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Bell v. New Mexico Interstate Stream Commission12/22/1993
d for diversion or storage of water.
On appeal, our central concern in interpreting this statute is to give effect to the intent of the legislature. See . The intent of the legislature in enacting Section 41-4-6 was to "ensure the safety of the general public by imposing upon public employees a duty to exercise reasonable care in maintaining premises owned and operated by governmental entities." . In interpreting the statute to achieve that result, we give the words of the statute their ordinary meaning and give effect to the statute as written. . Indeed, both Defendants and Plaintiffs focus much of their argument on whether the park is presently a "works" to which the immunity waived in the first sentence of Section 41-4-6 does not apply. However, the clear language of the statute provides that immunity shall not be waived where damages arise out of the "operation or maintenance of works used for diversion or storage of water." Section 41-4-6 (emphasis added). The inclusion of the word "used" indicates that the present use of the facilities must be considered. Additionally, considering the legislature's purpose in enacting Section 41-4-6, see , we are not persuaded that the legislature intended in the second sentence of Section 41-4-6 to exempt every state and public park that included a body of water used for recreational purposes.
In this case, the Stream Commission leased the park to the Recreation Division, with reservation of the right to terminate the lease and ask the Recreation Division to vacate the park. This is authorized under NMSA 1978, Section 72-6-3 (Repl. 1985). NMSA 1978, Section 72-6-2 (Repl. 1985) defines a lessee as "a person who leases the use of water from an owner." (Emphasis added.)
Defendants contend that the original purpose of the lake, which was for storage and diversion of water, is controlling in this case. However, under the lease, the park was to be used "for recreational purposes and for no other purpose." Regardless of the original purpose in creating the lake, and contrary to Defendants' argument, there is no evidence to show that the park was used for diversion or storage of water at the time of the accident. The evidence shows that the park was in fact used only for swimming, diving, boating, fishing, and other recreational activities. In addition, the
evidence further shows that the park was operated as a public park. Section 41-4-6 specifically exempts from immunity the operation or maintenance of any public park. State parks are developed with outdoor recreation as the primary objective. See NMSA 1978, ยง 16-2-11 (Repl. Pamp. 1987). The park was leased with the sole objective of using it for recreation. The evidence shows that fees are charged for use of the park; there are facilities provided for public use while visiting the park; there are trails, shelters, and picnic areas provided for the public; and the park is used by the public for purposes of recreation. Accordingly, the park falls within the category of public parks.
Defendants also rely on ) for the proposition that immunity is not waived under Section 41-4-6 with respect to "works" for the diversion or storage of water which are located within public parks. Defendants' reliance is misplaced for the following reasons: (1) Espander did not consider "works" for the storage of water, ; and (2) Defendants fail to cite to any facts which support an interpretation that, at the t
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