GALLEGOS V. TRUJILLO, 1992-NMCA-090, 114
N.M. 435, 839 P.2d 645 (Ct. App. 1992)
NIEVES GALLEGOS, as Personal
Representative of the Estate
of Barbara D. Gallegos, Joshua Nieves Gallegos, and
Baby Doe Gallegos, and ELMER VIGIL, as Personal
Representative of the Estate of Judy Ann
Vigil, Plaintiffs-Appellants,
vs.
DENNIS TRUJILLO, LARRY TRUJILLO, BOARD OF COUNTY
COMMISSIONERS OF MORA COUNTY, MORA COUNTY SHERIFF'S
DEPARTMENT, STATE CORPORATION COMMISSION,
MARTIN VIGIL, former New Mexico State
Chief of Police, "DOE" CORPORATION,
and DOES 1-10,
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
1992-NMCA-090, 114 N.M. 435, 839 P.2d 645
Appeal from the District Court of Santa
Fe County. Steve Herrera, District Judge
For Plaintiffs-Appellants: Jeff Romero,
Albuquerque, New Mexico.
For Board of County Commissioners of Mora
County, Defendant-Appellee: David M. Houliston, Butt, Thornton & Baehr,
P.C., Albuquerque, New Mexico
DONNELLY, MINZNER, APODACA
{1} Plaintiffs Nieves
Gallegos, as Personal Representative of the Estate of Barbara D. Gallegos,
Joshua Nieves Gallegos, and Baby Doe Gallegos, and Elmer Vigil, as Personal
Representative of the Estate of Judy Ann Vigil, appeal from an order granting
summary judgment and dismissing their wrongful death claims against Defendant
Board of County Commissioners of Mora County (Board). The central issue
presented on appeal is whether the Board was legally obligated to provide
ambulance services in Mora County and whether its
{*436}
alleged negligent breach of such duty proximately contributed to the deaths
of Plaintiffs' decedents. We hold that the Board's immunity from suit was not
waived and affirm the district court's order.
{2} This case arises out of
an automobile collision which occurred in the early evening hours of February
14, 1986, near the town limits of Mora, in Mora County. The vehicle in which
Plaintiffs' decedents were riding attempted to make a U-turn and was struck by
a pickup truck driven by Defendant Dennis Trujillo. Plaintiffs' second amended
complaint alleged, inter alia, that the Board "had a legal duty . . . to
maintain ambulance service" to the residents of Mora County, including
decedents; that the Board was "negligent in failing to provide ambulance
service"; and that as a "direct and proximate result of the
negligence" of the Board, Plaintiffs' decedents died.
{3} The Board's answer denied
the existence of any duty or obligation and denied any negligence or that its
acts or omissions proximately caused the deaths of decedents. The evidence was
conflicting as to whether the delay in transporting decedent, Barbara D.
Gallegos, from the accident scene to the hospital in Las Vegas proximately
contributed to her death. Dr. Cordell Halverson testified by deposition that
within a reasonable medical probability, delay in reaching the hospital was a
contributing factor in the deaths of Barbara D. Gallegos and her unborn child.
{4} It was undisputed that
the Board had assisted in providing ambulance services for Mora County since
1977 and had leased an ambulance owned by the Board to Mora Valley Community
Health Services, Inc. (MVCHS), a private nonprofit corporation, which operated
a clinic and ambulance services in Mora County. During 1985 the Board provided
approximately $ 4,000 in funding to MVCHS to operate the ambulance service.
Prior to the fiscal year beginning July 1, 1985, MVCHS notified the Board that
the sum of $ 4,000 would be insufficient to permit it to continue operation of
the ambulance service, and in December 1985 MVCHS advised the Board that
ambulance services in the county would be terminated unless additional funds
were made available. On January 3, 1986, MVCHS stopped providing ambulance
services. In an attempt to restore such service, several weeks later on January
28, 1986, the Board obtained approval for additional funding from the New
Mexico Department of Finance and Administration; however, the Board did not
obtain a warrant authorizing payment of the funds until March 6, 1986.
{5} The Board moved for
summary judgment and dismissal of Plaintiffs' claims against it, contending,
among other things, that it was entitled to dismissal as a matter of law
because the Board had no legal duty or obligation to provide ambulance services
at the time of the accident and that it was immune from liability for
Plaintiffs' claims under the Tort Claims Act, NMSA 1978, §§
41-4-1 to -27
(Repl. Pamp. 1989). Following a hearing, the district court granted the Board's
motion and denied Plaintiffs' motion for reconsideration.
{6} Plaintiffs argue that the
Board had a legal duty under NMSA 1978, Section
5-1-1(A) (Repl. Pamp. 1992) to
provide ambulance services and its breach of such duty proximately contributed
to the deaths of decedent Barbara D. Gallegos and her unborn child. Section
5-1-1 provides in applicable part:
A municipality or county may :
A. provide ambulance service to transport sick or
injured persons to a place of treatment in the absence of an established
ambulance service only as authorized by the state corporation commission;
B. contract with other political subdivisions or with
private ambulance services for the operation of its ambulance service[.]
[Emphasis added.]
{7} Plaintiffs contend that
even though the language underscored above appears facially permissive, because
the statute invests the Board with authority to perform acts which are so
closely related to the furtherance of the public welfare and interests, the
term "may" should be interpreted
{*437}
to be mandatory. In support of this contention, Plaintiffs rely upon
State
ex rel. Robinson v. King,
86 N.M. 231,
522 P.2d 83 (1974), and
Catron v.
Marron,
19 N.M. 200,
142 P. 380 (1914). In
Robinson the court
interpreted the language of a statute providing that the governor "
may
amend the proclamation" calling for a statewide primary election to be
mandatory rather than discretionary. 86 N.M. at 233, 522 P.2d at 85 (quoting
NMSA 1915, § 3-8-15). The
Robinson court held that "whether words
of statutes are mandatory or discretionary is a matter of legislative intent to
be determined by consideration of the purpose sought to be accomplished."
Id.
{8} Similarly, in
Catron
the court held that the road commission and its successor, the state highway
commission, had a mandatory obligation to levy an annual property tax
sufficient to meet the state's obligations because of the issuance of highway
bonds. The court construed the permissive language of the statute to be
mandatory because such construction was necessary in order to sustain and
enforce existing rights. 19 N.M. at 205-06, 142 P. at 382. The
Catron
court quoted with approval from
Springfield Milling Co. v. Lane County,
5 Or. 265, 271-72 (1874), noting, "'When a public officer or body has been
clothed by statute with power to do an act which [intimately] concerns the
public interest, the execution of the power is a duty and though the
phraseology of the statute may be permissive, it is nevertheless to be held
peremptory.'" 19 N.M. at 206, 142 P. at 382.
{9} Where a county or
political subdivision is confronted with a shortage of available revenues, the
county is invested with discretion concerning the allocation of public funds.
See
NMSA 1978, §
4-38-18 (Repl. Pamp. 1992). Moreover, under the Bateman Act, NMSA
1978, Section
6-6-11 (Repl. Pamp. 1992), county commissioners are precluded
under penalty of law from incurring an indebtedness or contracting for the
payment of debts of "any kind" during the current fiscal year, which
"at the end of such current year . . . cannot then be paid out of the
money actually collected and belonging to that current year."
{10} We note that Section
5-1-1 contemplates that there may not be a local established ambulance service.
See § 5-1-1(D) (authorizing municipality or county to go to the scene of
accidents outside its subdivision boundaries when requested "providing no
local established ambulance service is available or if one exists, . . . [it
is] inadequate. . . ."). Section 5-1-1(D) would be meaningless if we were
to interpret the statute to require every county and municipality to have an
established ambulance service. Additionally, as noted by the Board, Section
5-1-1(B) contemplates that a county might arrange to have ambulance service
provided from another county. This language indicates that a county is not
required to have its own service. In fact, the Board alleged this is the
situation in the present case. We conclude that Section 5-1-1 does not impose a
mandatory duty on the county to provide an ambulance service.
{11} Plaintiffs also argue
that the decision in
Schear v. Board of County Commissioners,
101 N.M.
671,
687 P.2d 728 (1984), supports their contention that the Board may be held
liable in tort for a negligent failure of public officers to perform a
mandatory duty. In
Schear our supreme court held that peace officers had
breached a mandatory duty imposed by NMSA 1978, Section
29-1-1 (Repl. Pamp.
1990) by failing to timely respond to a call reporting a crime in progress and
requesting assistance of law enforcement personnel. In light of our conclusion
that Section 5-1-1 does not impose a mandatory duty on the Board to provide
ambulance services, we do not consider
Schear applicable to the facts of
the present case.
{12} Ordinarily, a holding
that no duty existed as a matter of law would end our analysis. However,
Plaintiffs appear to also argue that, once the county had undertaken to assist
in providing ambulance services, it had a duty to continue. Plaintiffs assert
that the Board's acts in contracting to provide ambulance services, in fact,
amounted to the operation of such service under Section
{*438}
5-1-1(B) and under Section 41-4-9 of the Tort Claims Act. Plaintiffs also
contend that Section 41-4-10 constitutes a waiver of immunity so as to
authorize the filing of a negligence action against the Board in the present
case. Section 41-4-10 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 licensed by the state or permitted by law to provide health
care services while acting within the scope of their duties of providing health
care services.
Thus, Plaintiffs reason that the failure of the Board to
continue funding the service constituted negligent operation or provision of
the ambulance service. We disagree.
{13} Section 41-4-2(A) of the
Tort Claims Act provides in part that "it 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." Section
41-4-4(A) specifies that governmental entities or public employees are immune
from tort liability "except as waived by Sections 41-4-5 through
41-4-12."
{14} Plaintiffs additionally
argue that Section 5-1-1(F) should be construed to provide an independent
statutory waiver of governmental immunity. Plaintiffs reason that the language
of the section conflicts with Section 41-4-2(A), which states that government
bodies and employees "shall only be liable within the limitations of the
Tort Claims Act." We construe the language relied upon by Plaintiffs in
Section 5-1-1(F) as simply constituting a
bar to personal actions
against public employees. Subsection F of Section 5-1-1 states:
No personal action shall be maintained in any court of
this state against any member or officer of a political subdivision or in
execution of its orders under this section. In all such cases, political
subdivisions shall be responsible. Any member or officer of the political
subdivision may plead the provisions of this section in bar of such
action whether it is now pending or hereafter commenced. [Emphasis added.]
Section 5-1-1(F) recognizes that if a county elects to
provide ambulance services, even though not mandatory, a tort claim may be
prosecuted for injury or property damage arising out of the negligent operation
of such service. Any such claim would be subject to the provisions of the Tort
Claims Act. See § 41-4-2(A). The provisions of the Tort Claims Act,
however, waive immunity from suit in tort for employees as well as the
government bodies that employ them. See §§ 41-4-9; -10. In contrast to
the provisions of the Tort Claims Act, under Section 5-1-1(F), if a county
undertakes to provide ambulance services and a tort claim is filed alleging
negligent operation of such service, the employee cannot be sued; rather, the
governmental body is responsible. Although both Acts permit suit against the
county for negligent acts, Section 5-1-1(F) restricts suit against an employee
individually. To the extent the two statutes are conflicting, we need not
resolve herein which statute controls because it is clear that under either
statute the legislature did not intend to waive immunity of the Board from the
claims asserted here.
{15} Section 41-4-9 provides
in applicable part that the immunity granted under the Tort Claims Act 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 of any hospital,
infirmary, mental institution, clinic, dispensary, medical care home or like
facilities."
{16} Plaintiffs further argue
that the Board's purchase of an ambulance, the leasing of such vehicle, and its
agreement to assist MVCHS in providing such services constitutes the
"operation" of a "hospital," "clinic," or adjunct
services, including the furnishing of ambulance services, within the
contemplation of Section 4-4-9. We think their arguments must fail.
{17} Nothing in the Tort
Claims Act or Section 5-1-1 discloses a legislative intent
{*439}
to subject a county to tort liability based upon its failure or refusal to
provide additional funding for ambulance services under the circumstances here
presented.
See Gallegos v. State,
107 N.M. 349,
758 P.2d 299 (Ct. App.
1987) (cause of action under Tort Claims Act must fit into one of the
exceptions to governmental immunity specified in the Act);
Pemberton v.
Cordova,
105 N.M. 476,
734 P.2d 254 (Ct. App. 1987) (unless specific waiver
of immunity is contained in Tort Claims Act, consent to sue may not be
implied). Statutory provisions purporting to waive governmental immunity are
strictly construed.
See Armijo v. Department of Health & Env't,
108
N.M. 616,
775 P.2d 1333 (Ct. App. 1989) (Tort Claims Act extends immunity for
tort liability to governmental entity, except where immunity is waived under
Sections 41-4-5 to -12 of the Act);
see also Martinez v. City of Cheyenne,
791 P.2d 949 (Wyo. 1990);
cf. Methola v. County of Eddy,
95 N.M. 329,
622 P.2d 234 (1980) (legislation in derogation of common law is strictly construed).
{18} We conclude that funding
decisions are not the types of decisions the legislature intended to include in
the meaning of "operation" of a service under Sections 5-1-1, 41-4-9
or 41-4-10. Although no case has construed the meaning of the word "operation"
as used in Section 5-1-1, this court has narrowly construed the term
"operation" as used in the Tort Claims Act.
See Armijo v.
Department of Health & Env't; see also Adams v. Japanese Car Care,
106
N.M. 376,
743 P.2d 635 (Ct. App. 1987). In
Armijo we held that an
agency's regulation of a mental health facility was not "operation"
of a mental health facility where the agency was not involved in the actual
clinical decision-making and thus Section 41-4-9 did not waive the agency's
immunity.
Id., 108 N.M. at 618, 775 P.2d at 1335. Similarly, in
Chee
Owens v. Leavitts Freight Service, Inc.,
106 N.M. 512,
745 P.2d 1165 (Ct.
App. 1987), this court construed the word "operation" in Section
41-4-5 as not including the design, planning, and enforcement of safety rules
for school bus transportation, and in
Adams, 106 N.M. at 378, 743 P.2d
at 637, the phrase "operation of . . . liquid waste collection or
disposal" utilities in Section 41-4-8(A) was construed as not including
inspection of a private sewer cleanout. In contrast, the bus driver's
implementation of the regulations when letting children off the school bus was
held to fall within the meaning of "operation."
Chee Owens v.
Leavitts Freight Service, Inc., 106 N.M. at 515-16, 745 P.2d at 1168-69.
{19} These cases compel us to
conclude that "operation" should not be extended to include funding
decisions by a county or the allocation or nonallocation of funds. To extend
the meaning of "operation" to such activities would expose governmental
bodies to potential liability for virtually every decision made, which we
decline to do.
Cf. Martinez v. Kaune Corp.,
106 N.M. 489, 492,
745 P.2d
714, 717 (Ct. App. 1987) (holding that extending the waiver of immunity in
Section 41-4-6 for "operation or maintenance of any building" to
include state's licensing or inspection of dairy farm or food store "would
circumvent the very grant of immunity provided by the Tort Claims Act").
We do not think the legislature intended to equate "providing health care
services" within the meaning of Section 41-4-10 and failure to provide
additional funding.
{20} Because we conclude that
the Board had no duty to provide an ambulance service under Section 5-1-1 and
that decisions regarding funding are not to be considered an aspect of the
"operation" of ambulance services under either that section or the
Tort Claims Act, we hold that the Board's failure to continue funding the
ambulance service did not constitute negligent operation of such service and
thus the Board's immunity from suit was not waived under Sections 41-4-9 or
41-4-10 of the Tort Claims Act.
{21} We affirm the judgment
of the district court.
THOMAS A. DONNELLY, Judge