## Facts

- Roland H. Wittkowski, a Colorado resident, was killed in Colorado during a robbery at the liquor store where he worked.
- The alleged perpetrators were two inmates who escaped from the New Mexico State Penitentiary: Ross David Thomas and Eddie Lee Seward.
- The complaint alleged both inmates had known violent histories and prior escape or attempted-escape histories; it also alleged Thomas had an extensive record of violent behavior and alcoholism and that both inmates were psychotic.
- Despite these histories, the inmates were allegedly classified as minimum trustees with minimal supervision and assigned to work on a prison dairy operation.
- Plaintiffs alleged the escape occurred because the inmates were left unguarded at night and prison security was deficient (including inadequate lighting, fencing, facilities, and training/supervision of personnel).
- Plaintiffs alleged the New Mexico State Police learned of the escape within about two hours and issued an in-state bulletin, but failed to notify Colorado authorities or coordinate adequately with out-of-state officials.
- Plaintiffs sought compensatory and punitive damages for wrongful death under the New Mexico Tort Claims Act and 42 U.S.C. § 1983.

## Issues

1. Whether the complaint stated claims within any waiver of sovereign immunity under the New Mexico Tort Claims Act for alleged negligence in inmate classification, supervision, prison security, pursuit/recapture efforts, and interstate notification.
2. Whether New Mexico tort law recognized a duty by New Mexico corrections officials and state police to protect an out-of-state victim injured in another state by New Mexico escapees.
3. Whether the alleged conduct stated a federal civil-rights claim under 42 U.S.C. § 1983, rather than only negligence.
4. Whether Colorado law could expand or supply duties or liability beyond New Mexico’s limits for suits against New Mexico governmental defendants.

## Decision

- The New Mexico Court of Appeals affirmed dismissal under Rule 12(b)(6).
- Accepting the pleaded facts as true, the court held plaintiffs failed to state a claim under the New Mexico Tort Claims Act because the alleged acts and omissions did not fit within the Act’s limited statutory waivers.
- The court declined to recognize the broad duty plaintiffs asserted to protect out-of-state members of the public from harm by escapees, absent legislative authorization.
- The court held the § 1983 allegations were insufficient because they alleged negligent administration and policy failures rather than a constitutional deprivation.
- Arguments that Colorado law should control did not salvage the claims against New Mexico officials where New Mexico law governed duty and immunity under the Tort Claims Act.

## Legal Principles

- Under the New Mexico Tort Claims Act, governmental entities and employees are immune from tort liability except to the extent immunity is expressly waived; waiver provisions are construed narrowly.
- Allegations of negligent inmate classification, supervision, and prison security, and alleged failures in post-escape pursuit or interstate notification/coordination, do not state a claim unless they fall within a specific statutory waiver.
- Courts will not impose an expansive, general public-protection duty on corrections or law-enforcement officials—particularly one extending to out-of-state victims—when doing so would enlarge governmental liability beyond legislatively defined limits.
- Negligence by state officials, without more, does not establish a due process violation actionable under 42 U.S.C. § 1983; the claim must allege conduct that amounts to a constitutional deprivation.
- Choice-of-law arguments cannot be used to impose liability on New Mexico governmental defendants beyond the scope of New Mexico’s statutory immunity and recognized duties.

## Conclusion

The court affirmed dismissal because the asserted prison-escape and police-notification negligence theories fell outside the New Mexico Tort Claims Act’s limited waivers, New Mexico law did not recognize the broad out-of-state duty urged, and the pleaded § 1983 theory alleged negligence rather than a constitutional violation.


Wittkowski v. State, 710 P.2d 93 (N.M. Ct. App. 1985)