Upton v. Clovis Municipal School District

MINZNER, Justice

(dissenting).

{28} I respectfully dissent. I would affirm the district court’s grant of summary judgment for the Clovis Municipal School District on the basis of the analysis within the Court of Appeals’ opinion. The Court of Appeals discussed the waiver of governmental immunity provided by Section 41-4-6 of the Tort Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -29 (1976, as amended through 2004), and our case law interpreting this waiver. Upton v. Clovis Mun. Sch. Dist., 2005-NMCA-085, 137 N.M. 779, 115 P.3d 795. In analyzing our case law interpreting Section 41-4-6, the Court of Appeals distinguished “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.” Id. ¶ 10. The Court of Appeals concluded that this case involves the negligent supervision of a single child, rather than a dangerous condition that placed the general public at risk. Id. ¶ 11. Furthermore, the Court of Appeals noted that our cases have “made it clear that administrative or supervisory functions do not equate with the ‘operation of any building’ or call for a waiver of immunity.” Id. ¶ 12. I also agree with Judge Sutin’s special concurrence, which emphasizes the Legislature’s authority to revise the TCA.

{29} As the majority opinion notes, the TCA “grants all government entities and their employees general immunity from actions in tort, but waives that immunity in certain specified circumstances.” Maj. Op. ¶ 8. Thus, the rule is immunity; waiver is the exception. The majority opinion construes Section 41-4-6 as an exception to the TCA within which the facts of record fit and concludes that the Legislature intended to waive immunity on these facts.

{30} The majority opinion states that the negligent “operation or maintenance of any building” encompasses all cases in which the negligent action of a government entity creates “a dangerous condition that threatens the general public or a class of users of the building.” Maj. Op. ¶ 8. That statement, however, rests on what the majority characterizes as language in Espinoza v. Town of Taos, 120 N.M. 680, 683, 905 P.2d 718, 721 (1995), which requires clarification. See Maj. Op. ¶ 22.

{31} In clarifying the reference to the “general public” in Espinoza, the majority opinion reasons that our cases only require a condition that is dangerous “to the particular class of people that use the building or facility in question.” Maj. Op. ¶ 23. If the creation of a condition injures a member of a class or group that uses a building, the majority concludes, the creation of that condition can be said to be “operation or maintenance of any building” within Section 414L6. Maj. Op. ¶ 24. It seems to me, however, that the majority opinion expands our case law without acknowledging it is doing so and without explaining why on these facts it is within our authority to do so.

{32} As Judge Sutin’s special concurrence makes eloquently clear, none of us can or would deny the harm that has been done, nor does it lie within our power to un-do that harm. Our task is more ordinary and familiar. We are charged not with expanding our case law as an independent source of law, but rather with construing the Legislature’s intent in enacting Section 41-4-6.

{33} The majority opinion identifies, within a handful of eases, a broad interpretation of the Legislature’s intent “to protect private citizens from the consequences of dangerous conditions created by the negligence of public employees in the ‘operation or maintenance’ of public buildings.” Maj. Op. ¶ 9. The Legislature’s intent, however, is expressed in the language the legislators chose. The phrase “operation or maintenance” does not actually refer to a condition that is dangerous to members of the class or group that use the building. The application or expansion of the phrase in the handful of cases to which the majority refers does not help us understand the Legislature’s intent for the facts of record in this appeal; rather, these cases illustrate the generality of the phrase and the difficulty trial and appellate courts have had in limiting the exception.

{34} At some point, however, just as a quilt maker must return to the original pattern in cutting subsequent squares, this Court needs to focus on the words the Legislature has used, which is the approach the Court of Appeals followed in affirming the district court. I would do the same. My colleagues being of a different view, I respectfully dissent.