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Upton v. Clovis Municipal School District4/20/2005
273.
Section 41-4-6
{6} Plaintiffs contend that immunity has been waived under Section 41-4-6, which reads in pertinent part:
The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability 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 in the operation or maintenance of any building, public park, machinery, equipment or furnishings.
Our cases that interpret the phrase "operation or maintenance" contained within Section 41-4- 6 have not limited its applicability strictly to defects in the physical building. See Leithead v. City of Santa Fe, 1997-NMCA-041, 5, 123 N.M. 353, 940 P.2d 459. Waiver may also be triggered if the facility is negligently operated or maintained in a way that creates an unsafe or dangerous condition on the property or in the immediate vicinity. Id. " he critical question is whether the condition creates a potential risk to the general public." Espinoza v. Town of Taos, 120 N.M. 680, 683, 905 P.2d 718, 721 (1995); see Baca, 1996- NMCA-021, 9. This case does not involve a building defect. Therefore, if Plaintiffs are to succeed, they must demonstrate that their daughter's death resulted from a dangerous or unsafe condition on the premises that created a potential risk to the general public.
{7} While we have admitted that the law in this area depends on "exceedingly fine" distinctions, id. 12, a survey of the cases animates the distinctions. On one hand are cases like Seal v. Carlsbad Independent School District, 116 N.M. 101, 860 P.2d 743 (1993), and Leithead, both swimming pool cases. Seal reversed a summary judgment granted on the ground of immunity based on a rationale that the claim was one of strict liability when the school district may have been negligent in failing to ensure the presence of a properly trained lifeguard and by failing to supply necessary safety equipment. Seal, 116 N.M. at 105, 860 P.2d at 747. Leithead found a waiver when the pool may have been operated without an adequate number of trained lifeguards, because "lifeguard services are so essential to the safety of a swimming pool that they seem akin to other kinds of safety equipment, such as lifelines and ladders, that are fundamental in making the premises reasonably safe for the swimming public." Leithead, 1997-NMCA-041, 15.
{8} Contrasted against these cases are cases like Espinoza and Pemberton v. Cordova, 105 N.M. 476, 734 P.2d 254 (Ct. App. 1987). Espinoza held that immunity was not waived when a child fell off playground equipment while allegedly not being adequately supervised. Espinoza, 120 N.M. at 684, 905 P.2d at 722. Pemberton held that immunity was not waived when there was a fight between students and the claim was one of negligent supervision. Pemberton, 105 N.M. at 477-78, 734 P.2d at 255-56.
{9} Two prison cases, and a public housing case, also illustrate the dividing line. In Callaway v. New Mexico Department of Corrections, 117 N.M. 637, 642, 875 P.2d 393, 398 (Ct. App. 1994), we held that immunity was waived when prison officials allowed known, dangerous gang members to roam loose among the general prison population. Similarly, in Castillo v. County of Santa Fe, 107 N.M. 204, 207, 755 P.2d 48, 51 (1988), immunity was waived when a public housing project allowed dogs to run loose, creating a dangerous condition and placing the public at risk. In Archibeque v. Moya, 116 N.M. 616, 619, 866 P.2d 344, 347 (1993), however, our Supreme Court held that immunity was not waived when prison officials erroneously classified a single inmate.
{10}
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