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Villanueva v. City of Tucumcari8/6/1998
ection 41-4-11(A):
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury , wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.
But the City responds that any immunity waived by Subsection A is restored in this case by
Subsection B of Section 41-4-11, which states in pertinent part:
The liability for which immunity has been waived pursuant to Subsection A of this section shall not include liability for damages caused by: . . .
(2) the failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; . . .
{7} We need not decide whether the City had a duty to install ramps. We agree with the City that the Tort Claims Act immunized the City from liability for breach of any such duty.
{8} Section 41-4-11(A) waives immunity for maintenance of streets and sidewalks. That waiver does not apply here. "Unless the context suggests some specialized meaning, we interpret a statute in accordance with the common meaning of
the statutory language." . We have defined the word maintenance in the Tort Claims Act to mean "upkeep and repair." ) (internal quotation marks and citation omitted). In our view, the addition of wheelchair ramps to sidewalks at intersections does not come within the ordinary understanding of "maintenance" or "upkeep and repair." The addition of ramps is a structural change in the sidewalk. Moreover, Section 41-4-11(B)(2) restores any immunity that has been waived with respect to the failure to reconstruct a street or sidewalk. The structural change necessary to add wheelchair ramps would be such a reconstruction. Section 67-3-64 reinforces our Conclusion. It requires that ramps be installed only when a road is "constructed, repaired or remodeled to a major degree." This provision reflects the view that the addition of ramps is not a matter of routine maintenance but constitutes an installation, a structural change. We hold that the addition of ramps is immunized under the Tort Claims Act because such installation would not constitute "maintenance" under Section 41-4-11(A) and would be a "reconstruct " under Section 41-4-11(B)(2).
B. Maintenance of the Sidewalks
{9} Plaintiff's complaint does not rely solely on the absence of wheelchair ramps to explain why she operated her wheelchair on Tucumcari streets rather than on the sidewalks. The complaint also alleges that the sidewalks were in disrepair, so that it would be unsafe to ride on them in a wheelchair.
{10} Despite these allegations in the complaint, the City's motion for summary judgment addressed only the allegation regarding the absence of ramps. At the hearing on the City's motion for summary judgment, Plaintiff's counsel again argued liability based on failure to keep the sidewalks in a safe condition, but the City did not respond to that argument, nor did the district court address that argument in its oral ruling from the bench. The order granting summary judgment states only that the complaint is dismissed with prejudice, without any mention of specific causes of action or theories of recovery. Finally, Plaintiff's brief in chief on appeal includes an argument for liability based on negligent failure to keep the sidewalks repaired, but the City in its answer brief again addresses only the claim that it negligently failed to construct wheelchair ramps.
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