Upton v. Clovis Municipal School District, 29,226.

• Decision Date: 12 June 2006
• Docket Number: No. 29,226.,29,226.
• Parties: Samuel UPTON, Plaintiff-Petitioner, v. CLOVIS MUNICIPAL SCHOOL DISTRICT, Defendant-Respondent.
• Court: New Mexico Supreme Court

Page 1259

141 P.3d 1259

2006 NMSC 040

Samuel UPTON, Plaintiff-Petitioner, v. CLOVIS MUNICIPAL SCHOOL DISTRICT, Defendant-Respondent.

No. 29,226.

Supreme Court of New Mexico.

June 12, 2006.

Rehearing Denied August 30, 2006.

As Revised September 12, 2006.

Doeer & Knudson, P.A., Stephen E. Doerr, Portales, NM, for Petitioner.

Brown & German, Daniel J. Macke, Elizabeth L. German, Albuquerque, NM, for Respondent.

Michael B. Browde, Albuquerque, NM, MCCML, P.A., Randi McGinn, Albuquerque, NM, for Amicus Curiae New Mexico Trial Lawyers Association.

Miller Stratvert P.A., Joseph L. Romero, Scott P. Hatcher, Santa Fe, NM, for Amicus Curiae, New Mexico Self Insurers' Fund, New Mexico County Insurance Authority.

OPINION

BOSSON, Chief Justice.

{1} The Uptons' fourteen-year-old daughter, Sarah, died as a result of an asthma attack that occurred while she was at school. The attack began after a substitute physical education teacher required Sarah to participate in a higher level of exercise than normal, even after the school had been notified of her special medical needs. The effects of the attack may have been aggravated when school personnel failed to respond appropriately to her condition of acute distress. The Uptons claim that school personnel acted negligently, causing the death of their daughter, and that such negligence is actionable under the Tort Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -29 (1976, as amended through 2004), being part of the "operation or maintenance" of a public building. See § 41-4-6. The district court was not persuaded and granted summary judgment for the school, which the Court of Appeals affirmed. See Upton v. Clovis Mun. Sch. Dist., 2005-NMCA-085, ¶ 1, 137 N.M. 779, 115 P.3d 795. We now reverse and remand for further proceedings.

BACKGROUND

{2} Sarah Upton suffered from asthma since the age of three. She learned to live with the disease, knowing when an attack began and how to treat it. Sarah's parents also took precautions regarding their daughter's special health needs. After finding out that Sarah, a ninth grader, would have to participate in a mandatory physical education class, Sarah's mother went to the school to talk with Sarah's physical education teacher regarding her asthmatic condition. The teacher was aware of Sarah's asthma and agreed that she could limit her participation if Sarah felt that the physical exercise was triggering an attack. Sarah's parents also noted her condition on her Individualized Education Plan (IEP), an agreement between parents of children with special needs and educators specifying certain educational goals and the special services their child would require. The Uptons also gave their consent so that school personnel could immediately contact medical personnel directly in the event of an attack.

{3} On the day of Sarah's death, a substitute teacher in charge of her physical education class required exercise that was more strenuous than normal. As a result, Sarah became uncomfortable, she began having difficulty breathing, and became red in the face. When Sarah asked the teacher for permission to stop, the teacher refused. She returned to the class crying, and struggled to continue with the exercise.

{4} After the physical education class, Sarah used her inhaler and went to her next class. Shortly after the class began, at 2:28 p.m., Sarah collapsed at her desk. At 2:29 p.m., her teacher called the front office for assistance and then attempted to administer two inhaler treatments. Another teacher arrived followed by the school secretary who had some nurse training. She checked Sarah's vital signs and asked the office to call 911. Sarah was then placed in a wheelchair and taken into the hallway. No one ever administered CPR or any other emergency protocol.

{5} In the hallway a police officer saw Sarah and called 911 immediately. There is evidence suggesting that his call, fifteen minutes after the onset of Sarah's attack, was the first actual contact with 911. The school also called 911 around this same time. When medical personnel finally arrived, Sarah was no longer breathing. Attempts to revive her were unsuccessful, and she died that afternoon from the asthma attack.

{6} The Uptons filed this wrongful death action against the Clovis Municipal School District (the "School District"), alleging various acts of negligence on the part of school employees that contributed to Sarah's death. In response to the School District's claim of tort immunity, the Uptons argued that Section 41-4-6 of the TCA waives tort immunity in this instance for the "negligence of public employees while acting within the scope of their duties in the operation or maintenance of [a public] building." Section 41-4-6. Both the district court and the Court of Appeals agreed with the School District, and we granted certiorari to explore whether the statutory waiver of immunity for negligent acts committed in the "operation or maintenance of any building" applies in this context.

DISCUSSION

Standard of Review

{7} A district court's grant of summary judgment is reviewed de novo, and is only appropriate "where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. "[W]e view the facts in a light most favorable to the party opposing the motion [for summary judgment] and draw all reasonable inferences in support of a trial on the merits." Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879. We also review the applicability of the TCA de novo. Godwin v. Mem'l Med. Ctr., 2001-NMCA-033, ¶ 23, 130 N.M. 434, 25 P.3d 273.

The Tort Claims Act Building Waiver Under Section 41-4-6

{8} The TCA was enacted after this Court rejected common law sovereign immunity in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), superseded by statute as stated in Electro-Jet Tool Mfg. Co. v. City of Albuquerque, 114 N.M. 676, 845 P.2d 770 (1992). See §§ 41-4-1 to -29. The TCA grants all government entities and their employees general immunity from actions in tort, but waives that immunity in certain specified circumstances. See § 41-4-4. The waiver for "operation or maintenance of any building" is just such a circumstance. Section 41-4-6. The waiver allows individual claims against governmental entities that are based on "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." Id. For the waiver to apply, the negligent "operation or maintenance" must create a dangerous condition that threatens the general public or a class of users of the building. See Espinoza v. Town of Taos, 120 N.M. 680, 683, 905 P.2d 718, 721 (1995) ("the critical question is whether the condition creates a potential risk to the general public"); Castillo v. County of Santa Fe, 107 N.M. 204, 207, 755 P.2d 48, 51 (1988) (holding the waiver applies because the condition threatened the residents of the public building and their invitees).

{9} Historically, the TCA waiver under Section 41-4-6 has been interpreted broadly to protect private citizens from the consequences of dangerous conditions created by the negligence of public employees in the "operation or maintenance" of public buildings. See Bober v. N.M. State Fair, 111 N.M. 644, 653, 808 P.2d 614, 623 (1991). The waiver applies to more than the operation or maintenance of the physical aspects of the building, and includes safety policies necessary to protect the people who use the building. See Castillo, 107 N.M. at 206-07, 755 P.2d at 50-51 (stating the county's failure to respond to a pack of dogs roaming a public housing facility created a dangerous condition to residents and their invitees, and fell under the waiver); Leithead v. City of Santa Fe, 1997-NMCA-041, ¶¶ 12, 15-16, 123 N.M. 353, 940 P.2d 459 (indicating failure by a public swimming pool to provide an adequate number of capable lifeguards created a dangerous condition arising out of the operation of the pool). The dangerous condition need not be limited to the confines of the building, but can include the grounds surrounding and linked to the structure. See Bober, 111 N.M. at 653, 808 P.2d at 623 (holding that the common grounds of the State Fairgrounds constitute a building under Section 41-4-6); Castillo, 107 N.M. at 206, 755 P.2d at 50 (stating dangerous condition in the public areas between the county housing structures fell within the waiver).

The School District's Negligence Created a Dangerous Condition for Sarah

{10} According to the Uptons' claim, the School District operated Sarah's school in a manner that put both her and other similarly situated students at risk. The Uptons assert that Sarah's death was caused by the School District's negligence during two periods of time: (1) the events occurring prior to and leading up to the asthma attack, and (2) the events occurring after the attack began. Prior to the asthma attack, Sarah's parents disclosed her condition to the school, both verbally and in writing, and received assurances that their daughter's special needs would be met. Then, the school allegedly failed to advise the substitute teacher of these special needs which created a dangerous condition for Sarah. The substitute teacher then made Sarah perform strenuous exercise that was inappropriate and unreasonable under the circumstances despite Sarah informing the teacher of her distress. In turn, these negligent actions and omissions led to the asthma attack and Sarah's death.

{11} In the second part of their claim, the Uptons challenge the School District's failure to respond to Sarah's attack. From the time Sarah's distress was first noticed, it took the school approximately fifteen minutes to call 911, adverse to the explicit instructions Sarah's parents had given the School District to contact emergency...