2023 New Mexico Statutes › Chapter 41 - Torts › Article 4 - Tort Claims › Section 41-4-6 - Liability; buildings, public parks, machinery, equipment and furnishings.

A. The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings.
B. Nothing in this section shall be construed as granting waiver of immunity for any damages arising out of the operation or maintenance of works used for diversion or storage of water.
C. All irrigation and conservancy districts and their public employees acting lawfully and within the scope of their duties that authorize any part of their property to be used as part of trails within a state park, the state trails system or a trail established and managed by a local public body are excluded from the waiver of immunity under Subsection A of this section for damages arising out of the operation or maintenance of such trails if the irrigation or conservancy district has entered into a written agreement with the state agency or local public body operating or maintaining the trail and that state agency or local public body has agreed to assume the operation and maintenance of that portion of the district's property used for the trail; the state agency or local public body operating or maintaining the trail shall be subject to liability as provided in the Tort Claims Act.
History:
1953 Comp., § 5-14-6, enacted by Laws 1976, ch. 58, § 6; 1977, ch. 386, § 5; 2007, ch. 207, § 1.
ANNOTATIONS
The 2007 amendment,
effective June 15, 2007, added Subsection C.
I. GENERAL CONSIDERATION.
No risk to general public.
— Defendants' mishandling of a firearm and handcuffs while apprehending plaintiff, did not put the general public at risk, and therefore, immunity was not waived under this section.
Oliveros v. Mitchell
, 449 F.3d 1091 (10th Cir. 2006).
Negligent performance of administrative function.
— Defendant misclassified plaintiff for work in the prison kitchen contrary to his medically ordered restriction prohibiting heavy lifting. Section 41-4-6 NMSA 1978 does not waive immunity when public employees negligently perform such administrative functions.
Lymon v. Aramark
, 728 F.Supp.2d 1222 (D.N.M. 2010).
District court erred in granting defendant's motion for summary judgment on premises liability claim.
— In a wrongful death lawsuit, where plaintiff, as personal representative of the estate of decedent, brought claims against the New Mexico Corrections Department (NMCD) after decedent was killed by an inmate who had been erroneously released from custody, alleging negligent operation of the NMCD facility from which the inmate had been released, and negligent actions by law enforcement officers, and where defendants moved for summary judgment arguing that they were immune from suit under the Tort Claims Act, 41-4-1 to 41-4-30 NMSA 1978, and where the district granted defendant's motion on the premises liability claim on the grounds that there was no allegation in the complaint that the wrongful death occurred in NMCD's facilities or property surrounding and linked to NMCD's facilities, or that NMCD had control and a legal interest in the property where the crime occurred, summary judgment was improperly granted on this ground, because New Mexico's common law has long recognized that premises liability claims can lie for injuries occurring outside a property's boundary. The traditional rule is that one who owns or controls property has a duty to refrain from creating or permitting conditions on such property that will foreseeably lead to an unreasonable risk of harm to others beyond the property's borders.
Sanders v. NMDOC
, 2023-NMCA-030, cert. denied.
Administrative decision.
— Denial of prisoner's use of the formal grievance process was a discrete administrative decision and does not waive immunity under 41-4-6 NMSA 1978.
Lymon v. Aramark
, 728 F.Supp.2d 1222 (D.N.M. 2010).
Purpose of section.
— This section contemplates waiver of immunity where, due to the alleged negligence of public employees, an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government.
Rivera v. King
, 1988-NMCA-093, 108 N.M. 5, 765 P.2d 1187, cert. denied, 107 N.M. 785, 765 P.2d 758.
Strict liability instruction prohibited.
— UJI 13-506, pertaining to liability for dog bites, is a strict liability instruction, thus, it cannot be given to the jury in an action for relief under this section because it does not embody a negligence theory of recovery.
Smith v. Village of Ruidoso
, 1999-NMCA-151, 128 N.M. 470, 994 P.2d 50.
Claim alleging unconstitutional activities.
— In a suit under this article, the individual defendants (state officials) were not stripped of immunity by their alleged unauthorized, unconstitutional activities. Any claim that an individual was not acting within the scope of duties is not a claim under this article.
Gallegos v. State
, 1987-NMCA-150, 107 N.M. 349, 758 P.2d 299, cert. quashed, 107 N.M. 314, 757 P.2d 370,
overruled on other grounds by
Williams v. Cent. Consol. Sch. Dist.
, 1998-NMCA-006, 124 N.M. 488, 952 P.2d 978.
State prisoner protected.
— A prisoner injured in a manner contemplated by the operation of this section is as much a member of the general public as anyone else.
Garner v. Department of Corrs.
, 1995-NMCA-103, 120 N.M. 547, 903 P.2d 858.
Student's negligent supervision suit disallowed.
— This section does not provide a remedy for an injured student to sue a school board on the theory of negligent supervision.
Pemberton v. Cordova
, 1987-NMCA-020, 105 N.M. 476, 734 P.2d 254,
overruled on other grounds by
Williams v. Cent. Consol. Sch. Dist.
, 1998-NMCA-006, 124 N.M. 488, 952 P.2d 978.
Negligent supervision of student lunch area.
— Where plaintiff sued defendant for legal malpractice on the ground that defendant failed to file plaintiff's suit against a public high school and school district within the statute of limitations; defendant claimed that plaintiff would not have prevailed on the underlying claim because the claim would have been barred by sovereign immunity; plaintiff was badly beaten by a classmate in an area outside the school property on a street that the school had cordoned off so that students could patronize food vendors parked in the street; an assistant principal at the school stated that the area where the vendors parked was considered a hot zone for student violence; the area was not monitored by security cameras; and the security guards and teachers assigned to monitor the area were not present at the time plaintiff was attacked, plaintiff established the existence of a genuine issue of material fact regarding the presence of a dangerous condition at the high school and summary judgment for defendant on the malpractice claim was inappropriate.
Encinias v. Whitener Law Firm, P.A.
, 2013-NMSC-045,
rev'g
2013-NMCA-003, 294 P.3d 1245.
Where plaintiff was attacked during the lunch period at plaintiff's high school by fellow students, one of whom was a suspended student; the attack occurred on a street adjacent to the school that was roped off by the school for lunch vendors to provide food to the students; plaintiff presented evidence that a security guard or teacher usually patrolled the food vendor area, that no security guard or teacher was monitoring the area at the time of the attack, that school personnel knew that the vendor food area was a "hot zone" for potential trouble, and that the suspended student had entered the school campus for the purpose of attacking plaintiff; and plaintiff claimed that the school's negligent execution of its safety policies for patrolling the food vendor area during the lunch period and failure to keep a suspended student off campus resulted in plaintiff's injuries, the school did not waive immunity because plaintiff solely alleged negligent supervision and failed to provide sufficient evidence of a dangerous condition requiring supervision.
Encinias v. Whitener Law Firm, P.A.
, 2013-NMCA-003, 294 P.3d 1245, cert. granted, 2012-NMCERT-012,
rev'd
, 2013-NMSC-045.
Charter schools are public schools subject to the Tort Claims Act.
— A charter school is a public school that operates as part of a political subdivision of the state and, as such, is a governmental entity within the meaning of the Tort Claims Act.
Kreutzer v. Aldo Leopold High School
, 2018-NMCA-005.
No waiver of immunity for negligent supervision.
— Where plaintiff sued defendant charter school, asserting a negligence claim based on allegations that defendant owed a duty to plaintiff to use ordinary care to keep the premises of its school safe and breached that duty by failing to take reasonable precautions to keep the school safe, the district court did not err in granting defendant's motion for summary judgment, because there is no waiver of immunity under this section for negligent supervision.
Kreutzer v. Aldo Leopold High School
, 2018-NMCA-005.
Negligent supervision of children by town.
— This section did not waive sovereign immunity for a town's failure to exercise ordinary care in the supervision of children who participated in its summer day camp program.
Espinoza v. Town of Taos
, 1995-NMSC-070, 120 N.M. 680, 905 P.2d 718.
Summary judgment in favor of state police was affirmed
in the case of an automobile passenger's action for injuries sustained in a traffic accident following a rock concert, in the absence of any allegations giving rise to a duty on the part of the state police to exercise ordinary care for the passenger's safety.
Bober v. N.M. State Fair
, 1991-NMSC-031, 111 N.M. 644, 808 P.2d 614.
Loose dogs as unsafe condition.
— Under the right circumstances, dogs roaming loose upon the common grounds of a government-operated residential complex could represent an unsafe condition.
Castillo v. County of Santa Fe
, 1988-NMSC-037, 107 N.M. 204, 755 P.2d 48.
Dog-bite victim may pursue negligence claim.
— A negligence claim is appropriate where the municipality as dog owner lacks knowledge of the dog's vicious propensities and ineffectively controls the animal in a situation where it would reasonably be expected that injury could occur.
Smith v. Village of Ruidoso
, 1999-NMCA-151, 128 N.M. 470, 994 P.2d 50.
II. BUILDINGS.
Duty to inspect not tantamount to operation or maintenance.
— For premises liability under 41-4-6 NMSA 1978, the governmental entity must be shown to have both a legal interest and control of the property. The element of a legal interest is consistent in case law. Responsibility for inspection may have given the county some measure of control over the property. But the courts have never equated control alone with the specific duty of "operation or maintenance."
Cobos v. Dona Ana Cnty. Hous. Auth.
, 1995-NMCA-132, 121 N.M. 20, 908 P.2d 250.
Duty of care to baseball spectators.
— An owner/occupant of a commercial baseball stadium owns a duty that is symmetrical to the duty of the spectator. Spectators must exercise ordinary care to protect themselves from the inherent risk of being hit by a projectile that leaves the field of play and the owner/occupant must exercise ordinary care not to increase that inherent risk.
Edward C. v. City of Albuquerque
, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086,
rev'g
Crespin v. Albuquerque Baseball Club, LLC
, 2009-NMCA-105, 147 N.M. 62, 216 P.3d 827.
The court declined to adopt the "baseball rule", which provides that in the exercise of reasonable care, the proprietor of a ballpark need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is greatest, and that such screening must be of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, because comparative negligence principles allow the fact finder to take into account the risks that spectators voluntarily accept when they attend baseball games as well as the ability of stadium owners to guard against unreasonable risks that are not essential to the game itself.
Crespin v. Albuquerque Baseball Club, LLC
, 2009-NMCA-105, 147 N.M. 62, 216 P.3d 827,
rev'd
,
Edward C. v. City of Albuquerque
, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086.
Immunity not waived.
— Where the decedent was experiencing the effect of withdrawal from heroin when the metropolitan court ordered his release; the decedent was initially released to be transported by van as required by jail policy, but he exited the van; the decedent re-entered the metropolitan jail; the decedent was released to the jail parking lot without signing a waiver of van transportation contrary to jail policy; the decedent wandered off into the desert and died of hypothermia; and the medical director of the jail opined that at the time of his release, the decedent had no medical condition that required treatment, the city was not liable under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] on plaintiff's claim that the city negligently operated and maintained the jail.
Lessen v. City of Albuquerque
, 2008-NMCA-085, 144 N.M. 314, 187 P.3d 179, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677.
Residence of adopted child.
Where a state adoption agency had a duty to make home visits to ensure that the home was safe for the adopted child, but did not have a duty to operate and maintain the residential building where the child lived, the adoption agency was not subject to liability under the operation and maintenance of a building exception.
Johnson ex rel. Estate of Cano v. Holmes
, 377 F. Supp. 2d 1069 (D.N.M. 2004),
aff'd
455 F. 3d 1133 (10th Cir. 2006).
Control of a licensed foster placement building as operation.
— The court declined to broaden the waiver in Section 41-4-6 NMSA 1978 to apply to the negligent failure of the children, youth and families department, after an evaluation by the department to disclose post-adoption knowledge of the violent tendencies of the adopted child or urging the adoptive parents to take their adopted child back into their home.
Young v. Van Duyne
, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269.
Operation or maintenance of buildings.
— The department of corrections was not a proper defendant in a wrongful death suit arising out of the escape of state prisoners, who killed a store owner during a robbery, since the injury alleged did not occur due to a physical defect in a building, as contemplated by this section.
Wittkowski v. State, Corr. Dep't
, 1985-NMCA-066, 103 N.M. 526, 710 P.2d 93, cert. quashed, 103 N.M. 446, 708 P.2d 1047,
overruled on other grounds by
Silva v. State
, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.
The "maintenance of any building" includes keeping the grounds of a public housing project safe from unreasonable risk of harm to its residents and invitees.
Castillo v. County of Santa Fe
, 1988-NMSC-037, 107 N.M. 204, 755 P.2d 48.
Waiver of immunity under this section applies to maintenance of school grounds as well as to the school building itself.
Schleft v. Board of Educ.
, 1989-NMCA-087, 109 N.M. 271, 784 P.2d 1014, cert. denied, 109 N.M. 232, 784 P.2d 419.
While this section may appropriately be termed a "premises liability" statute, the liability envisioned by the statute is not limited to claims caused by injuries occurring on or off a certain "premises," as the words "machinery" and "equipment" reveal. Moreover, liability is predicated not only on "maintenance" of a piece of publicly owned property, such as a building, park, or item of machinery or equipment, but it also arises from the "operation" of any such property.
Bober v. N.M. State Fair
, 1991-NMSC-031, 111 N.M. 644, 808 P.2d 614.
This section applies to "any building," public or private, that public employees have a duty to operate and maintain with ordinary care.
Cobos v. Dona Ana Cnty. Hous. Auth.
, 1998-NMSC-049, 126 N.M. 418, 970 P.2d 1143.
Where victim's injury was caused by county's failure to correct a dangerous condition created when waste transfer facility was constructed, facility came within the waiver of liability in this section negligent operation and maintenance of county facility.
Romero v. Valencia Cnty.
, 2003-NMCA-019, 133 N.M. 214, 62 P.3d 305.
Where the child suffered from asthma; the child's parents informed the child's physical education teacher about the child's asthmatic condition; the physical education teacher agreed that the child could limit participation if the child felt that the physical exercise was triggering an attack; the child's parents noted the child's condition in the child's Individualizing Education Plan with the school; the child's parents gave consent so school personnel could immediately call medical personnel directly in the event of an attack; on the day of the child's death, a substitute physical education teacher required exercise that was more strenuous than normal; the child began having difficulty breathing and became red in the face; when the child asked the substitute teacher for permission to stop, the teacher refused; after the physical education class, the child collapsed; it took the school fifteen minutes to call 911; school personnel tried to give the child an inhaler treatment but did not administer CPR even though the child was not breathing well and was turning blue, the school district's failure to implement the child's Individualizing Education Plan and the specific assurances given to the child's parents about the care the school was to provide in light of the child's special needs created a dangerous condition in the operation of the school for all special-needs children at the school and the school district's failure to respond adequately to the emergency created a dangerous condition for every student at the school.
Upton v. Clovis Mun. Sch. Dist.
, 2006-NMSC-040, 140 N.M. 205, 141 P.3d 1259,
rev'g
2005-NMCA-085, 137 N.M. 779, 115 P.3d 795.
Immunity was not waived for emergency communications center.
— Where plaintiff, a police officer who was injured during a call for service, filed suit for personal injuries against the Valencia regional emergency communications center (VRECC), an entity created pursuant to the New Mexico Enhanced 911 Act, NMSA 1978, §§ 63-9D-1 to 63-9D-11.1, to provide enhanced 911 emergency communications functions for an area that includes the incorporated boundaries of the villages of Los Lunas and Bosque Farms and Valencia county, and where the district court dismissed claims against the VRECC, finding that the VRECC was a governmental entity for purposes of the Tort Claims Act and that immunity had not been waived, the district court did not err in finding that NMSA 1978, § 41-4-6 did not waive defendant's immunity, because plaintiff did not submit any evidence that raises a question of fact as to any broad problems that implicated the core of how the VRECC was operated, that is, plaintiff did not establish the inadequacy of the training provided to dispatchers, did not assert that the VRECC failed to maintain the physical plant and equipment appropriately, and did not assert that the procedures and protocols in place for handling calls and dispatches were inadequate. The errors alleged by plaintiff are most appropriately deemed simple employee negligence for which § 41-4-6 does not waive immunity.
Gebler v. Valencia Reg'l Emergency Commc'n Ctr
., 2023-NMCA-070.
Immunity waived when relationship exists between a state agency and facilities in which children are placed.
— Where plaintiffs, participants in Tierra Blanca ranch high country youth program (TBR), a private, for-profit youth program in New Mexico that provides troubled adolescent residents with schooling, counseling, and therapy, filed a complaint against the children, youth, and families department (CYFD) alleging that while they were participants in TBR's program, they were physically and emotionally abused by TBR staff and other participants, the district court erred in granting summary judgment in favor of CYFD on the ground that CYFD was immune from suit under the New Mexico Tort Claims Act, because the building waiver in 41-4-6(A) NMSA 1978 permits suit when there is a duty of care created by a relationship between the parties and may apply when an agency undertakes to provide housing for clients when permitted or required to do so under specific statutory authority, because CYFD has a statutory and regulatory obligation to house children in its care in homes or facilities that meet certain minimum health and safety standards, and because the questions of whether and under what circumstances children were placed at TBR by CYFD presented disputed material factual issues.
Quevedo v. Children, Youth & Families Dep't
, 2016-NMCA-101, cert. denied.
Operation of foster home.
— Because plaintiff specifically alleges that the department knew or should have known before the child's placement for adoption in the adoptive parents' home that the child was capable of violent and uncontrolled behavior and that such behavior was likely to occur without therapeutic intervention, plaintiff must be permitted to proceed on the merits of his claim that department operated the foster home within the meaning of the immunity waiver in this section.
Young v. Van Duyne
, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269.
Unsafe, dangerous or defective property conditions.
— The waiver of immunity under this section may arise from an unsafe, dangerous, or defective condition on property owned and operated by the government.
Castillo v. County of Santa Fe
, 1988-NMSC-037, 107 N.M. 204, 755 P.2d 48.
Plaintiff did not qualify as a subsequent purchaser of property and was therefore not owed a duty of care by contractor.
— Where the district court granted summary judgement and dismissed plaintiff's claim for negligence against defendants for defects to property constructed by defendants and purchased through foreclosure by plaintiff, a single asset entity specifically created to take control over the property, summary judgment was proper, because plaintiff, as a wholly owned subsidiary of the original lender, was not a subsequent purchaser to whom defendants owed an independent duty of care. Plaintiff is limited to the contractual remedies bargained for in the construction contract.
NM-Emerald, LLC v. Interstate Dev., LLC
, 2021-NMCA-020.
Negligent design claims.
— This section does not waive immunity for a plaintiff's claims of negligent design.
Rivera v. King
, 1988-NMCA-093, 108 N.M. 5, 765 P.2d 1187, cert. denied, 107 N.M. 785, 765 P.2d 758;
Callaway v. N.M. Dep't of Corrs.
, 1994-NMCA-049, 117 N.M. 637, 875 P.2d 393, cert. denied, 118 N.M. 90, 879 P.2d 91.
In an action against a county race track by a jockey who was injured when his horse veered, causing him to fall and strike a post and track rail, the trial court correctly ruled that failure to correct an alleged hazardous condition caused by an exposed gooseneck rail did not constitute a design defect, but rather the case involved whether the rail was safe and related to the operation and maintenance of the track.
Yardman v. San Juan Downs, Inc.
, 1995-NMCA-106, 120 N.M. 751, 906 P.2d 742, cert. denied, 120 N.M. 636, 904 P.2d 1061.
There is no exception to premises liability for defects originating in design.
Williams v. Central Consol. Sch. Dist.
, 1998-NMCA-006, 124 N.M. 488, 952 P.2d 978.
A school district could be held liable for negligence in failing to correct a dangerous condition in a building regardless of whether the condition originated in a defect in design.
Williams v. Central Consol. Sch. Dist.
, 1998-NMCA-006, 124 N.M. 488, 952 P.2d 978.
Life guards.
— Failure of a city to provide adequate life guard protection, which resulted in plaintiff's injury, came within the ambit of negligent "operation" of a municipal swimming pool, and, therefore, there was a waiver of sovereign immunity.
Leithead v. City of Santa Fe
, 1997-NMCA-041, 123 N.M. 353, 940 P.2d 459.
Inspection of foods and food processing.
— The waiver of immunity for the negligence of public employees in the operation or maintenance of any building does not include the inspections of foods and food manufacturing or processing operations.
Martinez v. Kaune Corp.
, 1987-NMCA-131, 106 N.M. 489, 745 P.2d 714, cert. denied, 106 N.M. 439, 744 P.2d 912,
overruled on other grounds by
Williams v. Cent. Consol. Sch. Dist.
, 1998-NMCA-006, 124 N.M. 488, 952 P.2d 978.
Operation and maintenance of penitentiary.
— The "operation" and "maintenance" of the penitentiary premises, as these terms are used in this section, does not include the security, custody, and classification of inmates. The purpose of this section is to ensure the general public's safety by requiring public employees to exercise reasonable care in maintaining and operating the physical premises owned and operated by the government. The prison official in this case was not operating and maintaining the prison's physical premises when the official negligently classified the plaintiff as an inmate that could be released into the general prison population. Rather, the official was performing an administrative function associated with the operation of the corrections system. This section does not waive immunity when public employees negligently perform such administrative functions.
Archibeque v. Moya
, 1993-NMSC-079, 116 N.M. 616, 866 P.2d 344.
Plaintiff's complaint plausibly suggested negligence that threatened similarly situated inmates.
— Where plaintiff, a pretrial detainee in the custody of Eddy county detention center (ECDC), filed a complaint alleging that he suffered from a partial right foot amputation and that ECDC personnel withheld from him regular and necessary changes of socks and shoes, and denied him the use of his own orthotic device that was to go into his shoe and protect his foot stump, and that as a result of ECDC's actions, plaintiff was required to walk with his bare feet on the bare floor of his cell, on his partially amputated foot stump, causing his feet to crack and ulcerate, and because the floor of his cell was not cleaned or disinfected, plaintiff's foot stump became infected, ultimately resulting in a below the knee amputation of his right foot and leg, and where defendants filed a motion to dismiss, claiming that plaintiff failed to plead facts illustrating the required risk to the general public or a class of users of the building and that plaintiff pleaded facts indicating a condition only risky to him, defendants' motion to dismiss was denied, because plaintiff's complaint put forth factual allegations that suggest that county employees ignored information plaintiff gave them about his medical condition, failed to address such special medical needs, and failed to follow appropriate safety procedures and established policy, making it more likely that all similarly situated inmates were at risk as well. Such a failure amounts to a dangerous condition that threatens a class of incarcerated inmates with medical issues.
Reno v. Board of County Comm'rs for County of Eddy
, 577 F. Supp.3d 1204 (D. N.M. 2022).
Prisoner's suit for injuries caused by other inmates.
— In a suit brought by a former penitentiary inmate for damages resulting from injuries sustained when the inmate was assaulted by other inmates, the state was not liable under the doctrine of respondeat superior. If immunity had been waived, the particular agency that caused the harm (i.e., the corrections department) could have been held liable for the negligent act or omission of its public employees, but not the state.
Gallegos v. State
, 1987-NMCA-150, 107 N.M. 349, 758 P.2d 299, cert. quashed, 107 N.M. 314, 757 P.2d 370,
overruled on other grounds by
Williams v. Central Consol. Sch. Dist.
, 1998-NMCA-006, 124 N.M. 488, 952 P.2d 978.
This section did not provide a waiver of immunity for a claim by a former inmate, that he was injured by a mop wringer wielded by another inmate. No claim was made that any physical defect existed with the mop wringer or that a defect caused the plaintiff's injuries.
Gallegos v. State
, 1987-NMCA-150, 107 N.M. 349, 758 P.2d 299, cert. quashed, 107 N.M. 314, 757 P.2d 370,
overruled on other grounds by
Williams v. Cent. Consol. Sch. Dist.
, 1998-NMCA-006, 124 N.M. 488, 952 P.2d 978.
This section contemplates waiver of immunity if due to the alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government. The plaintiff states a claim sufficient to waive immunity under this section because the defendants (department of corrections and prison guards) knew or should have known that roaming gang members with a known propensity for violence had access to potential weapons in the recreation area, that such gang members created a dangerous condition on the premises of the penitentiary, and that the danger to other inmates was foreseeable.
Callaway v. N.M. Dep't of Corr.
, 1994-NMCA-049, 117 N.M. 637, 875 P.2d 393, cert. denied, 118 N.M. 90, 879 P.2d 91.
III. PUBLIC PARKS.
Condition creating risk to general public.
— The policy of the state fair officials to require security officers to blindly follow instructions of parking attendants to eject persons from fairgrounds property created a potentially dangerous condition and, in a case when the negligence of parking attendants combined with that policy to cause injury to the plaintiff, immunity of the state fair was waived.
Baca v. State
, 1996-NMCA-021, 121 N.M. 395, 911 P.2d 1199.
Original purpose of recreational park not controlling.
— Sovereign immunity was waived since the plaintiff was injured by diving off a raft in a lake at a park even though the original purpose of the lake may have been for storage and diversion of water. Under the lease between the stream commission (owner) and the recreation division (lessee), the park was to be used "for recreational purposes and for no other purpose," the park was not used for diversion or storage of water at the time of the accident, but the park was in fact used only for swimming, diving, boating, fishing, and other recreational activities.
Bell v. N.M. Interstate Stream Comm'n
, 1993-NMCA-164, 117 N.M. 71, 868 P.2d 1296, cert. denied, 117 N.M. 121, 869 P.2d 820 (1994).
State fairground
constituted a "building or public park" the negligent operation or maintenance of which, if it led to an unsafe or dangerous condition on the property, would give rise to liability under this section.
Bober v. N.M. State Fair
, 1991-NMSC-031, 111 N.M. 644, 808 P.2d 614.
State fair was not immune from liability under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] for injuries sustained by a passenger in an automobile involved in an accident arising from a large number of cars exiting the fairgrounds onto a city street following a rock concert held on state fairground premises leased by concert promoter.
Bober v. N.M. State Fair
, 1991-NMSC-031, 111 N.M. 644, 808 P.2d 614.
IV. MACHINERY.
Operation of machinery and equipment.
— This section by its terms operates as a waiver of immunity for claims arising from the operation of machinery and equipment.
Garner v. Department of Corrs.
, 1995-NMCA-103, 120 N.M. 547, 903 P.2d 858.
This section applied to a prisoner's claim for injures sustained in the prison industries paint shop, allegedly due to failure to provide the prisoner with safety glasses or training in the use of an electric wire brush, because the claim did not relate to administrative functions of the corrections system, such as supervision and classification of prisoners, but related to the operation or maintenance of machinery or equipment.
Garner v. Department of Corrs.
, 1995-NMCA-103, 120 N.M. 547, 903 P.2d 858.
"Maintenance" or "operation" of a vehicle.
— In a wrongful death suit, the actions of a state police emergency response officer, in supervising the removal of a privately owned trailer from a highway in a condition that eventually caused the death of plaintiff's decedent, were not within the meaning of "maintenance" or "operation" as those terms are used in this section and, accordingly, immunity was not waived.
Caillouette v. Hercules, In
c., 1992-NMCA-008, 113 N.M. 492, 827 P.2d 1306, cert. denied, 113 N.M. 352, 826 P.2d 573.
V. EQUIPMENT AND FURNISHINGS.
Negligent maintenance of equipment may include failure to act.
Rickerson v. State
, 1980-NMCA-050, 94 N.M. 473, 612 P.2d 703, cert. denied, 94 N.M. 675, 615 P.2d 992.
Placement of signals and signs.
— Where the plaintiff's allegations, in large part, concern the placement of signals and signs, the state of New Mexico does not enjoy immunity for such decisions, and whether signs or signals were necessary is a question for the jury.
Blackburn v. State
, 1982-NMCA-073, 98 N.M. 34, 644 P.2d 548.
Fire trucks and all pertinent equipment
could be included in the phrase "machinery, equipment and furnishings."
McCurry v. City of Farmington
, 1982-NMCA-055, 97 N.M. 728, 643 P.2d 292.
VI. IRRIGATION AND CONSERVANCY FACILITIES.
Operation of lake used for water diversion or storage.
— A father could not maintain an action against state agencies for injuries caused to son while tubing on a man-made lake which was used for the diversion or storage of water. The statutory immunity found in the first sentence of this section must give way to the more specific statutory provisions in the second sentence which reestablishes immunity in "works used for diversion or storage of water".
Allocca v. N.M. Dep't of Energy Minerals & Natural Res.
, 1994-NMCA-117, 118 N.M. 668, 884 P.2d 824, cert. denied, 118 N.M. 731, 885 P.2d 1325.
Operation of lake used for both recreation and diversion and storage purposes.
— Since water diversion and storage were among the current uses of a lake which was also used for recreational purposes, government entities and their employees responsible for the existence and maintenance of the park in which the lake was located were entitled to immunity.
Bell v. N.M. Interstate Stream Comm'n
, 1996-NMCA-010, 121 N.M. 328, 911 P.2d 222.
The Parks and Recreation Division was entitled to governmental immunity under this section; the Elephant Butte Reservoir is a "works used for diversion or storage of water" for the purposes of this section, although the state operates the area as a recreational park.
Chaleunphonh v. Parks & Recreation Div.
, 1996-NMCA-066, 121 N.M. 801, 918 P.2d 717, cert. denied, 121 N.M. 783, 918 P.2d 369.
Liability arising from the maintenance of water diversion channels.
— The natural interpretation of the second sentence of this section is that it preserves immunity with respect to damages arising out of the operation and maintenance of works used for diversion or storage of water in public parks and on the grounds of public buildings. The immunity preserved by this sentence does not, however, extend to liability arising from the maintenance of diversion channels on public property in general.
Espander v. City of Albuquerque
, 1993-NMCA-031, 115 N.M. 241, 849 P.2d 384,
overruled on other grounds by
Bybee v. City of Albuquerque
, 1995-NMCA-061, 120 N.M. 17, 896 P.2d 1164.
The city was immune from liability for injuries caused when the plaintiff stepped in a flood control diversion channel running through a city park.
Bybee v. City of Albuquerque
, 1995-NMCA-061, 120 N.M. 17, 896 P.2d 1164 (
overruling
City of Albuquerque v. Redding
, 1980-NMSC-011, 93 N.M. 757, 605 P.2d 1156 and
Espander v. City of Albuquerque
, 1993-NMCA-031, 115 N.M. 241, 849 P.2d 384).
Operation of canals and ditches by irrigation district immune.
— This section does not waive immunity for the operation of canals and ditches by an irrigation district.
Tompkins v. Carlsbad Irrigation Dist.
, 1981-NMCA-072, 96 N.M. 368, 630 P.2d 767.
Plaintiffs' claim against a state irrigation district for injuries sustained by their son while playing near an irrigation ditch on state land was barred by the Tort Claims Act because an injury in an irrigation ditch falls within the exception to the state's waiver of immunity set forth in this section for injuries that arise out of "the operation or maintenance of works used for diversion or storage of water."
Noriega v. Stahmann Farms, Inc.
, 1992-NMCA-010, 113 N.M. 441, 827 P.2d 156, cert. denied, 113 N.M. 449, 827 P.2d 837.
Unsafe, dangerous or defective property conditions.
— This section probably waives immunity where, due to public employee negligence, an injury arises from an unsafe, dangerous or defective condition on governmental property. 1990 Op. Att'y Gen. No. 90-13.
Law reviews.
— For survey, "Torts: Sovereign and Governmental Immunity in New Mexico," see 6 N.M. L. Rev. 249 (1976).
For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).
For note, "Torts: Smith v. Ruidoso: Tightening the Leash on New Mexico's Dogs," see 32 N.M.L. Rev. 335 (2002).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
57 Am. Jur. 2d Municipal, County, School, and State Tort Liability §§ 125, 126, 274 et seq.; 59 Am. Jur. 2d Parks, Squares, and Playgrounds §§ 43 to 56.
Governmental liability from operation of zoo, 92 A.L.R.3d 832.
Liability of university, college, or other school for failure to protect student from crime, 1 A.L.R.4th 1099.
Liability to one struck by golf ball, 53 A.L.R.4th 282.
State's liability for personal injuries from criminal attack in state park, 59 A.L.R.4th 1236.
Liability to one struck by golf club, 63 A.L.R.4th 221.
Liability for injury incurred in operation of power golf cart, 66 A.L.R.4th 622.
67 C.J.S. Officers and Public Employees § 208.