rom his own possible suicidal tendencies."); Nally v.Grace Community Church, 47 Cal.3d 278, 253 Cal.Rptr. 97, 105-06, 763 P.2d 948, 956 (1988) (holding that nontherapist counselors did not have a duty to prevent the suicide of a person who was not in their custody), cert. denied, 490 U.S. 1007, 109 S.Ct. 1644, 104 L.Ed.2d 159 (1989); DeMontiney v. Desert Manor Convalescent Center Inc., 144 Ariz. 6, 695 P.2d 255, 259-60 (1985) (when a private health care facility is charged with the care and custody of suicidal persons, the private health care facility has a duty to take reasonable steps to prevent suicide); Katona v. County of Los Angeles, 172 Cal.App.3d 53, 218 Cal. Rptr. 19, 22 (1985) (holding that county mental health facilities did not have a duty to prevent a suicidal patient from killing herself after the patient's unconditional release); McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123, 127 (1983) (holding that an attorney did not have a duty to prevent her client's suicide); City of Belen v. Harrell, 93 N.M. 601, 603 P.2d 711, 713 (1979) ("When one party is in the custodial care of another, as in the case of a jailed prisoner, the custodian has the duty to exercise reasonable and ordinary care for the protection of the life and health of the person in custody."). Accordingly, we have followed the Restatement (Second) of Torts § 314A(4) and recognized a reasonable duty of care to prevent suicide only on the part of a defendant who had actual custody of a suicidal person.

See Benavidez v. City of Gallup, 2007–NMSC–026, ¶ 19, 141 N.M. 808, 161 P.3d 853. A party is entitled to have the jury instructed on the party's theory if there is substantial evidence to support it. City of Belen v. Harrell, 1979–NMSC–081, ¶ 14, 93 N.M. 601, 603 P.2d 711. In determining whether the district court erroneously denied Defendants' requested instructions, we first review the law relevant to the theory of independent intervening cause.

Generally, suicide is an independent intervening cause of death that is not foreseeable and absolves a defendant of civil liability "unless, as a matter of law, there is no evidence upon which to submit the issue to the jury." City of Belen v. Harrell, 93 N.M. 601, 604, 603 P.2d 711, 714 (1979). {11} There are two main exceptions to this general rule.

"Contributory negligence and independent intervening cause are questions for the jury, unless, as a matter of law, there is no evidence upon which to submit the issue to the jury." City of Belen v. Harrell, 93 N.M. 601, 604, 603 P.2d 711, 714 (1979). "An intervening force is a superseding cause if the intervening force was not foreseeable at the time of the primary negligence."

In New Mexico, suicide is not a crime. See, e.g., Harrell v. City of Belen, 93 N.M. 612, 617, 603 P.2d 722, 727 (N.M.Ct.App.), rev'd on other grounds, 93 N.M. 601, 603 P.2d 711 (N.M. 1979). The second Graham factor also weighs in the Estate's favor. Under the facts alleged by the Estate, decedent did not pose an immediate threat to the safety of the officers.

gueroa v. State, 604 P.2d 1198, 1203-04 (Haw. 1980) ("The duty of penal institutions and detention homes to exercise reasonable care should extend to protection against suicide if such an event is reasonably foreseeable. . . . Conversely, in the absence of actual or constructive notice of the inmate's suicidal behavior, there is no duty to prevent a suicide." (citations omitted)); Gordon v. City of New York, 517 N.E.2d 1331, 1332 (N.Y. 1987) ("When prison authorities know or should know that a prisoner has suicidal tendencies or that a prisoner might physically harm himself, a duty arises to provide reasonable care to assure that such harm does not occur."); see also Popham v. City of Talladega, 582 So.2d 541, 543 (Ala. 1991); Sauders v. County of Steuben, 693 N.E.2d 16, 20 (Ind. 1998); Sudderth v. White, 621 S.W.2d 33, 35 (Ken. App. 1981); Hickey v. Zezulka, 487 N.W.2d 106, 110, 123 (Mich. 1992); Sandborg, 601 N.W.2d at 196-97; Murdock v. City of Keene, 623 A.2d 755, 757 (N.H. 1993); City of Belen v. Harrell, 603 P.2d 711, 713 (N.M. 1979); Moats v. Preston County Comm'n, 521 S.E.2d 180, 189 (W. Va. 1999); cf. Restatement (Second) of Torts § 314A cmt. f (1965) ("The defendant is not required to take any action until he knows or has reason to know that the plaintiff is endangered or is ill or injured.").See, e.g., Vallejo, 678 A.2d at 1140; Helmy v. Bebber, 335 S.E.2d 182, 186-87 (N.C.App. 1985).

See Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 21, 145 P.3d 76, 83. “Contributory negligence and independent intervening cause are questions for the jury, unless, as a matter of law, there is no evidence upon which to submit the issue to the jury.” City of Belen v. Harrell, 1979-NMSC-081, ¶ 17, 603 P.2d 711, 714. “An intervening force is a superseding cause if the intervening force was not foreseeable at the time of the primary negligence.”

Dist. Ct. App. 1999)). In New Mexico, this control exists "[w]hen one party is in the custodial care of another," City of Belen v. Harrell, 603 P.2d 711, 713 (N.M. 1979), and where a physician has "injected [an individual] with drugs known to affect judgment and driving ability," Wilschinsky v. Medina, 775 P.2d 713, 717 (N.M. 1989). It is also present between a jailer and a prisoner, Harrell, 603 P.2d at 713, and where a private security guard uses the threat of detention to get a drunk driver to follow his orders, see Karbel, 709 P.2d at 193.

See Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 21, 145 P.3d 76, 83. "Contributory negligence and independent intervening cause are questions for the jury, unless, as a matter of law, there is no evidence upon which to submit the issue to the jury." City of Belen v. Harrell, 1979-NMSC-081, ¶ 17, 603 P.2d 711, 714. "An intervening force is a superseding cause if the intervening force was not foreseeable at the time of the primary negligence." Johnstone v. City of Albuquerque, 2006-NMCA-1191, ¶ 21, 145 P.3d at 83.

New Mexico courts regularly consider suicide an independent intervening cause. See e.g., City of Belen v. Harrell, 603 P.2d 711 (N.M. 1979) (remanding with instructions to consider suicide an independent intervening cause or contributory negligence); Zia Trust, Inc. v. Aragon, 258 P.3d 1146, 1153 (N.M. Ct. App. 2011) (affirming a jury instruction that suicide is an independent intervening cause).