Hauff v. City of Albuquerque

• Decision Date: 14 February 2019
• Docket Number: No. A-1-CA-36202,A-1-CA-36202
• Parties: ANDREA HAUFF, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, and THE ANIMAL HUMANE ASSOCIATION d/b/a ALBUQUERQUE ANIMAL CONTROL CENTER, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

ANDREA HAUFF, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE,and THE ANIMAL HUMANE ASSOCIATION d/b/aALBUQUERQUE ANIMAL CONTROL CENTER, Defendants-Appellees.

No. A-1-CA-36202

COURT OF APPEALS OF THE STATE OF NEW MEXICO

February 14, 2019

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Denise Barela Shepherd, District Judge

Houston Ross

Albuquerque, NM

for Appellant

City of Albuquerque Office of the City Attorney

Jessica L. Nixon, Assistant City Attorney

Albuquerque, NM

for Appellees

MEMORANDUM OPINION

VANZI, Judge.

{1} Plaintiff Andrea Hauff sued the City of Albuquerque, doing business as the Animal Welfare Department (the Department) (collectively, Defendants), alleging that Defendants' staff failed to inform her of the behavioral history of a cat Plaintiff adopted from the Department, which later bit Plaintiff, causing injuries requiring hospitalization. The district court granted Defendants' motion to dismiss the complaint on the ground that Plaintiff failed to state a claim for which immunity had been waived under the New Mexico Tort Claims Act, NMSA 1978, Sections 41-4-1 through -27 (1976, as amended through 2015) (the NMTCA). We affirm.

BACKGROUND

{2} In her complaint, Plaintiff made the following allegations.

6. In February 2014 [P]laintiff adopted a cat from [the Department]. It is believed that cat was ID 1588268 and named Caspia.

7. Plaintiff was looking to adopt a cat as a household pet for herself and [her] young child.

8. When she adopted Caspia . . . [P]laintiff [was] not advised that the cat had any behavioral problems that would require special care or handling. In fact, on the day after she adopted Caspia, [P]laintiff received a call from the director of [the Department] assuring her that Caspia was [a] good and gentle pet.

9. However, on or about 2/20/14 as [P]laintiff tried to retrieve Caspia from behind a couch at home, Caspia bit [P]laintiff on the hands. The cat locked her jaws around one hand [and] would not let go.

10. As a result of the bites[, P]laintiff spent several days in the hospital, had surgery, incurred about $18,000 in medical bills and may have permanent injuries to her hands.

11. Upon returning Caspia to [the Department], Allison Briggs[,] the intake person she returned the cat to[,] asked "didn't anybody tell you that this cat was in a behavioral class for very scared cats?"

Plaintiff asserted that Defendants had a duty to disclose Caspia's "known behavioral problems that . . . may have increased the likelihood that she would act dangerously and unpredictably[,]" and further alleged that

19. Defendants knew that Caspia had been in very scared cat behavioral classes but failed to disclose that information to the plaintiff at the time of adoption.

20. Defendants not only failed to disclose that Caspia had behavioral problems at the time of adoption but called [P]laintiff the day after praising Caspia as a good and gentle pet.

21. As a result of [D]efendants' breach of duty[, P]laintiff suffered damages in the form of medical bills, pain and suffering, emotional distress, permanent injury and other damages as shall be shown at trial.

22. The actions of [the Department] as set out in this complaint were wanton, reckless or intentional and entitle plaintiff to an award of punitive damages.

Plaintiff sought damages for Defendants' alleged negligence, as well as a declaratory judgment that the release she signed as part of the adoption was unenforceable. Defendants answered the complaint and served discovery requests on Plaintiff, to which Plaintiff responded. When Plaintiff failed to prosecute the matter, including failing to conduct her own discovery, the district court dismissedthe complaint on its own motion. See Rule 1-041(E)(2) NMRA ("Unless a pretrial scheduling order has been entered pursuant to Rule 1-016 NMRA, the court on its own motion . . . may dismiss without prejudice the action . . . if the party filing the action or asserting the claim has failed to take any significant action . . . within the previous one hundred and eighty (180) days."). Thereafter, the parties litigated Plaintiff's motion to reinstate, which the district court eventually granted. Plaintiff filed a motion for a scheduling conference and issued interrogatories and a request for production to Defendants, to which they responded. A subsequent scheduling order set out deadlines for discovery and other matters. Rule 1-016(B) (addressing scheduling orders).

{3} Defendants then filed a motion for judgment on the pleadings, arguing that, even if Plaintiff's allegations are true, she failed to state a claim for which immunity had been waived under the NMTCA. See Rule 1-012(C) NMRA (providing that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings"). Plaintiff responded to Defendants' arguments, but did not request leave to amend the complaint. After a hearing, the district court granted Defendants' motion in a written order. Plaintiff appeals.

DISCUSSION

{4} "We review judgments on the pleadings made pursuant to Rule 1-012(C) . . . according to the same standard as motions for failure to state a claim under Rule 1-012(B)(6)[.]" Vill. of Angel Fire v. Bd. of Cty. Comm'rs, 2010-NMCA-038, ¶ 5, 148 N.M. 804, 242 P.3d 371. "A motion to dismiss for failure to state a claim . . . tests the legal sufficiency of the complaint[.]" Derringer v. State, 2003-NMCA-073, ¶ 5, 133 N.M. 721, 68 P.3d 961. "In reviewing a district court's decision to dismiss for failure to state a claim, we accept all well-pleaded factual allegations in the complaint as true and resolve all doubts in favor of sufficiency of the complaint." Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917 (internal quotation marks and citation omitted). "Dismissal . . . is appropriate only if the plaintiff is not entitled to recover under any theory of the facts alleged in [her] complaint." Id. ¶ 12 (first alteration, internal quotation marks, and citation omitted). We review the district court's Rule 1-012(C) ruling de novo. See id. ¶ 9.

{5} Under the NMTCA, "[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[.]" Section 41-4-4(A). The waiver provision relied upon by Plaintiff herein, known as the "building waiver," waives immunity for "liability for damages resulting from bodily injury, wrongful death[,] or property damage caused by the negligence of publicemployees while acting within the scope of their duties in the operation or maintenance of any building[.]" Section 41-4-6(A). To fall within the ambit of Section 41-4-6(A), a claimant may allege either (1) the existence of some physical defect on the premises; or (2) the operation or maintenance of "a facility in such a way as to create an unsafe or dangerous condition on the property or in the immediate vicinity." Leithead v. City of Santa Fe, 1997-NMCA-041, ¶ 5, 123 N.M. 353, 940 P.2d 459. Plaintiff argues that her claim falls within the latter type of waiver. We disagree for two reasons.

{6} First, Plaintiff's complaint does not allege any facts suggesting that Defendants' negligence created "a general condition of unreasonable risk" for which the NMTCA waives immunity. Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 20, 140 N.M. 205, 141 P.3d 1259 (internal quotation marks and citation omitted); see Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶ 13, 310 P.3d 611 ("There can be no waiver under Section 41-4-6(A) without a dangerous condition on the premises, and a single act of student-on-student violence does not render the premises unsafe."). We explain.

{7} In Archibeque v. Moya, our Supreme Court held that "Section 41-4-6 does not waive immunity when public employees negligently perform . . . administrative functions[,]" such as assignment of an inmate to the general population within the prison. 1993-NMSC-079, ¶ 8, 116 N.M. 616, 866 P.2d 344;see Upton, 2006-NMSC-040, ¶ 17 (stating that "the [NM]TCA does not waive immunity for a single, discrete administrative decision affecting only a single person, as opposed to a dangerous condition affecting the general public"). In Archibeque, the plaintiff told a prison intake officer that one of his enemies was housed in the prison. 1993-NMSC-079, ¶ 2. Without first checking an available printout of current inmates, the prison intake officer told the plaintiff that his enemy was no longer imprisoned at the penitentiary. Id. The officer then permitted the plaintiff to be released into the general prison population. Id. "That night, [the plaintiff] was assaulted by [his enemy] and several other inmates in the prison weight room." Id. The Court held that, while the prison intake officer's misclassification of the plaintiff put him at risk, the building waiver did not apply because "the negligence did not create an unsafe condition on the prison premises as to the general prison population." Id. ¶ 11. Moreover, the Court said, the prison intake officer was not "operating and maintaining the prison's physical premises when she negligently classified [the plaintiff] as an inmate that could be released into the general prison population." Id. ¶ 8. Instead, the officer was "performing an administrative function associated with the operation of the corrections system. Section 41-4-6 does not waive immunity when public employees negligently perform such administrative functions." Id. This Court subsequently distinguished Archibeque in Callaway v. New...