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Upton v. Clovis Municipal School District4/20/2005
nd injured persons seeking redress for the torts committed by government). Our job in interpreting the TCA is to determine the intent of the legislature. See Cal. First Bank v. State, 111 N.M. 64, 73, 801 P.2d 646, 655 (1990); see also State ex rel. Taylor v. Johnson, 1998-NMSC-015, 21, 30-31, 125 N.M. 343, 961 P.2d 768 (stating that it is the domain of the legislature to make public policy and to choose from the various options available those that are consistent with the policy chosen); State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994) (stating that we must not second-guess the legislature's resolution of competing policies).
{14} As we have discussed, our cases have interpreted Section 41-4-6 to waive immunity when there is a dangerous condition that places the general public at risk, but hold that the government is immune for negligent supervision. This tragic case falls within the ambit of negligent supervision and, consequently, the school district is immune. Summary judgment is affirmed.
{15} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
I CONCUR: MICHAEL D. BUSTAMANTE, Chief Judge
JONATHAN B. SUTIN, Judge (specially concurring)
SUTIN, Judge (specially concurring).
{16} I concur in the opinion. My reason for writing separately is solely to express my view that the Legislature should consider a sovereign immunity waiver that covers negligence of primary and secondary school administrators who fail to have a set and distributed policy in regard to children who are known to be at serious health risk if required to engage in physical exercise, and of school teachers who ignore or disregard the policy or who negligently interpret or administer it. There does not appear to have been any excuse for the school administrators and teachers in the present case not to have assured that Child was protected from having to engage in exercise that was dangerous to her health. This Court is appropriately hesitant under the current state of the case law and the manner in which the Legislature has worded provisions in the Tort Claims Act to interpret "operation of any building" to cover policy failures, failures of communication, or negligent decisions, such as those in this case.
{17} As the opinion indicates, this Court and the Supreme Court have tried to reasonably and carefully apply the Act to the facts of cases that come before us. As the opinion also indicates, to hold in favor of Plaintiffs would be to open a door that the Legislature likely has not intended be opened. Whether in or outside of the school setting, the world can be a dangerous place for high health risk children who are not protected. Outside of school, damages for negligent conduct resulting in harm to otherwise unprotected children known to be at risk are recoverable. At the very least, damages ought to be available for conduct by school administrators and teachers resulting in harm to unprotected, at risk children when the school personnel know a particular child needs protection but negligently or even intentionally fail to provide the protection necessary.
JONATHAN B. SUTIN, Judge
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