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Jacobo v. City of Albuquerque6/16/2005
This case arises from the entry of summary judgment in favor of Defendants, Public Service Company of New Mexico (PNM) and the City of Albuquerque (the City). Plaintiffs Dora and Manuel Jacobo alleged they were injured after Dora Jacobo tripped on the concrete base of a light pole on a City street. The case presents two legal questions: whether PNM, who constructed and continues to own the light pole, is protected from Plaintiffs' claims by NMSA 1978, § 37-1-27 (1967) (the statute of repose limiting liability for construction projects to ten years after their substantial completion); and whether the City is protected from the claims by the Tort Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2004). Because we determine that Plaintiffs' claims are not barred by either statute, we reverse and remand for further proceedings.
BACKGROUND
Plaintiffs sued PNM and the City, alleging that Dora Jacobo was injured on a City street when she tripped over the raised concrete base of a light pole constructed by PNM. A factual dispute appears to remain over whether the City or PNM owns the concrete base of the light pole. Both Defendants moved for summary judgment. PNM argued that under Section 37-1-27, it was not liable for Plaintiffs' injuries because it had built the light pole more than ten years earlier. The City argued first that it was not liable because PNM owned the light pole. Second, it argued that the immunity granted by the TCA was not waived in this case because Section 41-4-11 only waives immunity for negligent maintenance of sidewalks and not for design defects. In addition, the City argued that it had no notice of the alleged defect and that it was also protected by the statute of repose. See § 37-1-27. The district court granted both the City's and PNM's motions. Plaintiffs also moved to amend the complaint to allege, based on the same facts, that the City's immunity was also waived under Section 41-4-6 (waiving immunity for the negligent operation or maintenance of buildings, public parks, equipment or furnishings), and under Section 41-4-8 (waiving immunity for the negligent operation of utilities). The court denied the motion to amend. This appeal followed.
DISCUSSION
Plaintiffs argue that Section 37-1-27 does not bar Plaintiffs' claims because PNM is currently the owner of the light pole, has a contractual obligation with the City to maintain it, and has a duty under City ordinances to maintain it. Plaintiffs also argue that the City's immunity is waived because its duty to maintain the sidewalk in a safe condition is not limited to upkeep and repair, but also includes a duty to inspect and warn pedestrians of any danger. Plaintiffs challenge any determination that the City is protected by Section 37-1-27 and also appeal the denial of their motion to amend.
"Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. The issue on appeal is whether the [defendant] was entitled to [judgment] . . . as a matter of law. We review these legal questions de novo." Self v. United Parcel Serv., Inc., 1998-NMSC-046, 6, 126 N.M. 396, 970 P.2d 582. Both main issues in this case require statutory interpretation, which is a question of law that we review de novo. See Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, 5, 124 N.M. 405, 951 P.2d 1066. "In interpreting statutes, we seek to give effect to the Legislature's intent, and in determining intent we look to the language used and consider the statute's history and background." Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996).
PNM's M
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