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Bell v. New Mexico Interstate Stream Commission12/22/1993
FLORES, Judge.
The opinion filed December 3, 1993 is withdrawn and the following substituted therefor.
Plaintiffs appeal the summary judgment dismissing their claims. The basis for the judgment was the district court's determination that sovereign immunity had not been waived. Plaintiffs raise the following issues on appeal: (1) sovereign immunity is waived pursuant to NMSA 1978, Section 41-4-6 (Repl. Pamp. 1989), and that alternatively, (2) there was no sovereign immunity prior to enactment of the Tort Claims Act for proprietary functions of a governmental entity such as the maintenance of a public park and the Tort Claims Act did not restrict any such prior governmental liability. We reverse the district court on the basis of issue one and find that Plaintiffs made a prima facie showing that immunity was waived. Therefore, we need not reach Plaintiffs' second issue.
BACKGROUND
Joseph Bell, a minor child, was diving off a styrofoam raft in the lake at Ute Lake State Park (the park). After each dive, he moved farther from the shore, believing that he was moving to deeper water. On his last dive, Joseph hit his head on an unmarked hazard located approximately two feet below the surface of the water. As a result of the accident, Joseph is quadriplegic. There were no warning signs marking the location of the shallow water. Plaintiffs brought action for Joseph's injuries against several Defendants.
The lake and surrounding property are owned by the New Mexico Interstate Stream Commission (Stream Commission). The New Mexico Park and Recreation Division (Recreation Division) leased the park for "recreational purposes and for no other purpose." According to the lease agreement, the Stream Commission retains the right to notify the Recreation Division to vacate the park when it determines that the park is "needed for beneficial purposes of the Lessor." Pursuant to the lease, the Recreation Division developed the park and opened it to the public for recreation. The public uses the park for swimming, diving, boating, fishing, and other recreational activities.
The district court granted partial summary judgment to Defendants. The order stated
that there was no waiver of immunity under Section 41-4-6. This Court granted Plaintiffs' application for interlocutory appeal and assigned this case to the general calendar.
STANDARD OF REVIEW
The district court granted summary judgment to Defendants, reasoning that there was no waiver of immunity under Section 41-4-6 because the court classified the park as "works" under the statute. A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. See . On appeal, this Court looks to the whole record and views matters in the light most favorable to support a trial on the merits. .
ISSUE ONE
Section 41-4-6 provides that:
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 use
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