Schleft v. Board of Educ. of Los Alamos Public Schools

• Decision Date: 19 October 1989
• Docket Number: No. 10170,10170
• Citation: 109 N.M. 271,1989 NMCA 87,784 P.2d 1014
• Parties: , 58 Ed. Law Rep. 299 Joseph SCHLEFT, Individually and William A. Schleft and Connie Schleft, Individually and as parents and next friends of Joseph Schleft, Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the LOS ALAMOS PUBLIC SCHOOLS, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1014

784 P.2d 1014

109 N.M. 271, 58 Ed. Law Rep. 299

Joseph SCHLEFT, Individually and William A. Schleft and Connie Schleft, Individually and as parents and next friends of Joseph Schleft Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the LOS ALAMOS PUBLIC SCHOOLS Defendant-Appellee.

No. 10170.

Court of Appeals of New Mexico.

Oct. 19, 1989.

Certiorari Denied Dec. 5, 1989.

[109 NM 271] Steven L. Tucker, John Wentworth, Jones, Snead, Wertheim, Rodriguez &

[109 NM 272] Wentworth, P.A., Santa Fe, for plaintiffs-appellants.

John B. Pound, James C. Murphy, Montgomery & Andrews, P.A., Albuquerque, for defendant-appellee.

OPINION

APODACA, Judge.

Plaintiffs Joseph Schleft (Joseph) and William A. and Connie Schleft, Joseph's parents, appeal the trial court's judgment entered in favor of defendant Board of Education of Los Alamos (the Board). After a bench trial, the trial court held the Board was immune from suit, that such immunity was not waived by the New Mexico Tort Claims Act, NMSA 1978, Sections 41-4-1 to -29 (Repl.1986 and Cum.Supp.1988) (the Act), and that the Board had no duty to inspect or maintain the electrical facility causing Joseph's injuries or to warn against any inherent dangers. We disagree with the trial court and conclude that: (1) immunity was waived under the Act; and (2) the Board had a duty to plaintiffs, as a matter of law. We thus reverse and remand for the entry of findings and conclusions on the issue of negligence. As a sub-issue of issue 2, plaintiffs also contend that the trial court erred in concluding a certain deed was ambiguous and permitting the introduction of parol evidence to prove the parties' intent. On this issue, we hold the deed was ambiguous and that the trial court was correct in allowing parol evidence.

FACTS:

Joseph, who was fifteen years of age at the time of the accident, was injured on the grounds of Mountain Elementary School in Los Alamos. The youth, along with a friend, entered the school grounds during the summer, when school was not in session. A transformer platform was located on the grounds, positioned horizontally and supported approximately twenty feet in the air by two "telephone poles." Three transformers were located on the platform, with at least six bare, uninsulated copper wires five feet above the floor of the platform. The platform, the supporting poles and the transformers, referred to at trial as "the H-frame," are referred to collectively in this opinion as the facility.

Joseph and his friend climbed onto the platform. Having noticed they were standing on loose boards, they decided to climb down. The friend descended from the platform, but before Joseph could do so, his forehead came in contact with one of the uninsulated copper wires. He received an electrical shock of 7,620 volts and fell off the platform, unconscious and not breathing. The youth was revived by CPR administered by a bystander. As a result of the accident, Joseph sustained permanent brain damage, speech impairment, spastic motor impairment and fourth degree burns to the bone marrow in his forehead. He will never walk or speak normally.

BACKGROUND OF PROCEEDINGS:

Joseph and his parents brought suit against the Board, which owned the school property on which the facility was located, and against the County of Los Alamos (the County), which owned and maintained the facility. Before trial, plaintiffs settled their dispute with the County.

Plaintiffs contend the Board was liable under Section 41-4-6. That section waives immunity for negligence caused by a public entity's employees "while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings." We shall refer to that language in this opinion as the "building exception." Relying on Castillo v. County of Santa Fe, 107 N.M. 204, 755 P.2d 48 (1988), a case decided by our supreme court after the trial court in this appeal entered judgment in the Board's favor, plaintiffs argue that waiver of immunity under the Act encompasses a dangerous condition on the premises. Specifically, plaintiffs claim the "building exception" language is not strictly limited to the actual words used, but includes the surrounding premises on which a public building is located. The trial court, having found that the County owned the facility, concluded on that basis that immunity of the Board was not waived under the Act. Similarly, the trial court also based its hold ing that the Board owed no duty to plaintiffs on the County's ownership.

Plaintiffs also argue that a 1966 deed conveying the school property from the United States to the Board also conveyed the secondary electrical system, giving rise to a duty in the Board for the operation and maintenance of that system. Plaintiffs finally contend the Board was negligent in not fencing the facility to prevent persons from climbing on the platform. The trial court held the deed was ambiguous and thus admitted parol evidence. It concluded that the deed showed ownership of the facility in the County rather than in the Board.

Ordinarily, it would be proper to determine initially whether there existed a duty of care on the part of the Board, before deciding whether there was a waiver of immunity under the "building exception" of the Act. However, because we believe that Castillo is dispositive of the waiver issue, we shall discuss that issue first. Both issues are somewhat interrelated, but we shall discuss them separately nonetheless.

WAIVER OF IMMUNITY:

In determining the interpretation to be given to the "building exception" language, we must bear in mind the principle stated by our supreme court in Miller v. New Mexico Department of Transportation, 106 N.M. 253, 741 P.2d 1374 (1987), that the words used in a statutory waiver provision must first be interpreted in light of the intended purpose of the provision. Additionally, Castillo held that the Act contemplated waiver of immunity where, due to the alleged negligence of public employees, an injury arose from an unsafe, dangerous or defective condition on property owned and operated by the government.

A plain reading of Section 41-4-6 convinces us that the legislature intended to ensure the safety of the general public by imposing upon public employees a duty to exercise reasonable care in maintaining premises owned and operated by governmental entities. By the legislature's inclusion of both buildings and parks within the waiver provision, we discern no intent to exclude from that waiver liability for injuries arising from defective or dangerous conditions on the property surrounding a public building.

Id. 107 N.M. at 206, 755 P.2d at 50.

Castillo thus held that the common grounds surrounding a county housing project fell within the "building exception" language. "[T]here is a nexus between the defendant's obligation to maintain the common premises ... in a safe condition and the intent behind the waiver of immunity under Section 41-4-6." Id. at 206, 755 P.2d at 50, n. 1. We see no reason to distinguish between the premises area in Castillo and the grounds surrounding a public school. We believe it was not the legislature's intent that waiver of immunity stop at the schoolhouse door. We hold, therefore, that waiver of immunity under Section 41-4-6 applies to maintenance of the school grounds as well as to the school building itself.

Relying on ownership and control of the facility itself, which was installed within an easement located on the school grounds, the Board attempts to distinguish Castillo and cases from other jurisdictions that determined existence of a duty on the part of a landowner or occupier of land. Similarly, the Board distinguishes Weiss v. United States, 787 F.2d 518 (10th Cir.1986), on which plaintiffs rely. Specifically, the Board argues that in those cases the landowner had actual control of the land on which the injuries occurred. It contends further that under the facts of this appeal, the Board did not have any control or right to maintain the facility or easement. As a basis for this argument, the Board refers us to the trial court's findings, which it claims provided "not merely substantial evidence, but overwhelming evidence [supporting] the trial court's conclusion that the County * * * exercised exclusive control of the [facility]." The Board then concludes that, because plaintiffs failed to attack those specific findings on appeal, they have waived the right to challenge them. We determine, however, that the existence of such findings, and plaintiffs' alleged failure to challenge them, are factors not relevant to the issue before us. We have arrived at this determination based on our discussion below of the issue of the Board's duty. We note that in their brief-in-chief, plaintiffs challenged the findings as not supported by admissible evidence. We understand plaintiffs' argument as a contention that extrinsic or parol evidence was not admissible and, therefore, the trial court's findings must fail because they were based solely on the inadmissible parol evidence. We shall address the propriety of the parol evidence admission later in this opinion.

EXISTENCE OF DUTY:

The term "maintenance" involves more than simply performing repairs; it includes keeping an area in a safe condition. See Fireman's Fund Ins. Co. v. Tucker, 95 N.M. 56, 618 P.2d 894 (Ct.App.1980). See also Miller v. New Mexico Dep't of Transp. 106 N.M. at 254-55, 741 P.2d at 1375-76. ("We decline to hold that 'maintenance' of a highway must be limited only to physical care and upkeep; the obvious purpose for imposing the duty on public employees of maintaining highways safely and in a non-negligent manner reflects the legislature's intent that highway be so maintained as to provide for the safety of the traveling public.") We thus conclude that maintenance of the school yard in this instance involved keeping the yard in a safe condition.

The Board...