Martin v. Middle Rio Grande Conservancy

• Decision Date: 11 September 2008
• Docket Number: No. 28,051.,28,051.
• Citation: 145 N.M. 151,2008 NMCA 151,194 P.3d 766
• Parties: Linda MARTIN, Plaintiff-Appellant, v. MIDDLE RIO GRANDE CONSERVANCY DISTRICT, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

194 P.3d 766

2008 NMCA 151

145 N.M. 151

Linda MARTIN, Plaintiff-Appellant, v. MIDDLE RIO GRANDE CONSERVANCY DISTRICT, Defendant-Appellee.

No. 28,051.

Court of Appeals of New Mexico.

September 11, 2008.

Sutin, Thayer & Browne, Ronald Segel, Albuquerque, NM, for Appellant.

French & Associates, P.C., Stephen G. French, Kerri L. Allensworth, Albuquerque, NM, for Appellee.

OPINION

PICKARD, Judge.

{1} In this case we decide whether the recreational use provision of the Off-Highway Motor Vehicle Act, NMSA 1978, § 66-3-1013(A) (2005) (OHMVA), which limits landowner liability for damages arising out of off-highway motor vehicle-related accidents or injuries occurring on the landowner's lands, applies to government landowners as well as private landowners. Having considered the OHMVA in its historical context, we hold that the legislature intended the OHMVA to apply solely to private landowners, and we reverse the district court's order of dismissal.

BACKGROUND

{2} The following facts are not disputed by the parties. Appellant, Linda Martin (Martin), was driving a recreational vehicle on land owned or controlled by Appellee, Middle Rio Grande Conservancy District (Middle Rio Grande). She was seriously injured when the vehicle ran into an unmarked hazard. Martin alleged that she was a visitor and that Middle Rio Grande breached its duty to use ordinary care to keep the land safe for visitors' use. She alleged in the alternative that she was a trespasser and that Middle Rio Grande breached its duty to use ordinary care to warn trespassers of a dangerous condition on the land. Middle Rio Grande sought immunity under the OHMVA. The district court granted Middle Rio Grande's motion to dismiss without prejudice, permitting Martin to amend her complaint, but certified for interlocutory appeal the question of whether the OHMVA confers immunity on governmental entities such as Middle Rio Grande.

DISCUSSION

Standard of Review

{3} The issue before us is one of statutory interpretation, which is a question of law we review de novo. N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 11, 142 N.M. 248, 164 P.3d 947.

The Plain Meaning Rule

Subsection (A) of the OHMVA reads as follows:

A landowner shall not be held liable for damages arising out of off-highway motor vehicle-related accidents or injuries occurring on the landowner's lands in which the landowner is not directly involved unless the entry on the lands is subject to payment of a fee.

Section 66-3-1013(A).

{4} As did the defendant in Lucero v. Richardson & Richardson, Inc., 2002-NMCA-013, ¶¶ 3-17, 131 N.M. 522, 39 P.3d 739, Middle Rio Grande in our case argues for a plain meaning analysis of the statutory language. Middle Rio Grande contends that the statute makes sense as written and that we should not read language into the statute that is not there. However, this Court has previously called into question this proposition in the context of a related and similarly drafted New Mexico recreational use statute, and today we decline to apply the plain meaning rule to the OHMVA. In Lucero, 2002-NMCA-013, ¶¶ 3-17, 131 N.M. 522, 39 P.3d 739, we devoted extensive dicta to a discussion of whether the legislature intended our Recreational Use Statute, NMSA 1978, § 17-4-7(A) (1967) (RUS), which is a companion statute to the OHMVA, to apply to public as well as private landowners. We noted that the RUS, which limits the liability of "[a]ny owner, lessee or person in control of lands" without reservation, is unclear as to whether it applies to state lands. Lucero, 2002-NMCA-013, ¶¶ 8-12, 131 N.M. 522, 39 P.3d 739. We stated that "[t]o decide this issue, we would need to determine whether ... we should apply a strict plain meaning analysis, or whether we should look beyond the words of the statute and consider the intent of the legislature that passed it." Id. ¶ 8. Then, citing our Supreme Court's exhortation in State v. Cleve, 1999-NMSC-017, ¶ 8, 127 N.M. 240, 980 P.2d 23, to "exercise caution in applying the plain meaning rule," lest we fall victim to its "beguiling simplicity," we embarked on an exhaustive discussion of the many tools available to us to resolve the "legitimate difference of opinion as to whether the phrase `any owner' should be construed to include government entities when the statute would not have applied to public lands at the time it was passed." Lucero, 2002-NMCA-013, ¶¶ 8-12, 131 N.M. 522, 39 P.3d 739. We reached no conclusion on the issue, and we decided the case on a different ground. Id. ¶ 17. Nonetheless, we find the plain meaning rule no more useful in this case than it was in Lucero.

{5} Martin, on the other hand, urges us to examine the context in which the OHMVA was passed and fill the gap in our statutory scheme that we pointed out in Lucero. We stated in Lucero that although the "tools of statutory interpretation provide some guidance, there is no overwhelming evidence as to whether or not the statute was meant to extend to publicly held land," and we invited the legislature to "amend the [RUS] to demonstrate its true intent." Id. ¶ 12. Absent legislative action in the six years since Lucero, and lacking any other available ground upon which to decide the instant case, we rely today on a number of the interpretive tools we laid out in Lucero. Having considered (1) the legislative history of the statute, (2) the historical context in which it was passed, (3) the interplay between the OHMVA and our Tort Claims Act, and (4) the canon of construction that statutes in derogation of the common law right to sue are to be strictly construed, we hold that the OHMVA does not confer recreational usage immunity on public landowners.

Legislative History

{6} Both the OHMVA and the RUS, which we examine in pari materia in this opinion and refer to collectively as our "recreational use statutes," were adopted from a model statute drafted in 1965 by the Council of State Governments that proposed limits on the liability of landowners who allowed the public to use their land without paying a fee. See Public Recreation on Private Lands: Limitations on Liability, 24 Suggested State Legislation 150 (1965) (Model Statute). As we discussed in Lucero, although the commentary to the Model Statute "makes it clear that the drafters were focusing on private land," the Model Statute itself "provides immunity for `owners of land' without any express limitation to private, as opposed to public, landowners." Lucero, 2002-NMCA-013, ¶¶ 5-6, 131 N.M. 522, 39 P.3d 739.

{7} Regardless, the Model Statute seems to have been drafted with private landowners in mind. The objective of the Model Act can be gleaned not only from its title, which speaks explicitly of "private lands," but also from the following introductory commentary that we quoted in Lucero:

Recent years have seen a growing awareness of the need for additional recreational areas to serve the general public. The acquisition and operation of outdoor recreational facilities by governmental units is on the increase. However, large acreages of private land could add to the outdoor recreation resources available.... [I]n those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.

. . .

The suggested act which follows is designed to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property....

2002-NMCA-013, ¶ 5, 131 N.M. 522, 39 P.3d 739 (alteration in original) (emphasis added) (internal quotation marks and citation omitted). Moreover, this Court has previously observed that "[o]ur off-highway motor vehicle statute follows, in part, the approach taken by the [Model Statute,] which limits private landowner liability from off-highway recreational motor vehicle accidents." Matthews v. State, 113 N.M. 291, 294, 825 P.2d 224, 227 (Ct.App.1991) (emphasis added).

{8} Other jurisdictions have cited to the Model Statute and its commentary in reasoning that their recreational use statutes were intended to apply only to private landowners and not to governmental entities. Our holding today is in accord with these cases, each of which involves the construction of a recreational use statute that does not set forth whether the "owners," "owners of land," or "landowners" upon which immunity is conferred include public entities. Conway v. Town of Wilton, 238 Conn. 653, 680 A.2d 242, 249-50, 256 (1996) (overruling prior decision holding that "owner" under recreational use statute included municipalities and concluding that definition of "owner," which was identical to that in Model Statute, was ambiguous when court considered legislative history and public policy underlying statute); Monteville v. Terrebonne Parish Consol. Gov't, 567 So.2d 1097, 1101-02 (La.1990) (noting that the legislature had adopted the Model Statute almost without change, including the definition of "owner," and concluding that act applied only to private owners); Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17, 29 (2006) (overruling precedent and holding that recreational use statute that on its face applied simply to "owners of land" was intended to confer immunity only to private landowners and not to governmental entities); Stamper v. Kanawha County Bd. of Educ., 191 W.Va. 297, 445 S.E.2d 238, 240-42 (1994) (concluding that recreational use statute fashioned after the Model Statute was intended to benefit private landowners); see Estate of Gordon-Couture v. Brown, 152 N.H. 265, 876 A.2d 196, 203 (2005) (noting that the purpose of the Model Statute is to encourage private landowners to make their land available for public recreational uses).

Historical Context

{9} As we noted in Lucero, our recreational use statutes were adopted at a time when sovereign immunity protected governmental bodies...