PLAINTIFF VS. LIEUTENANT ARTHUR ARCHIBEQUE AND NEW MEXICO STATE POLICE
BY STEPHEN L. HERMANN
On May 10, 1990, a lawsuit brought against the New Mexico State Police and Lieutenant Arthur Archibeque personally was dismissed in the First Judicial District Court in Santa Fe on a technicality in the state`s Tort Claims Act. The dismissal ended a several-year nightmare for Archibeque and cost the state of New Mexico tens of thousands of dollars in legal fees.
The suit involved a relatively simple hazardous-materials spill incident, which later contributed to the death of a mechanic. Highly competent expert witnesses dissected Archibeque`s every action and criticized almost everything he did at the scene and failed to do after he left the scene.
THE INCIDENT
At about 4:30 a.m. on May 29, 1987, a Tri-State Motor Transit tractor-trailer southbound on New Mexico Highway 54, north of Tularosa, struck a car parked on the highway, ran off the road, and overturned with its load of 41,400 pounds (920 fiber drums, 45 pounds each) of propellant explosive solid Class B explosives smokeless powder. Then-Sergeant Archibeque, a trained emergency response officer, responded to the scene and supervised the uprighting of the trailer. The damaged load was taken to a wrecking yard, where the drums were unloaded under the observation of a Tri-State Motor Transit Company representative. The drums were transferred to other trailers for shipment to their original destination, the Aerojet Ordnance Company in Chino, California.
A week later, the badly damaged trailer was towed to the H & R Automotive salvage yard, several miles away. The bows of the trailer had to be repaired before its return to Tri-State headquarters in Joplin, Missouri. While repairing the trailer on June 6, Latha Caillouette, a mechanic, was using a cutting torch. The flame apparently ignited residue of the spilled powder, and Caillouette was critically burned. He died eight days later.
FILING OF THE SUIT AND ALLEGATIONS
A lawsuit was filed the following year on behalf of Caillouette`s widow, Nancy, acting as personal representative of the estate of Latha Caillouette, Jr. The Delaware corporations of Hercules, Inc. and Tri-State Motor Transit Company, Inc.; Lt. Arthur Archibeque, of the New Mexico State Police; and the New Mexico Department of Public Safety were named as defendants.
Hercules manufactured the IR-25 smokeless powder for use in 30-mm cannon shells. A small amount of the powder had been spilled on the ground alongside the highway, and a number of the packages had been damaged in the accident. Technically, the damaged trailer was no longer involved in the transportation of the hazardous material. However, expert witnesses testifying for the plaintiff alleged numerous violations of the federal hazardous materials transportation regulations by the New Mexico State Police and Archibeque.
The complaint against Archibeque and his agency charged that “…he negligently released the explosives…he negligently permitted and allowed this nuisance to be created and continued, contrary to the requirements of due care and the internal rules and regulations and good practice that governed his actions. The officer submitted a written incident report to his superiors in the New Mexico State Police, in Alamogordo, and to the New Mexico Department of Public Safety, as to both his actions and omissions. The agency ignored the hazard, still present in Alamogordo, contrary to its own internal rules and regulations, good practice and due care. Ten days later, Plaintiff`s decedent was grievously injured and later died, as a result of this negligence, unabated dangerous condition and nuisance.”
The complaint further alleged: “The Defendant…was notified of this death by the New Mexico State Fire Marshal`s Office, whose jurisdiction and assistance should have been invoked, along with other State agencies, in the first instance by the Defendant Archibeque and the Department of Public Safety. These several acts and omissions of these Defendants were a proximate contributory cause to the injury and death of Plaintiff`s decedent…WHEREFORE the Plaintiff prays for all damages, special, general, compensatory, punitive and exemplary…all in an amount and sum to be determined at trial, together with her costs against the Defendants and each of them….”
The Risk Management Department of the State of New Mexico retained the Las Cruces law firm of Weinbrenner, Richards, Paulowsky, Sandenaw & Ramirez, P.A. Firm partner Thomas A. Sandenaw, Jr.–who specializes in defendants` trial actions and is a former New Mexico District Court judge–represented the state of New Mexico Department of Public Safety (NMDPS) and Archibeque. New Mexico statutes provide that the chief of NMDPS is “responsible for central coordination and communications in the event of a hazardous accident.” The state law continues: “As between state and local governments, the state government has the primary responsibility for the management of a hazardous materials accident, and the local government in whose jurisdiction the accident occurs shall assist the state in its management of the accident.”
A respected Los Alamos National Laboratory explosives scientist studied the incident for the plaintiff and stated the following among his opinions:
An accidental explosion at the time the trailer was uprighted was highly probable.
It was extremely bad procedure to replace damaged material and drums in the damaged trailer before it was uprighted.
Wetting the load before uprighting could not guarantee safety.
Transport of the damaged, contaminated trailer would be expected to cause ignition of the load.
Decontamination at the accident site would have been preferred by any person familiar with explosives operations and safety.
Permit and approval systems are used by all explosives facilities.
Except under exceptional circumstances, all such items are destroyed in place.
All damaged or contaminated equipment must be decontaminated before it is repaired or brought into public areas.
Archibeque did not follow up his assumed supervisory responsibility after the trailer left the site.
Archibeque left Hercules & Tri-State with a massive safety problem.
Another Los Alamos National Laboratory expert witness in the transportation of hazardous materials was equally critical of the New Mexico State Police. Among his opinions were the following:
Archibeque violated a number of federal regulations.
The New Mexico Hazardous Materials Response Plan was violated.
Archibeque violated [what is regarded as] common sense among emergency response personnel and opinions held within the industry.
He violated the provision in the New Mexico manual that says, “Do not move packages.”
There are no provisions in the New Mexico plan for the state police or any other agency to move in and clean up an accident.
Archibeque had no authority to open the trailer doors.
49 Code of Federal Regulations (CFR) part 177.855(a) [required that] the trailer be totally decontaminated before being moved.
He violated the intent of (U.S.DOT) Emergency Response Guides (ERG) 32 and 46.
A perimeter or zone of safety of 2,500 feet was required and should have been maintained.
49 CFR regulations were violated by stopping the contaminated vehicle with leaking packages at (a restaurant).
The escort of the materials through a city was essential.
The trailer should have been left in place off the highway.
The most practical way to decontaminate is to burn the trailer.
To decontaminate means that all lading must be removed.
Archibeque was not properly trained in that he was not familiar with 49 CFR 177.855.
New Mexico State Police violated its obligation to “instruct all employees” in the 49 CFR provisions in parts 171-177.
The solution was fairly obvious. Archibeque didn`t have much choice but to burn the trailer.
Law enforcement is not excluded from Part 177 applicability. Title 49 makes the New Mexico State Police a shipper.
DEFENSE TESTIMONY
I testified as an expert witness on behalf of the New Mexico State Police and Archibeque. After reading thousands of pages of reports, affidavits, depositions, and documents; talking to Archibeque; and visiting the scene, I reached the following conclusions:
Archibeque had acted reasonably and followed sound practices.
The explosives scientist was applying laboratory procedures to a highway accident and formed a number of erroneous opinions.
The transportation expert witness was out of his depth and simply misstated the law a number of times.
Explosives B incidents are so rare (U.S. DOT records for a three-year period show exactly three reported) that there is no “cookbook” solution.
No laws were violated by the New Mexico State Police or Archibeque.
I would have done basically the same as Archibeque at the scene.
Neither of the Los Alamos experts had ever responded to the scene of a highway hazardous-materials accident.
Although the plaintiff`s experts said the trailer should have been burned at the scene, not only had they never done it, but they had never even heard or read of it being done.
The explosives expert was so far out of his element that he stated, “The FBI is in charge of the National Response Center,” when in fact the U.S. Coast Guard is.
Both plaintiff`s experts had developed perfect 20-20 hindsight.
As the trial drew to a close, Sandenaw made a dramatic motion for dismissal of the suit against Archibeque and the New Mexico Department of Public Safety. He cited a footnote from a case involving the state`s Tort Claims Act on the actions of law enforcement officers and argued that the court had no jurisdiction over either defendant since immunity had not been waived for the torts claimed on behalf of the plaintiff. Judge Joseph Herrara granted the motion, and the suit against the New Mexico Department of Public Safety and Archibeque was dismissed. The dismissal was upheld on appeal.
LESSONS LEARNED
The extensive and costly lawsuit against the New Mexico State Police provides some lessons learned that apply to all public safety agencies.
Complete compliance with your internal standard operating procedures, manuals, and guides is critical to avoid charges of improper conduct.
Failure to follow nationally recognized handling guides, such as the U.S. DOT Emergency Response Guide, will be described as negligence.
Everything your personnel do or fail to do will be judged against an almost impossibly rigid “standards of conduct” utilizing literal “rocket scientist” expert witness opinions.
To counter the opinions of technically qualified opposition expert witnesses, you will need to obtain the opinions of qualified hazardous materials transportation accident expert witnesses.
Your hazardous materials emergency response personnel must know the legal obligations of shippers, carriers, and emergency responders.
Experienced attorneys and highly qualified expert witnesses will microscopically examine the actions taken by your personnel, who often were operating under conditions of extreme stress and discomfort. n
STEPHEN L. HERMANN is a hazardous-materials coordinator for the Arizona Department of Public Safety, Arizona`s senior state on-scene hazardous-materials coordinator, and the former national chairman of U.S. DOT`s COHMED.
