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Johnson v. School Board of Albuquerque Public School System11/25/1992
BIVINS, Judge.
Plaintiff appeals a summary judgment in favor of Defendant School Board of Albuquerque Public School System (APS). The complaint seeks damages for injuries suffered by Plaintiff's daughter, Dawn Johnson, who allegedly was struck by a vehicle as she was leaving Manzano High School in Albuquerque. The parties focus their arguments on appeal on the following issue: whether the immunity granted under the Tort Claims Act, NMSA 1978, Sections 41-4-1 through -29 (Repl. Pamp. 1989), has been waived under Section 41-4-11 of that Act pertaining to maintenance of streets. However, the dispositive issue in deciding the waiver question is whether APS had a responsibility at all to maintain a crosswalk and accompanying signs and signals in front of the school. Duty or responsibility is not provided in the Tort Claims Act; it must be found outside the Act either at common law or by statute. We hold APS has no such responsibility and affirm.
As presented, we understand that the facts giving rise to the accident are either not in dispute or, if they are disputed in some particulars, these factual disputes are not material to resolving the legal question raised. See ) (summary judgment proper even though disputed facts remain, if those facts not material), cert. quashed, 106 N.M. 405, 744 P.2d 180 (1987); ) (where facts not in dispute, but only their legal effect, summary judgment may be properly granted (quoting )), cert. denied, 83 N.M. 698, 496 P.2d 1094 (1972). With that in mind, we set forth our understanding of the facts as presented in the briefs.
Dawn and some twenty other students were kept after school for detention. School lets out at Manzano at 2:30 p.m. The City of Albuquerque (the City) had installed school zone signals on Lomas Boulevard at the east and west end of the campus. These signals consist of signs and flashing lights, and the lights are set to flash between 2:30 and 2:50 p.m. on school days. The signals warn traffic to slow to 15 m.p.h. within the school zone. APS claims, and Plaintiff does not contest, that the City installed, operates, and maintains these flashing signals as well as other signs at a crosswalk which, we understand, transverses Lomas Boulevard within the school zone. Lomas runs east and west in front of Manzano High School.
Dawn was dismissed at 3:30 p.m., but remained with a friend until 3:55 p.m. According to APS's brief, Dawn "skipped or hopped or spun backwards off the sidewalk and into the street on Lomas" and was struck by a vehicle. Plaintiff does not disagree. This occurred at or near the crosswalk. The signals at both ends of the school zone had stopped flashing before the accident occurred.
Plaintiff contends APS was negligent in two particulars: (1) not scheduling the flashing signals to operate for as long as students remained under the school's control; and (2) not maintaining, or warning of the absence of, the "school crossing" signs at the crosswalk over Lomas Boulevard.
Section 41-4-2 of the Tort Claims Act provides in part: "It is declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act. . . ." Further, Section 41-4-4(A) provides that a "governmental entity and any public employee while acting within the scope of duty [shall be] granted immunity from liability for any tort except as waived by [the Act]." See also . It is undisputed that APS comes within the definition of "governmental entity." See ยงยง
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