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Villanueva v. City of Tucumcari8/6/1998
{11} Because the City has not argued the issue in district court or even on appeal, we will not consider whether Plaintiff has set forth sufficient evidence to support her claim that the City breached its duty to maintain the sidewalks in a safe condition. We will not sustain a summary judgment when the movant failed in district court to
address a theory of relief pursued by the opposing party. Cf. ("normal rules of preservation of error . . . apply to appeals from summary judgments"). We therefore reverse the summary judgment with respect to Plaintiff's claim predicated on the disrepair of the sidewalks.
II. CONCLUSION
{12} We affirm the summary judgment to the extent that it disposes of Plaintiff's claim that the City is liable for failure to install wheelchair ramps at intersections. We reverse and remand for further proceedings with respect to Plaintiff's claim that she operated her wheelchair in the street because of the City's negligent failure to maintain the sidewalks in a safe condition.
{13} IT IS SO ORDERED.
HARRIS L HARTZ, Chief Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
M. CHRISTINA ARMIJO, Judge
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