## Facts

- Joseph “Tinie” Herrera worked for Doña Ana County as a detention sergeant and classification officer at the county detention center.
- Multiple inmates complained that Herrera engaged in sexual harassment and sexual assault.
- Supervisor Frank Steele investigated and prepared a report questioning Herrera’s conduct and recommending demotion, reassignment, and unpaid suspension.
- Herrera resigned before any disciplinary hearing occurred.
- After Herrera left, Steele provided a positive written recommendation that did not mention the allegations, the report, or the circumstances of Herrera’s departure.
- Another supervisor, Al Mochen, allegedly gave Mesilla Valley Hospital (MVH) a positive oral reference, including that Herrera was a hard worker and that Mochen would rehire him, without disclosing the prior allegations or the report.
- MVH hired Herrera as a mental health technician, a position involving close contact with psychiatric patients, including restraint, walks, and night coverage.
- Mariah C. Davis was admitted to MVH as a psychiatric patient and was assigned to work with Herrera.
- Davis alleged Herrera sexually harassed and assaulted her over roughly two weeks, including conduct facilitated by moving her sleeping quarters to more isolated areas.
- Davis sued the County for negligent misrepresentation, alleging Steele’s and Mochen’s references induced MVH to hire Herrera and led to her injuries.
- The district court granted summary judgment to the County, finding no duty to Davis and holding the County immune under the New Mexico Tort Claims Act; Davis appealed.

## Issues

1. Whether an employer who provides an employment reference owes a duty of reasonable care to a prospective employer and foreseeable third persons not to misrepresent material facts when a substantial risk of physical harm is foreseeable.
2. Whether the New Mexico Tort Claims Act bars a negligent-misrepresentation claim against a county based on job references provided by county detention-center supervisors characterized as law enforcement officers.

## Decision

- The Court of Appeals held that a recommending employer owes a duty of reasonable care not to make affirmative, materially misleading statements about a current or former employee when foreseeable misuse of that misinformation creates a substantial risk of physical harm to third persons.
- The court held the Tort Claims Act did not bar the claim on the asserted immunity theory and permitted the action against the County to proceed.
- The court reversed the summary judgment for the County and remanded for further proceedings.

## Legal Principles

- When an employer chooses to provide an employment recommendation, it must exercise reasonable care to avoid affirmative misrepresentations of material facts where the employer knows or should know the employee poses a substantial, foreseeable risk of physical harm to third persons in the prospective job.
- The duty targets misleading assurances and half-truths that create a false impression of safety or suitability; it does not impose a general obligation to disclose every negative fact absent an affirmative representation.
- Foreseeability of physical harm and policy concerns about public safety can support recognizing a negligence-based duty running to third persons foreseeably exposed to the employee in the new position.
- Under the New Mexico Tort Claims Act, governmental immunity may be waived for tortious conduct by law enforcement officers; conduct closely connected to law-enforcement employment may fall within the waiver such that immunity does not automatically preclude liability for negligent misrepresentation.

## Conclusion

The court recognized “negligent referral” liability for affirmative, materially misleading job references where foreseeable physical harm to third persons is at stake, and it allowed the claim against the County to proceed because Tort Claims Act immunity did not bar suit under the circumstances.


Davis v. Bd. of Cnty. Comm’rs, 127 N.M. 785, 987 P.2d 1172 (N.M. Ct. App. 1999)