Rickerson v. STATE OF NM & CITY OF ROSWELL

OPINION

WALTERS, Judge.

Plaintiff appeals the trial court’s grant of summary judgment in favor of the State and the City of Roswell. We reverse.

Plaintiff alleged notice in the City and State of a dangerous intersection at which plaintiff’s decedent was killed, and failure of those defendants to install adequate controls. The appellees-defendants urge in this court that data collected on the traffic and other features of the intersection did not warrant the installation of signals. Whether or not that is so is a question of fact which cannot be resolved by summary judgment. Fidelity Nat’l Bank v. Tommy L. Goff, Inc., 92 N.M. 106, 583 P.2d 470 (1978).

Appellees also contend that summary judgment was proper because it was “clear” that the non-appealing defendant Lara’s negligence was the sole proximate cause of the wrongful death here involved.

They point to the deposition of Lara in which he admitted that he knew the stop sign was there and, in fact, that he stopped before proceeding into the through street on which plaintiffs’ decedent was travel-ling. Thus, they argue, the traffic control device adequately served its purpose by informing defendant that he was required to stop and he negligently ignored the traffic sign.

Lara’s admission of negligence, however, is not a complete answer to plaintiff’s claims that the intersection was controlled by an improper or inadequate sign, and that a need for installation of traffic signals at that intersection, “for the general safety of the citizens of the City,” was recognized by the City and that need conveyed to the State Highway Department seven months before the fatal accident to Gail Williams occurred. The State Highway Department ultimately agreed with the City’s traffic study relating to the pertinent intersection, for it responded one year later with a written agreement to provide and install a “complete signalization and illumination” system at that location. Plaintiffs suggest that either four-way stop signs or signalization installed when the City first concluded that the intersection was inadequately controlled might well have induced both drivers to approach the intersection differently than they did on February 6, 1978. If that is a reasonable inference, then a jury could find that appellees’ inaction also contributed to the death of plaintiffs’ decedent.

We do not think such an inference beyond the bounds of a jury’s consideration under the facts presently developed in this case. The request by the City in 1977 for assistance from the State in installing a traffic signal must have been triggered by a considered judgment that the intersection was not adequately controlled at that time, and a continuing inadequacy into the future could be foreseen. A negligently dangerous condition operated upon by commission of another negligent act which might not unreasonably be foreseen to occur, is regarded as a proximate cause of the injury finally resulting from the condition. Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507 (1955).

If reasonable minds could differ on issues of sole proximate cause, remote cause, intervening cause, or concurring proximate cause, the matter is for the jury. Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563 (Ct.App.1970). By depositions, affidavits, and exhibits, plaintiff raised sufficient questions of concurring causation to avoid summary judgment. See Harless v. Ewing, 80 N.M. 149, 452 P.2d 483 (Ct.App.1969).

The City, however, strongly argues that neither governmental body is liable and that the summary judgment entered in their favor is supported by reason of sovereign immunity extended under §§ 41-4-4A and 41-4-11B, N.M.S.A. 1978, which provide, respectively:

41-4-4.....
A. A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as provided in the Tort Claims Act [41— 4-1 to 41-4-25 N.M.S.A.1978].
41-4-11.
B. The liability for which immunity has been waived pursuant to Subsection A of this section shall not include liability for damages caused by:
(1) a defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; or
(2) the failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.

Sections 41 — 4-6 and 41 — 4-11A, however, withdraw immunity for damages resulting from negligence “in the operation or maintenance of any . . . equipment or furnishings,” and for negligence “in the maintenance of or for the existence of any . highway, roadway, street . . .”

In City of Albuquerque v. Redding, 93 N.M. 757, 605 P.2d 1156 (1980), the argument was made, as here, that the street defect complained of, the sewage drain grate, was one of design and that § 41 — 4-11B granted immunity from liability. The court held that the more specific statute, § 41 — 4-8A referring to waste collection, applied, and it denied immunity for injury arising from negligence in the operation of such services.

The same reasoning applies in this case. Sections 41 — 4-6 and 41 — 4-11A, which discuss negligent maintenance of equipment or furnishings (the single stop sign on the street travelled by Lara) and negligent maintenance or existence of any highway, roadway, or street (inadequate controls at the intersection), are more specific statutes concerning maintenance or existence of traffic control equipment, and they must govern in this case. Redding, supra.

The concept of negligence also includes failure to act. N.M.U.J.I. (Civ.) 12.0. Appellees are not exempt, therefore, from liability under statutory immunity. Whether additional traffic-control equipment should have been maintained, and negligently was not, and whether the maintenance or existence of the sign-controlled intersection as it was at the time of the accident was negligent, are jury questions. Cf. Gallagher v. Albuquerque Metropolitan Arroyo Flood Control Auth., 90 N.M. 309, 563 P.2d 103 (Ct.App.), cert. den. 90 N.M. 636, 567 P.2d 485 (1977) (negligent failure to maintain streets in reasonably safe condition subjects governing body to liability).

The judgment is reversed and the case remanded for trial on the merits.

SUTIN, J., specially concurring.

HERNANDEZ, J., dissenting.