(specially concurring).
I join in the result reached by the majority, however, I disagree with their reasoning.
Because liability under the Tort Claims Act is based upon traditional tort concepts of duty and because (at the present stage of this case) we must consider that the Highway Department is liable under § 30-8-13(B), N.M.S.A.1978, the majority hold that the waiver of immunity in the maintenance of highways includes a waiver of immunity in the maintenance of fences. This reasoning disregards the plain wording of § 41-4-4(A), N.M.S.A.1978 (1979 Cum.Supp.); there is immunity except as provided in the Tort Claims Act.
The majority view Supreme Court decisions as giving a “liberal” interpretation of the Tort Claims Act. Holiday Management Co. v. City of Santa Fe, No. 12,867 filed April 11, 1980 [St.B.Bull. Vol. 19, No. 17], involved the meaning of the specific provision therein discussed. City of Albuquerque v. Redding, 93 N.M. 757, 605 P.2d 1156 (1980) held, in connection with a drain grate in a street, that the specific Tort Claims Act provision was that dealing with solid or liquid waste collection. Neither decision required a “liberal” interpretation for the result reached.
The Highway Department contends the Tort Claims Act should be strictly construed because in derogation of sovereign immunity. This is not an appropriate decisional approach because the issue is the meaning of legislation that both grants immunity and waives immunity in specified instances.
This case involves one of those waivers; that is, exceptions from immunity. My view is that those claiming an exception from immunity must establish that exception as being within the words of the exception as well as the reason for the exception. State v. Board of County Commissioners, 62 N.M. 137, 306 P.2d 259 (1957). In my opinion, the Supreme Court decisions in Red-ding, supra, and City of Santa Fe, supra, utilized this approach, rather than a rule of “liberal” construction.
The applicable waiver of immunity provision, § 41-4-11, N.M.S.A.1978, waives immunity for negligence in the maintenance of any “bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.” “Fence” is not included in this listing; if there has been a waiver in connection with the maintenance of fences, “fence” must be included within the meaning of the words used. The issue is whether “fence” comes within the meaning of “highway”.
The parties recognize that “highway” ordinarily has a meaning broader than bridge, culvert or roadway. However, because “highway” is included within a list of words of restrictive meaning, the Highway Department contends that “highway” should be given a restrictive meaning. A law in effect in 1976, when the Tort Claims Act was enacted, included terms of restrictive meaning without restricting the meaning of “highway”. Section 67-7-10, N.M.S.A.1978 states that it is unlawful for a person “to injure or damage any public highway or street or any bridge, culvert, sign, signpost or structure upon or used or constructed in connection with any public highway or street * * I do not agree that the inclusion of “highway” in the words listed in § 41-4-11, supra, shows a legislative intent to restrict the meaning of “highway”.
Since the Legislature did not define “highway” in § 41-4-11, supra, what did the Legislature intend as to the meaning of “highway”? I agree with the majority that the appropriate decisional approach is to apply the presumption that the Legislature was informed of the law in existence at the time of enactment of the Tort Claims Act in 1976. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971). At that time § 64-14-16(a), N.M.S.A.1953 Comp. (2d Repl. Vol. 9, pt. 2), repealed by Laws 1978, ch. 35, § 554, defined street or highway as: ■
The entire width between the boundary lines of every way of whatever nature when any part thereof is open to the use of the public, as a matter of right, for purposes of vehicular travel.
A fence within “[t]he entire width”, under this definition, is a part of the highway. I would hold that “highway” in § 41 — 4-11, supra, has, as its meaning, the definition stated in § 64-14-16(a), supra. On this basis, I join in reversing the order dismissing the claims against the Highway Department.