Cobos v. Dona Ana County Housing Authority

• Citation: 908 P.2d 250,121 N.M. 20,1995 NMCA 132
• Decision Date: 20 October 1995
• Docket Number: No. 15782,15782
• Parties: Susana COBOS, Personal Representative of the Estates of Socorro Morales, Luis Daniel Morales, and Crystal Selene Morales, and Individually, Plaintiff-Appellant, v. DONA ANA COUNTY HOUSING AUTHORITY, Board of County Commissioners of Dona Ana County, Lucia Archuleta, Nancy Alvillar, and Apolonio Montejano, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 250

908 P.2d 250

121 N.M. 20

Susana COBOS, Personal Representative of the Estates of

Socorro Morales, Luis Daniel Morales, and Crystal

Selene Morales, and Individually, Plaintiff-Appellant, v. DONA ANA COUNTY HOUSING AUTHORITY, Board of County

Commissioners of Dona Ana County, Lucia Archuleta,

Nancy Alvillar, and Apolonio Montejano,

Defendants-Appellees.

No. 15782.

Court of Appeals of New Mexico.

Oct. 20, 1995.

Certiorari Denied Dec. 11, 1995.

[121 N.M. 21] Lee E. Peters, Hubert & Hernandez, P.A., Las Cruces, for plaintiff-appellant.

Mary T. Torres, Thomas A. Sandenaw, Jr., Law Office of T.A. Sandenaw, Las Cruces, for defendants-appellees.

Paul M. Schneider, Legal Bureau, Risk Management Division, Santa Fe, for amicus curiae New Mexico General Services Department Risk Management Division.

OPINION

BOSSON, Judge.

1. Socorro Morales and her two children were killed by smoke inhalation when an early morning fire engulfed the house they were renting. The house was not equipped with a smoke alarm. Susana Cobos, personal representative for her daughter and grandchildren, brought suit against the Board of County Commissioners of Dona Ana County (the County), the Dona Ana Housing Authority (the Housing Authority), and various upper-level management personnel of the Housing Authority, for wrongful death under theories of negligence, breach of contract, and violation of civil rights. On several motions for summary judgment, the trial court dismissed all Defendants on all counts. We affirm the judgment below.

FACTS

2. The United States Department of Housing and Urban Development contracts with the Housing Authority to create a Section 8 Existing Housing Program. Under a Section 8 program, the federal government subsidizes rent paid by low income families to owners of private housing. See 42 U.S.C. §§ 1437a, 1437c, 1437f (1988) (Public Housing Act). Under federal regulations, the County is required to inspect Section 8 private housing prior to occupancy and once a year thereafter to ensure that the rented houses are "decent, safe, and sanitary." See 42 U.S.C. § 1437; 24 C.F.R. § 882.116(o) (1994).

3. Socorro Morales participated in the Section 8 Program and applied for a subsidy to rent housing from Terry Rodriguez, the owner. The Housing Authority entered into a Housing Assistance Payments Contract (HAP contract) with Rodriguez. The HAP contract required that Rodriguez keep the house "decent, safe and sanitary." Socorro Morales was not a party to the contract.

4. On December 23, 1988, a housing specialist for the Housing Authority inspected and approved the Rodriguez house in accordance with federal guidelines. A week later, Morales and Rodriguez entered into a lease agreement and Morales moved into the house. The Public Housing Act did not specifically require smoke alarms in Section 8 Housing. However, the County passed its own ordinance in March 1989 which adopted the Life Safety Code of the National Fire Protection Association and required smoke alarms in all residential structures in the county, including the Rodriguez house. The Rodriguez house did not have a smoke alarm. On November 2, 1989, the Housing Authority again inspected the house. It was still not equipped with a smoke alarm. The housing inspector was unaware of the new county ordinance, and the house passed inspection.

5. A year later, on November 11, 1990, hot gases escaping from the fireplace set the roof on fire. Everyone in the house was asleep. Without a smoke alarm, Morales and her two children never awoke in time to escape the fire, and all three perished. Two years later, Cobos brought suit for the deaths of her daughter and grandchildren.

DISCUSSION

Negligence Claims Under the Tort Claims Act

6. The New Mexico Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl.Pamp.1989) (the Act), provides immunity to governmental agencies and their employees from tort actions; however, the Act specifically waives immunity for certain acts or omissions. Section 41-4-6 of the Act provides a waiver of liability for negligence arising out of the "operation or maintenance of any building, public park, machinery, equipment or furnishings."¹ Cobos claims that negligent inspection of the rental home led to her family's death. Cobos argues that negligent inspection falls within the meaning of "operation or maintenance" of a building. She points to the lack of any specific language limiting that phrase as well as the perceived remedial purpose of the Act and the broad interpretation of premises liability rendered in recent opinions of our Supreme Court. See Bober v. New Mexico State Fair, 111 N.M. 644, 652, 808 P.2d 614, 622 (1991); Castillo v. County of Santa Fe, 107 N.M. 204, 206, 755 P.2d 48, 50 (1988).

7. We believe Cobos stretches the meaning of Section 41-4-6 too far. This Section has never been extended to injuries arising from the operation or maintenance of private property. The Act has only been applied to property in which the government has an interest. Cobos forthrightfully concedes the point but argues that Section 41-4-6 extends to private property when government owes a specific duty of inspection and the property is used for a public purpose. We do not agree.

8. New Mexico cases specifically decline to expand the definition of "operation or maintenance" to the point of inspection or regulation of private property. In Martinez v. Kaune Corp., 106 N.M. 489, 490, 745 P.2d 714, 715 (Ct.App.), cert. denied,106 N.M. 439, 744 P.2d 912 (1987), we held the state did not waive immunity for negligent inspection of food in a private supermarket. Inspection was too broad and all-encompassing to fit logically within the scope of "operation or maintenance" of a building. The opinion stated:

To do so would open the door to liability for virtually all activities licensed or inspected by state agencies. The licensing scheme is too pervasive to extend such liability to the state. Imposing such liability would circumvent the very grant of immunity provided by the Tort Claims Act, subject to the specific waivers of immunity outlined in Sections 41-4-5 to -12. The "operation or maintenance of any building" waiver of immunity provided by Section 41-4-6 cannot extend to the state's licensing or inspection.

Id. 106 N.M. at 492, 745 P.2d at 717. Although a portion of our holding in Martinez was later rejected in Bober, 111 N.M. at 652 n. 9, 653, 808 P.2d at 622 n. 9, 623 this part of the opinion remains authoritative and has been followed in other circumstances. See Caillouette v. Hercules, Inc., 113 N.M. 492, 499, 827 P.2d 1306, 1313 (Ct.App.) (holding "operation or maintenance" does not extend to state inspection of private motor vehicle), cert. denied, 113 N.M. 352, 826 P.2d 573 (1992); see also Armijo v. Department of Health & Env't, 108 N.M. 616, 618, 775 P.2d 1333, 1335 (Ct.App.1989) (holding inspection and licensing does not constitute "operation" of mental health facility). See generally Garry v. Payne, 224 N.J.Super. 729, 541 A.2d 293 (1988) (holding city immune under the Tort Claims Act for negligence arising from inspection of boarding house).

9. Even where governmental action is not confined to inspection or licensing, recent opinions of our courts focus exclusively on public property when discussing Section 41-4-6. In Bober, the Court described premises liability under Section 41-4-46 as follows: " '[W]here due to the alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government.' " Bober, 111 N.M. at 653, 808 P.2d at 623 (quoting Castillo, 107 N.M. at 205, 755 P.2d at 49). In Caillouette, the victim's family alleged that a state police officer had negligently supervised the clean-up operation of a highway accident by carelessly inspecting a semi-trailer containing explosive powder which later exploded during repair work on the trailer. This Court declined to hold that inspection by the state police constituted "operation" or "maintenance" of a motor vehicle under Section 41-4-5. We observed that "the machinery that caused the injuries resulting in death was privately owned and operated." Caillouette, 113 N.M. at 499, 827 P.2d at 1313. This reasoning in Caillouette corresponds to the identical phrase in Section 41-4-6. Consequently, we hold that the County does not waive tort immunity under Section 41-4-6 for negligent inspection of a private building.

10. Cobos correctly notes that the public entity need not always be a fee owner of a building to incur premises liability. For example, a state agency that leases a private office building and assumes responsibility for its operation or maintenance could arguably be liable under Section 41-4-6 if state employees cause injury to the public. See Bober, 111 N.M. at 648, 808 P.2d at 618; cf. Ford v. Board of County Comm'rs, 118 N.M. 134, 139, 879 P.2d 766, 771 (1994) (holding county liable where it was owner of commercial building and exercised control over premises). However, for premises liability under Section 41-4-6, the governmental entity must be shown to have both a legal interest and control of the property. The element of a legal interest is consistent in case law, and it is missing here. Responsibility for inspection may have given the County some measure of control over the property. But our courts have never equated control alone with the specific duty of "operation or maintenance." We decline to do so here.

11. Cobos also argues that she can sue under the Act for (1) negligence per se based on a breach of the county smoke alarm ordinance; and (2) bystander recovery under a theory of negligent infliction of emotional distress. Under both theories, Cobos notes that the County has a prescribed duty of care, and she seeks to sue under the Act for breach of that duty. We may assume that a duty exists under either theory. See Folz v. State, 110 N.M. 457, 469-71, 797 P.2d 246, 258-60 ...