Johnson v. School Bd. of Albuquerque Public School System

• Decision Date: 25 November 1992
• Docket Number: No. 13036,13036
• Citation: 1992 NMCA 125,114 N.M. 750,845 P.2d 844
• Parties: , 80 Ed. Law Rep. 1053 Pat JOHNSON, as next friend and parent of Dawn Johnson, Plaintiff-Appellant, v. SCHOOL BOARD OF ALBUQUERQUE PUBLIC SCHOOL SYSTEM, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 844

845 P.2d 844

114 N.M. 750, 80 Ed. Law Rep. 1053

Pat JOHNSON, as next friend and parent of Dawn Johnson Plaintiff-Appellant, v. SCHOOL BOARD OF ALBUQUERQUE PUBLIC SCHOOL SYSTEM Defendant-Appellee.

No. 13036.

Court of Appeals of New Mexico.

Nov. 25, 1992.

Certiorari Denied Jan. 6, 1993.

[114 N.M. 751] William S. Ferguson, Ferguson & Lind, P.C., Albuquerque, for plaintiff-appellant.

Eleanor K. Bratton, George R. McFall, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, for defendant-appellee.

OPINION

BIVINS, Judge.

Plaintiff appeals a summary judgment in favor of Defendant School Board of Albuquerque Public School System (APS).¹ The complaint seeks damages for injuries suffered by Plaintiff's daughter, Dawn Johnson, who allegedly was struck by a vehicle as she was leaving Manzano High School in Albuquerque. The parties focus their arguments on appeal on the following issue: whether the immunity granted under the Tort Claims Act, NMSA 1978, Sections 41-4-1 through -29 (Repl.Pamp.1989), has been waived under Section 41-4-11 of that Act pertaining to maintenance of streets. However, the dispositive issue in deciding the waiver question is whether APS had a responsibility at all to maintain a crosswalk and accompanying signs and signals in front of the school. Duty or responsibility is not provided in the Tort Claim Act; it must be found outside the Act either at common law or by statute. We hold APS has no such responsibility and affirm.

As presented, we understand that the facts giving rise to the accident are either not in dispute or, if they are disputed in some particulars, these factual disputes are not material to resolving the legal question raised. See Tapia v. Springer Transfer Co., 106 N.M. 461, 463, 744 P.2d 1264, 1266 (Ct.App.) (summary judgment proper even though disputed facts remain, if those facts not material), cert. quashed, 106 N.M. 405, 744 P.2d 180 (1987); Sanders v. Smith, 83 N.M. 706, 709, 496 P.2d 1102, 1105 (Ct.App.) (where facts not in dispute, but only their legal effect, summary judgment may be properly granted (quoting Pederson v. Lothman, 63 N.M. 364, 367, 320 P.2d 378, 379 (1958))), cert. denied, 83 N.M. 698, 496 P.2d 1094, and, 83 N.M. 698, 496 P.2d 1094 (1972). With that in mind, we set forth our understanding of the facts as presented in the briefs.

Dawn and some twenty other students were kept after school for detention. School lets out at Manzano at 2:30 p.m. The City of Albuquerque (the City) had installed school zone signals on Lomas Boulevard at the east and west end of the campus. These signals consist of signs and flashing lights, and the lights are set to flash between 2:30 and 2:50 p.m. on school days. The signals warn traffic to slow to 15 m.p.h. within the school zone. APS claims, and Plaintiff does not contest, that the City installed, operates, and maintains these flashing signals as well as other signs at a crosswalk which, we understand, transverses Lomas Boulevard within the school zone. Lomas runs east and west in front of Manzano High School.

Dawn was dismissed at 3:30 p.m., but remained with a friend until 3:55 p.m. According to APS's brief, Dawn "skipped or hopped or spun backwards off the sidewalk and into the street on Lomas" and was struck by a vehicle. Plaintiff does not disagree. This occurred at or near the crosswalk. The signals at both ends of the school zone had stopped flashing before the accident occurred.

Plaintiff contends APS was negligent in two particulars: (1) not scheduling the flashing signals to operate for as long as students remained under the school's control; and (2) not maintaining, or warning of the absence of, the "school crossing" signs at the crosswalk over Lomas Boulevard.

Section 41-4-2 of the Tort Claims Act provides in part: "[I]t is declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act * * * " Further, Section 41-4-4(A) provides that a "governmental entity and any public employee while acting within the scope of duty [shall be] granted immunity from liability for any tort except as waived by [the Act]." See also Pemberton v. Cordova, 105 N.M. 476, 477, 734 P.2d 254, 255 (Ct.App.1987). It is undisputed that APS comes within the definition of "governmental entity." See Secs. 41-4-3(B) and (C). Thus, in order to assert a claim in tort against APS, Plaintiff's cause of action must fit within one of the enumerated exceptions to the immunity granted by the Act. See Secs. 41-4-4 to -12.

Plaintiff asserts that APS's immunity is waived in this case under Section 41-4-11(A), which provides:

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 maintenance of or for the existence of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.² (Emphasis added.)

Plaintiff claims that APS falls within the street maintenance language of Section 41-4-11(A). To advance this claim, Plaintiff asserts that APS had a responsibility to maintain the crosswalk, signals, and signs on the street abutting the school. Plaintiff relies on NMSA 1978, Section 66-7-336 (Repl.Pamp.1987), which provides:

A. Crosswalks may be established over highways abutting a school or the grounds adjacent thereto, and all children crossing the highways shall be required to do so within the marked crosswalks. The state highway commission, with respect to state highways, and local authorities, with respect to streets under their jurisdiction, with advice of the local superintendent of schools, shall establish and mark, or cause to be marked, these highway crossings.

B. Crosswalks over highways not abutting on school grounds may be established by the state highway commission, with respect to state highways, and by local authorities, with respect to streets under their jurisdiction, with advice of the local superintendent of schools and after adequate assurance has been given that proper safety precautions, pursuant to regulations of the state highway commission and of the local authorities. Responsibility for maintaining the crossing will be with the appropriate county or municipality wherein the school is located.

C. At all school crossings except as provided in this section appropriate signs shall be provided as prescribed by the state highway commission or local authorities within their respective jurisdictions, indicating the crossings and regulating traffic movement within the school zones.

D. School crossings are not required to be specially posted when they are located:

(1) at a signalized intersection;

(2) at an intersection where traffic is controlled by a stop sign; or

(3) at a point where a pedestrian tunnel or overhead crossing is provided. (Emphasis added.)

Since the accident occurred at or near a crosswalk over a street abutting a school, we focus on Subsection A. The critical language under that subsection is "with advice of the local superintendent of schools." Does that language impose a responsibility on APS to maintain the crosswalk over the abutting street, including maintaining flashing signals and signs? We hold it does not.

In applying waivers of immunity under the Tort Claims Act, we first seek the legislative intent behind enactment of the waiver in the meaning of the words used. McCurry v. City of Farmington, 97 N.M. 728, 731, 643 P.2d 292, 295 (Ct.App.1982) (citing Arnold v. State, 94 N.M. 381, 383-84, 610 P.2d 1210, 1212-13 (1980)); see also Security Escrow Corp. v. State Taxation & Revenue Dep't, 107 N.M. 540, 543, 760 P.2d 1306, 1309 (Ct.App.1988) (discussion of rules of statutory interpretation). When the words used are "free from ambiguity and doubt and express plainly, clearly, and distinctly the sense of the legislature, no other means of interpretation should be resorted to." McCurry, 97 N.M. at 731, 643 P.2d at 295.

Applying these principles of statutory interpretation, we find that summary judgment was properly granted. The language of Section 66-7-336(A) plainly places the responsibility for establishing school crossings on the state highway commission, with respect to state highways, and on local authorities, with respect to streets under their jurisdiction. Under Section 66-7-336(A), the only involvement of the local superintendents of schools is to provide advice to those authorities who have the responsibility for establishing and marking school crossings.

Since the legislature has not defined the key words in Section 66-7-336(A), we give those words their ordinary meaning. See Security Escrow, 107 N.M. at 543, 760 P.2d at 1309. In the context of the Section, "establish" means "to place, install, or set up in a permanent or relatively enduring position." Webster's Third New International Dictionary 778 (1971). The term "advice" means "opinion * * * [a] recommendation regarding a decision or course of conduct." Id. at 32. Thus, applying the plain meaning standard and giving these words their ordinary meaning, we believe the statute requires that the state highway commission or local authority install the crossings after eliciting recommendations from the local superintendent of schools. This reading is logical because one could assume that the school superintendent would be able to recommend the most appropriate placement and design of the crosswalks.

Giving advice on establishment of crosswalks does not impose responsibility for maintenance of crosswalks on APS. In McLaughlin v. City of Roswell, 161 Ga.App. 759, 289 S.E.2d 18 (1982), a student was injured when struck by an automobile as she was attempting to cross a street to attend school. Suit was brought against the City of Roswell for failure to provide a crossing guard so children...