima facie tort evolved relatively recently to fill a void in the traditional tort common

law. Its adoption as a valid cause of action in New Mexico is consistent with the willing-

ness of our Supreme Court to adopt new tort areas as articulated in the Restatement of

Torts. Our courts have developed a fact specific balancing test in determining whether an

alleged intentionally caused harm is actionable. The activity complained of is balanced

against its justification and the severity of the injury. Our courts have made clear that

prima facie tort is not to become a catch all alternative, but that they are willing to recog-

nize such a claim in an appropriate circumstance. That being the case, and given the re-

quirement that both a prima facie and traditional tort can not go to the jury, we are unable

to see any benefit to the judicial system from this bill and, indeed, are concerned that it

will have an adverse impact as noted above.”

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