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Cobos v. Dona Ana County Housing Authority12/3/1998
ection 41-4-6 applies exclusively to premises liability claims. Accordingly, the notice issue is not before this Court. We address the building waiver issue to correct the misapprehension of the law that was created by the Court of Appeals opinion, but expressly limit our analysis to the threshold question of whether Plaintiff has stated a claim under the building waiver based on the duties of the public employees who appear as individual defendants in this case. Cf. NMSA 1978, § 34-5-14(B)(1) (1972) (providing that Supreme Court may review by writ of certiorari a decision of the Court of Appeals that conflicts with a decision of the Supreme Court). We express no opinion about whether Plaintiff could prove breach of those duties or proximate cause.
II. Discussion
The New Mexico Tort Claims Act and Building Waiver {6} The New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to 41-4-27 (1976, as amended through 1991) attempts to balance two important but conflicting public policies. After the judicial rejection of common law sovereign immunity in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), the Legislature sought to limit governmental liability so that "government should not have the duty to do everything that might be done." NMSA 1978, § 41-4-2(A) (1976). On the other hand, the Legislature also desired to compensate those injured by the negligence of public employees and to impose duties of reasonable care. See id. ("The legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity."); . The Legislature's solution was to grant governmental entities and employees a general immunity from tort liability, but to waive that immunity in certain defined circumstances. In each of these waivers the Legislature identified a specific existing duty on the part of public employees, NMSA 1978, §§ 41-4-5 to 41-4-11 (1989), which, if breached, could result in liability "based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." NMSA 1978, § 41-4- 2(B) (1976); NMSA 1978, § 41-4-4 (1996).
{7} The "building waiver" waives governmental immunity for damages "caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings." NMSA 1978, § 41-4-6 (1977). Defendants argue that this waiver applies only to public property, and not to a privately-owned rental building. We disagree, because the effect of the waiver should not be determined by the legal status of or the title to the real property, but should instead be determined by an examination of the public employees' duties. We conclude in Part I that the Legislature intended the waiver to apply to any building that public employees have a duty to operate or maintain. In Part II we examine the statutory, regulatory and contractual duties placed on Authority employees which required the exercise of ordinary care in the operation and maintenance of Plaintiff's home. In Part III, we conclude the policies underlying the building waiver are consistent with and foster the objectives under the Municipal Housing Law to provide safe housing for low-income persons.
Part I: Scope of Duties, Not Property Ownership, Defines Waiver
{8} Our Legislature has specifically tied Tort Claims Act waivers to the "scope of duties" of public employees, not to the ownership status of the real property involved. The Act waives immunity for damages "caused by the negligence of public employees while acting within the scope of their duties in the operation and maintenance of any b
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