1998 -NMSC- 49, Cobos v. Dona Ana County Housing Authority

• Decision Date: 03 December 1998
• Docket Number: No. 23,288,23,288
• Citation: 970 P.2d 1143,126 N.M. 418,1998 NMSC 49
• Parties: , 1998 -NMSC- 49 Susana COBOS, Personal Representative of the Estate of Socorro Morales, Luis Daniel Morales, and Crystal Selene Morales, and individually, Plaintiff-Petitioner, v. DONA ANA COUNTY HOUSING AUTHORITY, Board of County Commissioners of Dona Ana County, Lucia Archuleta, Nancy Alvillar, and Apolonio Montejano, Defendants-Respondents.
• Court: New Mexico Supreme Court

Page 1143

970 P.2d 1143

126 N.M. 418, 1998 -NMSC- 49

Susana COBOS, Personal Representative of the Estate of Socorro Morales, Luis Daniel Morales, and Crystal Selene Morales, and individually Plaintiff-Petitioner, v. DONA ANA COUNTY HOUSING AUTHORITY, Board of County Commissioners of Dona Ana County, Lucia Archuleta Nancy Alvillar, and Apolonio Montejano Defendants-Respondents.

No. 23,288.

Supreme Court of New Mexico.

Dec. 3, 1998.

Rehearing Denied Dec. 21, 1998.

Hubert & Hernandez, P.A., Lee E. Peters, Las Cruces, for Petitioner.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Mary T. Torres, Las Cruces, for Respondents.

William H. Carpenter, Michael B. Browde, Albuquerque, for Amicus Curiae, New Mexico Trial Lawyers Association.

Nancy Augustus, Albuquerque, for Amicus Curiae, New Mexico Defense Lawyers Association.

Paul M. Schneider, Santa Fe, for Amicus Curiae, Risk Management Division of New Mexico General Services Department.

OPINION

McKINNON, J.

¶1 In this case we must decide whether a breach of public employees' duties of operation and maintenance of a privately-owned building used to provide shelter under a federally-funded low-income housing program falls within the "building waiver" of the New Mexico Tort Claims Act. See NMSA 1978, § 41-4-6 (1977) (waiver of governmental immunity for "operation or maintenance ... of any building" (emphasis added)). The trial court and the Court of Appeals held that the public entity must have a legal ownership interest in the real property for the waiver to apply. We hold that the Legislature intended the building waiver to apply to any building in which public employees owe a duty to operate or maintain exercising ordinary care. We conclude that public employees had such duties in this case under the controlling statute, regulations, and contracts. However, we affirm the dismissal of Plaintiff's claims against the Dona Ana County Housing Authority and the Board of County Commissioners because of her failure to give these defendants timely notification of her claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 The Plaintiff Susana Cobos and her family were participants in a federally-subsidized low-income housing program administered by the Dona Ana County Housing Authority. Their home was privately owned and rented to them through the Authority's Section 8 Existing Housing Program. That program allows local governmental agencies to utilize private dwellings to meet a local need to shelter families of little means. Under the program the Authority contracted with the owners of Plaintiff's home to pay rent on her behalf in return for a certain amount of control to assure that the home fulfilled the purposes of the state and federal public housing schemes in providing "decent, safe, and sanitary" housing to the area's poor. See 42 U.S.C. § 1437 (1988).

¶3 An early-morning fire killed Plaintiff's daughter Socorro Morales and Morales' two young children on November 11, 1990, while they were sleeping in Plaintiff's home. The fire apparently was caused over time by a defect in the fireplace flue, and started slowly in the roof beams adjacent to the room in which the victims were sleeping. The home was not equipped with a smoke detector.

¶4 Plaintiff brought a wrongful death ¹ suit against Defendants claiming that they breached their duty to keep the home in "decent, safe and sanitary" condition, specifically alleging the Authority's employees negligently selected and inspected the building and failed to notice the absence of a smoke detector. The trial court dismissed these claims on the basis that the New Mexico Tort Claims Act immunized Defendants from suit. The Court of Appeals affirmed. See Cobos v. Dona Ana County Housing Authority, 121 N.M. 20, 22-23, 908 P.2d 250, 252-53 (Ct.App.1995). The Court of Appeals reasoned that the Act's "building waiver," Section 41-4-6, did not cover the regulation of privately-owned property, and that the Authority did not have a sufficient legal interest in the building to create a duty to operate or maintain. Id. We reject the Court of Appeals' analysis.

¶5 Our rejection of this reasoning, however, does not change the outcome of this case with respect to the governmental defendants. The trial court found that the Board and the Authority "did not receive actual notice of contemplation of litigation" under the Tort Claims Act. See NMSA 1978 § 41-4-16(C) (1997) (requiring that a plaintiff timely notify the public agency of her claims). The Court of Appeals reviewed this finding, held that it was supported by substantial evidence, and affirmed. See Cobos 121 N.M. at 24, 908 P.2d at 254. We declined to grant certiorari on the question of notice, and issued an Order of Clarification stating our intent to limit our review only to the question of whether Section 41-4-6 applies exclusively to premises liability claims. Accordingly, the notice issue is not before this Court. We address the building waiver issue to correct the misapprehension of the law that was created by the Court of Appeals opinion, but expressly limit our analysis to the threshold question of whether Plaintiff has stated a claim under the building waiver based on the duties of the public employees who appear as individual defendants in this case. Cf. NMSA 1978, § 34-5-14(B)(1) (1972) (providing that Supreme Court may review by writ of certiorari a decision of the Court of Appeals that conflicts with a decision of the Supreme Court). We express no opinion about whether Plaintiff could prove breach of those duties or proximate cause.

II. DISCUSSION

The New Mexico Tort Claims Act and Building Waiver

¶6 The New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to 41-4-27 (1976, as amended through 1991) attempts to balance two important but conflicting public policies. After the judicial rejection of common law sovereign immunity in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), the Legislature sought to limit governmental liability so that "government should not have the duty to do everything that might be done." NMSA 1978, § 41-4-2(A) (1976). On the other hand, the Legislature also desired to compensate those injured by the negligence of public employees and to impose duties of reasonable care. See id. ("The legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity."); Folz v. State, 110 N.M. 457, 461-62 n. 3, 797 P.2d 246, 250-51 n. 3 (1990). The Legislature's solution was to grant governmental entities and employees a general immunity from tort liability, but to waive that immunity in certain defined circumstances. In each of these waivers the Legislature identified a specific existing duty on the part of public employees, NMSA 1978, §§ 41-4-5 to 41-4-11 (1989), which, if breached, could result in liability "based upon the traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty." NMSA 1978, § 41-4-2(B) (1976); NMSA 1978, § 41-4-4 (1996).

¶7 The "building waiver" waives governmental immunity for damages "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." NMSA 1978, § 41-4-6 (1977). Defendants argue that this waiver applies only to public property, and not to a privately-owned rental building. We disagree, because the effect of the waiver should not be determined by the legal status of or the title to the real property, but should instead be determined by an examination of the public employees' duties. We conclude in Part I that the Legislature intended the waiver to apply to any building that public employees have a duty to operate or maintain. In Part II we examine the statutory, regulatory and contractual duties placed on Authority employees which required the exercise of ordinary care in the operation and maintenance of Plaintiff's home. In Part III, we conclude the policies underlying the building waiver are consistent with and foster the objectives under the Municipal Housing Law to provide safe housing for low-income persons.

Part I: Scope of Duties, Not Property Ownership, Defines Waiver

¶8 Our Legislature has specifically tied Tort Claims Act waivers to the "scope of duties" of public employees, not to the ownership status of the real property involved. The Act waives immunity for damages "caused by the negligence of public employees while acting within the scope of their duties in the operation and maintenance of any building." See NMSA 1978, § 41-4-6 (1977). The Legislature defined "scope of duties" to mean "any duties that a public employee is requested, required, or authorized to perform ... regardless of the time and place of performance. " NMSA 1978 § 41-4-3(G) (emphasis added). ² Accordingly, the "building waiver" in Section 41-4-6 on its face excepts immunity for the negligent operation or maintenance of any building by a public employee acting within the scope of duty. This contrasts with the language immediately following, which waives immunity for negligent operation or maintenance of any "public park." Id. (Emphasis added).

¶9 It also contrasts with provisions from many other states that expressly limit their waivers to public buildings. Compare NMSA 1978, § 41-4-6 with Colo.Rev.Stat. § 24-10-106(1)(c) (1988) (immunity waived for injuries resulting from "dangerous condition of any public building" (emphasis added)) and Mich.Comp.Laws Ann. § 691.1406 (West 1987) (government liable for damage resulting from "dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect" (emphasis added)) and Mo.Ann.Stat. § 537.600 (Vernon 1988) (immunity waived for "[i]njuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition"...