UPTON V. CLOVIS MUNICIPAL SCHOOL
DISTRICT, 2006-NMSC-040, 140 N.M. 205, 141 P.3d 1259
CASE HISTORY ALERT: see ¶1, ¶26 - affects
2005-NMCA-085
SAMUEL UPTON,
Plaintiff-Petitioner,
v.
CLOVIS MUNICIPAL SCHOOL DISTRICT,
Defendant-Respondent.
SUPREME COURT OF NEW MEXICO
2006-NMSC-040, 140 N.M. 205, 141 P.3d 1259
ORIGINAL PROCEEDING ON CERTIORARI, David W. Bonem and
Teddy L. Hartley, District Judges
Revised September 12, 2006. Released
for publication 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
RICHARD C. BOSSON, Chief Justice. WE
CONCUR: PATRICIO M. SERNA, Justice, PETRA JIMENEZ MAES, Justice, EDWARD L.
CHÁVEZ, Justice, PAMELA B. MINZNER, Justice (dissenting)
AUTHOR: RICHARD C. BOSSON
{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.
{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.
{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 (1995).
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
633 (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
personnel immediately. To the contrary, a police officer at the school called
911 immediately upon seeing Sarah in the hallway. The school's limited response
to Sarah's emergency was an attempt to give her an inhaler treatment, followed
by a decision to place her into a wheelchair and push her out to the sidewalk.
CPR was never administered even though, according to the allegations, it was
clear from the onset of the attack that Sarah was not breathing well and was
turning blue. Evidence indicates that Sarah may already have been dead when the
ambulance arrived, suggesting that it should have been clear to school
personnel that Sarah required immediate medical attention.
{12} This is not the
first time our courts have been faced with a tort claim under Section 41-4-6 of
the TCA, caused by negligent failure of public employees to follow appropriate
safety procedures at a public building or park. In one such case,
Leithead,
a young girl nearly drowned at a public swimming pool and likely suffered brain
injury, when an inadequate number of capable lifeguards were on duty.
1997-NMCA-041, ¶¶ 12, 15. Noting that lifeguard services are essential to
swimming pool safety, our Court of Appeals held that negligent implementation
of safety protocols created a dangerous condition arising from the
"operation" of the facility within the meaning of Section 41-4-6.
Id.
¶¶& 3, 12-15 (relying on this Court's prior opinion in
Seal v. Carlsbad
Indep. Sch. Dist.,
116 N.M. 101, 104-05,
860 P.2d 743, 746-47 (1993), which
held that a school district could be sued for negligence in the operation or
maintenance of a swimming pool for not ensuring that lifeguards were
"present and acting as such").
{13} Similar to
Leithead,
the School District's alleged failure to follow procedures established for
at-risk students appears to fall comfortably within the Section 41-4-6 waiver
for "operation or maintenance" of a public building. Just as schools
generally have safety procedures in place for various kinds of emergencies, a
school simply cannot operate in a safe, reasonable, and prudent manner without
affording, at the very least, the health and safety services that students have
been promised, and upon which parents have relied. Safety procedures are particularly
vital for those students known to have special needs and special risks. In this
instance, the School District's failures to comply with such protocols and
assurances created a dangerous condition, no different for Sarah than was the
swimming pool for the plaintiff in
Leithead.
{14} The
procedures in place for students with special needs like Sarah are akin to
other measures that are important for the safe operation of any school
building. For example, schools put in place fire plans to expedite a safe exit
from the building. In the operation of the school, the threat of fire is
treated in a specific manner, just as students with special health needs are
treated in a specific way for their own safety. If a fire were to break out and
school personnel were to fail to respond in a reasonable manner, then few would
question that the school was negligent in the "operation" of the
school building within the meaning of the TCA. Sarah's situation draws a close
parallel. The School District failed to follow through on its safety policies
for students with special needs and students in acute medical distress, an act
of negligence in the operation of the school no less portentous to its students
than a failure to implement appropriate fire exit procedure.
The School District's Response: Negligent Supervision
Creating a Risk Only for Sarah Individually is not the Operation of a Building
Under the TCA
{15} To rebut the Uptons'
claims, and relying primarily upon our precedent in
Espinoza, the School
District argues that, at its core, the Uptons' complaint amounts to nothing
more than a claim of negligent supervision of one student during a physical
education class, which does not rise to the level of a dangerous condition
affecting students generally. The Court of Appeals agreed with the School
District, which squarely presents us with an opportunity to clarify our case
law.
Upton,
2005-NMCA-085, ¶ 11.
{16} This Court
previously stated in
Espinoza that a complaint alleging nothing more
than negligent supervision is not actionable, because the TCA does not specify
a tort waiver for negligent supervision. To be more precise, Section 41-4-6
waives immunity for the operation or maintenance of a public building, which
may include proof of negligent acts of employee supervision that is part of the
operation of the building.
See Leithead,
1997-NMCA-041, ¶ 8
(stating a claim that involves elements of negligent supervision can still fall
under the waiver if that supervision is directly tied to the "operation or
maintenance" of the building). But the claim cannot be based solely on
negligent supervision.
See id. (holding "a claim of
negligent supervision, standing alone, is not sufficient to bring a cause of
action within the waiver of immunity created by Section 41-4-6").
{17} In
Espinoza, a
child was injured on a public playground after falling from a slide while
attending a city-sponsored day camp. 120 N.M. at 681, 905 P.2d at 719. The
child's parents claimed two kinds of negligent supervision: (1) an inadequate
number of day camp personnel to supervise the children and (2) negligence by
day camp personnel in not watching their child closely enough.
Id. at
681-82, 905 P.2d at 719-20. This Court rejected the parents' claim under
Section 41-4-6 because in their pleadings the parents alleged nothing more than
negligent supervision which, of course, is not a specific waiver under the TCA.
Id. at 683-84, 905 P.2d at 721-22. We also relied on a corollary
proposition that the TCA does not waive immunity for a single, discrete administrative
decision affecting only a single person, as opposed to a dangerous condition
affecting the general public.
Id. (citing
Archibeque v. Moya,
116
N.M. 616, 619,
866 P.2d 344, 347 (1993), where this Court held that one
employee's negligent performance of an administrative function, putting at risk
a single individual, did not fall under the waiver of immunity).
{18} Upon close analysis,
we find unpersuasive the School District's attempt to draw a parallel between
these cases and the Uptons' claim. The Uptons clearly assert much more than
negligent supervision of their daughter. As discussed above, the Uptons
challenge the School District's general failure to implement promised safety policies
for at-risk students. The Uptons claim the School District negligently put in
motion a chain of events that both preceded and followed the specific decisions
of the hapless substitute teacher. The school failed to implement Sarah's IEP,
to respond appropriately to the specific information it was given about Sarah's
condition, and to implement the specific assurances given to the Uptons about
the care the school was to provide in light of Sarah's special needs. The
substitute teacher, a school employee, forced Sarah to continue her exercise
despite tangible evidence of her distress. Then, the school failed to properly
implement its emergency procedures. Faced with Sarah's acute distress, the
school never administered CPR, no one called 911 in a timely manner, Sarah was
simply wheeled outside to await emergency personnel. Thus, the Uptons challenge
far more than a single failure of oversight by one overworked teacher.
{19} We acknowledge that
a school building is not as inherently dangerous as a swimming pool, and thus,
the distinction between negligent supervision "standing alone" and
negligent supervision tied directly to the operation of the school building is
not as readily apparent as in
Leithead. A comparison between this
Court's prior decision in
Archibeque and a subsequent opinion of our
Court of Appeals in
Callaway v. New Mexico Department of Corrections,
117 N.M. 637,
875 P.2d 393 (Ct. App. 1994) may illustrate the distinction.
{20} In
Archibeque,
a prison administrator negligently failed to check a list of names before
placing an inmate into an area of the prison with his known enemies. 116 N.M.
at 618, 866 P.2d at 346. In declining to equate this with negligent operation
of a building under Section 41-4-6, Chief Justice Ransom noted the difference
between cases involving only a "discrete administrative decision"
that did not make the premises any more dangerous beyond "the reasonable
and expected risks of prison life," and the cases demonstrating "a
general condition of unreasonable risk from negligent security practices,"
for which the TCA does waive immunity.
Archibeque, 116 N.M. at 622, 866
P.2d at 350 (Ransom, J., specially concurring). That general condition later
surfaced in
Callaway when prison officials allowed violent gang members
to mingle with the general prison population, thereby creating a dangerous
condition based on more than just a single administrative decision affecting
only one inmate as in
Archibeque.
See Callaway, 117 N.M. at 643,
875 P.2d at 399.
{21} The distinction
between
Archibeque and
Callaway carries over to the present case.
If the only alleged misconduct toward Sarah had been the substitute PE teacher
failing to watch her while she participated in physical exercise, the Upton's
claim would be much closer to the single administrative decision in
Archibeque.
It would be practically identical to the single claim of negligent supervision
we found inadequate in
Espinoza. But here we have behavior that goes
beyond these limits. First the school ignored the information it was given by
the Uptons. This led to the school actively participating in causing the asthma
attack by forcing Sarah to do more exercise than she was supposed to do.
Actively forcing students, who are known to have health problems, creates a
foreseeable risk that such a health emergency will occur. Then the school
failed to follow through with proper emergency procedures, negligent omissions
that exacerbated the problem caused by its previous negligent actions. These
actions and omissions combined to create the dangerous condition, placing Sarah
in a far worse position than "the reasonable and expected risks of
[school] life." This case is more closely aligned with
Callaway than
Archibeque, and it is wholly dissimilar from
Espinoza.
{22} For its final point,
the School District again relies on
Espinoza to argue that it only
created a dangerous condition for a single individual, Sarah, not the general
public or the students at large. This is a significant distinction because this
Court has previously stated that "the critical question is whether the
condition creates a potential risk to the
general public."
Espinoza,
120 N.M. at 683, 905 P.2d at 721 (emphasis added). We acknowledge that this
language from
Espinoza can be subject to misinterpretation, and we take
this opportunity to clarify it.
{23} As previously
applied by this Court and our Court of Appeals, the reference to the
"general public" in
Espinoza does not mean a condition that
must be dangerous to the entire public, but rather, at least potentially, to
the particular class of people that use the building or facility in question.
See
Castillo, 107 N.M. at 205, 755 P.2d at 49 (roaming dogs were threat to
residents
and invitees of housing development);
Callaway, 117 N.M. at 641-42,
875 P.2d at 397-98 (roaming gang was threat to
prison population);
Leithead,
1997-NMCA-041, ¶ 15 (indicating lack of lifeguards was threat to
swimming
public);
Baca v. State,
1996-NMCA-021, ¶¶ 10-11,
121 N.M. 395,
911
P.2d 1199 (stating security officers were threat to the
attendees of the
State Fair). The key point in
Espinoza is that the negligence must
be of a kind which makes the premises dangerous, or potentially so, to the
affected public, the consumers of the service or the users of the building,
including the plaintiff.
Cf.
Archibeque, 116 N.M. at 619, 866
P.2d at 347 (holding administrative decision pertaining to a single individual
and the specific threats posed to that individual did not qualify under the
building waiver);
Espinoza, 120 N.M. at 681, 905 P.2d at 719 (holding
failure to adequately supervise one specific child on a playground slide did
not qualify under the building waiver).
{24} In
Castillo,
Callaway,
Baca, and
Leithead, only one person was injured but the risk
posed was to a group of people using the park or building. The same is true for
Sarah. Failure to respond appropriately to an emergency medical situation is a
potential threat to every student in school because such a situation can occur
at any time, regardless of special health needs. The school's indifference
towards Sarah's special medical needs makes it more likely that all similarly
situated students were at risk as well. The same policies that led the Uptons
to rely on the school's diligence were in place for other at-risk students.
This is not a case of action uniquely affecting only one student. The school's
failures, if proven, created a dangerous condition for all special-needs
children, and with regard to emergency responsiveness, for every student at the
school.
{25} Accordingly, we hold
that the Uptons have stated a claim which, if proven, constitutes negligence in
the operation or maintenance of a building within the waiver of tort immunity
set forth in Section 41-4-6. The Uptons are entitled to an opportunity to prove
their claim to a jury.
{26} For the
foregoing reasons, we reverse the opinion of the Court of Appeals and remand
for further proceedings consistent with this Opinion.
RICHARD C. BOSSON, Chief Justice
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
PAMELA B. MINZNER, Justice (dissenting)
MINZNER, Justice (dissenting).
{28} I
respectfully dissent. I would affirm the district court's grant of summary
judgment for the Clovis Municipal School District on the basis of the analysis
within the Court of Appeals' opinion. The Court of Appeals discussed the waiver
of governmental immunity provided by Section 41-4-6 of the Tort Claims Act
(TCA), NMSA 1978, §§
41-4-1 to -29 (1976, as amended through 2004), and our
case law interpreting this waiver.
Upton v. Clovis Mun. Sch. Dist.,
2005-NMCA-085,
137 N.M. 779,
115 P.3d 795. In analyzing our case law
interpreting Section 41-4-6, the Court of Appeals distinguished "between
the creation of a dangerous condition that places the general public at risk,
which results in a waiver, and negligent supervision, which does not."
Id.
¶ 10. The Court of Appeals concluded that this case involves the negligent
supervision of a single child, rather than a dangerous condition that placed
the general public at risk.
Id. ¶ 11. Furthermore, the Court of Appeals
noted that our cases have "made it clear that administrative or
supervisory functions do not equate with the `operation of any building' or
call for a waiver of immunity."
Id. ¶ 12. I also agree with Judge
Sutin's special concurrence, which emphasizes the Legislature's authority to
revise the TCA.
{29} As the
majority opinion notes, the TCA "grants all government entities and their
employees general immunity from actions in tort, but waives that immunity in
certain specified circumstances." Maj. Op. ¶ 8. Thus, the rule is
immunity; waiver is the exception. The majority opinion construes Section
41-4-6 as an exception to the TCA within which the facts of record fit and
concludes that the Legislature intended to waive immunity on these facts.
{30} The majority
opinion states that the negligent "operation or maintenance of any
building" encompasses all cases in which the negligent action of a
government entity creates "a dangerous condition that threatens the
general public or a class of users of the building." Maj. Op. ¶ 8. That
statement, however, rests on what the majority characterizes as language in
Espinoza
v. Town of Taos,
120 N.M. 680, 683,
905 P.2d 718, 721 (1995), which
requires clarification.
See Maj. Op. ¶ 22.
{31} In clarifying
the reference to the "general public" in
Espinoza, the
majority opinion reasons that our cases only require a condition that is
dangerous "to the particular class of people that use the building or
facility in question." Maj. Op. ¶ 23. If the creation of a condition
injures a member of a class or group that uses a building, the majority
concludes, the creation of that condition can be said to be "operation or
maintenance of any building" within Section 41-4-6. Maj. Op. ¶ 24. It
seems to me, however, that the majority opinion expands our case law without
acknowledging it is doing so and without explaining why on these facts it is
within our authority to do so.
{32} As Judge
Sutin's special concurrence makes eloquently clear, none of us can or would
deny the harm that has been done, nor does it lie within our power to un-do
that harm. Our task is more ordinary and familiar. We are charged not with expanding
our case law as an independent source of law, but rather with construing the
Legislature's intent in enacting Section 41-4-6.
{33} The majority
opinion identifies, within a handful of cases, a broad interpretation of the
Legislature's intent "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." Maj. Op. ¶ 9. The
Legislature's intent, however, is expressed in the language the legislators
chose. The phrase "operation or maintenance" does not actually refer
to a condition that is dangerous to members of the class or group that use the
building. The application or expansion of the phrase in the handful of cases to
which the majority refers does not help us understand the Legislature's intent
for the facts of record in this appeal; rather, these cases illustrate the
generality of the phrase and the difficulty trial and appellate courts have had
in limiting the exception.
{34} At some
point, however, just as a quilt maker must return to the original pattern in
cutting subsequent squares, this Court needs to focus on the words the
Legislature has used, which is the approach the Court of Appeals followed in
affirming the district court. I would do the same. My colleagues being of a
different view, I respectfully dissent.
PAMELA B. MINZNER, Justice