NORIEGA V. STAHMANN FARMS, INC., 1992-NMCA-010,
113 N.M. 441, 827 P.2d 156 (Ct. App. 1992)
HECTOR NORIEGA, SR., and ROSA NORIEGA,
Individually and as
Parents and Next Friends and Guardians of HECTOR
NORIEGA, JR., Plaintiffs-Appellants,
vs.
STAHMANN FARMS, INC., and ELEPHANT BUTTE IRRIGATION
DISTRICT, Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
1992-NMCA-010, 113 N.M. 441, 827 P.2d 156
Appeal from the District Court of Dona
Ana County. Thomas G. Cornish, Jr., District Judge.
FRED ABRAMOWITZ, Albuquerque, New Mexico,
Attorney for Plaintiffs-Appellants.
JACK T. WHORTON, Whorton Law Offices,
Alamogordo, New Mexico, Attorneys for Defendant-Appellee Elephant Butte
Irrigation District.
{1} Plaintiffs, Hector
Noriega and Rosa Noriega, brought suit against defendants, Elephant Butte
Irrigation District (EBID) and Stahmann Farms, Inc., alleging negligence,
inter
alia, in failing to keep the area adjacent to an EBID ditchbank in a safe
condition and in failing to install warning signs or fences, resulting in
injuries to five-year-old Hector Noriega, Jr. Waiver of immunity of EBID was
alleged in plaintiffs' first amended complaint pursuant to NMSA 1978, Sections
41-4-6 and
41-4-11 (1989 Repl. Pamp.) EBID, not joined by Stahmann Farms, Inc.,
moved to dismiss the first amended complaint for lack of jurisdiction and for
failure to state a claim upon which relief can be granted. SCRA 1986,
1-012(b)(1), (6). This is an appeal from the trial court's order granting the
motion to dismiss. We affirm.
{2} The alleged facts of this
case, which for the purpose of the motion to dismiss are admitted, are that
Hector Noriega, a child five years of age, suffered injuries while playing on
property owned by EBID. The area in question was in the vicinity of housing
owned by defendant Stahmann Farms, Inc., and occupied by Stahmann Farms'
farmworkers. The child was visiting relatives employed by Stahmann Farms when
he wandered near the irrigation ditch. The child was discovered lying in the
ditch where he had apparently been for several minutes.
{3} The issue, as presented,
is whether the trial court erred in granting the motion to dismiss the first
amended complaint for failure to state a claim upon which relief can be granted
under Rule 12(b)(6). Accordingly, we apply the test applicable to Rule
12(b)(6). The general rule is that this court assumes the truth of the facts
alleged in the complaint.
Castillo v. County of Santa Fe,
107 N.M. 204,
755 P.2d 48 (1988). A motion to dismiss for failure to state a claim should be
granted only if it appears that plaintiff cannot recover, or be entitled to
relief, under any state of facts provable under the complaint.
Id.
{4} Under the pleaded facts,
EBID is a state governmental entity and the area adjacent to the irrigation
ditchbank and canal,
{*443} owned by
EBID, was overladen with weeds and grass which obscured the porous dirt siding
of the irrigation ditchbank and canal. The area adjacent to the irrigation
ditchbank and canal had no warning signs or notices of any kind.
{5} The trial court found
that plaintiffs did not allege any facts to establish that immunity of EBID had
been waived regarding plaintiffs' claim, and that the first amended complaint
alleged facts that established only that the incident from which their claims
arose occurred on an irrigation ditch, which is a work used for the diversion
or storage of water, as set forth in Section 41-4-6.
LIABILITY UNDER THE TORT CLAIMS ACT
{6} The Tort Claims Act, NMSA
1978, Sections
41-4-1 to -27 (Repl. Pamp. 1989), shields both governmental
entities and public employees from liability for torts except when immunity is
specifically waived in the Act.
See Wittkowski v. State Corrections Dep't,
103 N.M. 526,
710 P.2d 93 (Ct. App. 1985); NMSA 1978, 41-4-2. It is undisputed
that EBID is a local public body and a governmental entity as defined in the
Tort Claims Act. NMSA 1978, 41-4-3(B) and (C). Plaintiffs assert that immunity
was waived pursuant to Section 41-4-6.
{7} Section 41-4-6 reads:
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 operation or
maintenance of any building, public park, machinery, equipment or furnishings.
Nothing in this section shall be construed as granting waiver of immunity for
any damages arising out of the operation or maintenance of works used for
diversion or storage of water.
{8} In this case, the first
amended complaint states that the "area adjacent to the irrigation
ditchbank and canal had not been properly maintained in that it was overladen
with extensive weeds and grass which obscured the porous dirt siding of the
irrigation ditchbank and canal." It also alleges that Hector Noriega
slipped and fell into the ditchbank as a consequence of the condition of the
property. Even if the weeds obscured the embankment, this would still be within
the bounds of the immunity. If these facts are admitted as true, there would be
no liability because the injuries arose out of the operation and maintenance of
the irrigation ditch. The first sentence of Section 41-4-6 is not a general
waiver of immunity with respect to negligent maintenance of all public lands.
It is restricted to negligent maintenance of buildings, public parks,
machinery, equipment, and furnishings. However, maintenance of a structure
encompasses maintenance of the property surrounding the structure.
See
Castillo;
Schleft v. Board of Educ.,
109 N.M. 271,
784 P.2d 1014
(Ct. App. 1989). Thus, the first sentence of Section 41-4-6 could be read to
waive immunity for negligent maintenance of the property bordering an
irrigation canal. But if maintenance of the canal encompasses maintenance of
adjacent property for purposes of the waiver of immunity in the first sentence
of Section 41-4-6, "maintenance" must have the same meaning for
purposes of the second sentence of the section, thereby withdrawing the waiver
of immunity in this case.
{9} Plaintiffs'
brief-in-chief also alleges that the complaint states a claim against EBID
pursuant to NMSA 1978, Section
41-4-11. This section of the Tort Claims Act
provides for waiver of immunity for the negligent maintenance of a roadway.
Although plaintiffs' amended complaint alleges a waiver of immunity under
Section 41-4-11, the complaint fails to allege any facts that would bring the
claim within that section. The complaint does not even allege the existence of
a road, much less that the road was owned by EBID or that the road had any
causal relationship with the accident. Plaintiffs attempt to remedy this
shortcoming by attaching to their brief-in-chief on appeal an excerpt from a
deposition of William J. Stahmann taken five months after the trial court
dismissed the
{*444} claim against EBID.
Mr. Stahmann testified to the existence of a road near the irrigation canal.
Even were we to consider such an untimely addition to the record, we note that
the deposition does not support a claim that the road was EBID's. On the
contrary, Mr. Stahmann testified that the road was constructed by Stahmann
Farms. Thus, plaintiffs have not established a basis for liability and a waiver
of immunity pursuant to Section 41-4-11. Without a waiver of immunity pursuant
to Section 41-4-11 or Section 41-4-6 in this case, the allegations in the
complaint were insufficient to state a claim upon which relief could be
granted.
{10} The order of the trial
court dismissing the complaint is affirmed. No costs are awarded.
HARTZ and PICKARD, JJ., concur.