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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:__________
3 Filing Date: December 11, 2024
4 No. A-1-CA-40615
5 GLORIA VALDEZ,
6 Plaintiff-Appellant,
7 v.
8 NEW MEXICO DEPARTMENT OF 9 TRANSPORTATION,
10 Defendant-Appellee.
11 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 12 James A. Noel, District Court Judge
13 Candelaria Law LLC 14 Jacob R. Candelaria 15 Albuquerque, NM
16 for Appellant
17 Ripley B. Harwood, P.C. 18 Rip Harwood 19 Albuquerque, NM
20 for Appellee
1 OPINION
2 BACA, Judge.
3 {1} Plaintiff Gloria Valdez filed a complaint for negligence against Defendant
4 New Mexico Department of Transportation (DOT) after a large tree located on
5 private land uprooted and fell on her car. The district court dismissed Plaintiff’s case
6 with prejudice for failure to state a claim for which relief can be granted. See Rule
7 1-012(B)(6) NMRA. Plaintiff argues on appeal that the district court erred in
8 dismissing her complaint because she contends that DOT’s duty to maintain
9 roadways includes the duty to remediate dangerous conditions on private property
10 that abuts a roadway. We affirm.
11 BACKGROUND
12 {2} Plaintiff parked her car on the shoulder of the roadway near the intersection
13 of Old Highway 44 and Camino Del Pueblo in the Town of Bernalillo so she could
14 access the adjacent mailboxes. This section of roadway and the shoulder on which
15 Plaintiff parked her car abuts private property. There was a large tree in noticeably
16 poor condition on the property and the tree fell on Plaintiff’s car. The roadway on
17 which the tree fell is maintained by DOT.
18 {3} As a result, Plaintiff filed a complaint (the Complaint) in the district court of
19 Sandoval County against DOT and other public and private defendants seeking
20 damages based on allegations that DOT negligently maintained the roadway and that
1 DOT’s immunity under the New Mexico Tort Claims Act (TCA), specifically
2 NMSA 1978, Section 41-4-11(A) (2019) (the Roadway Maintenance Exception),
3 was waived. In response, DOT filed a motion to dismiss, pursuant to Rule 1-
4 012(B)(6) (the Motion) seeking dismissal of the Complaint. Following hearing on
5 the Motion, the district court granted the Motion and dismissed Plaintiff’s Complaint
6 as to the DOT. Plaintiff appeals from the order granting DOT’s motion to dismiss.
7 DISCUSSION
8 I. Standard of Review
9 {4} Plaintiff’s argument requires us to determine whether governmental immunity
10 under the TCA bars Plaintiff’s tort claim. “The standard of review for determining
11 whether governmental immunity under the TCA bars a tort claim is a question of
12 law which we review de novo.” Rutherford v. Chaves Cnty., 2003-NMSC-010 , ¶ 8,
[13] 133 N.M. 756 , 69 P.3d 1199 .
14 {5} As well, “the district court’s decision to dismiss for failure to state a claim on
15 which relief may be granted” is reviewed de novo. Salas v. Guadalupe Credit Union,
16 ___-NMSC-___, ¶ 12, ___ P.3d ___ (S-1-SC-39641, Oct. 28, 2024). “A motion to
17 dismiss for failure to state a claim tests the legal sufficiency of the complaint, not
18 the factual allegations of the pleadings which, for purposes of ruling on the motion,
19 the court must accept as true.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 2 ,
[20] 134 N.M. 43 , 73 P.3d 181 (internal quotation marks and citation omitted).
[2] 1 II. Tort Claims Act
2 {6} Because Plaintiff’s contention, that immunity under Section 41-4-11(A) of the
3 TCA is waived under the circumstances present, would expand the Roadway
4 Maintenance Exception and is an issue of first impression, we briefly review the
5 history of the TCA. In Hicks v. State, the New Mexico Supreme Court abolished
6 common law sovereign immunity. 1975-NMSC-056 , ¶ 12, 88 N.M. 588 , 544 P.2d 7 1153, superseded by statute as stated in Sanders v. N.M. Corr. Dep’t, ___-NMSC-
8 ___, ¶ 12, ___ P.3d ___ (S-1-SC-39690, Oct. 10, 2024). In response, the Legislature
9 enacted the TCA that reestablished the State’s sovereign immunity from tort claims.
10 NMSA 1978, § 41-4-4(A) (2001).
11 {7} Recognizing, however, the need to balance “the inherently unfair and
12 inequitable results which occur in the strict application of the doctrine of sovereign
13 immunity” with the government’s unlimited power to act for the public good, and
14 thus “government should not have the duty to do everything that might be done,”
15 NMSA 1978, § 41-4-2(A) (1976), the Legislature created eight exceptions to the
16 State’s sovereign immunity. Section 41-4-4(A). These exceptions waive sovereign
17 immunity “with respect to specific people and places which, in the performance of
18 certain governmental functions, give rise to traditional duties to the public.” Sanders,
19 ___-NMSC-___, ¶ 15 (emphasis, internal quotation marks, and citation omitted).
[3] 1 {8} Section 41-4-2(A) of the TCA provides in part: “[I]t is declared to be the
2 public policy of New Mexico that governmental entities and public employees shall
3 only be liable within the limitations of the [TCA].” Furthermore, Section 41-4-4(A)
4 states that “[a] governmental entity and any public employee while acting within the
5 scope of duty are granted immunity from liability for any tort except as waived by
6 [the TCA].” It is undisputed that DOT comes within the definition of “governmental
7 entity.” Thus, to prevail on a claim in tort against DOT, Plaintiff’s cause of action
8 must fit within one of the enumerated exceptions to the immunity granted by the
9 Act.
10 III. Roadway Maintenance Exception
11 {9} Plaintiff argues that her claim falls within the Roadway Maintenance
12 Exception of the TCA. Specifically, Plaintiff argues that “the [d]istrict [c]ourt erred
13 as a matter of law in concluding that [DOT’s] duty to maintain the ro[a]dways for
14 the safety of the road fa[]ring public does not include the duty to remediate known
15 dangerous conditions located on private property that abuts a roadway.” Thus, to
16 resolve this issue, we are called upon to interpret the TCA, specifically Section
17 41-4-11(A).
18 {10} The Roadway Maintenance Exception provides:
19 The immunity granted pursuant to . . . Section 41-4-4[(A)] . . . does not 20 apply to liability for damages resulting from bodily injury, wrongful 21 death or property damage caused by the negligence of public employees 22 while acting within the scope of their duties during the construction,
[4] 1 and in subsequent maintenance, of any bridge, culvert, highway, 2 roadway, street, alley, sidewalk or parking area.
3 Section 41-4-11(A) (emphasis added).
4 {11} “In applying these waivers of immunity, we first determine the legislative
5 intent in the enactment of the waiver and then interpret the language of the waiver
6 according to its plain meaning.” Smith v. Vill. of Corrales, 1985-NMCA-121 , ¶ 5,
[7] 103 N.M. 734 , 713 P.2d 4 . “To determine the Legislature’s intent, we begin by
8 examining the language used by the Legislature as the primary indication of
9 legislative intent.” Bd. of Cnty. Comm’rs of Cnty. of Rio Arriba v. Bd. of Cnty.
10 Comm’rs of Cnty. of Santa Fe, 2020-NMCA-017, ¶ 13 , 460 P.3d 36 . Additionally,
11 in determining legislative intent, “we look not only to the language used in the
12 statute, but also to the purpose to be achieved and the wrong to be remedied.” Hovet
13 v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10 , 135 N.M. 397 , 89 P.3d 69 . “We do not
14 read into the statute language which is not there.” Smith, 1985-NMCA-121 , ¶ 5.
15 While reviewing the plain language of Section 41-4-11(A), we bear in mind that
16 “when a statute contains language which is clear and unambiguous, we must give
17 effect to that language and refrain from further statutory interpretation.” United
18 Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 9 , 148 N.M. 426 , 237
19 P.3d 728 (alteration, internal quotation marks, and citation omitted).
20 {12} In this case, our review of the plain language of Section 41-4-11(A) contains
21 no language to indicate that DOT’s duty includes remediating known dangerous
[5] 1 conditions located on private property that abuts but might imperil the maintenance
2 of a roadway. However, such does not end our inquiry because our Supreme Court
3 has previously concluded that “‘maintenance’ of a highway for purposes of Section
4 41-4-11(A) must be held to include more than physical care and upkeep of the
5 roadway itself,” Miller v. N.M. Dep’t of Transp., 1987-NMSC-081 , ¶ 8, 106 N.M. 6 253, 741 P.2d 1374 , superseded by statute on other grounds as recognized by
7 Martinez v. N.M. Dep’t of Transp., 2013-NMSC-005, ¶ 14 , 296 P.3d 468 , leaving
8 open the question of the degree to which surrounding care and upkeep are required.
9 {13} Consequently, we continue our interpretation of Section 41-4-11(A) by
10 considering what the Legislature intended by “maintenance” of roadways. We, thus,
11 look at what the word “maintenance” means. When interpreting the meaning of a
12 word in a statute, “our courts often use dictionary definitions to ascertain the
13 ordinary meaning of words that form the basis of statutory construction inquiries.”
14 N.M. Educ. Ret. Bd. v. Romero, 2024-NMCA-013 , ¶ 16, 541 P.3d 175 (internal
15 quotation marks and citation omitted). However, “we must look not only to a
16 selective dictionary definition of words used in a statute, but also to the legislative
17 intent underlying its enactment.” Miller, 1987-NMSC-081 , ¶ 7. The critical term
18 under the Roadway Maintenance Exception is “maintenance.” “When the [TCA]
19 was originally passed in 1976, it did not define the term ‘maintenance.’” Martinez,
[20] 2013-NMSC-005, ¶ 13 . Subsequently, in 1991, the Legislature amended the TCA in
[6] 1 response to the Supreme Court’s opinion in Miller to clarify that “‘maintenance’
2 does not include: (1) conduct involved in the issuance of a permit, driver’s license
3 or other official authorization to use the roads or highways of the state in a particular
4 manner; or (2) an activity or event relating to a public building or public housing
5 project that was not foreseeable.” NMSA 1978, § 41-4-3(E) (2015); Martinez, 2013-
6 NMSC-005, ¶ 14. Apart from the 1991 declaration that these two particular
7 circumstances do not constitute “maintenance,” the Legislature has not otherwise
8 undertaken to define that which “maintenance” precisely is.
9 {14} As a result, the term “maintenance” has, in major part, been defined judicially
10 by way of case-by-case application. We therefore turn to examine the interpretation
11 of the term “maintenance” by our appellate courts.
12 A. Interpretation of “Maintenance”
13 {15} We summarize the interpretation of the term “maintenance” to date as follows.
14 Maintenance certainly means the upkeep and repair of the physical surface of the
15 roadway. See Cardoza v. Town of Silver City, 1981-NMCA-061 , ¶ 23, 96 N.M. 130 ,
[16] 628 P.2d 1126 (“‘Maintenance’ means ‘upkeep and repair.’” (quoting Clay v. City
17 of Los Angeles, 98 Cal. Rptr. 582, 585 (1972)); Smith, 1985-NMCA-121 , ¶ 12 (“The
18 term ‘maintenance’ in the context of [Section 41-4-11(A)] generally means the care
19 or upkeep of something.”). However, maintenance “involves more than simply
20 keeping the road surface in good repair.” Fireman’s Fund Ins. Co. v. Tucker, 1980-
[7] 1 NMCA-082, ¶ 9, 95 N.M. 56 , 618 P.2d 894 ; Miller, 1987-NMSC-081 , ¶ 8
2 (“‘[M]aintenance’ of a highway for purposes of Section 41-4-11(A) . . . include[s]
3 more than physical care and upkeep of the roadway itself.”); Rutherford, 2003-
4 NMSC-010, ¶¶ 21-22 (stating that “maintenance” is not confined to upkeep and
5 repair).
6 {16} The duty to maintain roadways also embraces the “duty to conduct reasonable
7 inspections of roadways,” Lujan v. N.M. Dep’t of Transp., 2015-NMCA-005, ¶ 12 ,
[8] 341 P.3d 1 , the duty to identify dangerous conditions on roadways, and the duty to
9 remediate dangerous conditions on roadways. Martinez, 2013-NMSC-005, ¶¶ 20 ,
10 25.
11 {17} Specifically, our Courts have held that under Section 41-4-11(A) the
12 government has the duty to inspect roadways to identify, and to remediate, the
13 following dangerous conditions: (1) dangerous intersections without traffic controls,
14 see Grano v. Roadrunner Trucking, Inc., 1982-NMCA-080 , ¶¶ 2, 5, 99 N.M. 227 ,
[15] 656 P.2d 890 ; (2) dangerous intersections with inadequate traffic controls, Rickerson
16 v. State of N.M., 1980-NMCA-050 , ¶¶ 2, 10, 94 N.M. 473 , 612 P.2d 703 ; (3)
17 highways without properly posted traffic signs to regulate, warn or guide traffic,
18 Pollock v. State Highway & Transp. Dep’t, 1999-NMCA-083, ¶¶ 1, 7-8 , 127 N.M. 19 521, 984 P.2d 768 ; (4) improperly maintained fences along public highways,
20 Fireman’s Fund Ins. Co., 1980-NMCA-082 , ¶ 13; (5) improperly fitted or
[8] 1 maintained manhole covers on streets, Cardoza, 1981-NMCA-061 , ¶¶ 2, 30-31; (6)
2 inadequate procedures for identifying a flooded roadway and the untimely control
3 of traffic in response, Rutherford, 2003-NMSC-010, ¶¶ 1, 23-24 ; and (7) dangerous
4 debris on the road, Lujan, 2015-NMCA-005, ¶ 12 . We gather that all of these
5 dangerous conditions have been located on or related to a given roadway.
6 {18} Arguably the broadest articulation of what is required by the term
7 “maintenance” was set forth in one of our Supreme Court’s most recent cases
8 interpreting the Roadway Maintenance Exception. In Martinez, the Court stated that
9 “the term maintenance requires a reasonable response to a known dangerous
10 condition on a roadway.” 2013-NMSC-005, ¶ 21 (emphasis added). Even under this
11 construction, the duty to maintain roadways was confined to the identification and
12 remediation of dangerous conditions on the roadway.
13 {19} Examples of activities that do not constitute maintenance of a roadway
14 include: (1) “permitting dogs to roam loose on streets in violation of animal control
15 ordinances”; (2) “issuing a driver’s license without proof of insurance”; and (3)
16 “failing to install wheelchair ramps on sidewalks.” Rutherford v. Chaves Cnty.,
[17] 2002-NMCA-059, ¶ 18 , 132 N.M. 289 , 47 P.3d 448 , aff’d, 2003-NMSC-010 , 133
18 N.M. 756 , 69 P.3d 1199 .
19 {20} The duty to maintain roadways has never been interpreted to encompass the
20 duty to inspect private property for dangerous conditions or the duty to identify and
[9] 1 remediate dangerous conditions present on private property. Nor, for reasons we will
2 now explain, is such an interpretation supported by considerations of public policy.
3 B. Policy Considerations
4 {21} Before 2014, our Courts often framed the duty inquiry as arising from the
5 government’s responsibility to protect the public from foreseeable harm on New
6 Mexico’s roadways. See, e.g., Lerma ex rel. Lerma v. State Highway Dep’t of N.M.,
[7] 1994-NMSC-069 , ¶ 8, 117 N.M. 782 , 877 P.2d 1085 (“[T]he [government] has
8 always had the common-law duty to exercise ordinary care to protect the general
9 public from foreseeable harm on the highways of the state.”); Pollock, 1999-NMCA-
10 083, ¶ 11; Rutherford, 2003-NMSC-010, ¶¶ 12-13 . Furthermore, where the
11 government did not create the dangerous condition itself, we have frequently
12 examined not only the foreseeability of the harm, but whether the government had
13 actual or constructive notice of the condition at issue. See, e.g., Blackburn v. State
14 of N.M., 1982-NMCA-073 , ¶ 32, 98 N.M. 34 , 644 P.2d 548 (“[W]here the [s]tate has
15 not created the dangerous condition, no duty to remedy the dangerous condition
16 arises until actual or constructive notice is present.”); Ryan v. N.M. State Highway
17 & Transp. Dep’t, 1998-NMCA-116, ¶ 7 , 125 N.M. 588 , 964 P.2d 149 (“Whether
18 [the d]efendant had a duty to warn drivers of wild-animal crossings on the . . . road
19 . . . turns on whether [the d]efendant had actual or constructive notice that wild-
20 animal crossings created a dangerous condition in that location.”), abrogated on
[10] 1 other grounds by Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., 2014-NMSC-
2 014, ¶¶ 1, 3, 326 P.3d 465 ; Rutherford, 2003-NMSC-010, ¶ 14 (“It is not enough for
3 a plaintiff to simply prove that the hazard exists; the plaintiff must prove that the
4 governmental entity had actual or constructive notice of the hazard when the
5 governmental entity did not create the hazard.”).
6 {22} However, in Rodriguez, our Supreme Court clarified that “foreseeability is not
7 a factor for courts to consider when determining the existence of a duty, or when
8 deciding to limit or eliminate an existing duty in a particular class of cases.” 2014-
9 NMSC-014, ¶ 1. In following the holding of Rodriguez, this Court, thereafter, in
10 Lujan noted that “foreseeability can mask itself behind other terms,” and held that
11 we “do not consider ‘actual or constructive notice’ . . . as determinative of the
12 [government’s] duty.” 2015-NMCA-005, ¶ 11 . Instead, courts must “articulate
13 specific policy reasons, unrelated to foreseeability considerations, if deciding that a
14 defendant does not have a duty or that an existing duty should be limited.”
15 Rodriguez, 2014-NMSC-014 , ¶ 1.
16 {23} “[G]overnment liability under an applicable waiver is not without limitation.”
17 Sanders, ___-NMSC-___, ¶ 17. “Determination of the standard of care . . . should
18 be made with the knowledge that each governmental entity has financial limitations
19 within which it must exercise authorized power and discretion in determining the
20 extent and nature of its activities.” Section 41-4-2(B).
[11] 1 {24} Moreover, in addition to DOT’s financial limitations, we remain cognizant as
2 well of the balance the Legislature sought to achieve when creating exceptions to
3 the State’s sovereign immunity. As we mentioned previously, when it enacted the
4 TCA,
5 [t]he [L]egislature recognize[d] the inherently unfair and inequitable 6 results which occur in the strict application of the doctrine of sovereign 7 immunity. On the other hand, the [L]egislature [also] recognize[d] that 8 while a private party may readily be held liable for [their] torts within 9 the chosen ambit of [their] activity, the area within which the 10 government has the power to act for the public good is almost without 11 limit, and therefore government should not have the duty to do 12 everything that might be done.
13 Section 41-4-2(A). Of particular significance here is our Supreme Court’s statement
14 that,
15 [t]he [L]egislature never intended government and private tortfeasors 16 to receive identical treatment. The liabilities of the private tortfeasor in 17 no way compare with the potential liabilities of [DOT] for the multitude 18 of daily injuries and deaths on the [s]tate’s [roadways]. The duty of care 19 of a single motorist is not analogous to the all but impossible task of 20 monitoring the countless conditions that determine the safety of the 21 state [roadways].
22 Marrujo v. N.M. State Highway Transp. Dep’t, 1994-NMSC-116 , ¶ 24, 118 N.M. 23 753 , 887 P.2d 747 .
24 {25} Bearing in mind the financial and practical considerations involved, we
25 conclude that public policy does not support an interpretation of the duty to maintain
26 roadways that includes the duty to remediate dangerous conditions on private
27 property that abuts a roadway. We explain.
[12] 1 {26} First, in order to identify and remediate dangerous conditions, DOT must
2 conduct reasonable inspections of areas where those conditions originate. It follows
3 logically that what is required to meet the obligation to identify and remediate
4 dangerous conditions increases commensurate with the areas DOT must inspect.
5 Recognizing that the resources at DOT’s disposal are limited, and that DOT is
6 already required to inspect and remediate dangerous conditions on all bridges,
7 culverts, highways, roadways, streets, alleys, sidewalks and parking areas
8 throughout the State, we think it no small addition to require DOT to identify and
9 remediate dangerous conditions on private property abutting the roadway as well.
10 {27} Second, special consideration must be given to the unique challenges involved
11 with requiring DOT to identify and remediate dangerous conditions on private
12 property. How and whether DOT could go about inspecting—let alone
13 remediating—dangerous conditions on private property consistent with the United
14 States and New Mexico Constitutions is a matter outside the necessary scope of our
15 analysis today. We think it sufficient to say that we are hesitant to impose a duty that
16 might create absurd, unforeseen, unlimited, and unintended consequences, at least
17 not without more evidence than we have before us of a legislative intent to do so.
18 See State v. Davis, 2003-NMSC-022, ¶ 13 , 134 N.M. 172 , 74 P.3d 1064 (“No rule
19 of construction necessitates our acceptance of an interpretation resulting in patently
20 absurd consequences.” (internal quotation marks and citation omitted)); Hartman v.
[13] 1 Texaco Inc., 1997-NMCA-032, ¶ 17 , 123 N.M. 220 , 937 P.2d 979 (“We are hesitant
2 to apply a . . . statute in a manner that might create unforeseen and unintended
3 consequences . . . , at least not without more evidence than we have before us of a
4 legislative intent to do so.”).
5 {28} Finally, although we are mindful that “we consistently have given a
6 construction to the TCA that would effect its remedial intentions,” Sanders, ___-
7 NMSC-___, ¶ 21 (alterations, internal quotation marks, and citation omitted), we are
8 careful not to impose on DOT the all-but-impossible duty of monitoring the
9 countless areas where dangerous conditions that might enter the roadway could
10 originate, and to require it to preemptively remediate those dangerous conditions
11 before they can enter the roadway. To require this of a government entity would, in
12 our view, run awry of the balance the Legislature sought to create when enacting the
13 TCA. See § 41-4-2(A).
14 C. Bober Does Not Require a Different Result
15 {29} Plaintiff relies on Bober v. New Mexico State Fair, 1991-NMSC-031 , 111
16 N.M. 644 , 808 P.2d 614 in advancing her argument that DOT’s duty to maintain
17 roadways does not depend on whether a dangerous condition is located on a roadway
18 or on private property abutting a roadway. Plaintiff’s reliance on Bober is misplaced
19 because Bober is distinguishable from and inapplicable to this case.
[14] 1 {30} In Bober, the plaintiff was injured in a car accident on a road near the State
2 Fairgrounds when many of the more than ten-thousand patrons attending a concert
3 at the State Fair drove out of the fairgrounds and onto a busy city street. Id. ¶ 2. The
4 plaintiff sued the State Fair, alleging it was liable as a landowner for conducting an
5 activity on its premises that created a dangerous condition in an adjoining area
6 beyond the State Fairground’s boundaries. Id. ¶¶ 3, 5, 11. In arguing that the state’s
7 immunity was waived, the plaintiff invoked inter alia the building waiver under
8 NMSA 1978, Section 41-4-6(A) (1977) of the TCA. Bober, 1991-NMSC-031 , ¶ 25.
9 Our Supreme Court held that “a landowner’s duty to avoid creating or permitting an
10 unsafe condition or activity on the premises is [not] limited by the physical
11 boundaries of the land.” Id. ¶¶ 1, 12. In so holding, the Court stated:
12 While Section 41-4-6 may appropriately be termed a “premises 13 liability” statute, the liability envisioned by that section is not limited 14 to claims caused by injuries occurring on or off a certain “premises,” as 15 the words “machinery” and “equipment” reveal. Moreover, liability is 16 predicated not only on “maintenance” of a piece of publicly owned 17 property, such as a building, park, or item of machinery or equipment, 18 but it also arises from the “operation” of any such property.
19 Id. ¶ 27. Therefore, the Court “reject[ed] any narrower view of the applicability of
20 [Section 41-4-6(A)],” holding instead that “Section 41-4-6[(A)] contemplates
21 waiver of immunity where due to the alleged negligence of public employees an
22 injury arises from an unsafe, dangerous, or defective condition on property owned
[15] 1 and operated by the government.” Id. (emphasis added) (alteration, omission,
2 internal quotation marks, and citation omitted).
3 {31} Here, Plaintiff invokes the Roadway Maintenance Exception, not the building
4 waiver. We have never held that the Roadway Maintenance Exception is a premises
5 liability statute. Moreover, the Roadway Maintenance Exception does not contain
6 the words “operation,” “machinery,” or “equipment.” Compare § 41-4-6(A), with
7 § 41-4-11(A). We are therefore not persuaded that the duties imposed by the building
8 waiver and the Roadway Maintenance Exception are analogous. See Rutherford,
[9] 2003-NMSC-010, ¶ 17 (“[R]oads are not operated in the way motor vehicles,
10 hospitals, prisons, and public swimming pools are operated.”).
11 {32} We hold that the duty to maintain roadways does not include the duty to
12 remediate dangerous conditions on private property that abuts a roadway.
13 Accordingly, because the tree was located on private property, we conclude that (1)
14 DOT did not have a duty to remediate the tree; (2) DOT’s immunity was not waived
15 under Section 41-4-11(A); and (3) the district court properly dismissed Plaintiff’s
16 Complaint against DOT.
17 CONCLUSION
18 {33} We affirm the district court.
[16] 1 {34} IT IS SO ORDERED.
2 _________________________ 3 GERALD E. BACA, Judge
4 WE CONCUR:
5 _____________________________ 6 J. MILES HANISEE, Judge
7 _____________________________ 8 KRISTINA BOGARDUS, Judge
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