 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cobos v. Dona Ana County Housing Authority12/3/1998
uilding." See NMSA 1978, § 41-4-6 (1977). The Legislature defined "scope of duties" to mean "any duties that a public employee is requested, required, or authorized to perform . . . regardless of the time and place of performance." NMSA 1978 § 41-4-3(G) (emphasis added). Accordingly, the "building waiver" in Section 41-4-6 on its face excepts immunity for the negligent operation or maintenance of any building by a public employee acting within the scope of duty. This contrasts with the language immediately following, which waives immunity for negligent operation or maintenance of any "public park." Id. (Emphasis added).
{9} It also contrasts with provisions from many other states that expressly limit their waivers to public buildings. Compare NMSA 1978, § 41-4-6 with Colo. Rev. Stat. § 24-10-106(1)(c) (1988) (immunity waived for injuries resulting from "dangerous condition of any public building") (emphasis added)) and Mich. Comp. Laws Ann. § 691.1406 (West 1987) (government liable for damage resulting from "dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect" (emphasis added)) and Mo. Ann. Stat. § 537.600 (Vernon 1988) (immunity waived for " njuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition" (emphasis added).). Thus, Section 41-4-6 manifests no intent to restrict the waiver to publicly-owned buildings. Cf. ("By the legislature's inclusion of both buildings and parks within the waiver provision, we discern no intent to exclude from that waiver liability for injuries arising from . . . property surrounding a public building."). Also, there is no language that restricts its application to premises liability claims. As we noted in : "While Section 41-4-6 may appropriately be termed a `premises liability' statute, the liability envisioned by that section is not limited to claims caused by injuries occurring on or off certain `premises,' as the words `machinery' and `equipment' reveal." See also ) (noting that following Bober "Section 41-4-6 now waives tort immunity for a wider variety of negligent acts."), cert. denied, No. 24,835 (Dec. 30, 1997). We conclude that the Legislature did not intend to limit the building waiver to property in which the public entity has a real property interest or a landowner's duty.
{10} Rather, it is clear from our cases that an ownership interest in a building is but one of several ways of proving that a duty to operate or maintain exists. Compare (describing duties of an owner/occupier and citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 61, at 425-26 (5th ed. 1984)) and Castillo, 107 N.M. 206-07, 755 P.2d 50-51 (discussing common law duties imposed on an owner or occupier) with Merrill v. Buck, 375 P.2d 304, 309-11 (Cal. 1962) (en banc) (holding that real estate salespeople not in privity with building's owners had a duty to warn tenant of reasonably foreseeable, concealed danger in the premises where salespeople were aware of the danger and had "affirmatively undertaken to show the house to [the tenant] in the regular course of their business with the purpose of earning a commission if she decided to rent it"). As a question of duty, this case is in some ways much simpler than cases like Bober and Castillo because the harm to Plaintiff's family was undisputedly caused by a physical defect within the building, not something external to it. In Castillo, the county's ownership and operation of a low-income housing project provided the basis of the county's duty to maintain common areas between the buildings in a safe condition. ("As landlord, the defendant [county housing authority]
Page 1 2 3 4 5 6 7 8 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|