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Cobos v. Dona Ana County Housing Authority12/3/1998
was under a duty to maintain safely those areas expressly reserved for the use in common of the different tenants."(citation omitted)). Likewise, in Bober v. New Mexico State Fair, the State Fair's ownership and control of a concert hall imposed duties to prevent unsafe conditions on the property that led to injuries on property adjacent to the public property. (deciding "whether a landowner's duty to avoid creating or permitting an unsafe condition or activity on the premises is limited by the physical boundaries of the land "); see also ) (reasoning that the school board as landowner had a duty of care for unsafe condition on the land, including protecting against dangers presented by an electrical facility located inside an easement). We have never held, as Defendants and their amici argue, that an ownership interest in the real property is a prerequisite for the building waiver to apply. To the contrary, we have expressed disagreement with a narrow and formalistic interpretation of Section 41-4-6. See ("We reject any narrower view of the applicability of [Section 41-4-6] that may be contained in any of the cited court of appeals opinions," including ); ); ) and )); cf. (acknowledging that Supreme Court in Bober expressly rejected restrictive interpretation in these cases, stating that, "We believe the time is ripe to correct any continuing misapprehension regarding the import of that case law.").
Part II: Duties of Operation and Maintenance Imposed by Statute, Regulation, and Contract.
{11} A duty that falls within the building waiver may arise from sources other than the ownership status of real property. As we noted in Calkins v. Cox Estates, " he determination of duty in any given situation involves an analysis of the relationship of the parties, the plaintiff's injured interest and the Authority's conduct; it is essentially a policy decision based on these factors that the plaintiff's interests are entitled to protection." ; see also Merrill, 375 P.2d at 310 (noting that "a duty to exercise ordinary care not to injure another ... may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a duty").
{12} Our appellate courts regularly look to statutes, regulations, and contracts as sources of duties of ordinary care imposed on public employees that may bring them within a Tort Claims Act waiver. For example, in and , we held that a statute imposing the duty on law enforcement officers to investigate crimes meant that breach of that duty fell within the Tort Claims Act waiver covering law enforcement officers acting within the scope of their duties. Likewise, in Miller v. New Mexico Department of Transportation we held that a statute imposing the duty on an agency to regulate oversized vehicles traveling on state highways fell within the waiver in Section 41-4-11(A) of the Tort Claims Act that applied to the maintenance of highways. (statutorily superseded by the 1991 amendment to Section 41-4-3(E)(1), defining "maintenance"). But, in Armijo v. Dept. of Health and Environment where no claim was recognized, the Court of Appeals looked to the extensive regulations delimiting the duties of the agency, and held that they did not impose duties that would be covered by the relevant Tort Claims Act waiver. ) (finding regulations did not impose the duties of clinical decision-making, which formed the basis of plaintiffs' complaint, and did not impose duties covered by the Tort Claims Act waiver for "operation of any . . . mental institution"); see also ) (Minzner, J., specially Concurring) (examining the regulations outlining the obligations of the agency in charge of foster care, and indicating that, if the plaintiffs had relied on those regulat
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