568 P.2d 1233 (N.M. 1977), 11514, Espanola Housing Authority v. Atencio

Docket Nº:11514.
Citation:568 P.2d 1233, 90 N.M. 787, 1977 -NMSC- 074
Opinion Judge:McMANUS, Chief Justice.
Party Name:The ESPANOLA HOUSING AUTHORITY, the City of Espanola, and John Doe, manufacturer, a corporation, Petitioners, v. Leroy G. ATENCIO, Individually, and Elizabeth Atencio, a minor, by her father and next friend, Leroy G. Atencio, Respondents.
Attorney:Civerolo, Hansen & Wolf, Wayne C. Wolf, David W. Yount, Albuquerque, for Espanola Housing Authority., White, Koch, Kelly & McCarthy, William B. Kelly, Santa Fe, Scarborough & Scarborough, Espanola, for City of Espanola., Zamora, Rael & Weinreb, Pedro G. Rael, Santa Fe, for respondents. White, Ko...
Judge Panel:SOSA, EASLEY and FEDERICI, JJ., concur.
Case Date:September 12, 1977
Court:Supreme Court of New Mexico

Page 1233

568 P.2d 1233 (N.M. 1977)

90 N.M. 787, 1977 -NMSC- 074

The ESPANOLA HOUSING AUTHORITY, the City of Espanola, and

John Doe, manufacturer, a corporation,

Petitioners,

v.

Leroy G. ATENCIO, Individually, and Elizabeth Atencio, a

minor, by her father and next friend, Leroy G.

Atencio, Respondents.

No. 11514.

Supreme Court of New Mexico.

September 12, 1977

[90 N.M. 788]

Page 1234

Civerolo, Hansen & Wolf, Wayne C. Wolf, David W. Yount, Albuquerque, for Espanola Housing Authority.

White, Koch, Kelly & McCarthy, William B. Kelly, Santa Fe, Scarborough & Scarborough, Espanola, for City of Espanola.

Zamora, Rael & Weinreb, Pedro G. Rael, Santa Fe, for respondents.

OPINION

McMANUS, Chief Justice.

Elizabeth Atencio was allegedly injured while playing on a merry-go-round owned by the Espanola Housing Authority in the City of Espanola. Suit to recover for her injuries was brought almost three years later and Espanola asserted the affirmative defense of the statute of limitations. The trial court dismissed the case and the respondents appealed challenging the constitutionality of § 23-1-23, N.M.S.A.1953, on equal protection grounds. The Court of Appeals reversed the district court and found that § 23-1-23 was unconstitutional. We granted certiorari and affirm the decision of the trial court.

Section 23-1-23 states:

(N)o suit, action or proceeding to recover damages for personal injury or death resulting from the negligence of any city, town or village, or any officer thereof, shall be commenced except within one (1) year next after the date of such injury. All such suits, proceedings or actions not so commenced shall be forever barred . . .

Therefore, if this statute is applicable, the proceedings were properly terminated. However, respondents contend that § 23-1-23 denies victims of municipal torts equal protection under the law because it is inconsistent with § 23-1-8, N.M.S.A.1953, which provides a three-year limitation period for tort actions against the county or state. Section 23-1-23 has previously been challenged as special legislation, but in Hoover v. City of Albuquerque, 58 N.M. 250, 270 P.2d 386 (1954) this Court determined that the statute met the requirements of general legislation and therefore was valid. The question of the reasonableness of the classification and whether it operated as a denial of equal...

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