Smith v. State ex rel. New Mexico Dept. of Parks and Recreation

• Decision Date: 20 August 1987
• Docket Number: No. 9435,9435
• Citation: 106 N.M. 368,743 P.2d 124,1987 NMCA 111
• Parties: Curtis SMITH, as Personal Representative of Michael C. Smith, Stacy D. Smith, Lisa Smith, Amanda Smith and Jacob Smith, Deceased; and Charles Martin, as Personal Representative of George Martin, Deceased, Plaintiffs-Appellants, v. STATE of New Mexico ex rel. NEW MEXICO DEPARTMENT of PARKS AND RECREATION, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 124

743 P.2d 124

106 N.M. 368

Curtis SMITH, as Personal Representative of Michael C Smith, Stacy D. Smith, Lisa Smith, Amanda Smith and Jacob Smith, Deceased; and Charles Martin, as Personal Representative of George Martin, Deceased, Plaintiffs-Appellants, v. STATE of New Mexico ex rel. NEW MEXICO DEPARTMENT of PARKS AND RECREATION, Defendant-Appellee.

No. 9435.

Court of Appeals of New Mexico.

Aug. 20, 1987.

[106 N.M. 369] Norman F. Weiss, Farlow, Simone, Roberts & Weiss, P.A., Albuquerque, for plaintiffs-appellants.

James P. Lyle, Butt, Thornton & Baehr, P.C., Albuquerque, for defendant-appellee.

OPINION

DONNELLY, Chief Judge.

Plaintiffs, as personal representatives of Michael C. Smith, Stacy D. Smith, Lisa Smith, Amanda Smith, Jacob Smith, and George Martin, deceased, appeal from the trial court's award of summary judgment in an action brought under the New Mexico Tort Claims Act. NMSA 1978, Secs. 41-4-1 to -27 (Repl.1986). The issues raised on appeal each turn upon the central question of whether the State Park and Recreation Department, through its appropriate officers, was given timely and sufficient actual notice of plaintiffs' claim for wrongful death under the Tort Claims Act. Reversed and remanded.

Suit was filed herein against defendant under the Tort Claims Act, for its alleged negligence resulting in a boating accident on March 18, 1984, and the ensuing deaths of decedents. Plaintiffs brought suit as personal representatives of decedents' estates. Defendant answered and filed a motion to dismiss, or alternatively seeking summary judgment.

In its motion for summary judgment, defendant contended that plaintiffs failed to comply with the notice requirement of the Tort Claims Act under Section 41-4-16. The motion further asserted that any actual notice plaintiffs allegedly provided was insufficient because plaintiffs failed to inform the proper state authorities within the ninety-day period specified by Section 41-4-16(B), that a claim was filed or would be filed against the state.

Defendant's motion for summary judgment was supported by the affidavit of Carlos Martinez, director of the State Department of Parks and Recreation, and an affidavit of Taylor Hendrickson, assistant director of the State Risk Management Division. Both affidavits recited that the records of the two departments indicated that no notice was ever received during the ninety-day period following March 18, 1984, notifying the state of any claims against it, or which arose out of the boating accident of March 18, 1984.

In opposition to the motion for summary judgment, plaintiffs filed the affidavit of Curtis Smith, a personal representative and plaintiff. The affidavit stated in part:

4. [Within ninety days of decedents' drownings] I did have several conversations with various individuals within the State Park & Recreation Division, of the State of New Mexico, during which time I informed them that I felt that the lack of improper [sic] supervision and other negligence on the part of the * * * State Park and Recreation Division, was a direct cause of the deaths of these individuals.

5. Among the people [to whom] I expressed my feelings that the State's improper conduct was a cause of the deaths ... were Otis Chappell, the boating supervisor for the State Park and Recreation Division, Mike Maddox, the Superintendent for the park in question, [and] Paul DeLatorre, the park ranger at Elephant Butte State Park.

6. All of these individuals were informed that I felt that the State was at fault in causing the death [sic] of the above named decedents and that there was a substantial likelihood that legal proceedings would be initiated against the State arising out of said fault in the deaths of these individuals.

7. In addition * * * I also personally spoke with several other officials of the State Park & Recreation Division by telephone, to their offices in Santa Fe, and informed [them] that I felt the State was at fault in causing the deaths of the above named decedents and that legal action based on said fault was entirely possible if not probable.

....

9. All these individuals were informed that there was a likelihood of future legal action against the State based upon the fault of the State Park & Recreation Division.

At the hearing on the motion, plaintiffs relied upon the affidavit of Curtis Smith, and referred to an accident investigation report prepared by the New Mexico State Police after the drownings; plaintiffs' brief-in-chief also refers to this report. We do not consider the report since it is not a part of the record on appeal, nor was it before the trial court at the time of the hearing on summary judgment. State ex rel. Alfred v. Anderson, 87 N.M. 106, 529 P.2d 1227 (1974).

Following the hearing on the motion for summary judgment, the district court granted the motion, finding that "[t]here is no genuine issue as to any material fact, and the defendant is entitled to judgment as a matter of law because the requirements of the ninety (90) day notice provision of the New Mexico Tort Claims Act, Sec. 41-4-16 * * * have not been fulfilled * * *."

PROPRIETY OF SUMMARY JUDGMENT

Plaintiffs contend that the trial court erred in granting summary judgment and that it improperly determined that the statements made by Smith in his affidavit were insufficient to give notice of the occurrence as required by Section 41-4-16(B).

In reviewing the award of summary judgment, we address two discrete issues: first, was the type of notice given by plaintiffs sufficient to meet the actual notice requirement of Section 41-4-16(B), and second, were the appropriate state officials given proper notice?

Section 41-4-16(B) specifies, in applicable part, that no suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and the court shall be without jurisdiction to consider any suit against the state or local public body, "[U]nless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence."

Plaintiffs concede that they did not provide written notice of their claims against the state under Section 41-4-16(A). Instead, plaintiffs contend that defendant had actual notice of the decedents' drownings and that Smith informed defendant that there was a substantial likelihood that legal proceedings would be initiated against the state as a result of the state's alleged negligence, resulting in the deaths of the decedents.

The purpose of the statutory notice requirement contained in the Tort Claims Act is to ensure that the governmental agency allegedly at fault is given notification that it may be subject to a lawsuit. New Mexico State Highway Comm'n v. Ferguson, 98 N.M. 680, 652 P.2d 230 (1982); see also Martinez v. City of Clovis, 95 N.M. 654, 625 P.2d 583 (Ct.App.1980). Under Section 41-4-16(B), "actual notice" rather than written notice may be given, provided that the particular agency that caused the alleged harm is notified within ninety days after an occurrence giving rise to the claim for which immunity has been waived that "it may be subject to a lawsuit." City of Las Cruces v. Garcia, 102 N.M. 25, 690 P.2d 1019 (1984); New Mexico State Highway Comm'n v. Ferguson. Contrary to defendant's contention, the statute does not require that the notice indicate a lawsuit will in fact be filed against the state; the statute contemplates that the state must be given notice of a likelihood that litigation may ensue, in order to reasonably alert it to the necessity of investigating the merits of a potential claim against it. See Martinez v. City of Clovis....