Concurring).
1. I concur in the result of the foregoing opinion and affirmance of the district court’s decision that there was a waiver of immunity under Section 41-4-6 based on the City’s failure to provide adequate lifeguard protection, resulting in serious injury to Amanda Leithead. I write separately, however, to emphasize that, in my opinion, the evidence supports Plaintiffs’ recovery under a waiver of immunity in this case based on facts evidencing the existence of the City’s negligent “operation” of the pool. The facts, however, do not establish a waiver of immunity based on the negligent “maintenance” prong of Section 41-4-6.
2. Determination of whether governmental immunity bars a tort claim against a public entity is a question of law. Hendricks ex rel. Martens v. Weld County Sch. Dist. No. 6, 895 P.2d 1120, 1123 (Colo.Ct.App. 1995); Jones-Clark v. Severe, 118 Or.App. 270, 846 P.2d 1197, 1199 (1992); see also Hem v. Crist, 105 N.M. 645, 647-48, 735 P.2d 1151, 1153-54 (Ct.App.1987). If a claim is found to come within a waiver of immunity under the Tort Claims Act, the issue of negligence liability of the public body is determined in the same manner as if the public body were a private individual. Jones-Clark, 846 P.2d at 1199.
3. Section 41 — 4-6 waives immunity for negligence in the “operation or maintenance of any building, public park, machinery, equipment or furnishings.” (Emphasis added.) The words “operation” and “maintenance” are not synonymous and each word should be read separately. Unfortunately, many New Mexico cases gloss over any clear distinction between the two terms. In ascertaining whether there has been a waiver of immunity under the Tort Claims Act, we must determine and give effect to the intent of the legislature when interpreting statutes. Cummings v. X-Ray Assocs., 121 N.M. 821, 834, 918 P.2d 1321, 1334 (1996). “The legislature is presumed to have used no surplus words,” Weiland v. Vigil, 90 N.M. 148, 152, 560 P.2d 939, 943 (Ct.App.1977); “each word is to be given meaning.” State ex rel. Helman v. Gallegos, 117 N.M. 346, 355, 871 P.2d 1352, 1361 (1994). In determining the legislative intent, we adopt the natural, common meaning of language in a statute unless a statutory definition controls or the context suggests a special or technical meaning. See Levario v. Ysidro Villareal Labor Agency, 120 N.M. 734, 736, 906 P.2d 266, 268 (Ct.App. 1995).
4. “Maintenance is [generally defined as] the up-keep or preservation of the condition of the property, including the cost of ordinary repairs necessary and proper from time to time for that purpose.” Bogan v. Postlewait, 130 Ill.App.2d 729, 265 N.E.2d 195, 197 (1970). In contrast, “operation” relates to the manner of doing or performing work. State Farm Fire & Cas. Co. v. Geary, 699 F.Supp. 756, 761 (N.D.Cal.1987). “Operation” also has been defined as “the process of operating or mode of action; an effect brought about in accordance with a definite plan; action; activity.” Black’s Law Dictionary 1092 (6th ed.1990). See also Gallegos v. School Dist. of W. Las Vegas, 115 N.M. 779, 781, 858 P.2d 867, 869 (Ct.App.1993) (holding “operation” of a school bus included driver’s decision about where to park the bus because driver was in control of the bus and his decision affected the manner in which he performed his driving duties); Gallegos v. Trujillo, 114 N.M. 435, 439, 839 P.2d 645, 649 (Ct.App.1992) (narrowly construing “operation” as used in the Tort Claims Act). Although noting a preference for the “broader view” of the applicability of Section 41-4-6 in Bober v. New Mexico State Fair, 111 N.M. 644, 653, 808 P.2d 614, 623 (1991), our Supreme Court nevertheless found that a distinction in fact exists between the terms “operation” and “maintenance” (“[L]iability is predicated not only on ‘maintenance’ of a piece of publicly owned property ... but it also arises from the ‘operation’ of any such property.”).
5.In the case at bar, the lifeguards’ failure to provide adequate protection to pool patrons and Amanda came within the ambit of negligent operation of the municipal pool. Proper operation of the pool includes enforcing safety rules and following prescribed rotation and scanning procedures. Here, there was no evidence which would support a determination that there was a physical defect in the municipal facilities which would give rise to a waiver of sovereign immunity pursuant to the negligent maintenance prong of Section 41 — 4-6. Thus, I concur in affirmance of the judgment entered below based solely on Plaintiffs’ proof of negligent operation of the facility.