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STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND JUDICIAL DISTRICT 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, 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

FILED IN MY OFFICEDISTRICT COURT CLERK

10/28/2014 6:03:50 PMGREGORY T. IRELAND

D-202-CV-2014-06756

Kristina Archibeque

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Kirk. Accordingly, Plaintiff is a qualified interested person as defined by NMSA 1978 § 41-

2-1, 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 1978 § 41-2-1,

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 1978 § 41-2-1,

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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-2014-00288, 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, § 38-3-1 and NMSA 1978 § 41-4-18, 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.

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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

body1, 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 10.20.2.16 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.

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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

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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.

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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 on-

scene.

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;

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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. 91.13, 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.

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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 1978 §

41-4-4; 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 1978 § 41-4-

5; see also Celaya v. Hall, 2004-NMSC-005, ¶¶ 8-9, 135 N.M. 115, 118, 85 P.3d 239, 242;

10.20.2.16 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.

56. ALCS through Hochla breached its duty to operate the aircraft in a safe

manner.

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.

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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.

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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:

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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 87104 T: (505) 501-7558 F: (505) 501-7556 kendrick@danelawfirm.com -AND-

THE DAVIS LAW FIRM, LLC

By:______________________

Ben Davis

111 Tulane Dr. SE

Albuquerque, NM 87106

Tel: (505) 750-8742

Fax: (505) 559-4808

E-mail: bdavis@tdlf-law.com

Attorneys for the Plaintiffs