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Jacobo v. City of Albuquerque6/16/2005
392. We are not persuaded that such a distinction requires us to determine that PNM is protected by the statute of repose, Section 37-1-27. While it appears undisputed that PNM acted as a builder at the time of construction, it is also currently the owner of the light pole, and it remains disputed whether it is the owner of the concrete base. If it is the owner of the concrete base, it has separate duties that are independent of its duties as a builder.
Plaintiffs argue that New Mexico's statute of repose, unlike that of Illinois , makes specific references to the date of substantial completion of a project when the owner is able to occupy the premises, thus implying that the owner's occupation of the property shifts responsibility from builder to owner. See § 37-1-27. Consequently, Plaintiffs contend, we should be persuaded by the reasoning of Stone v. United Engineering, 475 S.E.2d 439, 446-47 (W. Va. 1996), in interpreting the West Virginia statute of repose, which also provides that the statute begins to run from the date when "the improvement to the real property in question has been occupied or accepted by the owner of real property, whichever occurs first." Id. at 447 (internal quotation marks omitted and emphasis added) (quoting W. Va. Code § 55-2-6a (1983)). The Supreme Court of Appeals of West Virginia determined that the purpose of the statute of repose is to protect architects, builders, and the like from liability "many years after a construction project was completed" and concluded as a matter of law that its statute of repose did not extend to a defendant who not only designed but owned the property. Id.
Regardless of whether the actual wording of New Mexico's and West Virginia's statutes is similar or not, in light of our Supreme Court's statements in Saiz, 113 N.M. at 401, 827 P.2d at 116, and Coleman, 118 N.M. at 51, 878 P.2d at 1000, New Mexico has indicated that ten years after substantial completion of a project, responsibility for the safety of an improvement to real property shifts from a designer, planner, or builder to the owner. See § 37-1-27. In this case, they may both be PNM. The owner of the property is not relieved of liability under Section 37-1-27, but remains liable for injuries arising from unsafe conditions on that property. Id. The district court erred, therefore, in granting summary judgment to PNM on that basis when the question of ownership of the concrete base of the light pole remained unresolved. Because we hold that Section 37-1-27 does not protect owners of property who built the property against claims arising from unsafe conditions of that property, we do not address whether PNM's duties under contract and City ordinance would also make Section 37-1-27 inapplicable.
The City's Motion for Summary Judgment
Plaintiffs also argue that the district court erred in accepting all the arguments made by the City in its motion for summary judgment. The City argued below that it was not liable for any damages because (1) PNM owned the light pole, (2) the damages resulted from a design defect for which immunity had not been waived under Section 41-4-11, and not from negligent maintenance, which is limited to upkeep and repair, (3) the City had no notice of the dangerous condition, and (4) the claim was barred by Section 37-1-27.
Several of these arguments can be addressed summarily. First, in light of our holding that Section 37-1-27 does not bar claims against owners of property, we determine that summary judgment for the City should not have been granted on this basis. Second, as Plaintiffs point out, their claim against the City was not premised on the City's ownership of the light pole itself, but on whether the
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