(dissenting).
{24} I respectfully dissent.
INTRODUCTION
{25} Tort Claims Act (TCA) Section 41-4-11(A) says immunity does not apply to liability for damages caused by negligence in subsequent maintenance of any roadway. The district court granted the County’s motion for summary judgment of immunity. We must determine, through statutory construction of Section 41-4^11(A), whether the alleged negligent act falls within “subsequent maintenance.” “The meaning of statutory language is a matter of law, not a question of fact.” Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 1996-NMSC-010, ¶ 5, 121 N.M. 471, 913 P.2d 659 (internal quotation marks and citation omitted).
{26} Plaintiffs’ allegations of negligence funnel into a failure to implement a process that will stop traffic from entering Spence Road when dangerous waters are in Walnut Creek. This of course requires more than warning signs. It requires monitoring actual and potential rainfall, and instituting formal processes by which actual and potential rainfall can be monitored and also by which law enforcement and other County officials and citizens know to report and how to report actual and potential rainfall. The County would also have to assure a process of communication among County agencies so barricades can be placed in time to stop vehicles from crossing Walnut Creek. The question is, did the Legislature intend these acts to constitute “subsequent maintenance”?
{27} The County put up “DIP” and “WATCH FOR WATER” warning signs, the adequacy of which Plaintiffs do not attack. Plaintiffs require more than signs. They require development and implementation of a system of information gathering and communication channels to obtain information and reports on the existence of rainstorms likely to contribute surface water run-off to Walnut Creek and then across Spence Road.
{28} The majority permits Plaintiffs to proceed past the gate of immunity by stripping the negligent act to a skeleton allegation of negligent failure to place barricades. Placement of barricades is then likened to placement of traffic controls. In the majority’s view, the skeleton averment of negligent failure to place barricades allows passage through immunity, on to the jury to decide whether the County was negligent. I respectfully disagree with the majority’s analysis and approach.
{29} In the majority’s view, the County mischaraeterizes the issue and then “appears to equate the tort concept of duty with the concept of sovereign immunity” and “seems to argue that the TCA’s specific waivers of immunity also define a governmental entity’s duty.” Majority Opinion ¶ 9. In my view, the County’s characterization of the issue is borrect. Nor does the County confuse duty and immunity.
{30} The County states that “[t]he only issue presented to the trial court was whether the statutory language waiving immunity for liability arising out of the negligence in the ‘maintenance of any bridge, culvert, highway, roadway, street ... ’ would apply to a claim that a county government had failed to design and put into operation a proactive, weather-based forecasting system and to close rural county roads when such a forecasting system would have predicted severe thunderstorms or floods.” The County argues that “[t]he determination of whether governmental immunity under the [TCA] bars a tort claim is a question of law for the Court to decide.”
{31} The County’s position on appeal is indisputably that this Court must interpret the TCA, a process involving questions of law and policy. More particularly, the County points out that our analysis “must begin with an examination of the [TCA] because the potential tort liability of governmental entities and public employees is limited by that Act.” The County then argues that “New Mexico’s appellate courts have not construed ‘maintenance’ so broadly as to include developing and implementing a ‘proactive system to warn motorists of flooding ... utilizing available weather data to predict potential flooding’ or any other similar system.”
{32} Thus, on the issue of what is the issue, these statements from the County’s answer brief unmistakably constitute express assertions that the issue in this case is whether immunity exists or is waived and that this is an issue of law for this Court to decide. The County has squarely and properly presented the correct issue for us to decide in this appeal.
{33} On the issue of confusion of duty and immunity, the majority may have been understandably misled by Plaintiffs’ brief in chief, not the County’s answer brief. Plaintiffs avoid arguing that “subsequent maintenance” in Section 41-4-ll(A) should be interpreted to mean and include the implementation of a proactive system beyond the road signs. Plaintiffs’ argument is that a jury should decide whether the County “breached their duty to warn [motorists] of flooding or potential flooding by failing to institute a proactive system.”’
{34} It is, therefore, Plaintiffs who conflate immunity with breach of duty. In their entire brief in chief (they filed no reply brief) Plaintiffs cite and refer to Section 41-4-ll(A) only once, and only then under standard of review — not in argument, where Plaintiffs simply paraphrase the statute: “The New Mexico legislature has waived immunity from liability where a governmental agency fails to maintain, or negligently maintains a roadway. See NMSA 2000 [sic 1978], § 41-4-11(A).” That is it. Plaintiffs do not address the issue whether the negligent act or acts they allege come within “subsequent maintenance” in Section 41-4-ll(A). Plaintiffs engage in no statutory interpretation. Plaintiffs’ sole point on appeal and sole focus is on, duty: that because the County was negligent, the district court erred in dismissing Plaintiffs’ claim.
{35} My purpose in the foregoing discussion of differing views of the parties’ presentations on appeal is not only to respond to the majority’s discussion on the presentations. I expand on the differing views to capture the majority opinion’s under-layer and thereby better understand the majority’s approach and analysis.
{36} The majority correctly states that the concepts of duty and immunity under the TCA' are distinct. Majority Opinion ¶ 11. The majority discusses the duty owed to Plaintiffs by the County under the common law, and ultimately holds that whether the County “should ... be required to take the extreme step of establishing its own weather forecasting system in order to predict flooding on Spence Road [was] a question of whether the County breached it's common law duty of care — not a question of sovereign immunity.” Majority Opinion ¶¶ 12, 14. By this distinction, the majority paves the way to a determination that, in considering the immunity issue, it is not necessary to consider the negligent act as anything more than the failure to place barricades. A weather forecasting system is irrelevant to the immunity issue.
{37} The majority thinks the County’s focus on a proactive weather forecasting system as the negligent act is too narrow a focus, in that it looks at only one of several allegations of negligence. Majority Opinion ¶ 9. But the County’s focus is the proper one, because the various failures that Plaintiffs allege necessarily include, as well as result in, the County’s failure to have a proactive weather monitoring, forecasting, and reporting system.1 In fact, it is the majority that defines the negligent act too narrowly and restrictively. The majority opens the immunity gate by limiting Plaintiffs’ negligence theory to a bare bones “fail[ure] to place barricades on Spence Road before flood waters reached dangerous levels.” Majority Opinion ¶ 10. The majority calls this the “crux” of Plaintiffs’ negligence theory. Id. With this restriction, and by avoiding what is really the crux of Plaintiffs’ negligence theory, namely, a proactive weather monitoring, forecasting, and reporting system, the majority permits Plaintiffs to slip through the immunity gate. The majority does so based on two notions, neither of which, in my opinion, is sound.
{38} The first notion is the majority’s view that all Plaintiffs are saying is that the County should have done something more than place warning signs, and are not necessarily saying that the County should have had a weather forecasting system; that is, the “extent of effort required” to do something more to protect motorists does not mean that the County must “take the extreme step of establishing its own weather forecasting system in order to predict flooding on Spence Road.” Majority Opinion ¶ 14. The fact of the matter, however, as the majority itself states, is that Plaintiffs require “barricades on Spence Road before flood waters reachf ] dangerous levels.” Majority Opinion ¶ 10. Ultimately, for this to happen, the County must have and use some sort of weather monitoring, forecasting, and reporting system and know where storm run-off will flow in order to assure that vehicular traffic is barricaded from travel across Walnut Creek before dangerous waters arrive.
{39} The second notion is that the County’s failure to “have done something more than it did to determine when to prevent motorists from attempting to cross Walnut Creek at times of flooding,” Majority Opinion ¶ 17, is “more like the activities that have been held [in New Mexico cases] to constitute maintenance.” Majority Opinion ¶ 19. Were the majority rather to see the negligent act as failure to have some sort of weather monitoring, forecasting, and reporting system, the immunity waiver gate could not be opened by reference to New Mexico cases.
{40} To determine if the negligent act pled and asserted in a summary judgment proceeding can, if proven, amount to “subsequent maintenance,” we must look to the negligent act. The negligent act in the present case is not the simple failure to place barricades. The negligent act is the failure to have a system that assures the barricades are in place in order to prevent vehicles from crossing the arroyo. The initial question to be answered in this case on summary judgment was a legal question of whether “subsequent maintenance” is intended by the Legislature to include this negligent act. The district court did not think so. Neither do I.
{41} No averment or proof exists that once the County learned of the water in Walnut Creek it failed to exercise due care in getting barricades to the area. In order to get barricades on Spence Road in time to prevent all vehicles from crossing Walnut Creek when dangerous waters are expected, the County must regularly monitor and forecast the weather. Reliance solely on a process of awaiting reports from citizen or law enforcement naked-eye observation of storms and flowing waters simply cannot satisfy Plaintiffs’ real demand: barricading the road to prevent any vehicles from crossing an arroyo that has dangerous waters.
{42} The majority’s approach, with which I disagree, is to see the negligent act as solely the failure to place barricades, and not to go behind or beyond that; then to find the failure to place barricades (because this is tantamount to failing to place traffic controls) sufficient as a matter of law to come within the concept of subsequent maintenance; and then to move on to the jury. The majority’s description of the negligent act is too narrow. Were we to substitute what really is the negligent act, the majority’s interpretation of Section 41-4-ll(A) would be too broad.
{43} The placement of traffic controls, fences, warning signs, and the location of a school bus stop, Majority Opinion ¶ 18, are fixed remedies for dangerous conditions of which the government is aware or by the exercise of reasonable care should be aware. The fixed remedy for dangerous arroyo waters is to design the road so it does not cross through the arroyo, but rather, by a bridge, crosses over the arroyo. However, the government is immune if the claim were failure to design a road and construct a bridge so as to prevent dangerous conditions the government should have thought about. See § 41-4H1(B)(1), (2). Plaintiffs, therefore, look to something beyond warning signs but short of design defects or failure to construct bridges. Plaintiffs look to a storm monitoring, predicting, and reporting system to ultimately assure timely prevention of vehicular arroyo crossings.
{44} Neither the condition nor the remedy (short of a bridge) is static; they are intermittent and infrequent. The prevention Plaintiffs want must occur based on judgments about periodic surface water run-off after observing by equipment or direct eye conditions involving likely rainfall and runoff. The prevention cannot occur from a fixed traffic control, fence, warning, or barricade.
{45} The TCA is the culprit here, not the County. The majority has impliedly taken the TCA to task. It has held the government, if not the Legislature, responsible by its expansion of “subsequent maintenance” beyond its plain and intended meaning. The Legislature did not intend by the TCA to remedy every wrong or to compensate drivers whenever, the government is negligent. See § 41-4-2(A). The breadth and scope, thus far, of our Court’s and the Supreme Court’s still viable interpretations of Section 41^4-ll(A)’s “subsequent maintenance” neither suggest nor require the majority’s holding today. Perhaps this case falls into a crack — a gap in the law. The alleged negligent act does not amount to subsequent maintenance, nor is it a design defect or failure to construct a bridge.
{46} I have no idea how many Spence Roads crossing Walnut Creeks exist throughout New Mexico. My guess is they number in the hundreds. New Mexico citizens, New Mexico legislators, and highway department and local government employees and officials have all undoubtedly experienced their own Spence Road circumstance. Why does government not construct adequate bridges where known dangerous arroyo waters cross roadways? Or, as Plaintiffs demand, have a weather monitoring, forecasting, and reporting system in place for the purpose of barricading vehicular traffic before it reaches the flooding arroyo. The majority corrects this failure of government by expanding the reach of Section 41-4-ll(A), permitting a jury to determine that a county’s failure to provide a weather monitoring, forecasting, and reporting system makes the county liable for damages.
{47} By its expanded interpretation today, perhaps the majority’s purpose is to test the Legislature’s ability or will to repudiate today’s decision. See Miller v. N.M. Dep’t of Transp., 106 N.M. 253, 741 P.2d 1374 (1987); see also Gallegos v. Sch. Dist. of W. Las Vegas, 115 N.M. 779, 782-83, 858 P.2d 867, 870-71 (Ct.App.1993) (Judge Hartz’s concurring opinion stating the Legislature’s 1991 amendment to Section 41-4-3(E) of the Tort Claims Act repudiated Miller). The better approach is not to expand Section 41-4-ll(A) far beyond its intended coverage, but to draw to the Legislature’s attention the need to address the dangerous conditions that exist throughout the State because arroyos cross roads and carry dangerously fast moving rainfall run-off.
{48} It is significant to note that the Traffic Safety Act, NMSA 1978, §§ 66-7-501 to - 511 (1978, as amended through 2000), gives a State agency wide-ranging powers and duties relating to investigation, research, and study of accidents and accident prevention. See § 66-7-506. Among other things, the agency is to act as a clearinghouse for all traffic safety information used throughout the State and is to cooperate with and assist local organizations and officials. See § 66-7-506(D), (E), (I). It is to make studies and recommendations through the secretary of highway and transportation to the Legislature concerning safety regulations and laws and is to report annually to the governor concerning its assistance to local organizations and officials. See § 66-7-506(H), (I). If it has not already done so, perhaps this agency should study how best to prevent vehicles from entering arroyo flood waters and make recommendations to the Legislature.
{49} Under the majority opinion, the State and every county in the State now waive immunity for claims of failure to implement systems and processes to monitor, forecast, and report existing and potential rainfall that is likely contributed to dangerous surface water run-off in order to protect citizens from every Spence Road-Walnut Creek crossing that exists in their county and in the State.
{50} For the reasons I have expressed, I dissent.
. The County stated in its answer brief that this alleged failure was the dispositive issue below and on appeal, that Plaintiffs failed to address it in their brief in chief, and that, "the trial court recognized[] Plaintiffs claimed factual disputes would have become relevant only if this issue of legislative intent had been resolved in their favor.” Plaintiff[s] did not file a reply brief attacking these statements or attacking the County's characterization of the issue on appeal.