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Jacobo v. City of Albuquerque6/16/2005
City had properly maintained the sidewalk that included the pole's concrete base. Third, because the City constructed the sidewalk, it was not necessary for Plaintiffs to prove knowledge of any dangerous condition on the sidewalk. See Cardoza v. Town of Silver City, 96 N.M. 130, 134, 628 P.2d 1126, 1130 (Ct. App. 1981) ("No burden was imposed upon the public to prove notice of a defect or danger. . . . The only duty of the person injured is to prove the City's negligence.").
The issue that remains is whether the condition of the concrete base of the light pole was a design defect or whether the allegedly unsafe condition resulted from the City's failure to maintain the sidewalk. Section 41-4-11 waives immunity for "damages resulting from bodily injury , wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area." Id. Although the City argues for a narrow construction of "maintenance," stating that the sidewalk was not in need of repair, New Mexico cases have held that the term "maintenance" is not limited to "upkeep and repair" but that "the identification and remediation of roadway hazards constitutes highway maintenance under Section 41-4-11 of the TCA." Rutherford v. Chaves County, 2003-NMSC-010, 21, 25, 133 N.M. 756, 69 P.3d 1199; see also Williams v. Cent. Consol. Sch. Dist., 1998-NMCA-006, 10, 124 N.M. 488, 952 P.2d 978 (observing "that on several occasions our Supreme Court has rejected a narrow view of `operation or maintenance' with respect to public buildings, in favor of a broad interpretation of Section 41-4-6 which places upon the state a duty to exercise reasonable care to prevent or correct dangerous conditions on public property"). Because Section 41-4-11 waives immunity from liability for negligent maintenance of sidewalks and because that maintenance is broader than simple upkeep and repair, summary judgment was inappropriate in this case.
CONCLUSION
For the foregoing reasons, we reverse the district court's orders granting summary judgment in favor of Defendants PNM and the City, and we remand for further proceedings. We direct the district court to reconsider, in light of our opinion, whether Section 41-4-6 and Section 41-4-8 may also apply.
IT IS SO ORDERED.
RODERICK T. KENNEDY, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Chief Judge
JONATHAN B. SUTIN, Judge
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