Rutherford v. Chaves County

• Decision Date: 04 April 2002
• Docket Number: No. 21,335.,21,335.
• Court: Court of Appeals of New Mexico
• Parties: David RUTHERFORD, as Personal Representative of the Estate of Rhonda Adele Rutherford, Deceased; David Rutherford and Bobbie Flenniken, Individually and as Co-Personal Representatives of the Estates of Taletha Jean Rutherford, Deceased and Joseph Thornton Rutherford, Deceased; John Rutherford; and Michael and Debra Thomas, Individually and as Co-Personal Representatives of the Estate of Donovan J. Thomas, Deceased, Plaintiffs-Appellants, v. CHAVES COUNTY and Board of County Commissioners of Chaves County, Defendants-Appellees.

47 P.3d 448

132 N.M. 289

2002 NMCA 59

David RUTHERFORD, as Personal Representative of the Estate of Rhonda Adele Rutherford, Deceased; David Rutherford and Bobbie Flenniken, Individually and as Co-Personal Representatives of the Estates of Taletha Jean Rutherford, Deceased and Joseph Thornton Rutherford, Deceased; John Rutherford; and Michael and Debra Thomas, Individually and as Co-Personal Representatives of the Estate of Donovan J. Thomas, Deceased, Plaintiffs-Appellants, v. CHAVES COUNTY and Board of County Commissioners of Chaves County, Defendants-Appellees.

No. 21,335.

Court of Appeals of New Mexico.

April 4, 2002.

Certiorari Granted May 20, 2002.

Donald E. Martinez, Joseph M. Fine, Fine & Faure, P.A., Albuquerque, NM, for Appellants, Bobbie Fleniken, Michael Thomas and Debra Thomas.

Gary C. Mitchell, Ruidoso, NM, for Appellants, David Rutherford and John Rutherford.

James R. Wood, Gary L. Gordon, Alice Tomlinson Lorenz, Miller, Stratvert & Torgerson, P.A., Albuquerque, NM, for Appellees.

Certiorari Granted, No. 27,487, May 20, 2002.

OPINION

FRY, Judge.

{1} Plaintiffs appeal from summary judgment in favor of Defendant Chaves County based on sovereign immunity. We hold that the County was not immune to suit in this case because the County's allegedly negligent acts constitute highway maintenance, for which the Tort Claims Act (TCA) waives immunity. Accordingly, we reverse.

BACKGROUND

{2} This is an action for personal injury and wrongful death based on an accident that occurred in July 1996 on Spence Road in Chaves County, New Mexico. Spence Road is a short local access road that intersects Walnut Creek. Walnut Creek is normally a dry arroyo under U.S. Highway 285 that crosses Spence Road through a dip. There are signs on Spence Road on both sides of the dip at appropriate intervals approaching Walnut Creek warning motorists of the "DIP" and to "WATCH FOR WATER."

{3} On the evening of July 14, 1996, rain on the nearby flood plain and mountains caused Walnut Creek to flow at flood stage across Spence Road, although there was no rain in the immediate vicinity. Two vehicles attempted to drive through the water. The driver of one of the vehicles was Plaintiff John Rutherford, who was returning home from a party with his wife, Rhonda Adele Rutherford, their two children, Taletha Jean Rutherford and Joseph Thornton Rutherford, and another child, Donovan J. Thomas. The rapidly running water carried Rutherford's car downstream. Rutherford was able to escape from the car, but his wife and all three children drowned.

{4} At the time of the accident, it was the County's practice to use portable barricades to close Spence Road when it received notification that the arroyo was flooding. On this particular night, someone told the County sheriff's department that the arroyo was flooding, and the sheriff's department notified the County road department. The road department's employees were on their way to Spence Road with the barricades when Rutherford attempted to drive through the water.

{5} Rutherford and the personal representatives of the decedents' estates (Plaintiffs) sued the County, claiming that the County could have done more in the event of flooding to prevent injury to motorists on Spence Road. Plaintiffs theorized that the County was negligent in several ways. Plaintiffs contended the County was negligent in relying on a purely reactive system of dealing with flooding; however, if a reactive system was appropriate, the County negligently failed to include safeguards such as an effective means of communication among public agencies and a systematic approach to flooding. Alternatively, Plaintiffs claimed the County could have implemented a proactive system of dealing with flooding, such as a system of monitoring weather that would permit anticipation of flood conditions.

{6} The County sought summary judgment, arguing that the TCA's waiver of sovereign immunity for the negligence of public employees in the "maintenance" of a highway does not include the negligent acts or omissions alleged by Plaintiffs. The district court agreed and granted summary judgment against Plaintiffs.

DISCUSSION

{7} We review a grant of summary judgment in the light most favorable to the party opposing the motion. Pollock v. State Highway & Transp. Dep't, 1999-NMCA-083, ¶ 5, 127 N.M. 521, 984 P.2d 768. The determination of whether governmental immunity under the New Mexico Tort Claims Act bars a tort claim is a question of law which we review de novo. Godwin v. Mem'l Med. Ctr., 2001-NMCA-033, ¶ 23, 130 N.M. 434, 25 P.3d 273, certs. granted, 130 N.M. 459, 26 P.3d 103 (2001).

{8} At issue is NMSA 1978, § 41-4-11 (1991) of the Tort Claims Act:

A. 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 during the construction, and in subsequent maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.

B. The liability for which immunity has been waived pursuant to Subsection A of this section shall not include liability for damages caused by:

(1) a defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area;

(2) the failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area[.]

The statute thus waives immunity for maintenance of a highway but not for the design of a highway.

{9} We note at the outset that the County seems to have mischaracterized the issue to be decided in this appeal. The County focuses on only one of Plaintiffs' allegations of negligence — the failure to implement a proactive weather forecasting system to predict flooding. Through this narrow prism, the County then appears to equate the tort concept of duty with the concept of sovereign immunity; it seems to argue that the TCA's specific waivers of immunity also define a governmental entity's duty. From this the County concludes that the legislature could not have intended to waive immunity for a road maintenance entity's failure to establish a weather forecasting system.

{10} We disagree with the County's characterization of the issue for two reasons. First, by focusing on Plaintiffs' theory for a proactive system of flood prediction, the County has overlooked the crux of Plaintiffs' negligence theory, which is that the County failed to place barricades on Spence Road before flood waters reached dangerous levels. Plaintiffs posited several actions the County could have taken to achieve this end, including: (1) surveying the County to determine areas in which rainfall culminates in the flooding of road crossings; (2) monitoring "the sky, weather reports, reports from citizens and other agencies and entities to be prepared for a flooding situation before flooding actually occurs"; (3) "educating the public that the road department and the sheriff's department are relying on the public for phone calls to warn them of potential . . . or actual flooding situations"; (4) "coordinat[ing] efforts between the sheriff's department and road department to report flooding conditions"; and (5) having a telephone that was answered after regular working hours, given the existing dependence on public reporting. All of these actions theoretically could provide the County with information that would permit it to place barricades when they were needed. Thus, contrary to the County's argument, we must assess whether the County's failure to place barricades at the appropriate time constitutes highway maintenance for which the TCA has waived immunity.

{11} Second, the concepts of duty and immunity under the TCA are distinct. It is established law that the TCA cannot be viewed as a source of duties to be imposed on government entities. "Duty or responsibility is not provided in the Tort Claim[s] Act; it must be found outside the Act either at common law or by statute." Johnson v. Sch. Bd. of Albuquerque Pub. Sch. Sys., 114 N.M. 750, 751, 845 P.2d 844, 845 (Ct.App.1992); see also Fireman's Fund Ins. Co. v. Tucker, 95 N.M. 56, 59, 618 P.2d 894, 897 (Ct.App.1980)

("No new duties are created by the Tort Claims Act.").

{12} Moreover, the duty the County owed to Plaintiffs in the present case is well established by the common law. The parties do not dispute that the County had the responsibility to maintain the road in question. This responsibility to maintain is simply another way of saying that the County, as opposed to some other governmental entity, has jurisdiction over the road in question. This responsibility in turn gives rise to a duty to the public: "the [State] Department [of Transportation] has always had the common-law duty to exercise ordinary care to protect the general public from foreseeable harm on the highways of the state." Lerma v. State Highway Dep't, 117 N.M. 782, 784, 877 P.2d 1085, 1087 (1994). It follows that counties have the same duty of care with respect to the maintenance of roads and highways under their jurisdiction.

{13} In the context of this established duty of care, there may arise issues of whether the harm sought to be remedied is foreseeable to the highway authority. See, e.g., Ryan v. N.M. State Highway & Transp. Dep't, 1998-NMCA-116, ¶ 14, 125 N.M. 588, 964 P.2d 149

(holding that highway department's duty to remedy the danger of elk crossing the highway was contingent on a jury finding that highway department had notice of the danger). Here, there is no such issue. It is undisputed that the County knew Spence Road flooded at times, as evidenced by the sign warning motorists to watch for water and by the County's longstanding practice of erecting barricades when the road was flooded. Consequently, there is no question that the County owed Plaintiffs the duty to exercise ordinary care...