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Chaleunphonh v. Parks and Recreation Division3/21/1996
HARTZ, Judge.
{1} Elephant Butte Reservoir (the Reservoir) was created early this century by federal construction of Elephant Butte Dam on the Rio Grande. The Reservoir stores water for use by the Elephant Butte Irrigation District and the El Paso Irrigation District and for delivery to Mexico pursuant to treaty obligations. In 1973 the federal Bureau of Reclamation leased to New Mexico for recreational purposes the water areas of the Reservoir and certain nearby lands and improvements. The Bureau of Reclamation retains control of the water level and dam operation. The New Mexico Department of Energy, Minerals and Natural Resources, through its Parks and Recreation Division (the Division), operates the leased area as Elephant Butte Lake State Park (the Park).
{2} This appeal arises from a tragic incident at the Park. Three young women, Sounthala Mimi Chaleunphonh, Amphonepheth Chaleunphonh, and Phetmany Soukthavone, were wading in shallow water when Sounthala Mimi Chaleunphonh stepped off a steep ledge in the Reservoir. Her two companions attempted to rescue her, but all three drowned. Their estates and some of those who observed the drowning sued under the New Mexico Tort Claims Act, NMSA 1978, ยงยง 41-4-1 through -27 (Repl. Pamp. 1989), alleging that the Division was negligent in failing to post signs warning of the dangers of swimming or of the sudden drop-off in the Reservoir. The district court granted summary judgment in favor of the Division on the ground that it was entitled to governmental immunity under Section 41-4-6. The court rejected the Division's contention that Plaintiffs' claims were barred because notice of the claims was untimely under Section 41-4-16. Plaintiffs appeal from the immunity ruling, and the Division cross-appeals from the notice ruling. We affirm the summary judgment on the ground adopted by the district court. Therefore, we need not address the issues raised by the cross-appeal.
{3} The Tort Claims Act grants governmental entities in New Mexico immunity from liability for all torts except as waived in the Act. Section 41-4-4(A). Plaintiffs contend that immunity was waived by Section 41-4-6, while the Division contends that the second sentence of that section (the Works Provision) preserves immunity for claims of the type raised by Plaintiffs. Section 41-4-6 states:
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury , wrongful death or property damage 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. Nothing in this section shall be construed as granting waiver of immunity for any damages arising out of the operation or maintenance of works used for diversion or storage of water.
{4} ), cert. denied, 118 N.M. 731, 885 P.2d 1325 (1994), held that the Works Provision preserves immunity with respect to works used for the diversion or storage of water even when that is not their exclusive use. Accord . In Allocca the plaintiff was injured on Conchas Lake, which was used for both recreation and the storage of water.
{5} Nevertheless, Plaintiffs contend that the Works Provision does not provide immunity in this case. They argue that (1) the Reservoir is not a "works" used for the diversion or storage of water, or at least that is not its primary function; and (2) placement of signage that warns of dangers at the Reservoir would not be operation or maintenance of the Reservoir but, rather, operation or maintenance of the Park. We reject these arguments.
{6} To the extent
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