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Upton v. Clovis Municipal School District4/20/2005
These cases highlight the distinction between the creation of a dangerous condition that places the general public at risk, which results in a waiver, and negligent supervision, which does not. To avoid this distinction, Plaintiffs deny that their claim is one for negligent supervision. They argue that the school's failure to follow policy presents a danger to the general public, claiming that school officials did not follow policies in place designed to deal with medical emergencies. They further argue that the negligent conduct of the school employees "created the unsafe situation that resulted in the death of their daughter." To establish a danger to the general public, they also suggest that any "negligent supervision" and failure as to their daughter "applies to any and all of the students" in the Clovis School District.
{11} On these facts, we disagree. We consider this case closer to Espinoza, Archibeque, and Pemberton, than to Seal and Leithead. The school had a policy in place, which required calling a parent, notifying the front office, and summoning a nurse. The nurse and the principal were to call 911 if necessary. The issues in this case involve the school's failure to follow that policy for one child and its subsequent failure to respond to the child's medical emergency more quickly. The school's error, or errors, may have tragically affected Plaintiffs' daughter, but did not present a dangerous condition to the public at large. No matter how Plaintiffs seek to couch their theory, it remains a failure by the school to properly supervise their daughter. Accordingly, immunity has not been waived.
{12} Plaintiffs rely on Gallegos v. School District of West Las Vegas, 115 N.M. 779, 781- 82, 858 P.2d 867, 869-71 (Ct. App. 1993), for the proposition that decisions by school personnel constitute the operation of the school. Gallegos holds that the operation of a school bus includes the many decisions made by the bus driver and that the school district was not immune for any negligence by the driver. Id. at 781, 858 P.2d at 869. Plaintiffs argue that the substitute teacher, and those who failed to call 911 more quickly, were like the bus driver in Gallegos because operation of the school necessarily includes the myriad of decisions made by school personnel. We disagree that Gallegos governs the result in this case. Gallegos involved the operation of a school bus and was decided under the provision of the TCA waiving immunity for the negligent operation of a motor vehicle. Id.; see also ยง 41-4-5 (waiving sovereign immunity in the case of negligent torts committed by public employees who were "acting within the scope of their duties in the operation or maintenance of any motor vehicle, aircraft or watercraft"). It was not decided under Section 41-4-6. Additionally, Plaintiffs' argument is too broad. If any decision by school personnel constituted the "operation or maintenance of any building" under Section 41-4-6, immunity would be waived in virtually any situation. Our cases have not adopted this position and have instead made it clear that administrative or supervisory functions do not equate with the "operation of any building" or call for a waiver of immunity.
Conclusion
{13} The TCA attempts to resolve the tension between encouraging the exercise of governmental powers, free of fear of lawsuits, yet on the other hand recognizing that the government must be encouraged to act responsibly to protect the public against injury. See Oldfield v. Benavidez, 116 N.M. 785, 789, 867 P.2d 1167, 1171 (1994) (recognizing that the concept of immunity demonstrates the conflicting concerns of government officials seeking freedom from personal liability and harassing litigation, a
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