Espander v. City of Albuquerque

• Citation: 849 P.2d 384,115 N.M. 241,1993 NMCA 31
• Decision Date: 04 March 1993
• Docket Number: No. 13007,13007
• Parties: William R. and Marcia K. ESPANDER, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 384

849 P.2d 384

115 N.M. 241

William R. and Marcia K. ESPANDER, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Defendant-Appellee.

No. 13007.

Court of Appeals of New Mexico.

March 4, 1993.

[115 N.M. 242] William G. Gilstrap, William G. Gilstrap P.C., Albuquerque, for plaintiffs-appellants.

David S. Campbell, City Atty., Alfred Quintana, Asst. City Atty., Albuquerque, for defendant-appellee.

OPINION

HARTZ, Judge.

I. BACKGROUND

Plaintiffs, William R. and Marcia K. Espander (the Espanders), appeal from a summary judgment granted by the district court in favor of Defendant, City of Albuquerque (City). The Espanders filed a complaint alleging property damage and personal injury caused by flooding onto their property and into their residence by water that came from a City arroyo. The City moved for summary judgment on the ground that it was immune from liability under the New Mexico Tort Claims Act, NMSA 1978, Secs. 41-4-1 to -29 (Repl.Pamp.1989). The City predicated its motion on the complaint and an affidavit by Dan Hogan, a City supervisor who managed the hydrology division of the Albuquerque Public Works Department. His affidavit stated that "[t]he storm drainage system ... behind [the Espanders'] residence ... was a diversion channel for storm drainage [that had never] been designed or used for liquid waste and/or solid waste diversion or distribution [and was] not part of any water utility or solid or liquid waste connections or disposal system." Being bound by the authority of City of Albuquerque v. Redding, 93 N.M. 757, 605 P.2d 1156 (1980), we reverse.

II. DISCUSSION

The Tort Claims Act provides that "[a] governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by Sections 41-4-5 through 41-4-12 NMSA 1978." Section 41-4-4(A). The Espanders claim that immunity is waived in the circumstances of this case by Section 41-4-8, which states:

A. The immunity granted pursuant to Subsection A of Section 4 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: gas; electricity; water; solid or liquid waste collection or disposal; heating; and ground transportation.

B. The liability imposed pursuant to Subsection A of this section shall not include liability for damages resulting from bodily injury, wrongful death or property damage:

(1) caused by a failure to provide an adequate supply of gas, water, electricity or services as described in Subsection A of this section; or

(2) arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water.

The City denies that immunity has been waived pursuant to Section 41-4-8(A) and argues that even if that subsection does waive immunity, immunity is reinstated by Subsection B and also by the second sentence of Section 41-4-6. Section 41-4-6 states in full:

The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 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.

We first discuss Section 41-4-6, then Section 41-4-8(B), and finally Section 41-4-8(A).

A. Applicability of Section 41-4-6.

Section 41-4-6 does not apply to this case. Section 41-4-6 waives immunity for causes of action relating to the operation or maintenance of "any building, public park, machinery, equipment or furnishings." The natural interpretation of the second sentence of that section is simply that it preserves immunity with respect to damages arising out of the operation and maintenance of works used for diversion or storage of water in public parks and on the grounds of public buildings. See Castillo v. Santa Fe County, 107 N.M. 204, 206, 755 P.2d 48, 50 (1988) (Section 41-4-6 applies to property surrounding a public building). For example, there would be immunity for liability arising from ponds and ditches in public parks. The immunity preserved by that sentence does not, however, extend to liability arising from the maintenance of diversion channels on public property in general. Although some language in decisions interpreting Section 41-4-6 may suggest that the section extends to all publicly owned premises, see Bober v. New Mexico State Fair, 111 N.M. 644, 652-53, 808 P.2d 614, 622-23 (1991) (State Fair liable for negligence in operation of coliseum's parking lot), no holding has gone so far. Because the City has not contended that the diversion channel by the Espanders' residence was on park land or on the grounds of a public building, we cannot say that the second sentence of Section 41-4-6 was intended to preserve immunity from liability in the circumstances of this case.

B. Applicability of Paragraph (B)(2) of Section 41-4-8.

The City contends that it was entitled to judgment because Paragraph (B)(2) of Section 41-4-8 preserves immunity for liability for damages:

arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water.

We may assume that the language "discharge, dispersal, release or escape ... into or upon land" is sufficiently broad to encompass flooding. The question is whether the substances listed in the paragraph include runoff water. We think not.

First, one could argue that runoff water is included in the word "liquids." Yet, the most reasonable construction of the paragraph is that "liquids" is modified by the word "toxic." In other words, the language "toxic chemicals, liquids or gases" is equivalent to "toxic chemicals, toxic liquids or toxic gases." Although one would expect the word "solids" rather than "chemicals" to be juxtaposed with "liquids" and "gases," it makes no sense to have inserted "or" rather than a comma between "liquids" and "gases" if all liquids and gases were to be included.

Second, one could argue that runoff water is "waste material." We have no doubt that the word "material" can include liquids. The question is whether runoff water is a "waste" material. "Waste" can mean "left over or superfluous." See The Random House Dictionary of the English Language 1611 (1971) (definitions 20 and 30 of "waste"). But in Paragraph (B)(2) the legislature used the word in a narrower sense. The statute speaks of "waste materials or other irritants, contaminants or pollutants." The language "or other" strongly implies that the only superfluous or unused material within the meaning of "waste" material is material that is an irritant, contaminant, or pollutant. Runoff water does not satisfy that requirement, at least if the words "irritant," "contaminant," and "pollutant" bear their common meanings. Our interpretation is buttressed by the observation that the language in Paragraph (B)(2) tracks the language of a "pollution exclusion" clause widely used in insurance contracts. See New Castle County v. Hartford Accident & Indem. Co., 970 F.2d 1267, 1271 (3d Cir.1992); Aetna Casualty & Sur. Co. v. General Dynamics Corp., 968 F.2d 707, 709 (8th Cir.1992). (The precise question presented here--whether runoff water is "waste material" within the meaning of the exclusion--is, however, unlikely to arise in the insurance context because the exclusion also contains the additional language: "but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.") We conclude that Paragraph (B)(2) of Section 41-4-8 does not help the City here.

C. The Meaning of Section 41-4-8(A) and Redding.

We now arrive at the issue that would ordinarily be the starting point of our discussion--whether Section 41-4-8(A) waives immunity for the liability alleged in this case. Our reason for taking the path we have is that our conclusions regarding Sections 41-4-6 and 41-4-8(B) inform our interpretation of Section 41-4-8(A).

The Espanders rely on the waiver of immunity in Section 41-4-8(A) for liability for damages arising from negligence "in the operation of the following public utilities and services: * * * liquid waste collection or disposal." Our prior analysis leads to the following observations.

First, if, as discussed above, the word "waste" as used in Section 41-4-8(B)(2) cannot be used to describe water runoff, then we would presume that the word "waste" as used in Section 41-4-8(A) also cannot be used to describe water runoff. Ordinarily, courts should interpret a word as having the same meaning throughout a statute, and certainly within the same section, particularly when the section was adopted as a whole at one time. See Noriega v. Stahmann Farms, 113 N.M. 441, 443, 827 P.2d 156, 158 (Ct.App.) ("maintenance" must have same meaning in both sentences of Section 41-4-6), cert. denied, 113 N.M. 449, 827 P.2d 837 (1992). This view is reinforced here by the observation that the only statutory definition of "wastes" at the time of the enactment of Section 41-4-8 clearly did not include water runoff. The Water Quality Act defines "wastes" as "sewage, industrial wastes or any other liquid, gaseous or solid substance which will pollute any waters of the state[.]" NMSA...