Candelaria v. Robinson , 93 N.M. 786 ( 1980 )

SUTIN, Judge

(Concurring in Part and Dissenting in Part).

I concur and dissent.

Based solely on defendant’s motion to dismiss for failing to state a claim, the trial court found:

[T]hat the comments, remarks and statements of the defendants . are absolutely privileged as a matter of law, and the New Mexico Tort Claims Act prohibits this suit against defendants

The trial court entered an Order:

[T]hat the Second, Third and Fourth Causes of Action in plaintiff’s Complaint are dismissed with prejudice and that defendants . . . are dismissed with prejudice.

Dismissed with prejudice means that plaintiff cannot state a claim for relief under any set of facts. I disagree.

Under the Tort Claims Act, immunity is granted defendants if their acts or conduct were done within the scope of their duties.

The second count alleged that Singer “prepared a report at the request of the Defendant, IRA ROBINSON, regarding the investigation.” Under this allegation, Singer’s report was prepared in the scope of his duties. After the Order was entered dismissing Count II, plaintiff learned by way of Singer’s deposition that the final report was not mentioned in his contract or his appointment as an assistant to the district attorney or the attorney general. In other words, if plaintiff could amend his Count II and allege that the district attorney did not request the investigatory report, that it was prepared outside the scope of his duties, plaintiff would state a claim for relief under the Tort Claims Act, and the disclosed contents of the report would not grant Singer absolute immunity.

As to Singer, the Order of the District Court should be reversed.

I concur in the remainder of the majority opinion.