Saenz v. City of Carlsbad

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 HOMER SAENZ, 3 Plaintiff-Appellant, 4 v. NO. 32,989 5 CITY OF CARLSBAD, 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Raymond L. Romero, District Judge 9 William N. Weiss 10 Carlsbad, NM 11 for Appellant 12 City of Carlsbad 13 Eileen Riordan, City Attorney 14 Carlsbad, NM 15 for Appellee 16 MEMORANDUM OPINION 17 GARCIA, Judge. 1 {1} Plaintiff appeals from the district court’s order of summary judgment 2 entered in favor of the City of Carlsbad (the City) on grounds that sovereign immunity 3 was not waived for Plaintiff’s claims. We issued a notice of proposed summary 4 disposition, proposing to affirm. Plaintiff has filed a response to our notice. We are 5 not persuaded that district court erred, and affirm. 6 {2} On appeal, Plaintiff contends that the City had jurisdiction over the road, on 7 which Plaintiff was injured, for purposes of establishing liability for breach of the duty 8 to maintain the road under the Tort Claims Act, NMSA 1978, Section 41-4-11(A) 9 (1991). [MIO 4, 10-15] At the heart of Plaintiff’s contentions is his assertion that the 10 City had jurisdiction over the road in question, the National Parks Highway (NPH), 11 and its sidewalks, because it was within the city limits and the City exercised control 12 over it. [Id.] Our notice proposed to hold that there was no material fact dispute that 13 the New Mexico Department of Transportation (NMDOT) owned the NPH and its 14 sidewalks, not the City, and that without an arrangement with the NMDOT for the 15 road’s maintenance, the City had no duty to maintain it. Our notice construed 16 Plaintiff’s arguments to be substantially similar to those rejected by this Court in 17 Bierner v. City of Truth or Consequences, 2004-NMCA-093, ¶¶ 16-20 , 136 N.M. 197 , [18] 96 P.3d 322 . Plaintiff’s response to our notice does not examine Bierner or explain 19 why our reliance on it was inappropriate. Instead, Plaintiff sets forth examples of how [2] 1 the City exercised control over the NPH, which Plaintiff characterizes as “exercis[ing] 2 exclusive jurisdiction” over the road. [MIO 11-14] Plaintiff relies mostly on 3 Rutherford v. Chaves Cnty., 2002-NMCA-059, ¶ 12 , 132 N.M. 289 , 47 P.3d 448 , in 4 its discussion of the City’s jurisdiction. [MIO 11-15] 5 {3} We are not persuaded that Rutherford supports Plaintiff’s understanding of the 6 term jurisdiction as it is used in the context of the duty to maintain a road. As the 7 Bierner Court pointed out, “in Rutherford, the parties did not dispute that the 8 government entity being sued was responsible for maintaining the road in question.” 9 Bierner, 2004-NMCA-093, ¶ 19 , (citing Rutherford, 2002-NMCA-059, ¶ 12 ). The 10 analysis in Rutherford involved what acts or omissions of the county constituted 11 maintenance. See Rutherford, 2002-NMCA-059, ¶ 15 . In Bierner, this Court 12 specifically held that a city had no duty to maintain a road, as contemplated under the 13 waiver of immunity in the statute, that was owned by the Highway Department. 2004- 14 NMCA-093, ¶¶ 16-20. Jurisdiction over the road, to the extent the term has meaning 15 in this context, is linked to ownership and responsibility to maintain. See id. ¶¶ 11-20. 16 As in Bierner, Plaintiff asks us to “impose on another government entity a duty to 17 maintain a road it did not own[.]” Id. ¶ 19. As we did in Bierner, we decline to impose 18 such a duty in this case also. See id. [3] 1 {4} For the reasons stated in this Opinion and in our notice, we affirm the district 2 court’s order of summary judgment in favor of the City. 3 {5} IT IS SO ORDERED. [4] 5 TIMOTHY L. GARCIA, Judge 6 WE CONCUR: [7] 8 JAMES J. WECHSLER, Judge [9] 10 M. MONICA ZAMORA, Judge