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Cobos v. Dona Ana County Housing Authority12/3/1998
act." The Authority also retains the right to access the premises "to the extent necessary to determine compliance with this Contract." Cf. (the agency might have a limited contractual duty to operate or maintain in part because the lessor retained the right to enter); (an owner who retains the right in a lease to enter and make repairs may be exposed to liability despite lease provision placing duty to maintain and repair on lessee). In the event of breach, the Authority's contract remedies include the right to terminate payments or to require the owner to take corrective action within a prescribed period of time. In return for this control, the Authority promises to pay the home's rental directly to the owner on behalf of the program participants. The regulations also require that the participants be placed in a home large enough to accommodate the household. Under the state law and the federal regulations, the Authority exercised at least some control over the quality of the private housing by inspecting and selecting the proper dwelling and by providing in its contract with the owners a large degree of control over the building.
{15} Defendants characterize their relationship with the rented home as one of mere regulation and inspection of private property. They rely on (no liability for negligent cheese inspection) and (no liability for negligent supervision of students) to argue that Defendants are therefore immune from liability. We disagree. The Legislature created the Authority for the purposes of operating and maintaining housing projects in a decent, safe and sanitary condition. The Housing Authority in Doña Ana County chose to do so by using private property in the manner prescribed by the federal regulations. Thus, the privately-owned home was substituted for publicly-owned low-income housing like that in Castillo, and Defendants' duties under the Municipal Housing Law and Existing Housing Program went far beyond a mere duty to inspect and regulate private conduct.
{16} We emphasize that Defendants' duties in this case do not arise as a consequence of the general regulatory relationship between the government and its citizens. Rather, Plaintiff has shown that Defendants engaged in a voluntary undertaking to effectuate the policies in Section 3-45-2 by providing Plaintiff's family with safe housing they could not otherwise obtain. This undertaking gives rise to a more specific relationship among the parties than does general regulation for the public good. If Plaintiff were able to show that the Authority employees performed their maintenance duties in an unreasonable manner and that breach proximately caused this tragedy, nothing in Section 41- 4-6 of the Tort Claims Act would prevent her from recovering damages from Defendants.
{17} Defendants also erroneously characterize the negligence claim as the failure of Defendants to enforce a county smoke detector ordinance, noting that if injured parties were allowed to sue public agencies for failing to prevent private violations of local ordinances, the effect would be that local agencies would have the duty to do "everything that might be done," contrary to the intent of the Tort Claims Act. Thus Defendants claim that under these circumstances the government would have a heavy disincentive to regulate private conduct for the public good. However, this claim ignores the fact that Plaintiff's complaint is based on a broader allegation that Defendants failed in their duty to provide decent, safe, and sanitary housing. Cf. (rejecting characterization of claim as failure to enforce animal control ordinance and analyzing as claim that public employees negligently operated and maintained premises). Thus, for the purpose of a m
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