Bell v. New Mexico Interstate Stream Com'n, 16321

• Decision Date: 20 October 1995
• Docket Number: No. 16321,16321
• Citation: 121 N.M. 328,911 P.2d 222,1996 NMCA 10
• Parties: Bobby BELL, Kathleen Bell, and Sunwest Bank of Albuquerque, N.A., as Conservator of the Estate of Joseph Bell, a minor, Plaintiffs-Appellees, v. NEW MEXICO INTERSTATE STREAM COMMISSION; New Mexico Energy, Minerals and Natural Resources Department; New Mexico Parks and Recreation Division; New Mexico State Highway and Transportation Department; State Highway Commission; and the State Engineer, Defendants-Appellants, and KNC Incorporated, and Kent Nowlin Construction, Inc., Defendants.
• Court: Court of Appeals of New Mexico

Page 222

911 P.2d 222

121 N.M. 328

Bobby BELL, Kathleen Bell, and Sunwest Bank of Albuquerque, N.A., as Conservator of the Estate of Joseph Bell, a minor, Plaintiffs-Appellees, v. NEW MEXICO INTERSTATE STREAM COMMISSION; New Mexico Energy,

Minerals and Natural Resources Department; New Mexico Parks

and Recreation Division; New Mexico State Highway and

Transportation Department; State Highway Commission; and

the State Engineer, Defendants-Appellants,

and

KNC Incorporated, and Kent Nowlin Construction, Inc., Defendants.

No. 16321.

Court of Appeals of New Mexico.

Oct. 20, 1995.

Appeal from the District Court of Bernalillo County; Gerald R. Cole, District Judge.

James T. Roach, Janet K. Santillanes, Albuquerque, Nancy L. Garner, Nancy Garner & Associates, P.C., Albuquerque, for Plaintiffs-Appellees.

James P. Lyle, Butt, Thornton & Baehr, P.C., Albuquerque, for Defendants-Appellants.

OPINION

PICKARD, Judge.

1. This interlocutory appeal presents two issues for our review: (1) what is the status of the law of governmental immunity for lakes used both for recreation and for diversion and storage of water; and (2) whether this Court's previous reversal of the trial court's grant of summary judgment to Defendants precludes, on the basis of law of the case, the trial court from now granting summary judgment to Defendants after additional facts to support summary judgment have been adduced. We hold that summary judgment may be awarded to Defendants because the applicable law has been clarified and because new facts have been properly adduced.

FACTS AND PRIOR PROCEEDINGS

2. Joseph Bell was seriously injured at Ute Lake State Park when he dove off a raft and hit his head on a submerged object. His parents (Plaintiffs) sued the public and private agencies and entities--including the governmental Defendants--that are responsible for the existence and maintenance of the park. Plaintiffs sued under the Tort Claims Act, NMSA 1978, Sections 41-4-6, -8, and -11 (Repl.Pamp.1989 & Cum.Supp.1995). Defendants claimed immunity under Section 41-4-6 and filed a motion to dismiss Plaintiffs' claims that relied on that section for a waiver of immunity. The trial court considered evidence in addition to the pleadings and granted partial summary judgment to Defendants on Plaintiffs' claims under Section 41-4-6, relating to operation and maintenance of public parks. Summary judgment was reversed on interlocutory appeal. Bell v. New Mexico Interstate Stream Comm'n, 117 N.M. 71, 868 P.2d 1296 (Ct.App.1993), cert. denied, 117 N.M. 121, 869 P.2d 820 (1994). This Court held that Defendants had failed to adduce sufficient evidence that the park was used for the storage and diversion of water when Joseph Bell was injured. The only evidence in the record at the time of the prior appeal was that Ute Lake State Park was used solely for recreational purposes.

3. Soon after Bell was decided, this Court had the opportunity to decide a second case regarding sovereign immunity under Section 41-4-6 in Allocca v. Department of Energy, Minerals & Natural Resources, 118 N.M. 668, 884 P.2d 824 (Ct.App.), cert. denied, 118 N.M. 731, 885 P.2d 1325 (1994). In Allocca, a child was injured while being towed behind a power boat in a rubber tube on Conchas Lake. The trial court granted summary judgment to the defendants in that case because the lake was shown to serve both recreational and water-storage uses. Id. at 671, 884 P.2d at 827. This Court affirmed the trial court's ruling granting summary judgment in that case and distinguished the facts in Allocca from the facts presented in Bell. Allocca, 118 N.M. at 671, 884 P.2d at 827.

4. Defendants in the case at bar then renewed their motion for summary judgment, adding an affidavit from an employee engineer. The affidavit presented additional facts concerning the use of Ute Lake. These facts contradict Plaintiffs' contention (which was based primarily on a lease of the park area) that Ute Lake was used solely for recreational purposes at the time of the accident. The affidavit indicates that there are agreements with parties other than the New Mexico Department of Parks and Recreation (n/k/a the Energy, Minerals and Natural Resources Department (EMNRD)) for use of the water in Ute Lake. The agreements confirm Defendants' position that Ute Lake serves multiple purposes, including use as a recreational facility under the terms of the lease with EMNRD and as a water storage and diversion facility for the communities of Tucumcari, Clovis, and Logan, the State of Texas, and other entities, subject to the beneficial needs of Defendants. Plaintiffs do not dispute that these agreements exist.

IMMUNITY

5. The Tort Claims Act shields government entities and employees from liability for torts committed in the performance of their duties unless immunity has been specifically waived by a section in the Act. Noriega v. Stahmann Farms, Inc., 113 N.M. 441 443, 827 P.2d 156, 158 (Ct.App.),cert. denied, 113 N.M. 449, 827 P.2d 837 (1992). The section of the Act at issue in the instant case reads:

The immunity granted pursuant to Subsection A of [NMSA 1978, Section 41-4-4] 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 or maintenance of any building, public park, machinery, equipment or furnishings. Nothing in this section shall be construed as granting waiver of immunity for any damages arising out of the operation or maintenance of works used for diversion or storage of water.

Section 41-4-6. The new evidence provided by Defendants in their renewed motion for summary judgment invokes the second sentence of the statute and provides that immunity was not waived in this case. See Allocca, 118 N.M. at 671, 884 P.2d at 827.

6. The first sentence of Section 41-4-6 cannot be read apart from the second sentence. See Tompkins v. Carlsbad Irrigation Dist., 96 N.M. 368, 371, 630 P.2d 767, 770 (Ct.App.1981) (immunity is waived in the first sentence, but the second sentence may limit the waiver of immunity). Our task is to reconcile the two sentences in light of the facts adduced at the trial court level and previous case law. The first sentence of Section 41-4-6 waives Defendants' immunity from liability, since Defendants leased the lake and some land around it to EMNRD for "recreational uses only." The second sentence qualifies the first and preserves immunity if Defendants show that Ute Lake presently operates for diversion or storage of water in addition to its function as a public park. Bell, 117 N.M. at 73-74, 868 P.2d at 1298-99. The affidavit submitted by Defendant with the renewed motion for summary judgment establishes that Ute Lake is used both for diversion and storage of water and as a recreational facility.

7. When considering Defendants' first motion for summary judgment in Bell, this Court was limited to the facts presented in the record at that time and by the interpretations of Section 41-4-6 from prior decisions. See Espander v. City of Albuquerque, 115 N.M. 241, 243, 849 P.2d 384, 386 (Ct.App.1993) (natural interpretation of second sentence of Section 41-4-6 is that it preserves immunity with respect to damages arising out of operation and maintenance of works used for diversion and storage of water in public parks); Noriega, 113 N.M. at 443, 827 P.2d at 158 (immunity preserved where child fell into irrigation ditch); Tompkins, 96 N.M. at 371, 630 P.2d at 770 (Section 41-4-6 provides no waiver of immunity for death from drowning in a culvert carrying irrigation ditch water under a highway). There was insufficient evidence at that time to support the disposition of the case by summary judgment. Bell, 117 N.M. at 74, 868 P.2d at 1299. Summary judgment is only appropriate where there are no material facts in dispute, and the moving party is entitled to judgment as a matter of law. Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992).

8. This Court in Bell interpreted Section 41-4-6 to give effect to the intent of the legislature. Bell, 117 N.M. at 73, 868 P.2d at 1298. The language of the statute indicated that present use was the determining factor for application of the second sentence. Id. The evidence then provided in the trial court indicated that the use of the lake at the time of the accident was exclusively recreational. Id.; see also Allocca, 118 N.M. at 671, 884 P.2d at 827 ("plaintiffs in Bell ... presented evidence ... establishing that Ute Lake was used ' "for recreational purposes and for no other purpose" ' "). Because Joseph Bell was injured in a lake which was exclusively used as a park, and because Defendant failed to cite to any facts which would support an interpretation that, at the time of the accident, the park was being used for either diversion or storage of water, summary judgment that Defendant was immune from liability was, at that time, inappropriate.

9. This Court remanded the case for further proceedings. Bell, 117 N.M. at 74, 868 P.2d at 1299. A verdict was not directed for Plaintiffs. See id. Further proceedings in the trial court--a renewal of Defendants' motion for summary judgment--established that among the current uses of Ute Lake were water diversion and storage purposes for the present benefit of certain communities and entities. This evidence contradicts Plaintiffs' contention that Ute Lake was used exclusively for recreational purposes at the time of the accident. The new evidence establishes that the case at bar is very similar to Allocca and is subject to the same analysis.

10. This Court in Allocca distinguished Bell on the facts, not on the law or on the concept of "lake" as opposed to "park." Allocca, 118 N.M. at 671, 884 P.2d at 827. In Allocca, the defendants had presented sufficient evidence in their motion for summary judgment to establish that Conchas Lake served multiple...