# Hicks v. State

> New Mexico Supreme Court · January 19, 1976 · 88 N.M. 588

URL: https://www.frixlaw.com/law-library/cases/9603946

## Case

- **Full name:** Ron E. HICKS, Personal Representative and Administrator of the Estate of Beverly Jan Hicks, Deceased, and Robin E. Hicks, Deceased, Plaintiff-Appellant, v. STATE of New Mexico, State Highway Commission, State Highway Department, State Highway Engineer, DeBaca County and the DeBaca County Commission, Defendants-Appellees
- **Court:** New Mexico Supreme Court
- **Decided:** January 19, 1976
- **Citations:** 88 N.M. 588; 544 P.2d 1153
- **Precedential status:** Published
- **Opinion:** On rehearing by McMANUS
- **Judges:** McManus, Stephenson, Oman, Montoya, Sosa
- **Cited by:** 133 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in Gallagher v. Albuquerque Metropolitan Arroyo Flood Control Authority.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9603946

## How later opinions describe it (automated extraction)

- stating that "[c]ommon law sovereign immunity may no longer be interposed as a defense by the [s]tate, or any of its political subdivisions, in tort actions"

## Opinion text

OPINION ON MOTION FOR REHEARING
McMANUS, Justice. By Order effective January 5, 1976, we modified our decision in Hicks v. State, 88 N.M. 588 , 544 P.2d 1153 , filed September 26, 1975, by holding that it is not to take effect nor apply to the case at bar or to any other cause or action in tort against any governmental agency if the alleged tort has occurred or occurs prior to July 1, 1976. We based this modification upon the briefs and arguments presented in the rehearing which we granted to the State. The rehearing was limited to the issue of whether the Hicks decision should apply: (1) only to cases arising in the future; (2) to cases arising in the future and to the case at bar; or (3) to cases arising in the future, to the case at bar and to all similar pending actions.
In the original Hicks decision we selected the third option. The briefs and arguments presented on rehearing developed this issue much more fully than had been done in the briefs and arguments on the appeal. We now conclude that the Hicks decision should apply only to cases arising in the future.
Many courts abolishing sovereign immunity have applied their decisions to cases arising in the future and to the case under consideration (the second option mentioned above). Parish v. Pitts, 244 Ark. 1239 , 429 S.W.2d 45 (1968); Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11 , 163 N.E.2d 89 (1959); Willis v. Department of Conservation & Econ. Dev., 55 N.J. 534 , 264 A.2d 34 (1970; Becker v. Beaudoin, 106 R.I. 562 , 261 A.2d 896 (1970).
At least two other courts have abolished sovereign immunity on a purely prospective basis, denying relief even to the plaintiffs who brought the action. Williams v. City of Detroit, 364 Mich. 231 , 111 N.W.2d 1 (1961); Spanel v. Mounds View School District No. 621, 264 Minn. 279 , 118 N.W.2d 795 (1962). In support of their decision the Minnesota Supreme Court in Spanel quoted Mr. Justice Cardozo from an article at 109 Pa.L.Rev. 13, as follows:
“The rule that we are asked to apply is out of tune with the life about us. It has been made discordant by the forces that generate a living law. We apply it to this case because the repeal might work hardship to those who have trusted to its existence. We give notice, however, that any one trusting to it hereafter will do so at his peril.” 264 Minn, at 294, 118 N.W.2d at 804 .
The Minnesota court went on to conclude:
“It may appear unfair to deprive the present claimant of his day in court. However, we are of the opinion it would work an even greater injustice to deny defendant and other units of government a defense on which they have had a right to rely. We believe that it is more equitable if they are permitted to plan in advance by securing liability insurance or by creating funds necessary for self-insurance. In addition, provision must be made for routinely and promptly investigating personal injury and other tort claims at the time of their occurrence in order that defendants may marshal and preserve whatever evidence is available for the proper conduct of their defense.” 264 Minn, at 294-95, 118 N.W.2d at 804 .
We find this reasoning persuasive.
It is so ordered.
STEPHENSON, J., concurs. OMAN, C. J., concurring specially. MONTOYA and SOSA, JJ., dissenting.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9603946. Public record. Not legal advice.