GRANO V. ROADRUNNER TRUCKING, INC., 1982-NMCA-080,
99 N.M. 227, 656 P.2d 890 (Ct. App. 1982)
DANIEL MARK GRANO, DANIEL J. GRANO and
TERRY L. GRANO,
individually and as parents, and next friends,
Plaintiffs-Appellees,
vs.
ROADRUNNER TRUCKING, INC., a New Mexico Corporation,
HAROLD
H. CARUTH, CITY OF ALBUQUERQUE, a Municipal
Corporation, and STATE OF NEW MEXICO,
Defendants-Appellants.
COURT OF APPEALS OF NEW MEXICO
1982-NMCA-080, 99 N.M. 227, 656 P.2d 890
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, BAIAMONTE, Judge
Petition for Writ of Certiorari Quashed
January 19, 1983
KATHRYN LEVY, CIVEROLO, HANSEN &
WOLF, P.A., Albuquerque, New Mexico, Attorneys for Appellant State of New
Mexico.
CHARLES W. RAWSON, Albuquerque, New
Mexico, Attorney for Appellees.
Hendley, J., wrote the opinion. I CONCUR:
Mary C. Walters, C.J., LEWIS R. SUTIN, J., (Specially Concurring).
{1} Plaintiffs sued several
defendants, including the State Highway Department, for damages arising out of
an automobile accident. The State filed a motion for summary judgment claiming
immunity. The motion was denied. We granted the State's request for an
interlocutory appeal. The sole issue is whether the State is entitled to
immunity under the Tort Claims Act. Our answer is in the negative and we affirm
the trial court.
{2} The accident in which
plaintiff Mark Grano was injured occurred on the overpass at the intersection
of Montgomery Boulevard and the northbound entrance ramp to I-25 in
Albuquerque. There is no question that the overpass is a part of the Interstate
highway. The plaintiffs' complaint alleged in part that the intersection was
negligently designed, built, and maintained by the City of Albuquerque and/or
State of New Mexico. The complaint also alleged the intersection is inherently
dangerous to the public and the State should have corrected the defect or
warned the public of it. The State filed a motion for summary judgment. In
denying the motion, the trial court's order stated "that the State Highway
Department
{*228} is not entitled to
immunity under the Tort Claims Act of the State of New Mexico."
{3} Section
41-4-11, N.M.S.A.
1978, provides:
Liability; highways and streets.
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 in the maintenance of
or for the existence 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; or
(2) the failure to construct or reconstruct any bridge,
culvert, highway, roadway, street, alley, sidewalk or parking area.
{4} The defendants contend
that the negligence alleged by plaintiffs involves the design of the highway
and the State is, therefore, immune. Defendants cite
Hammell v. City of
Albuquerque, 63 N.M. 374,
320 P.2d 384 (1958), as supporting their
position. That case held that the failure of the City of Albuquerque to replace
a stop sign that had been removed involved municipal discretion, which was a
governmental function, and the City was, therefore, immune. However,
"[t]he Tort Claims Act shall be read as abolishing all judicially-created
categories such as 'governmental' or 'proprietary' functions and
'discretionary' or 'ministerial' acts previously used to determine immunity or
liability." Section
41-4-2, N.M.S.A. 1978.
Hammell is not
applicable.
{5} We hold that the absence
of traffic controls is a condition of a highway and is, therefore, the subject
of maintenance.
See, Lake Havasu Irr. & Drain. Dist. v. DuBois, 117
Ariz. 511, 573 P.2d 911 (Ct. App. 1977). We do so by using the ordinary meaning
of maintenance. Webster's Third New International Dictionary, unabr., 1966,
defines it generally as the care or upkeep of something. In the instant case,
at the time of building the overpass, there was no need for a traffic control
device at the place of the accident. The road ended with the overpass.
{6} However, as time went on,
the road extended beyond the overpass and on into Albuquerque. This, of course,
increased the use of the overpass and the onramp. To meet this need, a certain
amount of maintenance was necessary in order to keep the overpass safe for its
users. This was not design work. There is no question as to design. It is a
question of maintenance. Whether it was negligent maintenance is, of course, a
factual issue.
{7} Although not exactly on
point, we feel that
Rickerson v. State of N.M. and City of Roswell, 94
N.M. 473,
612 P.2d 703 (Ct. App. 1980), is instructive. There, this Court
addressed the immunity question where traffic controls were at issue. In that
case, the plaintiff argued that the defendants failed to install traffic
control signals at an intersection which they knew was dangerous. This Court
held that the State and City of Roswell were not immune because the section of
the statute dealing with "negligent maintenance or existence of any
highway, roadway, or street (
inadequate controls at the intersection)...
[is the] more specific" statute and must apply. (Emphasis added.)
See,
O'Brien v. Middle Rio Grande, Etc., 94 N.M. 562,
613 P.2d 432 (Ct. App.
1980).
{8} Since the claimed vice is
that there should have been traffic control devices at the intersection where
the accident occurred, it is a question of negligence in the maintenance of the
highway. The State is not immune from liability. Section
41-4-11(A), N.M.S.A.
1978.
{9} We affirm the trial
court.
SUTIN, J. Specially concurring.
{*229} SUTIN, J.,
(Specially Concurring).
{11} I concur in the result.
{12} The majority opinion has
taken the wrong course to a correct result. It states:
We hold that the absence of traffic controls is a condition
of a highway and is, therefore, the subject of maintenance.
{13} I disagree. Section
41-4-11(A) deprives the State of immunity for negligence "in the
maintenance of... any... highway...." The word "highway" means a
way over land open to the use of the general public, the part of a road over
which vehicle traffic travels.
Moore v. State, 95 N.M. 300,
621 P.2d 517
(Ct. App. 1980). Maintenance of a highway means the upkeep of the surface of
the highway. In
Moore, guardrails were not "a condition" of a
highway subject to maintenance. The omission of guardrails is related to
negligence not maintenance. In the instant case, the omission of traffic
controls, uncertain in meaning, equates with guardrails.
"Maintenance" of a highway is not an issue. Thus far, the State is
immune to liability for failure to maintain the highway.
{14} Under § 41-4-11(A), an
alternative to maintenance exists. Immunity does not apply when injury is
caused by negligence "for the existence of any... highway...."
Immunity is waived for a highway actually built. If plaintiff's injures
occurred on the highway but did not have traffic controls, a genuine issue of
material fact exists with reference to negligence and proximate cause.
Moore,
supra.
{15} The opinion further
states:
This was not design work. There is no question as to design.
{16} The sole issue raised by
the State is that the State was immune from liability in that the negligence
alleged by plaintiff involves the plan or design of a highway. The State's
claim should be answered. The majority refusing to do so, I decline.
{17} At this juncture, it is
important to correlate
Moore v. State, supra, Rickerson v. State of N.M. and
City of Roswell, 94 N.M. 473,
612 P.2d 703 (Ct. App. 1980) and
O'Brien
v. Middle Rio Grande, Etc., 94 N.M. 562,
613 P.2d 432 (Ct. App. 1980).
Principles of law can be established to govern the meaning of § 41-4-11 of the
Tort Claims Act. Once we set a direct course in the meaning of the statute,
these problems may not arise again. Concurring opinions are denied publication.
The majority refusing to correlate these cases, I decline.