Cardoza v. Town of Silver City

• Decision Date: 19 March 1981
• Citation: 628 P.2d 1126,96 N.M. 130
• Court: Court of Appeals of New Mexico

96 N.M. 130

628 P.2d 1126

Luis S. CARDOZA, Plaintiff-Appellee, v. The TOWN OF SILVER CITY, Defendant-Appellant.

No. 4697.

Court of Appeals of New Mexico.

March 19, 1981.

Mark C. Meiering, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendant-appellant. Anthony F. Avallone, Las Cruces, for plaintiff-appellee.

OPINION

SUTIN, Judge.

This is a personal injury action brought by plaintiff to recover damages sustained when he drove his vehicle over a manhole cover in a street in Silver City, New Mexico. The jury found for plaintiff and defendant appeals from the judgment rendered. We affirm.

At about 3 a. m. on November 28, 1976, plaintiff was driving down 21st Street in Silver City, New Mexico. The street was snow packed. Suddenly, plaintiff felt a big jolt, as though the car hit a brick wall. He was thrown up to the ceiling of the car. After the car stopped, plaintiff walked back to the scene of the accident and found an open manhole with the cover on one side of it. The police were called. An officer arrived and was taken to the scene. He attempted to put the cover on the manhole but it was too heavy. It weighed 250 pounds.

The cover had been placed on the manhole some 20 to 25 years prior to the date of the accident. After the accident, the cover and the ring were replaced. The Superintendent of the Water and Sewer Department did not know the disposition of the cover. He said, “It might be in a scrap pile somewhere, it might be in Japan.”

Roger Zimmerman, professor of civil engineering at New Mexico State University testified that a gap of 3/4 of an inch existed between the cover and the ring and that a portion of the edge of the cover had worn away. When asked to state what caused the manhole cover to pop out, he answered:

Based on my investigation of the photographs primarily, dealing with this particular thing, my observation is that there was a mismatch in the size of the cover and ring. And that due to this mismatch that there is a tendency for the cover to be able to rotate and pop up, in a sense, a vernacular of pop up.

The photograph on this indicates that there is an unusually large gap between the cover and the rim, and that this, with the other geometry of the rim and the ring, could cause a potential where the cover could rotate.

So I took the measurements on the photograph and I estimated this to be three-quarters of an inch * * * *

(B)ut again this mismatch idea, that possibly this cover and this rim weren't made for each other, because this height seems to be in the order up to three-eights or greater in height * * * *

* * * Now, there's one other thing I wanted to point out before I finish. In Photograph No. 6, the one that shows the big gaps ... there appears to be an unequal, uneven circle around the outer rim of the cover. You'll notice that the concentric rings that are there that are due to the castings are somewhat symmetrical, but you'll notice that the rim is not symmetrical * * * * (All emphases added.)

The manhole cover “popped out” because a “mismatch” existed in the size of the cover and ring, i. e., the cover and the ring may not have been made for each other due to the gap, and the worn out portion triggered the rotation of the cover upward. As the wheel of a car hit the cover, one side of the cover could be pushed down causing the other side to come upwards. When shown a photograph taken shortly after the accident, of the manhole cover in a tilted manner, Professor Zimmerman said: “I'm saying that could certainly happen.” The cover when vertically rotated would stick 12 inches above the surface of the street.

All city sewer mains were maintained periodically. In the course of sewer maintenance, manholes were inspected. However, no written reports of those inspections were kept, and no record maintained of the last time this manhole was inspected. No record of repair was kept for the last 10 years. After the accident, the defendant began to keep a log of inspection of sewer lines.

Defendant raises four points in this appeal. They will be discussed seriatim:

A. Defendant Town failed to install and maintain a properly fitting manhole cover.

Defendant claims there was a complete failure to show that Silver City knew or should have known of the existence of this dangerous condition in time to repair the condition prior to plaintiff's accident; that specifically there was no evidence establishing the duration of the condition. We disagree. Actual or constructive notice is not applicable. The duration is known. The court asked the Superintendent of the Water and Sewer Department to state how long the manhole cover had been installed. He answered:

Well, my knowledge would be, let's say twenty, twenty-five years.

Whether actual or constructive notice is or is not necessary, depends on whether the municipality caused or did not cause the defect.

In Wisener v. State, 123 Ariz. 148, 598 P.2d 511 (1979), omitting citation of authorities, the court said:

* * * For a municipality to be liable for a failure to repair, it must have first received actual or constructive notice of the defect. However, if the city itself caused the defect, or if the repairs or improvements were defective when made, notice of the defects is not a prerequisite to holding the municipality liable. (Emphasis added.) (Id. 148, 598 P.2d 513.)

Actual or constructive notice loses its effectiveness when the city itself, which has full and complete charge of its streets, sidewalks, or systems, including the sewer system, creates or causes a defective or dangerous condition to exist. Its duty is to protect the public, not to cause injury to those who carefully operate motor vehicles on the streets or carefully walk on sidewalks.

The court instructed the jury that:

1. The City failed to install and maintain a properly fitting manhole cover.

Upon objection made, the court stated that proof of knowledge of any hazardous condition was not an issue in the case; that the City had installed it and maintained it, completely under their jurisdiction. We agree.

We begin with the proposition that if there is doubt as to whether a city is liable for its torts, the question will be resolved against the city. Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480 (1943). There is no doubt in the instant case.

The defense is not based upon whether the City “failed to install and maintain a properly fitting manhole cover”; but upon whether it had actual or constructive notice of the defective condition a sufficient length of time prior to the accident to enable it to put the street in a state of repair. It claims that New Mexico Supreme Court decisions follow this rule. It relies on Napoleon v. City of Santa Fe, 38 N.M. 494, 35 P.2d 973 (1934); Bryan v. City of Clovis, 54 N.M. 235, 220 P.2d 703 (1950); Primus v. City of Hot Springs, 57 N.M. 190, 256 P.2d 1065 (1953). We disagree.

Napoleon involved injuries sustained by slipping on snow covered ice in a sidewalk depression where the City had constructive notice of the defect. Plaintiff was allowed to recover. Bryan involved injuries by slipping on a ramp which led from a sidewalk to a street where the City had adequate notice. Plaintiff was allowed to recover. These cases do not support defendant's position. They are not cases where plaintiff was allowed to recover absent any actual or constructive notice. Primus does not support defendant's position. It involved a narrow street bordered by a high bank and arroyo where the driver of an automobile failed to make the turn. This dangerous condition was apparently created by the City. Omitting citation of authorities, the court said:

A municipal corporation is required to exercise ordinary care to maintain its streets in a reasonably safe condition for travel in the usual modes by day and night.

A municipality which has full and complete charge of its streets (and they have such charge in New Mexico except over state highways) is liable in damages for injuries sustained in consequence of its failure to use reasonable care to keep them in a reasonably safe condition for travel. (57 N.M. 194, 256 P.2d 1065.)

Defendant avoids other New Mexico cases which do not support its position. Roswell v. Davenport, 14 N.M. 91, 89 P. 256 (1907) held that where evidence was shown of the generally unsafe condition of a sidewalk, this evidence alone, would charge a municipal corporation with notice “or at least be evidence of, notice of the particular defect causing the injury.” (Id. 96, 89 P. 256.) Johnson v. City of Santa Fe, 35 N.M. 77, 290 P. 793 (1930) holds that when a street's dangerous condition is caused by improvement of an open sewer trench being made by the City, it is unnecessary in an action for personal injury to allege or prove notice of such condition.

Pfleiderer v. City of Albuquerque, 75 N.M. 154, 402 P.2d 44 (1965) was a sewage back-up case. The court said:

The appellant makes the contention that since the cause of the back-up was unknown and that it did not have notice of the cause, the city is not liable in damages. The appeal cannot be disposed of on this hypothesis. While the fact that a sewer does back-up is not of itself proof of negligent operation, nevertheless, a municipality is liable for negligence in the operation and maintenance of its system. (Emphasis added.) (Id. 155-6, 402 P.2d 44.)

The negligence was defendant's failure to exercise reasonable care to keep its sewer line free of obstructions.

The Pfleiderer rule is applicable here. The fact that the manhole cover had not rotated vertically before may not be evidence of negligence, but when defendant was negligent in the operation and maintenance of its system, by providing a defective cover, it was liable.

White v. City of Lovington, 78 N.M. 628, 630, 435 P.2d 1010 (Ct.App.1967) said:

* * * The Pfleiderer opinion neither approves nor disapproves the notice requirement as a correct statement of law. In other jurisdictions there is a difference of opinion as to...