Todd v. Village of Ruidoso

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. [6] 7 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 8 RUTALEE TODD, 9 Plaintiff-Appellant, 10 v. No. 29,960 11 VILLAGE OF RUIDOSO, 12 Defendant-Appellee. 13 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 14 James Waylon Counts, District Judge 15 Jones Witt & Ragsdale 16 Luke W. Ragsdale 17 Roswell, NM 18 for Appellant 19 Hinkle, Hensley, Shanor & Martin LLP 20 Stephen Stuart Shanor 21 Roswell, NM 22 for Appellee 23 MEMORANDUM OPINION 24 BUSTAMANTE, Judge. 1 Plaintiff appeals from the district court’s order granting summary judgment to 2 Defendant, the Village of Ruidoso (“Village”) based upon sovereign immunity. [MIO 3 2-3] We proposed to affirm in a notice of proposed summary disposition, and 4 Plaintiff has filed a timely memorandum in opposition. Remaining unpersuaded by 5 Plaintiff’s memorandum, we affirm the order granting summary judgment to the 6 Village. 7 Summary judgment is appropriate where there are no genuine issues of material 8 fact and the movant is entitled to judgment as a matter of law. Rule 1-056 NMRA; 9 See Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6 , 126 N.M. 396 , 970 P.2d 10 582 . We review the district court’s ruling on summary judgment as a question of law. 11 See id. ¶ 6. 12 Plaintiff’s claims against the Village are based on the Village’s allegedly 13 negligent failure to maintain the drainage systems throughout the Village and 14 specifically, the drainage ditches on Plaintiff’s street. [MIO 1; RP 1-2 ¶¶ 7-8] She 15 claims that the Village failed to properly clean the drainage system which caused 16 water runoff to flood her home which damaged her home and personal property. 17 [MIO 1; RP 2 ¶¶ 9-10, 13] [2] 1 As discussed more fully in our notice of proposed summary disposition, 2 Plaintiff’s complaint was dismissed due to Defendant’s sovereign immunity under the 3 Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (1976, as amended through 4 2009) (“TCA”). [RP 60-61] “[W]hether governmental immunity under the TCA bars 5 a tort claim is a question of law which we review de novo.” Rutherford v. Chaves 6 County, 2003-NMSC-010, ¶ 8 , 133 N.M. 756 , 69 P.3d 1199 . In our notice of 7 proposed summary disposition, we proposed to hold that there is no section of the 8 TCA which waives immunity for the claims in Plaintiff’s complaint. 9 Section 41-4-6(A) of the TCA waives immunity for “liability for damages 10 resulting from bodily injury, wrongful death or property damage caused by the 11 negligence of public employees while acting within the scope of their duties in the 12 operation or maintenance of any building, public park, machinery, equipment or 13 furnishings.” However, as Plaintiff concedes, [MIO 2] Section 41-4-6(B) specifically 14 provides that “[n]othing in this section shall be construed as granting waiver of 15 immunity for any damages arising out of the operation or maintenance of works used 16 for diversion or storage of water.” 17 As this case concerns alleged negligence in the operation or maintenance of a 18 water diversion system, the Village is immune from liability. See Bybee v. City of [3] 1 Albuquerque, 120 N.M. 17, 20-21 , 896 P.2d 1164, 1167-68 (Ct. App. 1995) (holding 2 that the City is immune from damages occurring in its flood control diversion 3 channel); Noriega v. Stahmann Farms, Inc., 113 N.M. 441, 442-44 , 827 P.2d 156 , 4 157-59 (Ct. App. 1992) (holding that the State is immune from liability for damages 5 caused by a fall into an irrigation ditch because the claim falls within the exception 6 to the waiver of immunity set forth in Section 41-4-6). 7 In her memorandum in opposition, Plaintiff argues that the TCA does not 8 provide sovereign immunity because the failure to provide proper maintenance is not 9 protected under the TCA. [MIO 2] We disagree and direct Plaintiff to the language 10 of Section 41-4-6(B) which specifically states that there is no waiver of immunity for 11 “damages arising out of the operation or maintenance of works used for diversion or 12 storage of water.” Section 41-4-6(B) (emphasis added). She also argues that 13 sovereign immunity is reserved only for actions, not failures to act. [MIO 2-3] We 14 are unpersuaded because there is nothing in the TCA stating that immunity is waived 15 for failures to act. Furthermore, Plaintiff has cited to no authority for the proposition 16 that a tort based on a negligent failure to act should be treated differently than a tort 17 based on an allegedly negligent action. Cf. UJI 13-1601 NMRA (noting that “[t]he 18 term ‘negligence’ may relate either to an act or a failure to act”); In re Adoption of [4] 1 Doe, 100 N.M. 764, 765 , 676 P.2d 1329, 1330 (1984) (stating that when a party cites 2 no authority to support an argument, we may assume no such authority exists). [5] 1 CONCLUSION 2 For the foregoing reasons as well as those set forth in our notice of proposed 3 disposition, we affirm the order granting summary judgment to the Village of 4 Ruidoso. 5 IT IS SO ORDERED. [6] 7 MICHAEL D. BUSTAMANTE, Judge 8 WE CONCUR: [9] 10 CYNTHIA A. FRY, Chief Judge [11] 12 RODERICK T. KENNEDY, Judge