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Dutton v. McKinley County Board of Commissioners11/15/1991
BLACK, Judge.
Plaintiff appeals the trial court's order of dismissal granted to defendants in a suit filed under the Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (Repl. 1986). Plaintiff presented three arguments in her docketing statement: (1) defendants did not meet their burden of establishing a lack of notice under Section 41-4-16; (2) the trial court erred in applying the statute of limitations; and (3) since the trial court did not rule on defendants' summary judgment motion for over one year, it was deemed denied pursuant to SCRA 1986, 1-054(B). Since plaintiff did not argue the third issue in her brief-in-chief, that issue is deemed abandoned. .
We affirm the judgment in favor of the McKinley County Board of Commissioners (Commissioners) and the McKinley County Sheriff's Department (Department) on the ground that plaintiff failed to comply with the ninety-day notice requirement of Section 41-4-16. We reverse the judgment as to defendant Garcia.
FACTS
Plaintiff was employed by the City of Gallup as a corrections officer. On February 20, 1986, she was injured during a training exercise in the course of her employment. She filed a workmen's compensation claim against the City of Gallup and was awarded compensation.
Plaintiff then filed the present suit against defendants on February 22, 1988. Defendants Gallup City Council, Gallup Police Department, and Gonzales were dismissed from this suit on the ground that workers' compensation was the exclusive remedy as to them. (From the record it appears that Jennifer Weisbacher was not properly served and was therefore never in the case.)
The remaining defendants filed a motion for summary judgment on April 14, 1988. The trial court granted judgment in favor of defendants on two theories: (1) plaintiff failed to comply with the ninety-day notice requirement of Section 41-4-16; and (2) plaintiff failed to file suit within two years as required by Section 41-4-15.
ISSUE I. THE NOTICE PROVISIONS OF SECTION 41-1-16
Defendants' first ground for summary judgment was plaintiff's failure to comply with the notice provisions of the Tort Claims Act. See 41-4-16(A), (B). The Tort Claims Act requires that every person who claims damages from the state or any local public body must present a written notice stating the time, place and circumstances of the loss or injury to the public entity involved. 41-4-16(A). No action may be maintained under the Tort Claims Act "unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence." 41-4-16(B).
Plaintiff correctly notes that under the Tort Claims Act defendants have the burden of proving that the notice requirement was not met. ), rev'd on other grounds, . She is also correct that whether notice has been given is generally a question of fact. . It is, however, incorrect to assume these principles logically require plaintiff's conclusion that summary judgment is therefore not appropriate on whether notice was sufficient under Section 41-4-16 in this case. Once the
movant has made a prima facie showing that he is entitled to summary judgment on the issue of notice, it is incumbent on the party opposing the motion to demonstrate the existence of a triable issue. . Plaintiff herein failed to meet this obligation.
In support of their motion for summary judgment, defendants filed an
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