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Villanueva v. City of Tucumcari8/6/1998
Filing Date: August 6, 1998
APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY Ricky D. Purcell, District Judge
{1} Plaintiff was struck by an automobile on May 9, 1995,
while operating her electric wheelchair on Laughlin Avenue in Tucumcari. She was traveling east in the north lane of the street. Plaintiff has settled her claim against the driver of the automobile that struck her. This appeal concerns her claim against the City of Tucumcari. She contends that she was forced to operate her wheelchair on the street because of the City's negligent breach of (1) its duty to install wheelchair ramps at street intersections to provide access to and from sidewalks and (2) its duty to maintain its sidewalks in a safe condition. The district court granted summary judgment to the City. We affirm the district court's ruling that the City is immune from liability for failing to install wheelchair ramps. But we reverse and remand for further proceedings with respect to the City's alleged breach of duty to maintain sidewalks.
I. DISCUSSION
{2} "Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." . We examine separately each of Plaintiff's theories of recovery.
A. Wheelchair Ramps
{3} In support of her claim that the City had the duty to install wheelchair ramps, Plaintiff relies on the City's "common-law duty to exercise ordinary care to protect the general public from foreseeable harm on highways of the state." . In Lerma our Supreme Court ruled that the State Highway Department has "a duty to exercise ordinary care in the maintenance of its highways" and " t is for the factfinder to decide whether this duty includes either the erection or maintenance of fences along an urban freeway." Id.
{4} Plaintiff also relies on the state's White Cane Law, NMSA 1978, Sections 28-7-1 to -7 (1967, as amended through 1987). Section 28-7-3(A) states: "The blind, the visually handicapped and the otherwise physically disabled have the same right as the able-bodied to the full and free use of the streets, highways, sidewalks, walkways, public buildings, public facilities and other public places."
{5} The City responds that it had no duty to install the ramps. It points to NMSA 1978, Section 67-3-64 (1973), which states:
Whenever any curbing on a public street, road or highway is constructed, repaired or remodeled to a major degree by the state highway department or the road department of any county or municipality, ramps shall be installed at any intersection having curbs or other barriers to entry onto the street or road from a sidewalk.
The City submitted to the district court an affidavit by the City's Engineering and Street Supervisor asserting that the curbs and gutters near the scene of the accident were constructed in 1939 and had not been repaired or remodeled since then. The City argues that because the statute was not enacted until 1973, it had no duty to construct wheelchair ramps at the intersection.
{6} In addition, the City contends that the New Mexico Tort Claims Act, NMSA 1978, Section 41-4-1 to -27 (1976, as amended through 1996) immunizes it from liability for any failure to construct ramps for wheelchair access at intersections. The general rule regarding immunity is set forth in the following sentence from Section 41-4-4(A): "A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by Sections 41-4-5 through 41-4-12 NMSA 1978." The waiver of immunity relied upon by Plaintiff is set forth in S
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