Davis v. The Board of County Commissioners of Dona Ana County

Davis v. The Board of County Commissioners of Dona Ana County


TOC o “1-3” h z u 1. What was the legal issue in this case? PAGEREF _Toc385257457 h 12. Why does the court conclude that Doña Ana County could be held liable for PAGEREF _Toc385257458 h 23. Should it have mattered that the former employer’s investigation was not able to PAGEREF _Toc385257459 h 44. What practical implications does this decision hold? Are you convinced by the PAGEREF _Toc385257460 h 4

1. What was the legal issue in this case?Negligent referral or Misrepresentation

The legal issue in the case was negligent referral or Misrepresentation. On the 20th of January, 1995 Mesilla Valley hospital hired Joseph Herrera as a technician in mental health. On the 26th of February, 1995, a female patient undergoing psychiatric therapy was placed under the care of Mr. Herrera. After working with the patient for about two weeks, Herrera began sexually, and physically abusing the patient under his care. Prior to his employment at the hospital, Herrera had served at the Dona Ana county detention centre as a sergeant; he had even served as a classification officer. After the assault was known, the hospital stated on how, and why Herrera was hired.

Herrera was hired by the hospital even though he was not qualified as a result of the recommendation of the former supervisors. The reference letter sent to the hospital by Mr. Frank steel the director of the detention facility, and Al Mochen the captain at the same facility. In the letter, Frank, and Steel did not mention to the human resource department of the hospital that Herrera had been previously investigated for allegations of sexually abusing female prisoners at the facility.

The letter did not also mention that Herrera had faced several disciplinary actions which included demotion, reassignment, and even suspension without pay. The letter did not even mention the disciplinary hearing against Herrera which was scheduled for the 12th of April, 1994. After resigning from the detention facility on the 8th of April, 1994, due to the disciplinary charges facing him, Herrera requested for a recommendation letter from Mr. Steele for potential employment.

The request was granted on the 11th of April, 1994, but Steele excluded the allegations, discipline issues, or demotion against Herrera. On the 5th of December, 1994 Herrera applied for an employment opportunity at the Mesilla hospital. Herrera also brought the recommendation letter to support his application. The resource department did a follow up of the recommendation by checking with Mr. Mochen. On asking Mochen described Herrera as a very hard worker, he further went on to say that he would definitely rehire if need arose.

As a result of being assaulted, the plaintiff sued the County for negligent misrepresentation stating that the wrong information given by the supervisors of the detention center convinced the hospital (McClain, 2001). The supervisors knew very well that Herrera was having disciplinary problems which involved serious issues such as sexual abuse, and even sexual harassment.

2. Why does the court conclude that Doña Ana County could be held liable fornegligent referral (misrepresentation)?

In New Mexico, under the common law, employers owe potential fellow employers, a duty of not misrepresenting facts when issuing recommendations regarding their former employees. In New Mexico there are instances where immunity is granted against negligence suit. Such cases that the law has allowed under section 41-4-2 in the act are “for personal [or] bodily injury (Knights, 2005) ․ resulting from assault [or] battery ․ when caused by law enforcement officers while acting within the scope of their duties.” As one of the liability torts, battery by a third party arising from an officer’s negligence falls within the immunity act (Macintyre, 2010).

In the plaintiff’s complaint, supported by materials attached together with the summary judgment statements, the plaintiff argued that immunity was entitled to just law enforcers whose misrepresentation causes injury by means of an enumerated tort (McClain, 2001).

  In her complaint and the supplemental materials attached to the summary judgment motions, Plaintiff has stated just such a claim against the County.   We emphasize that the immunity waiver at issue here is not for public officials as a whole, but only for law enforcement officers whose negligent misrepresentation cause injury by way of an enumerated tort. The court rejected the county’s argument of immunity stating that the term “negligent misrepresentation” is not enumerated (Macintyre, 2010). The court also stated that the lack of the words “negligent supervision” or “training” under the section 41-4-12 do not prevent a claim (McClain, 2001)


In New Mexico, the term law enforcement officer constitutes “any full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense [.]” . Therefore the directors of the detention centers fall under the category. In section 41-4-3(D), states that correction officers whose duty is to hold convicted persons, are not law enforcers. The act further states that for one to gain immunity, the officers actions must be within the “scope of their work”. Steele wrote the recommendation letter using a letter head belonging to Dona County. Mochen was alleged to have orally recommended Herrera (McClain, 2001)


To prove that Steele and Mochen acts were not within their scope of work, the county produced a county policy which required that all issues regarding employees be handled by the personnel department. The policy also barred supervisors such as Mochen and Steele from giving employment referrals (Macintyre, 2010). In refutation the Plaintiff argued that the county approved the actions of its employees even though the actions were illegal. In the above circumstances the county could be held liable as it was not immune to the suit. The use of its letter head by Steele could be interpreted that Steele was acting on their behalf (Macintyre, 2010).

3. Should it have mattered that the former employer’s investigation was not able to Confirm all of the allegations against Herrera? Explain your answer

Herrera while working at the detention centre had numerous case related to indiscipline, it is stated that he was even punished for the indiscipline. When working at the detention centre a female inmate accused Herrera of sexual abuse, which ranged from talking to the inmates telling them how he wanted them. It is also reported that he called women into his office and closed the door. A female inmate had also confessed of having sex with Herrera to “pay” for help offered by Herrera (Sack, 2010).

Due to the allegations facing him Herrera decided to resign than face the disciplinary committee, Even though some of the accusations were not proved (Cartwright, 2002). Whether or not all allegations against Herrera were proved, it could have not mattered as sooner or later some new allegations were bound to rise, just like in the hospital (Cartwright, 2007).

4. What practical implications does this decision hold? Are you convinced by theCourt’s claim that this ruling should not make employers more reluctant to provide

References.?The decision by the court has some practical implications; some employers may give false information as a result of immunity. The courts ruling will definitely have an impact on employers, they will be careful when giving information about former employees. It will also deter the persons in authority such as supervisors from misusing their powers, by giving false information, as they will fear the repercussions.

Some supervisors give false facts of employees as favors due to the friendship between them and the person in need of the recommendation letter. Some male supervisors who have the habit of exploiting women employees sexually so as to write for them good recommendation letters will not be able to do that anymore as they can be held personally liable for giving false information should the former employee past come back to haunt them.


MacIntyre, E. (2010). Business law (5th ed.). Oxford: Pearson Longman.

McClain, M. E., & Trachten, G. (2001). Handling wrongful termination claims, 2001: what plaintiffs and defendants have to know. New York, N.Y.: Practising Law Institute.

Sack, S. M. (2010). The employee rights handbook: effective legal strategies to protect your job from interview to pink slip (Rev. and enlarged 3rd ed.). NY: Legal Strategies Publications.

Cartwright, J. (2002). Misrepresentation. London: Sweet & Maxwell.

Cartwright, J. (2007). Misrepresentation, mistake and non-disclosure ([2nd ed.). London: Sweet & Maxwell.

Knights, M. (2005). Representation and misrepresentation in later Stuart Britain: partisanship and political culture. Oxford: Oxford University Press.