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Chaleunphonh v. Parks and Recreation Division3/21/1996
e . There is nothing in this design indicating that the legislature intended to protect the State from activities it has not undertaken or responsibilities it has not accepted.
{20} The majority opinion immunizes the State because of the nature of the Elephant Butte Reservoir as a "works" even though the State is not involved in the maintenance or operation of the work. With obvious exceptions such as respondeat superior and situations involving non-delegable duties, tort liability in negligence flows from acts, or failures to act, not from status. Id. To this extent the majority ruling is a departure from traditional tort concepts. My proposed distinction would preserve the immunity sought by the legislature as well as allow claims for those activities contemplated in the first sentence of Section 41-4-6. My approach would also preserve the "dual purpose equals immunity" holding of ), cert. denied, 118 N.M. 731, 885 P.2d 1325 (1994).
{21} While Plaintiffs have argued the factual predicate to my position, I acknowledge they have not stated the legal issue in precisely the way I have framed it. From that standpoint, I have some reservation in making my argument because the conventional theory is that opinions should determine points raised by the parties and that it is improper to inject new issues or apply principles not argued by counsel. I agree that in most cases we should not stray from the case presented by the parties. Certainly, if the court chooses to deal substantively with a new issue, an opportunity should be granted to the parties to provide supplemental briefing. For example, if we were proposing to reverse here based on my theory of the case, I would request additional briefing. However, I also believe that appellate Judges are more than "referees at a dog fight." The function of an appellate court is to decide cases, not simply to Judge a debate between counsel.
MICHAEL D. BUSTAMANTE, Judge
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