City of Albuquerque v. Redding

• Decision Date: 01 February 1980
• Docket Number: No. 12568,12568
• Citation: 1980 NMSC 11,93 N.M. 757,605 P.2d 1156
• Parties: The CITY OF ALBUQUERQUE, New Mexico, a Municipal Corporation, Petitioner, v. Lorie Mary REDDING, Respondent.
• Court: New Mexico Supreme Court

Page 1156

605 P.2d 1156

93 N.M. 757

The CITY OF ALBUQUERQUE, New Mexico, a Municipal Corporation, Petitioner, v. Lorie Mary REDDING, Respondent.

No. 12568.

Supreme Court of New Mexico.

Feb. 1, 1980.

Klecan & Roach, Mark Klecan, Albuquerque, for petitioner

Ortega & Snead, Michael D. Bustamante, Albuquerque, for respondent.

OPINION

FELTER, Justice.

This suit was brought in the District Court of Bernalillo County to recover damages for personal injuries to Plaintiff-Appellant suffered while riding her bicycle in the southbound curb lane of Yale Avenue, near the intersection of Yale and Silver Avenues in Albuquerque. Her front tire slipped through a drain grate located in the road and she was thrown from her bicycle. Defendant-Appellee, City of Albuquerque, a municipal corporation, (hereinafter the "City") denied negligence and asserted that the complaint failed to state a claim upon which relief could be granted and that Plaintiff-Appellant was barred from recovery by her contributory negligence. After the deposition of the Plaintiff, the City moved for summary judgment. Plaintiff appealed from an order granting summary judgment to the Court of Appeals, which reversed the order of the trial court granting summary judgment. The City petitioned this Court for a writ of certiorari, and the petition was granted. We now affirm the decision of the Court of Appeals.

The memorandum opinion of the Court of Appeals by Judge Hernandez correctly identifies the only two grounds upon which the summary judgment could have been granted by the trial court. The validity of those grounds is the issue here on appeal. Paraphrased, and more broadly stated, they are: (1) whether sovereign immunity as a matter of law affords the City immunity from the suit; and (2) whether the Plaintiff was contributorily negligent as a matter of law?

The City asserts that it is immune from suit under the provisions of Section 41-4-11(B), N.M.S.A.1978, which reads in pertinent part as follows:

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; . . .

Thus, it is contended that the case falls within an exception to the New Mexico Tort Claims Act, §§ 41-4-1 to 41-4-25, N.M.S.A.1978, and immunity from suit attaches.

Although the drain grate in the curb lane of the street formed a part of the street surface, it was only incidental to the plan or design of the roadway, and not a primary part of that plan or design. Its direct purpose was not to facilitate the use of or flow of traffic upon the roadway. Its direct and primary purpose obviously was to care for solid or liquid waste collection and disposal from the roadway, and in this manner, incidentally to facilitate the flow of traffic upon the roadway.

Admittedly the situation in the case at bar does not fit squarely within any specific provisions of the Tort Claims Act. However, we believe that the more specific statutory provision within the Tort Claims Act which may be applicable is contained in Section 41-4-8(A), N.M.S.A.1978, which insofar as applicable reads:

The immunity granted pursuant to Subsection A of Section 4 (41-4-4, NMSA 1978) of the Tort Claims Act 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 of the following public utilities and services: . . . Solid or liquid waste collection or disposal ; . . . (Emphasis added.)

A sewer grate can serve no other primary purpose than to afford disposal of waste water, silt and debris from the roadbed of the street. They are not, indeed, a part of the plan or design of roadways generally apart from their primary purpose.

It is well established in the law that as between two conflicting statutory provisions, the specific shall govern over the general. City of Albuquerque v. New Mexico State Corporation Commission, 18 N.M.St.B.Bull. 883, 93 N.M. 719, 605 P.2d 227 (1979); New Mexico Bureau of Rev. v. Western Elec. Co., 89 N.M. 468, 553 P.2d 1275 (1976); State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936); Accord Saiz v. City of Albuquerque, 82 N.M. 746, 487 P.2d 174 (Ct.App.1971) overruled on other grounds at 87 N.M. 237, 531 P.2d 1210 (1975).

We therefore hold that in the case at bar the City was not immune from suit.

As to the issue of contributory negligence, the uncontroverted evidence shows that on the day of the accident, the weather was clear and there was nothing to obstruct Plaintiff's view of the roadway. The accident happened about 3:30 P.M. on a sunny day. Immediately before the accident, Plaintiff was looking straight ahead and saw a bicycle sign next to the grate, but she did not see the grate in the portion of the roadway over which she was travelling.

The City claims that such facts support the premise that Plaintiff was contributorily negligent as a matter of law. Plaintiff contends that the facts present a genuine issue as to the material fact of contributory negligence, and therefore summary judgment was not proper.

In New Mexico and other jurisdictions, where the rule of contributory negligence has not as yet been replaced by the more enlightened rule of comparative negligence, courts have softened the impact of contributory negligence to a limited degree. For example, it is the rule in New Mexico that contributory negligence is almost always a question of fact to be determined at trial. Proctor v. Waxler, 84 N.M. 361, 503 P.2d 644 (1972); Behymer v. Kimbell-Diamond Company, 78 N.M. 570, 434 P.2d 392 (1967); Lujan v. Reed, 78 N.M. 556, 434 P.2d 378 (1967); Gray v. E. J. Longyear Company, 78 N.M. 161, 429 P.2d 359 (1967); Stephens v. Dulaney, 78 N.M. 53, 428 P.2d 27 (1967); Jones v. Gibberd, 77 N.M. 222, 421 P.2d 436 (1966); Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966).

The general rule of law is to the effect that a person has the duty to keep a careful lookout for his or her own safety, and that failure to do so may constitute contributory negligence as a matter of law. See Cupps v. Southwestern Public Service Co., 91 N.M. 639, 578 P.2d 340 (Ct.App.1978). See generally Catalano v. Lewis, 90 N.M. 215, 561 P.2d 488 (Ct.App.1977); Werner v. City of Albuquerque, 89 N.M. 272, 550 P.2d 284 (Ct.App.1976).

In Cupps v. Southwestern Public Service Co., supra, appellant's son sustained death by electrocution. While covering a load of hay with a tarpaulin, he came in contact with wires carrying 7,200 volts of electricity, which wires had a clearance of 16'9 from the...