                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 11 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ERNESTO ORTIZ,

                Plaintiff-Appellant,

    v.                                                   No. 99-2143
                                                  (D.C. No. CIV-97-1701-BB)
    UNITED STATES BORDER                                   (D. N.M.)
    PATROL,                                          (39 F. Supp. 2d 1321)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , HENRY , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       This appeal is taken from an order granting summary judgment to defendant

on plaintiff’s action for negligent injury brought pursuant to the Federal Tort

Claims Act (FTCA), 28 U.S.C. § 1346(b). We review the grant of summary

judgment de novo.    See Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1175

(10th Cir. 1999). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). Under this standard, we view the evidence, drawing

reasonable inferences therefrom, in a light most favorable to the nonmoving party.

See Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse

Servs. , 165 F.3d 1321, 1326 (10th Cir.),   cert. denied , 120 S. Ct. 53 (1999).

       The facts are not in dispute. Plaintiff was trapped upside down in his

vehicle following an accident on a U.S. Highway in New Mexico. Employees of

the U.S. Border Patrol happened upon the scene, called for an ambulance, and

were advised by a New Mexico state police officer on the scene that plaintiff was

suffocating because of the position of the vehicle.    See Ortiz v. United States

Border Patrol , 39 F. Supp. 2d 1321, 1322 (D.N.M. 1999). At the request of the

New Mexico state police officer, the border patrol agents attached a chain to

plaintiff’s vehicle and pulled the vehicle onto its side. Plaintiff contends that as


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a consequence of this maneuver, he suffered spinal injuries, leaving his legs and

lower body paralyzed.    See id.

       The United States is liable for the negligent acts of its employees if

a private person, under similar circumstances, would be liable to a claimant under

the law of the place where the negligent act occurred.    See 28 U.S.C. § 1346(b).

Here, there is no dispute that New Mexico law applies. Defendant claims its

agents are not liable to plaintiff based on New Mexico’s “Good Samaritan”

statute, N.M. Stat. Ann. § 24-10-3. That statute provides that one administering

care at the scene of an emergency, without remuneration or the expectation of

remuneration, is not liable for civil damages unless the person acts in a grossly

negligent manner.    See id.

       The district court determined that under the FTCA, the border patrol agents

should be compared with private individuals, i.e., people not employed by

a governmental entity.   See Ortiz , 39 F. Supp. 2d at 1323-24 (replying on   Ewell

v. United States , 776 F.2d 246, 248-49 (10th Cir. 1985) (holding that for purposes

of defenses and immunities to tort liability, federal government should be

compared to nonpublic sector entity rather than state or local governmental

body)). The district court further determined that, viewing the evidence most

favorably to plaintiff, there was no indication that the actions of defendant’s




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agents, who were merely responding to a request for assistance by a state police

officer, rose to the level of gross negligence.     1
                                                        See id. at 1325.

       Alternatively, the district court ruled that border patrol agents are not

general law enforcement officers and had no duty to rescue plaintiff. The agents

were therefore acting as private individuals and, because there was no factual

issue concerning gross negligence, defendant was entitled to summary judgment.

See id. at 1326.

       On appeal, plaintiff claims that defendant is not entitled to the protection

of New Mexico’s Good Samaritan statute because at the time of the accident,

the border patrol agents were providing emergency care while receiving

remuneration. Plaintiff further contends that even though the agents are

considered private persons under the FTCA, they are not entitled to immunity

under the Good Samaritan statute, which “does not distinguish between private

and public persons in determining whether immunity is afforded those who

provide care [in an] emergency.” Appellant’s Br. at 5.

       The New Mexico Good Samaritan statute states that no person shall be held

liable for administering emergency care in good faith except for gross negligence,

and except when care “is rendered for remuneration or with the expectation of


1
      In his brief, plaintiff claims that whether defendant’s agents acted in a
negligent fashion is a question of fact. However, he does not allege that the
actions of the agents constituted gross negligence.

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remuneration” or “rendered by a person or agent of a principal who was at the

scene of the accident or emergency because he or his principal was soliciting

business or performing or seeking to perform some services for remuneration.”

N.M. Stat. Ann. § 24-10-3. Citing no authority, plaintiff interprets this to mean

that because the agents “were on the job,” they provided care while receiving

remuneration. Appellant’s Br. at 7; see also Appellant’s Reply Br. at 4 (“The

real issue is whether these agents were being paid at the time they rendered

assistance.”).

      Plaintiff does not argue on appeal that the agents specifically expected to

be paid for their rescue assistance, only that they “were receiving remuneration

at the time that they were rendering aid.” Appellant’s Reply Br. at 2. The clear

language of the statute, however, exempts from immunity the administering of

emergency care “where the same    is rendered for remuneration .” N.M. Stat. Ann.

§ 24-10-3 (emphasis added). This does not mean that salaried employees (i.e., all

persons who at the time they render assistance are presently receiving some form

of remuneration from any source) are not entitled to immunity while the

unemployed and/or self-employed are so entitled. Such an interpretation is not

supported by either authority or common sense. Because plaintiff did not furnish

even the complaint and answer in his appendix,   see 10th Cir. R. 10.3(C), or the

motion for summary judgment,     see 10th Cir. R. 10.3(D), 30.1(A)(1), we can only


                                          -5-
rely on the district court’s recitation that defendant contended that there was no

evidence the agents “acted in the expectation of receiving remuneration   for their

efforts ,” Ortiz , 39 F. Supp. 2d at 1322-23 (emphasis added).

       Plaintiff next argues that under state law, defendant’s agents were general

law enforcement officers and, as such, had a preexisting duty to render aid in an

emergency situation. Because of this alleged preexisting duty, plaintiff contends

that defendant’s agents would not be entitled to the protection of the Good

Samaritan statute. In particular, plaintiff relies on N.M. Stat. Ann. § 29-1-11(E),

which provides that duly commissioned federal law enforcement officers

employed by (among other agencies) the Immigration and Naturalization Service

“who are required to be designated by the county sheriff on a case-by-case basis

in the county in which they are working, are recognized and authorized to act as

New Mexico peace officers.” The statute also requires the department of public

safety to maintain a registry of “every federal law enforcement officer recognized

and authorized to act as a New Mexico peace officer pursuant to the provisions of

this subsection.”   Id. In addition, “no person shall assume or exercise the

functions [of a] . . . peace officer without first having received his appointment

in writing from the lawfully constituted authorities of the State of New Mexico.”

Id. § 29-1-9. Plaintiff makes no argument that defendant’s agents were properly

appointed as state peace officers pursuant to these statutes. Moreover, given the


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district court’s thorough analysis of defendant’s claims and the lack of any

suggestion that this particular argument was presented to that court, we decline to

consider it further on appeal.   See Rademacher v. Colorado Ass’n of Soil

Conservation Dists. Med. Benefit Plan   , 11 F.3d 1567, 1572 (10th Cir. 1993)

(stating general rule that failure to raise issue with trial court precludes review

except for most manifest error).

       The district court correctly concluded that defendant’s agents are entitled

to immunity.

       AFFIRMED.



                                                      Entered for the Court



                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




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