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Jenks v. Sheriff Patrick Sullivan3/10/1992
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A majority of courts in other jurisdictions find that public building exceptions to sovereign immunity do not permit recovery for injuries resulting from the action of intervening third parties without the presence of a defective or dangerous condition of the building. New Mexico appears to be an exception to the majority view which has maintained the distinction between physical conditions and uses of governmental buildings. See Bober v. New Mexico State Fair, 111 N.M. 644, 808 P.2d 614, 623 (N.M. 1991). The New Mexico statute, however, gives rise to such an interpretation because, in waiving liability for injuries caused by public employees, it uses the language "in the operation or maintenance of any building." N.M. Stat. Ann. ยง 41-4-6 (Michie 1978) (emphasis added). The term operation suggests the procedures carried out in running the building. Thus, the statute includes more than the physical condition of the building. Furthermore, the statute does not use the words "physical defects" as does the Colorado statute.
Jenks relies on Peterson v. San Francisco Community College Dist., 36 Cal.3d 799, 205 Cal. Rptr. 842, 685 P.2d 1193 (Cal. 1984), to support his position that a lack of security devices and security personnel was a dangerous condition. In Peterson, a college student was attacked while ascending a stairway in the school's parking lot. Although the court held that the college had a duty to exercise care to protect students from reasonably foreseeable assaults on campus and to warn students of known dangers, the court held that the college was immune from liability for failure to provide adequate police protection. Peterson is distinguishable for several reasons. First, the duty to warn arose from the special relationship between the college and the student. The special relationship was a result of the college having enrolled the student and issuing her a parking permit, patrolling the parking lot and the stairs due to prior incidents of violence, and inducing the student to rely on this protection. Id. at 1195. Second, the college was aware of previous attacks on the same stairway and failed to take any protective measures, and finally, the college did not publicize the prior incidents or warn the student of the danger. Here, there was no special relationship between the respondents and Jenks giving rise to a duty to warn. It was not even known that Jenks would be in the courthouse on the day he was injured.
The language in section 24-10-106(1), together with the language defining dangerous condition at section 24-10-103(1), does not waive governmental immunity for activities conducted in public buildings. The dangerous condition must stem from a physical or structural defect in the building. By limiting the waiver of sovereign immunity to specified circumstances, the Act protects the public entity against the risk that unforeseen tort judgments will deplete public funds resulting in the termination or curtailment of important government functions. See Lee v. Colorado Dep't of Health, 718 P.2d 221, 228 (Colo. 1986).
The undisputed facts fail to show that the physical condition of the courthouse was unsafe for public use on the day that Jenks was injured. The injury arose not from a dangerous physical condition or defect of the building, but from the intervening actions of a third party. Accordingly, we affirm the court of appeals decision.
Disposition
JUDGMENT AFFIRMED
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