Atencio v. Espanola Housing Authority
| Decision Date | 28 June 1977 |
| Docket Number | No. 2881,2881 |
| Citation | 568 P.2d 1245,90 N.M. 799,1977 NMCA 73 |
| Parties | Leroy G. ATENCIO, Individually, and Elizabeth Atencio, a minor, by her father and next friend, Leroy G. Atencio, Plaintiffs-Appellants, v. The ESPANOLA HOUSING AUTHORITY, the City of Espanola, and John Doe, manufacturer, a corporation, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
The only question for determination is whether § 23-1-23, N.M.S.A.1953 (Vol. 5), a limitation statute, is unconstitutional because it denied plaintiffs the equal protection of the law. We say that it is unconstitutional and reverse the judgment of the trial court.
The statute reads in pertinent part as follows:
. . . (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, Provided, however, that as to all such actions heretofore accrued, suit to recover thereon may be instituted at any time on or before December 31, 1941, but not otherwise.
"( N)o suit, action or proceeding to recover damages . . . shall be commenced" is a limitation not only on the remedy but also on the right to institute an action. Wall v. Gillett, 61 N.M. 256, 298 P.2d 939 (1956). Section 23-1-23 stands as a bar to recovery where the action is brought more than one year after the date of the injury. Seiler v. City of Albuquerque, 57 N.M. 467, 260 P.2d 375 (1953). It is not special legislation contrary to Article IV, Section 24, of the New Mexico Constitution, Hoover v. City of Albuquerque, 58 N.M. 250, 270 P.2d 386 (1954), and it denies to a minor the benefit of an extension of the limitation period. Noriega v. City of Albuquerque, 86 N.M. 294, 523 P.2d 29 (Ct.App.1974).
Plaintiffs contend the statute is unconstitutional because it violates Article II, Section 18, of the New Mexico Constitution. It provides in pertinent part:
. . . (N)or shall any person be denied the equal protection of the laws.
On April 10, 1973, plaintiff Elizabeth Atencio, nine years of age, was injured while playing on a merry-go-round for small children provided for them by the City of Espanola. The complaint was filed April 8, 1976, within a three-year period. The claim was barred by § 23-1-23, but it was not barred by § 23-1-8 that provides for a three-year limitation period after a cause of action accrues. Plaintiffs' complaint was dismissed with prejudice.
Plaintiffs contend that they were denied the equal protection of the law because under §§ 23-1-8 and 23-1-10, Elizabeth, nine years of age, would have had ten years (until her nineteenth birthday) to bring her claim against any person, firm or corporation, any county in the State, and the State of New Mexico, after her cause of action accrued, but, under § 23-1-23, her claim against the City was barred.
Were plaintiffs denied the equal protection of the law? This is a matter of first impression.
Before a determination on the constitutionality of § 23-1-23 can be made, we must explore the history of statutes of limitation in New Mexico and their application to persons who suffer injuries proximately caused by another. We are not confined to the "four corners" of § 23-1-23. We must view it in its relationship with other limitation statutes. "We regard the substance rather than the form (of § 23-1-23), and the controlling test is found in the operation and effect of the statute as applied and enforced by the State." Gregg Dyeing Co. v. Query, 286 U.S. 472, 476, 52 S.Ct. 631, 633, 76 L.Ed. 1232 (1932), 84 A.L.R. 831 (1933).
Limitation statutes involving the State, its agency or a political subdivision have suffered a "tortious" adventure in New Mexico.
Since territorial days, the limitation period in every action began to run after the cause of action accrued, "and not afterwards, except when otherwise specially provided." (Emphasis added.) Section 23-1-1, N.M.S.A.1953 (Vol. 5). For an injury to the person a claim could be brought within three years after the cause of action accrued. Section 23-1-8. The limitation period for minors was extended "so that they shall have one (1) year from and after the termination of such disability within which to commence said action. Section 23-1-10.
In 1941, § 23-1-23 was enacted. Prior thereto, a victim of tortious conduct of a municipality could commence his action within three years when corporate or proprietary activity was performed. For governmental activity, the municipality was protected from suit by sovereign immunity. This statute, by fixing a one-year limitation period, specially provided otherwise within the exception stated in § 23-1-1. What prompted the legislature to enact this statute is unknown. Prior to 1941, we find only two cases that involved actions against municipalities for injuries to the person. Alarid v. Gordon, 35 N.M. 502, 2 P.2d 117 (1931); Johnson v. City of Santa Fe, 35 N.M. 77, 290 P. 793 (1930). These were actions against the City of Santa Fe. No towns or villages had been sued. No fund raising problems were involved. Municipalities were not burdened with such tort actions. The City says that since corporate and proprietary acts of the City were denied the defense of sovereign immunity, the statute was passed for the benefit of the City. True, but why was the limitation period fixed at one year instead of three years? Three years was the general statute of limitations for injury to the person. If it was an arbitrary classification, it was unconstitutional. However, in 1959, to overcome the doctrine of sovereign immunity, the legislature allowed actions to be brought against the State, county, city and public agencies for their negligence and the negligence of officers, deputies, assistants, agents or employees acting in the course of their employment, provided these entities carried liability insurance. Section 5-6-20, N.M.S.A.1953 (Repl.Vol. 2, pt. 1), repealed by Laws 1975, ch. 334, § 18. No limitation period was fixed for protection of the State, county and public agencies. But during the period in question, and prior to the 1975 repeal of the above statute, the three-year limitation period provided by § 23-1-8 was applicable to the State, county and public institutions for an injury to the person.
In 1975, the legislature enacted the Public Officers and Employees Liability Act, § 5-13-1, et seq., N.M.S.A.1953 (Repl.Vol. 2, pt. 1, 1975 Supp.) (repealed Laws 1976, ch. 58, § 27). This 1975 Act did not expressly repeal § 23-1-23. Section 5-13-14 of this Act fixed a three-year limitation for every suit, action or proceeding for recovery of judgment, commenced against the State or any political subdivision of the State for "bodily injury" and "personal injury" as defined in the Act. For purposes of discussing "equal protection of the law," we note that the limitation period of three years applied uniformly to claims filed against the State and "local public body." This phrase was defined as "all political subdivisions of the state and their agencies, instrumentalities and institutions". Section 5-13-3(B). This definition, of course, included municipalities.
In 1976, the Tort Claims Act was enacted. Section 5-14-1, et seq., N.M.S.A.1953 (1976 Interim Supp.). It is effective until July 1, 1978. It repealed the Public Officers and Employees Liability Act, supra. It also covers the State and any political subdivision. Section 5-14-14(A) provides:
Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two (2) years after the date of occurrence resulting in loss, injury or death, except that a minor under the full age of eight (8) years shall have until his ninth birthday in which to file. This subsection applies to all persons regardless of minority or other legal disability. (Emphasis added.)
The Tort Claims Act did not expressly repeal § 23-1-23.
What action the legislature will take in 1978 is unknown.
For a history of the doctrine of sovereign and governmental immunity, see Kovnat, Torts: Sovereign and Governmental Immunity in New Mexico, 6 N.M.L.Rev. 249 (1976).
From a review of the history of limitation statutes, we note that victims of tortious conduct of municipalities have one year in which to commence an action for personal injury; that from 1959 to 1975, victims of tortious conduct of the State, the county, and public agencies carrying liability insurance, and any person, firm or corporation, had three years in which to commence such action; that from 1975 to 1976, victims of tortious conduct of all public and private entities, except cities, had three years in which to commence an action for personal or bodily injury ; that from 1976 to 1978, victims of tortious conduct of all public entities have two years in which to commence an action, and yet, § 23-1-23 remains undisturbed on our statute books.
From 1959 to 1975, we can say that the legislature was moving toward the establishment of a uniform limitation period of three years on governmental and private tort liability except for "any city, town or village". It has not by implication repealed § 23-1-23 because this statute also applies to municipal liability in other fields of law and equity separate and apart from tort liability. However, the legislature has so emasculated this statute that its effectiveness has become a ...
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