Martin v. Board of Ed. of City of Albuquerque

Decision Date08 November 1968
Docket NumberNo. 8455,8455
Citation447 P.2d 516,79 N.M. 636,1968 NMSC 178
PartiesRoy MARTIN and Frances Martin, his wife, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF the CITY OF ALBUQUERQUE, New Mexico and Gordon Herkenhoff and Associates, Inc., Defendants-Appellees.
CourtNew Mexico Supreme Court
Ben T. Traub, Hanna & Mercer, Albuquerque, for plaintiffs-appellants
OPINION

NOBLE, Justice.

Roy Martin and his wife, Frances, sued the Board of Education of the City of Albuquerque (hereafter termed Board of Education), the City of Albuquerque (hereafter termed City), and Gordn Herkenhoff & Associates, Inc. (hereafter termed Herkenhoff), seeking to recover because of damage to plaintiffs' home by flood following a heavy rain. Summary judgments were rendered in favor of the Board of Education and Herkenhoff. Pursuant to Rule 54(b) (§ 21--1--1(54) (b), N.M.S.A.1953), these summary judgments were specifically made final to permit appeal. The action against the City is still pending. Plaintiffs have appealed from the summary judgments.

Plaintiffs' complaint alleged that the Board of Education negligently moved dirt on adjacent school property up to and against a concrete block wall located on the boundary between plaintiffs' home and the school property, and graded the school lot so as to cause water to drain directly onto plaintiffs' property. They alleged that during a heavy rain, on August 10, 1963, water flowed across the school property breaking the wall and damaging plaintiffs' home.

The affidavits, pleadings and depositions disclose that a large rainfall occurred in Albuquerque on August 10, 1963; that a culvert near the school property was unable to carry the water away; that it flooded over the adjacent school property, breaking the concrete block wall between the school land and the Martin lot, and damaging the Martin home. Affidavits were attached to the motion for summary judgment by the Board of Education showing that the school did level its adjacent land but that no dirt was moved closer than ten feet to the dividing wall. These facts are not controverted by counter-affidavits or depositions. While it is agreed that water caused by the heavy rain, which was not carried away by the strom sewer, flooded across the school property, broke the concrete block wall and damaged the Martin house, we find no disputed issues of fact in the record which, when viewed most favorably to the plaintiffs, show that any conduct by the Board of Education caused the damage complained of by the plaintiffs. In fact, the affidavit of plaintiffs' daughter stated that after the Board graded its property, water from the Board property flowed down an artificial trough and was carried away by an arroyo. There is nothing more in the record which shows that the Board of Education did anything else which caused the damage to the plaintiffs. We find no error in the summary judgment dismissing the action against the Board of Education.

The action against Herkenhoff is based upon the contention that he failed in his duty as an engineer for the City to properly design and furnish specifications for an adequate storm sewer. Specifically, the Martins claim that the design for a culvert installed in the Hahn Arroyo was inadequate to carry the water from an August 10, 1963, rainfall, and that a resulting flood damaged their home.

The moving party is entitled to summary judgment when the pleadings, depositions and admissions, together with the affidavits show there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Wieneke v. Chalmers, 73 N.M. 8, 385 P.2d 65; Hubbard v. Mathis, 72 N.M. 270, 383 P.2d 240; Pederson v. Lothman, 63 N.M. 364, 320 P.2d 378, Rule 56(c) of the Rules of Civil Procedure (§ 21--1--1(56)(c), N.M.S.A. 1953).

It is well established that 'foreseeability' of injury or harm is an element or test of 'negligence.' See New Mexico U.J.I. 12.1. For negligence to be the proximate cause of the injuries here, it must be established that the defendant should have foreseen that the culvert would not carry the rain water which might be reasonably expected.

Our review of the record discloses affidavits and depositions showing that the culvert complained of was designed to carry almost 100 cubic feet per second more water than the peak runoff from any rain falling in Albuquerque during the preceding 73 years. There affidavits and depositions likewise show that the August 10, 1963 rainfall exceeded the greatest runoff during the preceding 73 years by more than 100 cubic feet per second. On motion for summary judgment, facts shown by affidavits or depositions not controverted are to be taken as true. Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531. Based upon these affidavits and depositions, it thus cannot be said that Herkenhoff should have foreseen that a larger culvert would be required, or that good engineering practice dictated a different design.

Rule 56(e) (§ 21--1--1(56)(e), N.M.S.A.1953) requires both supporting and opposing affidavits to set forth facts which would be...

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23 cases
  • Tapia v. McKenzie
    • United States
    • Court of Appeals of New Mexico
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    ......117] Eugene E. Klecan, James T. Roach, Albuquerque, for plaintiff-appellant. .         Charles A. Pharris, Keleher & ... Compare Martin v. Board of Education of City of Aubuquerque, 79 N.M. 636, 447 P.2d 516 ......
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