                                                I attest to the accuracy and
                                                 integrity of this document
                                                   New Mexico Compilation
                                                 Commission, Santa Fe, NM
                                                '00'04- 13:00:39 2016.04.12

        IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-014

Filing Date: March 14, 2016

Docket No. S-1-SC-35027

HEATHER SPURLOCK; SOPHIA
CARRASCO; and NINA CARRERA,

       Plaintiffs-Appellants/
       Cross-Appellees,

v.

ANTHONY TOWNES, in his
individual capacity,

       Defendant-Appellee,

and

BARBARA WAGNER, in her
individual capacity; and
CORRECTIONS CORPORATION
OF AMERICA,

       Defendants-Appellees/
       Cross-Appellants.

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Neil M. Gorsuch and Jerome A. Holmes, Circuit Judges

Paul Kennedy & Associates, P.C.
Paul John Kennedy
Arne Robert Leonard
Albuquerque, NM

for Plaintiffs-Appellants/Cross-Appellees

Kennedy, Moulton & Wells, P.C.
Deborah Denise Crow Wells

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Albuquerque, NM

Struck Wieneke & Love, P.L.C.
Nicholas D. Acedo
Christina Retts
Chandler, AZ

for Defendants-Appellees/Cross-Appellants

                                         OPINION

DANIELS, Justice.

{1}     The United States Court of Appeals for the Tenth Circuit has certified to us the
question of the civil liability under New Mexico law of a private prison when an on-duty
corrections officer sexually assaults inmates in the facility. Spurlock v. Townes, 594 F.
App’x 463, 470-71 (10th Cir. 2014). We hold that the private prison is vicariously liable for
damages caused by the intentional torts of its employee when those torts were facilitated by
the authority provided to the employee by the prison. The liability of the prison may not be
reduced by any fault attributed to the victims of the sexual assaults.

I.     BACKGROUND

{2}     Plaintiffs Heather Spurlock, Sophia Carrasco, and Nina Carrera are former inmates
of the Camino Nuevo Correctional Center, a prison housing female offenders, directed by
Third-Party Defendant Warden Barbara Wagner and privately operated by Third-Party
Defendant Corrections Corporation of America (CCA). While incarcerated, Plaintiffs were
sexually assaulted by Defendant Anthony Townes, a corrections officer employed by CCA.

{3}     Townes approached Plaintiffs while they were on work detail or removed them from
their cells in the middle of the night and then ordered them to other locations in the prison
where he sexually assaulted them. Townes asked officers staffing the “master control” area
where the prison’s surveillance cameras were monitored to remotely “pop” doors open to
allow him to move Plaintiffs around the facility, or he obtained permission from master
control to open the doors himself. Master control was staffed at all times, and the
surveillance cameras provided a view of most of the prison, including the area in front of the
washer and dryer where Spurlock was raped. But Townes also took advantage of “blind
spots” beyond range of the surveillance cameras, such as the officers’ break room where he
took Carrera to rape her.

{4}      CCA policies allowed male corrections officers to escort female inmates around the
facility alone. Prison rules that required male officers to announce their presence when they
entered a housing unit and to maintain physical distance between officers and inmates were
not enforced, and inmates had no effective way to obtain their enforcement. Plaintiffs

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presented evidence that “[the rapes] could have been . . . detected earlier, and . . . in all
likelihood, they may not have occurred” if Townes had not “had so much access to the
female inmates.”

{5}     Townes pleaded guilty in New Mexico state district court to four counts of second-
degree criminal sexual penetration in violation of NMSA 1978, Section 30-9-11(E)(2) (2003,
amended 2009) and four counts of false imprisonment in violation of NMSA 1978, Section
30-4-3 (1963). At his plea hearing, he stipulated to the truth of the allegations contained in
the indictment on these eight counts, including that he had unlawfully restrained or confined
Plaintiffs and caused them to engage in sexual intercourse while they were inmates and
while he was in a position of authority over them and that he was able to use his authority
to coerce Plaintiffs to submit to the acts.

{6}     Plaintiffs filed suit in the United States District Court against Townes, CCA, and
Wagner, seeking compensatory and punitive damages for the violation of Plaintiffs’ Eighth
Amendment civil rights under 42 U.S.C. § 1983 (2012), in addition to various state tort law
claims. The federal district court concluded that Townes was judicially estopped from
contesting the facts that he had specifically admitted during his plea hearing, including that
he had intentionally restrained or confined Plaintiffs without their consent and had sexually
assaulted them. On the basis of those admitted facts the court granted judgment as a matter
of law against Townes on Plaintiffs’ Eighth Amendment claim and on Plaintiffs’ state tort
law claims for the intentional torts of sexual assault and false imprisonment.

{7}     The district court declined to hold the Third-Party Defendants CCA and Wagner
vicariously liable for the judgments against Townes because the intentional torts were
outside the scope of his employment. But the court did rule that the negligence of CCA and
Wagner in failing to properly supervise Townes would make them liable for the damages he
had caused. See Medina v. Graham’s Cowboys, Inc., 1992-NMCA-016, ¶ 21, 113 N.M. 471,
827 P.2d 859 (holding that the doctrine of respondeat superior could be extended to require
“an employer who has negligently hired an employee to pay for all damages arising from an
intentional tort of the employee when the tort was a reasonably foreseeable result of the
negligent hiring”). The jury found CCA and Wagner not liable under the Eighth Amendment
but liable for negligent supervision of Townes as to Plaintiffs Spurlock and Carrasco.

{8}    The jury awarded each Plaintiff compensatory and punitive damages. Separate
punitive damages were awarded against Townes and against CCA and Wagner, but the
amount of the compensatory damages was based on the harm that was done to Plaintiffs and
was not separately measured for each theory of liability. See Clappier v. Flynn, 605 F.2d
519, 529 (10th Cir. 1979) (holding that one compensatory damages award is appropriate
when Eighth Amendment guarantees under § 1983 and state tort law on negligence protect
the same interests, even when the defendants were found liable under both theories). Townes
was held liable for compensatory damages under both § 1983 and state tort law.

{9}    The federal district court ruled that any comparative negligence of Plaintiffs could

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not be considered in awarding damages against Townes but that an award against CCA and
Wagner based on negligent supervision was subject to reduction for fault on the part of
Plaintiffs. The jury apportioned a percentage of fault to Plaintiffs Spurlock and Carrasco as
compared to CCA and Wagner, reducing the final compensatory damages award against
CCA and Wagner accordingly. Because CCA and Wagner were not found liable for
negligent supervision as to Plaintiff Carrera, she was awarded compensatory and punitive
damages against Townes only.

{10} The Tenth Circuit Court of Appeals, sitting in review of posttrial motions in this case,
certified to this Court the following question:

        When an inmate is sexually assaulted by a corrections officer, does New
        Mexico recognize the affirmative defense of comparative fault—permitting
        the comparison of the correctional facility/employer’s alleged negligence
        with the alleged fault of the inmate victim—for the purpose of reducing the
        amount of a judgment entered on the inmate’s state-law claim of negligent
        supervision of the tortfeasor-officer by the employer?

Spurlock, 594 F. App’x at 465; see Rule 12-607(A)(1) NMRA (allowing this Court to
answer questions of law certified to it by a court of the United States).

{11} “Our goal in answering a question certified by the federal courts is not to finally
dispose of all relevant issues in a case” but is rather to resolve “unsettled matters of New
Mexico law.” City of Las Cruces v. El Paso Elec. Co., 1998-NMSC-006, ¶¶ 17, 24, 124
N.M. 640, 954 P.2d 72 (concluding that this Court need not resolve the merits of a question
certified by a federal court where the New Mexico Legislature had enacted a statute that
rendered the question moot). We exercise our discretion to reformulate the question, see
Rule 12-607(C)(4), and we limit our answer to the context of this case where a corrections
officer employed by a privately run prison sexually assaulted inmates in the facility while
on duty. Within this narrow scope, we hold that under New Mexico law CCA and Wagner
are vicariously liable for all compensatory damages caused by the corrections-officer
employee when he was aided in accomplishing his assaults by his agency relationship with
CCA and Wagner who were his employers. No affirmative defense of comparative fault is
available in this context because fault attributed to intentional tortfeasor Townes is not
subject to reduction based on comparative negligence and because no fault on the part of the
vicariously-liable CCA and Wagner is required. See NMSA 1978, § 41-3A-1(C)(1)-(2)
(1987) (retaining joint and several liability for intentional tortfeasors and for vicarious
liability); Garcia v. Gordon, 2004-NMCA-114, ¶¶ 6, 9-10, 136 N.M. 394, 98 P.3d 1044
(stating that New Mexico has statutorily adopted the majority rule that “fault should not be
apportioned between an intentional tortfeasor and a merely negligent victim” but allowing
damages for false imprisonment to be reduced based on the fault of the plaintiff only because
the defendant had not acted with the intention of inflicting injury or damage (internal
quotation marks and citation omitted)); Medina, 1992-NMCA-016, ¶ 17 (“Because liability
is not predicated on the fault of the employer, the abolition of joint and several liability does

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not eliminate [an employer’s] respondeat superior liability.”).

{12} We decline to determine the availability of an affirmative defense alleging Plaintiffs’
comparative fault in a claim of liability for negligent supervision of an intentional tortfeasor
because the vicarious liability of CCA and Wagner makes this determination unnecessary.
See Sunnyland Farms, Inc. v. Cent. N.M. Elec. Coop., Inc., 2013-NMSC-017, ¶ 47, 301 P.3d
387 (“[P]laintiffs may not . . . receive compensation twice for the same injury.”); Allstate
Ins. Co. v. Stone, 1993-NMSC-066, ¶ 7, 116 N.M. 464, 863 P.2d 1085 (declining to address
unnecessary certified issues to avoid issuing an advisory opinion). Neither do we reach
Plaintiffs’ contention that CCA and Wagner are statutorily liable under New Mexico’s
mandatory financial responsibility statute for private correctional facilities. NMSA 1978, §
33-1-17(D)(2) (2013).

II.    DISCUSSION

{13} “Under basic respondeat superior principles, an employer is liable for an employee’s
torts committed within the scope of his or her employment.” Ocana v. Am. Furniture Co.,
2004-NMSC-018, ¶ 29, 135 N.M. 539, 91 P.3d 58. The act of an employee is within the
scope of employment if

               1.      It was something fairly and naturally incidental to the
       employer’s business assigned to the employee, and
               2.      It was done while the employee was engaged in the
       employer’s business with the view of furthering the employer’s interest and
       did not arise entirely from some external, independent and personal motive
       on the part of the employee.

UJI 13-407 NMRA. “[A]n employer is not generally liable for an employee’s intentional
torts because an employee who intentionally injures another individual is generally
considered to be acting outside the scope of his or her employment.” Ocana, 2004-NMSC-
018, ¶ 29.

{14} Nevertheless, “[u]nder the aided-in-agency theory, an employer may be held liable
for the intentional torts of an employee acting outside the scope of his or her employment
if the employee ‘was aided in accomplishing the tort by the existence of the agency
relation.’” Id. ¶ 30 (quoting the Restatement (Second) of Agency § 219(2)(d) (1958)). New
Mexico courts have frequently relied on the Restatement (Second) of Agency when deciding
issues involving respondeat superior, and in Ocana we adopted the Restatement’s aided-in-
agency theory as consistent with the policies underlying New Mexico tort law that favor
compensation of an injured victim, redistribution of economic loss, and deterrence of
unreasonable and immoral conduct. See 2004-NMSC-018, ¶¶ 30-31.

{15} While Ocana involved an employee’s claims of sexual harassment by her supervisor,
we adopted the aided-in-agency theory in our consideration of the plaintiff’s common-law

                                               5
claims for the intentional torts of assault, battery, and intentional infliction of emotional
distress, and we did not limit the rule to the sexual harassment context. See id. ¶ 29. “[T]he
basis for the aided-in-agency theory is that the employee ‘may be able to cause harm because
of [the employee’s] position as agent’ of the employer.” Id. ¶ 32 (quoting the Restatement
(Second) of Agency § 219(2) cmt. e).

{16} We acknowledge the concerns of other courts “that aided-in-agency as a theory
independent of apparent authority risks an unjustified expansion of employer tort liability
for acts of employees.” Ayuluk v. Red Oaks Assisted Living, Inc., 201 P.3d 1183, 1199
(Alaska 2009). We agree that the theory should not apply to all situations in which the
commission of a tort is facilitated by the tortfeasor’s employment. See Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 760 (1998) (“In a sense, most workplace tortfeasors are aided
in accomplishing their tortious objective by the existence of the agency relation: Proximity
and regular contact may afford a captive pool of potential victims.”). “[M]ore than the mere
existence of the employment relation [must] aid[] in commission of the harassment.” Id.; see
also Peña v. Greffet, 110 F. Supp. 3d 1103, 1124 (D. N.M. 2015) (“[T]he tort cannot be of
a nature that a mere coworker could have just as easily committed; rather, a specifically
supervisory relationship must have aided the tort’s commission.”).

{17} But sexual harassment of a subordinate by a supervisor is not the only context in
which job-created control over another justifies holding the employer who vests the
tortfeasor with that authority vicariously liable for the damages caused by its abuse. We thus
follow Ayuluk in limiting our adoption of aided-in-agency principles extending vicarious
liability to “cases where an employee has by reason of his employment substantial power or
authority to control important elements of a vulnerable tort victim’s life or livelihood.” 201
P.3d at 1199.

       Requiring a relationship of job-created control between a tortfeasor, and his
       or her victim, holds the employer liable only when the tortfeasor has
       capitalized on the power that the employer gave the tortfeasor, and not
       merely the opportunity. Opportunity is generic: a factory worker who
       sexually assaults the coworker next to him on the assembly line might only
       have been able to do so because the factory stationed him next to his victim,
       but the factory did not increase the odds—at least as they were knowable to
       the employer at the time—of either that specific worker committing sexual
       assault or of that specific coworker being sexually assaulted. On the other
       hand, when an employer vests an employee with power over another
       person—whether the other person is a subordinate employee or a
       non-employee third party, like an inmate—the employer enables torts that
       might not otherwise happen—torts that are, essentially, an abuse of that
       power. There is danger inherent in granting one person extraordinary power
       over another, and the granting of that power should, thus, carry with it some
       accountability.


                                              6
Peña, 110 F. Supp. at 1135. We agree also that “[w]hether a particular type of case falls
within this category should be a question for the court, not a jury.” Ayuluk, 201 P.3d at 1199.

{18} In order to prevail under an aided-in-agency theory, Plaintiffs had to prove that
Townes was aided in accomplishing his assaults by his status as a corrections officer that
afforded him substantial power and control over Plaintiffs. The “extraordinary power”
wielded by law enforcement over ordinary citizens has influenced many courts to hold the
officers’ employers vicariously liable for the abuse of that power. See, e.g., Doe v. Forrest,
2004 VT 37, ¶¶ 34-38, 853 A.2d 48 (discussing cases that found vicarious liability for sexual
assaults by corrections and police officers). Corrections officers like Townes are vested with
extraordinary authority over inmates, substantially more than the authority of police officers
over nonincarcerated citizens.

       A prison guard has even more employer-vested power over an inmate than
       a private-sector supervisor has over a subordinate: the control that a prison
       guard exerts over an inmate extends into virtually every facet of the inmate’s
       life; the relationship, unlike a private-sector supervisor-subordinate
       relationship, often involves the use of legitimate bodily force and physical
       violence; and, unlike a private-sector employee, an inmate cannot simply quit
       the job of being a prisoner.

Peña, 110 F. Supp. at 1134. A corrections officer may be, in fact, merely a conduit for the
authority of the State as delegated to the private prison and exercised through the person of
the officer, but the practical effect of this relationship is to place prison inmates under the
continuous and nearly total control of the officer. See id. at 1135 (“[A]n inmate . . . likely
feels as if she is not merely under the State’s control, by way of its guards, but that she is
under the control of the guard himself.”).

{19} “[T]he prison guard-inmate relationship is an irreducibly unpleasant one . . . oriented
around captivity and control . . . .” Id. at 1136. For two decades, the New Mexico Legislature
has recognized the potential for abuse inherent in this relationship, specifically in the form
of sexual assault. See § 30-9-11(E)(2) (“Criminal sexual penetration in the second degree
consists of all criminal sexual penetration perpetrated . . . on an inmate confined in a
correctional facility or jail when the perpetrator is in a position of authority over the
inmate.”). The essential elements of Subsection (E)(2) are a legislative acknowledgment of
the power disparity between inmate and corrections officer and a recognition that this
disparity not only facilitates sexual assault of the vulnerable party but makes meaningful
voluntary consent to sexual intercourse an unrealistic inquiry.

{20} Townes had the authority to enter Plaintiffs’ residential block unescorted and
unannounced, to remove Plaintiffs from their cells or from their work stations, to move
Plaintiffs around the facility including to out-of-the-way areas, to exercise his authority at
any hour of the day or night, and to bestow favors or impose sanctions for inmate behavior.
Townes approached Plaintiff Spurlock multiple times when she was alone on work detail and

                                              7
assaulted her at her work station. He removed Plaintiffs Carrasco and Carrera from their cells
and took them to other locations to rape them. Plaintiffs were told to follow the directions
of the corrections officers quickly, without question or argument, and feared retaliation if
they did not obey Townes. Inmates who challenge the actions of an officer face stereotyping
that reduces their credibility and increases the risk of retaliation for their complaints because
they are not taken seriously. Peña, 110 F. Supp. at 1135 (“The credibility gap between prison
guards and inmates is enormous in everyone’s eyes, but especially in the eyes of the jail
employees directly responsible for handling complaints—who are, after all, the tortfeasor’s
coworkers.”). Although CCA did have a grievance procedure in place, Plaintiffs presented
evidence that it was not effectively followed and that they had experienced retaliation for
complaints. Based on these facts, we conclude that Townes used the authority vested in him
by his position as a corrections officer to coerce Plaintiffs, who were inmates entrusted to
his care, into submitting to sexual assault and false imprisonment.

III.    CONCLUSION

{21} Because Townes was aided in the commission of his intentional torts by the agency
afforded to him by his employers, Third-Party Defendants CCA and Wagner are vicariously
liable under New Mexico law for all compensatory damages Plaintiffs suffered from these
assaults. We do not decide whether defendants’ vicarious liability extends to the punitive
damages awarded against Townes because the question certified to this Court and addressed
by the parties concerned only the compensatory award. Because CCA and Wagner are fully
liable for that award under vicarious liability principles regardless of any direct negligence
on their part, we do not reach the claim of negligent supervision nor any theories of
comparative fault that might have been applicable to that theory.

{22}    IT IS SO ORDERED.

                                                ____________________________________
                                                CHARLES W. DANIELS, Justice

WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

JUDITH K. NAKAMURA, Justice, not participating


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