Hospital Held Liable for Fatally Negligent Contractor Selection in New Mexico Air-Ambulance Crash

On October 19, 2001, a New Mexico State Police officer named Damon Talbott boarded an Aerospatiale AS350B2 air-ambulance helicopter for an orientation flight after participating in a landing-zone training exercise near Roswell. The helicopter, tail number N111DT, was owned and operated by Medical Air Transport, Inc. (MAT), a contractor from Payson, Arizona that had been permitted to base its operations at Eastern New Mexico Medical Center's helipad under an informal oral arrangement since December 2000.

During the orientation flight, at roughly 200 feet above the ground and at a speed of 115 to 120 knots, pilot Shawn Kling initiated a right turn. The bank angle deepened beyond what Kling intended, and when he attempted to shallow the turn the cyclic control would not respond. He tried to neutralize it with both hands. The helicopter struck terrain. Talbott and one other passenger died; Kling and a third passenger were seriously injured. The National Transportation Safety Board determined the probable cause was the seizing of the cyclic control for an undetermined reason, with insufficient altitude for recovery as a contributing factor.

Kim Talbott and Bonnie Talbott, as personal representatives of Damon Talbott's estate, filed a wrongful-death action against the hospital, arguing it bore liability not for the crash itself but for the decision that set the crash in motion: selecting an air ambulance contractor without exercising reasonable care to verify that operator's competence. The legal theory rested on Section 411 of the Restatement (Second) of Torts, which had not yet been formally adopted as New Mexico law.

The first jury trial produced a verdict for the plaintiffs, but the New Mexico Court of Appeals reversed and remanded in 2005, holding that a directed verdict on the contractor-versus-employee question had improperly removed a factual issue from the jury. On remand, a second jury again found for the plaintiffs and held the hospital partially liable for Talbott's wrongful death.

The hospital appealed a second time. In June 2008, the New Mexico Court of Appeals affirmed, and in doing so formally adopted Section 411 as the law of New Mexico. The decision established that a party who hires a contractor for inherently dangerous work, such as air-ambulance operations, must conduct a meaningful inquiry into that contractor's competence before placing people at risk. Michael L. Slack of Slack and Davis, L.L.P. served as co-counsel for the plaintiffs through both trials and appeals.