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William R. v. City of Albuquerque3/4/1993
I. BACKGROUND
Plaintiffs, William R. and Marcia K. Espander (the Espanders), appeal from a summary judgment granted by the district court in favor of Defendant, City of Albuquerque (City). The Espanders filed a complaint alleging property damage and personal injury caused by flooding onto their property and into their residence by water that came from a City arroyo. The City moved for summary judgment on the ground that it was immune from liability under the New Mexico Tort Claims Act, NMSA 1978, ยงยง 41-4-1 to -29 (Repl.Pamp.1989). The City predicated its motion on the complaint and an affidavit by Dan Hogan, a City supervisor who managed the hydrology division of the Albuquerque Public Works Department. His affidavit stated that " he storm drainage system . . . behind [the Espanders'] residence . . . was a diversion channel for storm drainage [that had never] been designed or used for liquid waste and/or solid waste diversion or distribution [and was] not part of any water utility or solid or liquid waste connections or disposal system." Being bound by the authority of , we reverse.
II. DISCUSSION
The Tort Claims Act provides that " governmental entity and any public employee while acting within the scope of
duty are granted immunity from liability for any tort except as waived by Sections 41-4-5 through 41-4-12 NMSA 1978." Section 41-4-4(A). The Espanders claim that immunity is waived in the circumstances of this case by Section 41-4-8, which states:
A. The immunity granted pursuant to Subsection A of Section 4 of the Tort Claims Act 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 of the following public utilities and services: gas; electricity; water; solid or liquid waste collection or disposal; heating; and ground transportation.
B. The liability imposed pursuant to Subsection A of this section shall not include liability for damages resulting from bodily injury , wrongful death or property damage:
(1) caused by a failure to provide an adequate supply of gas, water, electricity or services as described in Subsection A of this section; or
(2) arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water.
The City denies that immunity has been waived pursuant to Section 41-4-8(A) and argues that even if that subsection does waive immunity, immunity is reinstated by Subsection B and also by the second sentence of Section 41-4-6. Section 41-4-6 states in full:
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.
We first discuss Section 41-4-6, the
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