# Hicks v. State

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

URL: https://www.frixlaw.com/law-library/cases/9603948

## 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:** Concurrence by Oman
- **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- **Red flag:** Superseded by statute, as recognized in Gallagher v. Albuquerque Metropolitan Arroyo Flood Control Authority.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/9603948

## 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

OMAN, Chief Justice (specially concurring).
I have heretofore concurred in the Order of January 5, 1976 and now concur in the reasoning advanced by Justices McManus and Stephenson for giving prospective effect only as of July 1, 1976 to the majority opinion filed on September 26, 1975.
However, I did not agree with the majority that the doctrine of sovereign immunity should or could properly be abolished by a ruling of this Court in view of our repeated declarations that a change in the doctrine could and should be accomplished only through legislative action. Sangre De Cristo Dev. Corp., Inc. v. City of Santa Fe, 84 N.M. 343 , 503 P.2d 323 (1972); Montoya v. City of Albuquerque, 82 N.M. 90 , 476 P.2d 60 (1970); Clark v. Ruidoso-Hondo Valley Hospital, 72 N.M. 9 , 380 P.2d 168 (1963); City of Albuquerque v. Campbell, 68 N.M. 75 , 358 P.2d 698 (1960); Livingston v. Regents of New Mexico Col. of A. & M. A., 64 N.M. 306 , 328 P.2d 78 (1958); Elliott v. Lea County, 58 N.M. 147 , 267 P.2d 131 (1954).
I agree with the majority opinion that this Court has the power to do away with court-created common law principles. However, if sovereign immunity was in fact court-created, this Court has repeatedly declined to so treat it and has repeatedly held any change in the doctrine was to be made by the Legislature. I am of the opinion that the people of New Mexico, and particularly the New Mexico Legislature, had the right to rely upon our repeated disclaimers of power to overrule the doctrine. In fact, the Legislature has repeatedly relied upon these disclaimers and has assumed the power to effect changes in the doctrine.
Also, because of our long and oft-repeated declarations that the matter of change in sovereign immunity was for the Legislature, I have always been of the opinion that if the doctrine were to be abolished by action of this Court it should be done prospectively only, in order to give the Legislature a fair opportunity to take whatever action it should deem advisable before the abolishment of the long accepted immunity.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9603948. Public record. Not legal advice.