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Upton v. Clovis Municipal School District4/20/2005
{1} Section 41-4-6 of the Tort Claims Act, NMSA 1978, ยงยง 41-4-1 to 41-4-27 (1976, as amended through 2004) (TCA), provides a waiver of governmental immunity when damages flow from "the operation or maintenance of any building." This case requires us to address the "exceedingly fine" distinctions drawn by cases decided under this section. See Baca v. State, 1996-NMCA-021, 12, 121 N.M. 395, 911 P.2d 1199. Plaintiffs' fourteen-year-old daughter, Sarah, an asthmatic, was required by a substitute physical education teacher to continue exercising after she reported that she was having difficulty breathing and wanted to stop exercising. Shortly after the physical education class, she went to her next class, collapsed, and died. According to Plaintiffs, liability results from the school's indifference to Sarah's medical needs, as well as a fifteen-minute delay in calling an ambulance. The district court granted summary judgment, ruling that immunity had not been waived. We affirm.
Background
{2} In ruling on Defendant's motion for summary judgment, the district court accepted Plaintiffs' view of the facts, as well as the conclusion that Plaintiffs' daughter's death was the result of Defendant's negligence. There was evidence that, at the beginning of the school year, Sarah's mother informed the school of Sarah's asthma through an Individualized Education Plan. Sarah's mother also had spoken with Sarah's regular physical education teacher about the fact that exercise could initiate a potentially life-threatening asthma attack, and they agreed that Sarah would only engage in exercise she could do comfortably and could take breaks if necessary.
{3} On August 30, 1999, however, a substitute physical education teacher was teaching Sarah's physical education class. The class was more strenuous than usual. The students were required to run laps in the gym, followed by a version of a basketball game in which two students retrieved a basketball from the center of the court and then ran to opposite ends to see which one could make a basket first.Sarah ran about half the laps and walked the other half. She did two rounds of the basketball drill and then asked the teacher for permission to stop. The teacher denied permission and Sarah returned to the group, crying. According to several students, Sarah was having difficulty breathing and her face was red. Sarah may have done one more round of the game, but one of the other students stepped in for her on either the third or fourth round.
{4} At the end of the class, Sarah used a special inhaler as she walked to the locker room. She went to her next class, science, which started at 2:28 p.m., and very shortly after class began she collapsed on her desk, at approximately 2:29 p.m. The science teacher called the front office, and the teacher, along with another teacher, tried to administer two inhaler treatments. Sarah's mother was called. A licensed practical nurse who worked at the school arrived to help, checked Sarah's vital signs, and told the front office to call 911. Call logs indicated that 911 was called at 2:44 p.m., approximately fifteen minutes after Sarah had collapsed. Medical attempts to revive her were unsuccessful and she died from her asthma attack.
Standard of Review
{5} "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." Self v. United Parcel Serv., Inc., 1998-NMSC-046, 6, 126 N.M. 396, 970 P.2d 582. We review the district court's grant of summary judgment de novo. Id. The applicability of the TCA is also reviewed de novo. Godwin v. Mem'l Med. Ctr., 2001-NMCA-033, 23, 130 N.M. 434, 25 P.3d
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