v. Cause No. COMPLAINT FOR WRONGFUL DEATH AND OTHER DAMAGES COME NOW the Plaintiffs (severally referred to as indicated; jointly referred to as

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1 FILED IN MY OFFICE DISTRICT COURT CLERK 10/28/2014 6:03:50 PM GREGORY T. IRELAND STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND JUDICIAL DISTRICT Kristina Archibeque PATRICE MUTCHNICK, individually and as Personal Representative of the Estate of ELLA JAZ KIRK, deceased; JOHN MAHL and JENNIFER MAHL, individually, as Personal Representatives of the Estate of MICHAEL MAHL, deceased, and as parents and next friends of DANIEL MAHL, a minor child; ALEXANDER MAHL, individually; BRIAN MYERS and JENNIFER, DOUGLASS, individually, as Personal Representatives of the Estate of ELLA MYERS, deceased, and RAVEN MYERS, individually, Plaintiffs, D-202-CV v. Cause No. CHERYL GREEN HOCHLA, as Personal Representative of the Estate of PETER HOCHLA, RURAL HEALTH OUTREACH, INC., a New Mexico Corporation, and ALDO LEOPOLD CHARTER SCHOOL, Defendants. COMPLAINT FOR WRONGFUL DEATH AND OTHER DAMAGES COME NOW the Plaintiffs (severally referred to as indicated; jointly referred to as Plaintiffs ), by and through their counsel of record The Dane Law Firm, P.C. (Kendrick Dane), and The Davis Law Firm, LLC (Ben Davis), and bring the following causes of action against Defendants and state as follow: PARTIES, JURISDICTION, AND VENUE 1. Patrice Mutchnick ( Mutchnick ) is now and has at all material times hereto been a resident and citizen of Grant County, New Mexico. She is the surviving mother of Ella Jaz Kirk, a wrongful death decedent. Mutchnick is a Plaintiff individually, and she is additionally qualified to serve as the Wrongful Death Personal Representative of Ella Jaz 1

2 Kirk. Accordingly, Plaintiff is a qualified interested person as defined by NMSA , et seq. Mutchnick will petition the Court for an order appointing her as the personal representative of the Wrongful Death Estate of Ella Jaz Kirk. See In re: Estate of Kirsten Sumler, 2003-NMCA-30. Mutchnick is asserting her own individual claims for loss of consortium and negligent inflection of emotional distress. 2. John Mahl and Jennifer Mahl (Collectively, The Mahls ) are now and have at all material times hereto been residents and citizens of Grant County, New Mexico. They are the surviving parents of Michael Mahl, a wrongful death decedent. The Mahls are qualified to serve as the Wrongful Death Personal Representatives of Michael Mahl. Accordingly, Plaintiffs are qualified interested persons as defined by NMSA , et seq. The Mahls will petition the Court for an order appointing them as the Personal Representatives of the Wrongful Death Estate of Michael Mahl. See In re: Estate of Kirsten Sumler, 2003-NMCA-30. The Mahls are asserting additional claims for loss of consortium as parents and next friends of their minor child Daniel Mahl. Further, The Mahls are asserting their own individual claims for loss of consortium. 3. Alexander Mahl is now and has at all material times hereto been a resident and citizen of Grant County, New Mexico. Alexander Mahl was the brother of Michael Mahl and is asserting a loss of consortium claim as Michael s brother. 4. Brian Myers and Jennifer Douglass (collectively The Myers ) are now and have at all material times hereto been residents and citizens of Grant County, New Mexico. They are the surviving parents of Ella Myers, a wrongful death decedent. The Myers are qualified to serve as the Wrongful Death Personal Representatives of Ella Myers. Accordingly, Plaintiffs are qualified interested persons as defined by NMSA , 2

3 et seq. The Myers will petition the Court for an order appointing them as the Personal Representatives of the Wrongful Death Estate of Ella Myers. See In re: Estate of Kirsten Sumler, 2003-NMCA-30. The Myers are asserting their own individual claims for loss of consortium. 5. Raven Myers is now and has at all material times hereto been a resident and citizen of Grant County, New Mexico. Raven Myers was the sister of Ella Myers and is asserting a loss of consortium claim as Ella s sister. 6. Defendant Rural Health Outreach, Inc. ( RHO ) is a domestic corporation with its principal place of business in Bernalillo County, New Mexico. 7. Defendant Cheryl Greene Hochla, as Personal Representative of the Estate of Peter Hochla, Deceased ( Hochla ), is a resident of Bernalillo County, New Mexico. Pursuant to order of the Court in D-202-PB , Hochla is the duly appointed Personal Representative of Peter K. Hochla, a tortfeasor whose negligence operation of an aircraft caused or contributed to the deaths of himself and the decedents. 8. On information and belief, Aldo Leopold Charter School is an unincorporated entity operating as a charter school with its principal place of business in Grant County, New Mexico. 9. Pursuant to NMSA 1978, and NMSA , jurisdiction and venue are proper in this district. FACTS APPLICABLE TO ALL COUNTS 10. The decedents Ella Jaz Kirk, 14, Ella Myers, 16, and Michael Mahl, 16 were each students at Aldo Leopold Charter School ( ALCS ) located in Silver City, New Mexico. 3

4 11. As part of the required high school curriculum of ALCS, all ALCS students participate in an in-house service internship project to satisfy graduation requirements. 12. All three decedents participated in the Youth Conservation Corps ( YCC ) Eco Monitors Group every Friday during the school year and at other times during the week as needed. 13. ALCS funded, supervised, administered, and required its students to participate in the YCC Eco Monitors Group. 14. Steve Blake, an employee of and teacher at ALCS, supervised the YCC Eco Monitors Group. 15. As part of the decedents service to the YCC Eco Monitors Group, Blake arranged for a private aircraft flight for the decedents in order to survey fire damage to nearby Signal Peak. 16. Blake, in his capacity as supervisor of the YCC Eco Monitors Group, arranged for his personal acquaintance, Peter Hochla, to provide his private aircraft and piloting services to the students for said flight. 17. To the extent the Court finds ALCS to be a governmental entity or local public body 1, Hochla was an employee of ALCS acting in the course and scope of his employment at all times relevant to this Complaint. See Celaya v. Hall, 2004-NMSC-005, 8-9, 135 N.M. 115, 118, 85 P.3d 239, 242; see also NMAC. 18. Blake failed to vet Hochla s aviation experience, training, or credentials at all, including his history of aircraft incidents and accidents. 1 Plaintiffs do not concede that ALCS is a governmental entity or local body. As more fully set forth herein, Plaintiffs assert that ALCS is a privately operated charter school. 4

5 19. On May 23, 2014, the last Friday of the school year and the day on which the flight was to occur, Blake for the first time informed the parents of decedents of the school aircraft trip. 20. Blake asked for the parents to sign permission slips so that the children could participate in the flight. 21. At least one of the decedent s parent, John Mahl, completed the permission slip on an on-campus ALCS computer. 22. Blake gave little information about the flight to the parents of Decedents, but assured them that Hochla was a safe and competent pilot. 23. The decedents travelled together from the ALCS campus, where they were working on various school projects, to Whiskey Creek Airport with Mr. Blake. 24. At the airport, Blake and the students met Hochla and his aircraft. 25. The aircraft was a Raytheon Aircraft G36 Bonanza, registered as N536G to Rural Health Outreach, Inc., a closely-held entity owned and controlled solely by Peter Hochla and Cheryl Green Hochla. 26. Hochla was grossly underqualified to operate N536G and had a history of aircraft operations resulting in incidents and accidents. 27. Other pilots at Whiskey Creek Airport including pilots working for the United States Forest Service cancelled flights for the day on account of severe weather building up around the airport. 28. Despite concerns voiced by Blake and parents of the decedents that severe weather was present around the airport and on the aircraft s intended path, Hochla decided to complete the flight with the decedents based upon his analysis of an ipad 5

6 weather program that displayed Nexrad weather radar data, which was neither designed for in-flight maneuvering nor certified for flight conducted in instrument meteorological conditions. 29. At 15:45, Hochla and the decedents departed runway 35 northbound in crosswind conditions grossly exceeding the maximum demonstrated crosswind component of the G36 aircraft. 30. At approximately 15:55, the aircraft returned to Whiskey Creek Airport in apparent distress, and poorly executed a hasty approach and landing in extreme gusting crosswind conditions. 31. After touching down more than 2/3 down runway 35 and reducing engine throttles to idle, Hochla realized he could not stop the aircraft in time to remain on the runway. 32. Instead of placing the safety of his passengers over the value of his aircraft, Hochla attempted to avoid undercarriage damage to N536G by applying throttle power and attempting to take off on a grossly inadequate length of remaining runway. 33. Hochla rotated the aircraft and attempted to climb while at or near N536G s aerodynamic stall speed, and with its undercarriage and control surfaces still configured for landing. 34. At the time of rotation, N536G s airspeed was insufficient to sustain stable flight. 35. As a result of these failures, the aircraft entered an aerodynamic stall and spun to the earth in an upset attitude. 6

7 36. N536G impacted the ground less than one mile from the departure end of runway 35, resulting in an explosion and post-crash fire so violent that investigators could not immediately identify the type of aircraft involved. 37. The impact and subsequent fire killed the decedents and Hochla. 38. Mutchnick saw the column of smoke rising from the airport vicinity and, fearing that N536G crashed, raced to the crash site; she was only the second person onscene. 39. Mutchnick watched helplessly as the post-crash fire and explosions consumed the wreckage. COUNT I NEGLIGENCE Estate of Peter Hochla/Rural Health Outreach, Inc./Aldo Leopold Charter School 40. Plaintiffs incorporate the above Paragraphs as though fully set forth herein. 41. Hochla, RHO, and ALCS owed Plaintiffs a duty to operate N536G in a safe and competent manner and in compliance with federal and state law so as to avoid causing them personal injury or death. 42. Hochla, RHO, and ALCS breached their duty to these Plaintiffs by, amongst other acts and omissions: a. Deciding to take off in cross-wind conditions exceeding the aircraft s maximum demonstrated cross-wind component; b. Deciding to fly in inclement weather for which Hochla was grossly un/undertrained and not certificated to operate in; c. Negligently landing the aircraft; 7

8 d. Deciding to initiate a go-around despite observing that the remaining runway space made takeoff impossible to safely execute; e. Failing to follow Raytheon G36 take-off/go-around procedures. f. Failing to supervise, vet, or train Hochla prior to entrusting ALCS students to his care. 43. The actions of Hochla, RHO, and ALCS were willful, wanton, and reckless, entitling Plaintiffs to an award of punitive damages against his estate. 44. Plaintiffs suffered damages as the natural, direct, and proximate result of Hochla, RHO, and ALCS breach in an amount to be determined at trial. COUNT II NEGLIGENCE PER SE Estate of Peter Hochla/Rural Health Outreach, Inc./ Aldo Leopold Charter School 45. Plaintiffs incorporate the above Paragraphs as though fully set forth herein. 46. At all times relevant hereto, there existed in the United States Federal Aviation Regulations codified at 14 C.F.R , which prohibit anyone from operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another. 47. Hochla, RHO, and ALCS violated those regulations by operating N536G in a careless and reckless manner, and with wanton disregard for the lives of its three passengers. 48. The regulations were designed to protect against the type of harm caused by Hochla s, RHO s, ALCS s negligence. 49. The Plaintiffs are in the class of individuals those regulations seek to protect. 8

9 50. Plaintiffs suffered damages as the natural, direct, and proximate result of Hochla s, RHO s. ALCS s violations thereof. COUNT III NEGLIGENT OPERATION OF AN AIRCRAFT Aldo Leopold Charter School 51. Plaintiffs incorporate the above Paragraphs as though fully set forth herein. 52. Defendant is not a governmental entity within the meaning of NMSA ; Defendant is a private entity operating a charter school. 53. In the alternative, to the extent the Court finds ALCS to be a governmental entity or local public body, then immunity has been waived pursuant to NMSA ; see also Celaya v. Hall, 2004-NMSC-005, 8-9, 135 N.M. 115, 118, 85 P.3d 239, 242; NMAC. 54. Hochla was an employee of ALCS acting in the course and scope of his employment at all times relevant to this Complaint. 55. Further, ALCS owed Plaintiffs a duty to properly vet, train, select, and supervise competent pilots to fly their students. manner. 56. ALCS through Hochla breached its duty to operate the aircraft in a safe 57. Further, ALCS breached its duty to properly vet, train, select, and supervise competent pilots by failing to take any action to ensure that Hochla was a safe, competent and qualified pilot. 58. Plaintiffs suffered damages as the natural, direct, and proximate result of ALCS s breaches. 9

10 COUNT IV LOSS OF CONSORTIUM Estate of Peter Hochla/Rural Health Outreach, Inc./Aldo Leopold Charter School 59. Plaintiffs incorporate the above Paragraphs as though fully set forth herein. 60. Plaintiffs Patrice Mutchnick, John Mahl, Jennifer Mahl, Brian Myers, and Jennifer Douglass were each custodial parents of the decedents; each enjoyed close familial relationships with the decedents. 61. Plaintiffs Raven Myers was decedent Ella Myer s sibling; Daniel Mahl and Alexander Mahl were siblings of decedent Michael Mahl; each enjoyed close familial relationships with the decedents. 62. Defendants negligence caused the Plaintiffs to lose the consortium they enjoyed with the decedents. 63. As the natural, direct, and proximate result of the Defendants negligence described more fully above, Plaintiffs suffered damages. COUNT V NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS Estate of Peter Hochla/Rural Health Outreach, Inc./Aldo Leopold Charter School 64. Plaintiffs incorporate the above Paragraphs as though fully set forth herein. 65. Plaintiff Patrice Mutchnick had a close familial relationship with her daughter, decedent Ella Jaz Kirk. 66. Mutchnick contemporaneously witnessed the N536G crash and/or subsequent explosions and fire. 67. As a direct and proximate result thereof, Mutchnick suffered severe emotional distress. 68. The crash resulted in physical injury and death to Ella Jaz Kirk. 10

11 69. Mutchnick suffered damages as the natural, direct, and proximate result of Defendants breach. DAMAGES 70. As a direct and proximate result of Defendants breaches, described above, the Wrongful Death Personal Representatives for the Estates of Ella Jaz Kirk, Michael Mahl, and Ella Myers are entitled to recover damages against Defendants as follows: a. The reasonable expenses of necessary medical care and treatment and funeral and burial; b. The pain and suffering and emotional distress experienced by the deceased between the time of injury and death; c. The lost earnings, the lost earning capacity and the value of the lost household services of the deceaseds; d. The value of the deceaseds lives apart from their earning capacity; e. The mitigating or aggravating circumstances attending the wrongful acts, neglect or default; f. The emotional distress to the parents caused by the loss of society, guidance, companionship, enjoyed with the deceaseds; and g. The loss to the beneficiaries of other expected benefits that have a monetary value. 71. As a direct and proximate result of Defendants breaches, described above, the Patrice Mutchnick, John Mahl, Jennifer Mahl, Brian Myers, and Jennifer Douglass have lost their children s society, love, household services, and consortium. 72. As a direct and proximate result of Defendants breaches, described above, the Alexander Mahl, Daniel Mahl, and Raven Myers have lost their siblings society, love, and consortium. WHEREFORE, Plaintiffs requests the following relief against Defendants: 11

12 A. Awards of general and special compensatory damages as set forth above; B. Aggravating circumstance attending Defendant s wrongful acts; C. An award of pre- or post-judgment interest on any amounts recovered herein to the extent allowed by law; D. Costs of action herein; E. Exemplary damages; and E. Such other and further relief as the Court may deem appropriate under the circumstances. Respectfully Submitted, THE DANE LAW FIRM, P.C. Kendrick W. Dane 1803 Rio Grande Boulevard NW Albuquerque, New Mexico T: (505) F: (505) kendrick@danelawfirm.com -AND- THE DAVIS LAW FIRM, LLC By: Ben Davis 111 Tulane Dr. SE Albuquerque, NM Tel: (505) Fax: (505) bdavis@tdlf-law.com Attorneys for the Plaintiffs 12