1998 -NMSC- 7, Carmona v. Hagerman Irrigation Co., No. 24243

• Docket Nº: No. 24243
• Citation: 957 P.2d 44, 1998 NMSC 7, 125 N.M. 59
• Case Date: March 05, 1998
• Court: Supreme Court of New Mexico

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957 P.2d 44 125 N.M. 59, 1998 -NMSC- 7 Yolanda CARMONA, as personal representative of the Estate of
Alejandra Carmona, deceased, Plaintiff-Appellant,
v.
HAGERMAN IRRIGATION COMPANY, Defendant-Appellee. No. 24243. Supreme Court of New Mexico. March 5, 1998.

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Thomas F. Hooker, Jr. & Associates, Thomas F. Hooker, Albuquerque, for Appellant.

O'Brien & Skinner, P.C., Daniel J. O'Brien, Victoria L. Williams, Albuquerque, for Appellee.

OPINION

SERNA, Justice.

¶1 Plaintiff-Appellant Yolanda Carmona (Carmona) appeals the trial court's grant of summary judgment in favor of Defendant-Appellee Hagerman Irrigation Company (Hagerman) in her wrongful death claim arising out of the drowning of her child, Alejandra Carmona. Carmona seeks damages and injunctive relief for negligence under the attractive nuisance doctrine. Carmona contends that the district court erred by granting summary judgment on the basis of Arizona's Salladay doctrine rather than relying on New Mexico law. See Salladay v. Old Dominion Copper Mining & Smelting Co., 12 Ariz. 124, 100 P. 441 (1909). In a cross-appeal, Hagerman asks this Court to reverse the trial court's letter decision denying Hagerman's motion for summary judgment under the Tort Claims Act, NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 1996), should this Court reverse on the Salladay issue.

¶2 We conclude that the trial court erred by applying the Salladay doctrine and granting Hagerman's motion for summary judgment. We also conclude that Hagerman is not a governmental entity and, therefore, is not entitled to summary judgment for immunity under the Tort Claims Act. We reverse and remand for further proceedings consistent with this opinion.

BACKGROUND

¶3 On May 29, 1993, two-and-one-half-year-old Alejandra Carmona drowned in an irrigation canal owned and maintained by Hagerman Irrigation Company. Carmona, decedent's mother, seeks damages for wrongful death and abatement of the nuisance under the doctrine of attractive nuisance.

¶4 Hagerman is a privately owned, non-profit corporation engaged in the business of furnishing water for irrigation and domestic purposes to its members near the town of Hagerman, New Mexico. In the Order on Summary Judgment, the trial court found that this community is in an arid region of the state and that the irrigation system owned by Hagerman provides water necessary to the surrounding farming community.

¶5 The trial court issued a letter decision denying Hagerman's motion for summary judgment on the question of immunity under the Tort Claims Act, finding that there were disputed issues of fact. In a subsequent

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motion for summary judgment, Hagerman argued that, as an irrigation ditch operator, it is immune from application of the attractive nuisance doctrine. The trial court, in granting the motion, relied on Arizona's Salladay doctrine, which has not been recognized by a New Mexico appellate court. See Salladay, 100 P. at 442 (concluding that "as a matter of law and as a matter of public policy" the attractive nuisance doctrine should not be extended to flumes and irrigation ditches).

¶6 We accepted certification on this case from the Court of Appeals on the question of whether Hagerman is entitled to summary judgment based upon the Salladay doctrine or, alternatively, immunity from liability under the Tort Claims Act. The question of whether New Mexico should adopt the Salladay doctrine is "an issue of substantial public interest." See NMSA 1978, § 34-5-14(C)(2) (1972). In the certification order, the Court of Appeals stated that New Mexico has adopted the formulation of the attractive nuisance theory expressed in the Restatement (Second) of Torts § 339 (1965) and determined that this "judicially created cause of action" requires "clarification in the context of its application to possessors and operators of irrigation ditches."

STANDARD OF REVIEW

¶7 "Summary judgment is an extreme remedy which should yield to a trial on the merits if, after resolving all reasonable doubts in favor of the opponent of the motion, the evidence adduced at the hearing establishes the existence of a genuine issue as to any material fact." Peoples State Bank v. Ohio Cas. Ins. Co., 96 N.M. 751, 752, 635 P.2d 306, 307 (1981). "Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992).

ATTRACTIVE NUISANCE AND THE SALLADAY DOCTRINE

¶8 The attractive nuisance doctrine evolved as an exception to the general rule that a landowner is not liable to trespassers. ¹ In Railroad Company v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873), the United States Supreme Court employed the attractive nuisance, or "turntable," doctrine, ² and allowed recovery by a trespassing child injured while playing with a turntable on railroad property. The Court recognized "that the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult," and that the "care and caution required of a child is according to his [or her] maturity and capacity only, and [that] this is to be determined in each case by the circumstances of that case." Stout, 84 U.S. (17 Wall.) at 660.

¶9 The Arizona Supreme Court, in Salladay, refused to extend the attractive nuisance doctrine enunciated in Stout because the condition was part of a class of "patent and visible alluring dangers." See Salladay, 100 P. at 442. The Court held that an unenclosed flume maintained by the defendant on his land did not fall under the attractive nuisance doctrine as a matter of law, effectively granting immunity for the death of the plaintiff's child, who was carried down the flume while playing near it as a trespasser. See Salladay, 100 P. at 441-42. The Court concluded that flumes and irrigation ditches are "equally dangerous and alluring" to children but "practically impossible to render harmless" and "indispensable for the maintenance of life and prosperity." Salladay, 100 P. at 442. "[W]ith regard to trespassing

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children who drown in irrigation canals, as a matter of public policy, the Salladay doctrine is as viable today [in Arizona] as it was in 1906 [sic]." Salt River Valley Water Users' Ass'n v. Superior Court, 178 Ariz. 70, 870 P.2d 1166, 1171 (Ariz.Ct.App.1993).

¶10 This Court also has recognized the "constitutional significance" of water and "[i]ts scarcity and overall importance in our semiarid state." Bybee v. City of Albuquerque, 120 N.M. 17, 20, 896 P.2d 1164, 1167 (1995). However, the trial court erred by applying the Salladay doctrine rather than referring to New Mexico law concerning attractive nuisance. Appellate courts in New Mexico have considered the attractive nuisance doctrine on numerous occasions. See generally Martinez v. Louis Lyster, Gen. Contractor, Inc., 75 N.M. 639, 642, 409 P.2d 493, 495 (1965) (reversing trial court's conclusion that culvert pipes do not constitute an attractive nuisance as a matter of law); Saul v. Roman Catholic Church, 75 N.M. 160, 164, 402 P.2d 48, 51 (1965) (affirming judgment for a boy injured while jumping over an excavation because evidence substantially supported verdict under attractive nuisance doctrine); Klaus v. Eden, 70 N.M. 371, 376, 374 P.2d 129, 132 (1962) (affirming trial court's grant of summary judgment for defendant-owner of an airplane, in which one child died and another was injured under attractive nuisance doctrine and stating that "there can be no liability if the defendants had no reason to anticipate that children might" venture to the airport); Mellas v. Lowdermilk, 58 N.M. 363, 369, 271 P.2d 399, 404 (1954) (concluding trial court erred by not sustaining defendants' motions for a directed verdict in wrongful death case based on attractive nuisance); Latimer v. City of Clovis, 83 N.M. 610, 615, 495 P.2d 788, 793 (Ct.App.1972) (reversing summary judgment granted in favor of defendant for wrongful death under attractive nuisance doctrine).

¶11 This Court has applied the doctrine of attractive nuisance to avoid the harsh results of treating children as trespassers and denying recovery in the absence of wanton negligence on the part of the defendant. See Selby v. Tolbert, 56 N.M. 718, 723, 249 P.2d 498, 501 (1952) (affirming defendants' liability for child's injuries resulting from being pinned under a trailer based on attractive nuisance doctrine). "[W]e see nothing different in the so-called law of attractive nuisance and the general law of negligence, except that involved is a recognition of the habits and characteristics of very young children." Klaus, 70 N.M. at 375, 374 P.2d at 131.

¶12 In Mellas, this Court discussed the application of the attractive nuisance doctrine with respect to ponds, pools, lakes and irrigation ditches. See Mellas, 58 N.M. at 368-69, 271 P.2d at 403. Mellas involved a nine-year-old boy who drowned in a fenced pond which included posted "no trespassing" and "no swimming" signs. Mellas, 58 N.M. at 363-65, 271 P.2d at 400-01. The question for determination was whether the attractive nuisance doctrine should be extended to "cases of patent and visible alluring dangers other than those arising from mechanical appliances, defects, or otherwise." Mellas, 58 N.M. at 368, 271 P.2d at 403. This Court concluded that "we are clearly of [the] opinion that [the attractive nuisance doctrine] should not be extended" because bodies of water "are practically impossible to render harmless, and are indispensible [sic] for the maintenance of life and...