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William R. v. City of Albuquerque3/4/1993
the operation of solid waste disposal sites and similar facilities. My analysis therefore "explains away" the conflict seen by the majority. Simply stated, Subsection (B)(2) is "boiler plate" language for toxic wastes, thus excluding runoff water; Subsection (A), on the other hand, does not encompass such language. Additionally, Redding clearly held that Subsection (A) includes runoff water. The scope of Subsection (B)(2) was not addressed in Redding. Thus, in my view, Subsections (A) and (B) and the holding in Redding are reconcilable.
In connection with the majority's Discussion of NMSA 1978, Section 41-4-6 (Repl.Pamp.1989), and the City's argument that the second sentence of that Section reinstates immunity, I observe that in , our Supreme Court stated that "'Section 41-4-6 * * * contemplate waiver of immunity where due to the alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government * * *.'" (quoting ). This language makes me uncertain about the basis for the majority's statement that Section 41-4-6 is inapplicable because it applies only to operation and maintenance of works used for diversion or storage of water in public parks and on the grounds of public buildings. For this reason, I propose that Section 41-4-6 does not apply because Section 41-4-8(A) is the more-specific provision applicable to the facts of this appeal. Thus, even if Section 41-4-8(A) conflicts with Section 41-4-6, the more-specific statute governs. See . It would be reasonable for the legislature to distinguish between maintenance and operation of public utilities and services, see § 41-4-8(A), and other publicly owned property, such as reservoirs. See § 41-4-6. Therefore, Section 41-4-6 does not apply to situations where the injury arose from the alleged negligent operation of a public service.
For these reasons, I specially concur in the majority's decision to reverse the district court's grant of summary judgment to Defendant and to remand for further proceedings.
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