Martinez v. Kaune Corp.

• Decision Date: 08 October 1987
• Docket Number: No. 9105,9105
• Parties: Ernestine O. MARTINEZ and Vincent P. Martinez, Co-personal Representatives of the Estate of Alex B. Martinez, Deceased, Plaintiffs-Appellants, v. KAUNE CORPORATION, d/b/a Kaune's Food Store; Max Romero, Genevieve Romero; State Health and Environment Division, State of New Mexico, and John Does I Through IV, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 714

745 P.2d 714

106 N.M. 489

Ernestine O. MARTINEZ and Vincent P. Martinez, Co-personal

Representatives of the Estate of Alex B. Martinez, Deceased, Plaintiffs-Appellants, v. KAUNE CORPORATION, d/b/a Kaune's Food Store; Max Romero, Genevieve Romero; State Health and Environment

Division, State of New Mexico, and John

Does I Through IV,

Defendants-Appellees.

No. 9105.

Court of Appeals of New Mexico.

Oct. 8, 1987.

Certiorari Denied Nov. 5, 1987.

[106 NM 490] Michael E. Vigil, Marchiondo & Berry, P.A., Albuquerque, for plaintiffs-appellants.

Bradford V. Coryell, Montgomery & Andrews, P.A., Santa Fe, for defendants-appellees.

OPINION

BIVINS, Judge.

In this wrongful death action, plaintiffs claim their decedent, Alex B. Martinez, fell ill and died after eating "Queso Blanco" cheese manufactured by defendants Max Romero and Genevieve Romero and sold by defendant Kaune's Food Store. This appeal concerns only the state defendants, in whose favor the trial court granted summary judgment. It raises the issue of whether the waiver of immunity for the negligence of public employees in the operation or maintenance of any building includes the inspections of foods and food manufacturing or processing operations. We hold it does not and affirm.

In their complaint against the State Health and Environment Improvement Division and four "John Doe" defendants, plaintiffs allege the state defendants either failed to inspect, or negligently inspected, Kaune's food-sale operation and should have seized the contaminated cheese. They also claim the state defendants failed to inspect the Romeros' cows and should have banned the sale of raw-milk products by those defendants. To support these claims, plaintiffs cite various statutes governing the inspection of food, as well as state licensing regulations affecting food distributors.

The state defendants were sued under the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -29 (Repl.1986). These defendants moved to dismiss for failure to state a claim upon which relief can be granted, arguing that the conduct complained of has not been waived under the Tort Claims Act and that they are, therefore, immune from suit. Because matters outside the pleadings were considered, the trial court treated the state defendants' motion as one for summary judgment. SCRA 1986, 1-012(B); Transamerica Ins. Co. v. Sydow, 97 N.M. 51, 636 P.2d 322 (Ct.App.1981).

Since it provides a clear statement as to how courts approach tort claims against governmental entities and public employees, we quote from Begay v. State, 104 N.M. 483, 486, 723 P.2d 252, 255 (Ct.App.1985), rev'd on other grounds, Smialek v. Begay, 104 N.M. 375, 721 P.2d 1306 (1986):

Common law sovereign immunity for tort actions was abolished by the Supreme Court in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975). The following year, the New Mexico Legislature responded by passing the Tort Claims Act which reinstated governmental immunity except in eight classes of activities which are specifically set out as exemptions within the Act. Fireman's Fund Insurance Company v. Tucker, 95 N.M. 56, 618 P.2d 894 (Ct.App.1980). Section 41-4-2 of the 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 declares that governmental entities and public employees, while acting within the scope of their duties, shall be immune from liability for any tort except as waived by the Act. Tompkins v. Carlsbad Irrigation District, 96 N.M. 368, 630 P.2d 767 (Ct.App.1980). The public policy declaration of Section 41-4-2, and the immunities proviso of Section 41-4-4, taken together, require that plaintiffs' cause of action must fit within one of the exceptions to the immunity granted to governmental entities and public employees. If immunity has been waived, the particular agency that caused the harm may be held liable for the negligent act or omission of the public employee.

Plaintiffs rely on Section 41-4-6 as the basis for waiving immunity. That section 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 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. [Emphasis added.]

In applying any waiver of immunity, we first determine whether the legislative intent can be ascertained from the plain meaning of the statute. Smith v. Village of Corrales, 103 N.M. 734, 713 P.2d 4 (Ct.App.1985). We do not read into the statute language that is not there. Id. In the instant case, we cannot agree that the legislature intended to include the inspection of foods and food processing within the meaning of Section 41-4-6.

In considering a similar contention, we held in Wittkowski v. State, 103 N.M. 526, 710 P.2d 93 (Ct.App.1985), modified on other grounds, Abalos v. Bernalillo County District Attorney's Office, 105 N.M. 554, 734 P.2d 794 (Ct.App.1987), that Section 41-4-6 covered premises liability situations only. In Wittkowski, we rejected the claim that since the penitentiary is a building, the operation of that building must include the security, custody and classification of inmates. For the same reason, we must reject plaintiffs' claims here. Those claims do not involve any kind of claimed physical defect in a building. Wittkowski is controlling. See also Pemberton v. Cordova, 105 N.M. 476, 734 P.2d 254 (Ct.App.1987) (Section 41-4-6 will not be expanded to include negligent supervision of students; Section 41-4-6 waives immunity only for physical defects). The state discusses at length the issue of whether the state operated or maintained the dairy or food store. Because we dispose of the case on the above ground, we need not consider this issue.

Plaintiffs urge that in determining whether any exception of the Tort Claims Act applies, reference must be made to traditional tort concepts of duty and the reasonably prudent person's standard of care in the performance of that duty. See Sec. 41-4-2. They then proceed to outline the duties prescribed by the Food Service Sanitation Act, NMSA 1978, Sections 25-1-1 to -14 (Orig.Pamp. & Cum.Supp.1985 [now Repl.Pamp.1987] ),...