{ "id": 827444, "name": "Susana COBOS, Personal Representative of the Estate of Socorro Morales, Luis Daniel Morales, and Crystal Selene Morales, and individually, Plaintiff-Petitioner, v. DO\u00d1A ANA COUNTY HOUSING AUTHORITY, Board of County Commissioners of Do\u00f1a Ana County, Lucia Archuleta, Nancy Alvillar, and Apolonio Montejano, Defendants-Respondents", "name_abbreviation": "Cobos v. Do\u00f1a Ana County Housing Authority", "decision_date": "1998-12-03", "docket_number": "No. 23,288", "first_page": "418", "last_page": "426", "citations": [ { "type": "official", "cite": "126 N.M. 418" }, { "type": "parallel", "cite": "970 P.2d 1143" }, { "type": "parallel", "cite": "1998-NMSC-049" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "103 N.M. 734", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711324 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0734-01" ] }, { "cite": "115 N.M. 314", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725413 ], "weight": 2, "pin_cites": [ { "page": "320-21" }, { "page": "1023-24" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0314-01" ] }, { "cite": "113 N.M. 387", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723197 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "399-400, 402", "parenthetical": "school district's nondelegable duty to take reasonable precautions against inherent dangers in specially dangerous work done by an independent contractor gives rise to strict liability, which is not actionable under the Tort Claims Act" }, { "page": "114-15, 117", "parenthetical": "school district's nondelegable duty to take reasonable precautions against inherent dangers in specially dangerous work done by an independent contractor gives rise to strict liability, which is not actionable under the Tort Claims Act" }, { "page": "398" }, { "page": "114", "parenthetical": "\"[I]t should be remembered that the policy behind the law of torts does more than compensate victims - it encourages reasonable safeguards against the risk of harm.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0387-01" ] }, { "cite": "90 N.M. 471", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871211 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "472, 474", "parenthetical": "an owner who retains the fight in a lease to enter and make repairs may be exposed to liability despite lease provision placing duty to maintain and repair on lessee" }, { "page": "343, 345", "parenthetical": "an owner who retains the fight in a lease to enter and make repairs may be exposed to liability despite lease provision placing duty to maintain and repair on lessee" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0471-01" ] }, { "cite": "106 N.M. 512", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708248 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0512-01" ] }, { "cite": "114 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731594 ], "weight": 2, "pin_cites": [ { "page": "191-92" }, { "page": "110-11" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0187-01" ] }, { "cite": "108 N.M. 616", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592869 ], "weight": 2, "pin_cites": [ { "page": "618" }, { "page": "1335" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0616-01" ] }, { "cite": "106 N.M. 253", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 706781 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "255", "parenthetical": "statutorily superseded by the 1991 amendment to Section 41 - 4-3(E)(1), defining \"maintenance\"" }, { "page": "1376", "parenthetical": "statutorily superseded by the 1991 amendment to Section 41 - 4-3(E)(1), defining \"maintenance\"" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0253-01" ] }, { "cite": "101 N.M. 671", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586454 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "672-73" }, { "page": "729-30" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0671-01" ] }, { "cite": "119 N.M. 609", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561326 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "612-13" }, { "page": "389-390" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0609-01" ] }, { "cite": "110 N.M. 59", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716977 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "63" }, { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0059-01" ] }, { "cite": "103 N.M. 526", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711266 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0526-01" ] }, { "cite": "105 N.M. 476", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599055 ], "weight": 4, "pin_cites": [ { "page": "478" }, { "page": "256" }, { "page": "477" }, { "page": "255", "parenthetical": "no liability for negligent supervision of students" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0476-01" ] }, { "cite": "106 N.M. 489", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708283 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "491" }, { "page": "716" }, { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0489-01" ] }, { "cite": "107 N.M. 349", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597152 ], "weight": 2, "pin_cites": [ { "page": "351" }, { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0349-01" ] }, { "cite": "109 N.M. 271", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590268 ], "weight": 2, "pin_cites": [ { "page": "274" }, { "page": "1017" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0271-01" ] }, { "cite": "375 P.2d 304", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "pin_cites": [ { "page": "309-11" }, { "page": "310", "parenthetical": "noting that \"a duty to exercise ordinary care not to injure another ... may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a duty\"" } ], "opinion_index": 0 }, { "cite": "25 Cal.Rptr. 456", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "opinion_index": 0 }, { "cite": "58 Cal.2d 552", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4376103 ], "opinion_index": 0, "case_paths": [ "/cal-2d/58/0552-01" ] }, { "cite": "116 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727730 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "104-05", "parenthetical": "describing duties of an owner/occupier and citing W. Page Keeton et al., Prosser & Keeton on the Lato of Torts \u00a7 61, at 425-26 (5th ed.1984)" }, { "page": "746-47", "parenthetical": "describing duties of an owner/occupier and citing W. Page Keeton et al., Prosser & Keeton on the Lato of Torts \u00a7 61, at 425-26 (5th ed.1984)" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0101-01" ] }, { "cite": "950 P.2d 284", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1997, "opinion_index": 0 }, { "cite": "124 N.M. 311", "category": "reporters:state", "reporter": "N.M.", "year": 1997, "opinion_index": 0 }, { "cite": "1998-NMCA-006", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17387 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "\u00b6 14", "parenthetical": "noting that following Bober \"Section 41-4-6 now waives tort immunity for a wider variety of negligent acts.\"" }, { "parenthetical": "noting that following Bober \"Section 41-4-6 now waives tort immunity for a wider variety of negligent acts.\"" }, { "parenthetical": "noting that following Bober \"Section 41-4-6 now waives tort immunity for a wider variety of negligent acts.\"" }, { "page": "\u00b6\u00b6 11-14" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0488-01" ] }, { "cite": "111 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715097 ], "weight": 10, "year": 1991, "pin_cites": [ { "page": "653" }, { "page": "623" }, { "page": "646, 653" }, { "page": "616, 623", "parenthetical": "deciding \"whether a landowner's duty to avoid creating or permitting an unsafe condition or activity on the premises is limited by the physical boundaries of the land\"" }, { "page": "652-53" }, { "page": "622-23" }, { "page": "651-52" }, { "page": "621-22", "parenthetical": "indicating duty might arise because the lease retained the right to enter and another agreement allowed the agency to employ necessary security" }, { "page": "651-52" }, { "page": "621-22", "parenthetical": "the agency might have a limited contractual duty to operate or maintain in part because the lessor retained the right to enter" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0644-01" ] }, { "cite": "107 N.M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597087 ], "weight": 11, "year": 1988, "pin_cites": [ { "page": "206", "parenthetical": "\"By the legislature's inclusion of both buildings and parks within the waiver provision, we discern no intent to exclude from that waiver liability for injuries arising from ... property surrounding a public building.\"" }, { "page": "50", "parenthetical": "\"By the legislature's inclusion of both buildings and parks within the waiver provision, we discern no intent to exclude from that waiver liability for injuries arising from ... property surrounding a public building.\"" }, { "page": "206-07" }, { "page": "50-51", "parenthetical": "discussing common law duties imposed on an owner or occupier" }, { "page": "207" }, { "page": "51", "parenthetical": "\"As landlord, the defendant [county housing authority] was under a duty to maintain safely those areas expressly reserved for the use in common of the different tenants.\" (citation omitted)" }, { "page": "49", "parenthetical": "rejecting characterization of claim as failure to enforce animal control ordinance and analyzing as claim that public employees negligently operated and maintained premises" }, { "page": "207" }, { "page": "51", "parenthetical": "the duty of county to keep premises safe from reasonably known dangerous conditions matched precisely with the Legislative intent of Section 41-4-6 to ensure that public employees fulfill their duties to operate and maintain in such a way to keep buildings safe for public use" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0204-01" ] }, { "cite": "110 N.M. 457", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716910 ], "weight": 3, "year": 1990, "pin_cites": [ { "parenthetical": "Emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0457-01" ] }, { "cite": "88 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839152 ], "weight": 3, "year": 1975, "pin_cites": [ { "parenthetical": "\"The legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0588-01" ] }, { "cite": "121 N.M. 20", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566514 ], "weight": 7, "pin_cites": [ { "page": "22-23" }, { "page": "252-53" }, { "page": "24" }, { "page": "254" }, { "page": "24" }, { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0020-01" ] }, { "cite": "42 U.S.C. \u00a7 1437", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1988, "opinion_index": 0 } ], "analysis": { "cardinality": 1367, "char_count": 32986, "ocr_confidence": 0.759, "pagerank": { "raw": 1.8556411888100771e-07, "percentile": 0.7241489754808099 }, "sha256": "e2b4d25c00c5e158ab871fd10509f100a45d2f18282c539dacf9c982b0ea8797", "simhash": "1:0209743505a8f285", "word_count": 5280 }, "last_updated": "2023-07-14T18:24:14.526620+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FRANCHINI, C.J., BACA, MINZNER and SERNA, JJ., concur." ], "parties": [ "Susana COBOS, Personal Representative of the Estate of Socorro Morales, Luis Daniel Morales, and Crystal Selene Morales, and individually, Plaintiff-Petitioner, v. DO\u00d1A ANA COUNTY HOUSING AUTHORITY, Board of County Commissioners of Do\u00f1a Ana County, Lucia Archuleta, Nancy Alvillar, and Apolonio Montejano, Defendants-Respondents." ], "opinions": [ { "text": "OPINION\nMcKinnon, j.\n{1} In this case we must decide whether a breach of public employees\u2019 duties of operation and maintenance of a privately-owned building used to provide shelter under a federally-funded low-income housing program falls within the \u201cbuilding waiver\u201d of the New Mexico Tort Claims Act. See NMSA 1978, \u00a7 41-4-6 (1977) (waiver of governmental immunity for \u201coperation or maintenance ... of any building\u201d (emphasis added)). The trial court and the Court of Appeals held that the public entity must have a legal ownership interest in the real property for the waiver to apply. We hold that the Legislature intended the building waiver to apply to any building in which public employees owe a duty to operate or maintain exercising ordinary care. We conclude that public employees had such duties in this case under the controlling statute, regulations, and contracts. However, we affirm the dismissal of Plaintiffs claims against the Dona Ana County Housing Authority and the Board of County Commissioners because of her failure to give these defendants timely notification of her claim.\nI. Factual and Procedural Background\n{2} The Plaintiff Susana Cobos and her family were participants in a federally-subsidized low-income housing program administered by the Do\u00f1a Ana County Housing Authority. Their home was privately owned and rented to them through the Authority\u2019s Section 8 Existing Housing Program. That program allows local governmental agencies to utilize private dwellings to meet a local need to shelter families of little means. Under the program the Authority contracted with the owners of Plaintiffs home to pay rent on her behalf in return for a certain amount of control to assure that the home fulfilled the purposes of the state and federal public housing schemes in providing \u201cdecent, safe, and sanitary\u201d housing to the area\u2019s poor. See 42 U.S.C. \u00a7 1437 (1988).\n{3} An early-morning fire killed Plaintiffs daughter Socorro Morales and Morales\u2019 two young children on November 11, 1990, while- they were sleeping in Plaintiffs home. The fire apparently was caused over time by a defect in the fireplace flue, and started slowly in the roof beams adjacent to the room in which the victims were sleeping. The home was not equipped with a smoke detector.\n{4} Plaintiff brought a wrongful death suit against Defendants claiming that they breached their duty to keep the home in \u201cdecent, safe and sanitary\u201d condition, specifically alleging the Authority\u2019s employees negligently selected and inspected the building and failed to notice the absence of a smoke detector. The trial- court dismissed these claims on the basis that the New Mexico Tort Claims Act immunized Defendants from suit. The Court of Appeals affirmed. See Cobos v. Do\u00f1a Ana County Housing Authority, 121 N.M. 20, 22-23, 908 P.2d 250, 252-53 (Ct.App.1995). The Court of Appeals reasoned that the Act\u2019s \u201cbuilding waiver,\u201d Section 41-4-6, did not cover the regulation of privately-owned property, and that the Authority did not have a sufficient legal interest in the building to create a duty to operate or maintain. Id. We reject the Court of Appeals\u2019 analysis.\n{5} Our rejection of this reasoning, however, does not change the outcome of this case with respect to the governmental defendants. The trial court found that the Board and the Authority \u201cdid not receive actual notice of contemplation of litigation\u201d under the Tort Claims Act. See NMSA 1978 \u00a7 41-4-16(C) (1997) (requiring that a plaintiff timely notify the public agency of her claims). The Court of Appeals reviewed this finding, held that it was supported by substantial evidence, and affirmed. See Cobos 121 N.M. at 24, 908 P.2d at 254. We declined to grant certiorari on the question of notice, and issued an Order of Clarification stating our intent to limit our review only to the question of whether Section 41-4-6 applies exclusively to premises liability claims. Accordingly, the notice issue is not before this Court. We address the building waiver issue to correct the misapprehension of the law that was created by the Court of Appeals opinion, but expressly limit our analysis to the threshold question of whether Plaintiff has stated a claim under the building waiver based on the duties of the public employees who appear as individual defendants in this case. Cf NMSA 1978, \u00a7 34-5-14(B)(l) (1972) (providing that Supreme Court may review by writ of certiorari a decision of the Court of Appeals that conflicts with a decision of the Supreme Court). We express no opinion about whether Plaintiff could prove breach of those duties or proximate cause.\nII. Discussion\nThe New Mexico Tort Claims Act and Building Waiver\n{6} The New Mexico Tort Claims Act, NMSA 1978, \u00a7\u00a7 41-4-1 to 41-4-27 (1976, as amended through 1991) attempts to balance two important but conflicting public policies. After the judicial rejection of common law sovereign immunity in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), the Legislature sought to limit governmental liability so that \u201cgovernment should not have the duty to do everything that might be done.\u201d NMSA 1978, \u00a7 41-4-2(A) (1976). On the other hand, the Legislature also desired to compensate those injured by the negligence of public employees and to impose duties of reasonable care. See id. (\u201cThe legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity.\u201d); Folz v. State, 110 N.M. 457, 461-62 n. 3, 797 P.2d 246, 250-51 n. 3 (1990). The Legislature\u2019s solution was to grant governmental entities and employees a general immunity from tort liability, but to waive that immunity in certain defined circumstances. . In each of these waivers the Legislature identified a specific existing duty on the part of public employees, NMSA 1978, \u00a7\u00a7 41-4-5 to 41-4-11 (1989), which, if breached, could result in liability \u201cbased upon the traditional tort concepts of duty and the reasonably prudent person\u2019s standard of care in the performance of that duty.\u201d NMSA 1978, \u00a7 41~4-2(B) (1976); NMSA 1978, \u00a7 41-4-4 (1996).\n{7} The \u201cbuilding waiver\u201d waives governmental immunity for damages \u201ccaused 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.\u201d NMSA 1978, \u00a7 41-4-6 (1977). Defendants argue that this waiver applies only to public property, and not to a privately-owned rental building. We disagree, because the effect of the waiver should not be determined by the legal status of or the title to the real property, but should instead be determined by an examination of the public employees\u2019 duties. We conclude in Part I that the Legislature intended the waiver to apply to any building that public employees have a duty to operate or maintain. In Part II we examine the statutory, regulatory and contractual duties placed on Authority employees which required the exercise of ordinary care in the operation and maintenance of Plaintiffs home. In Part III, we conclude the policies underlying the building waiver are consistent with and foster the objectives under the Municipal Housing Law to provide safe housing for low-income persons.\nPart I: Scope of Duties, Not Property Ownership, Defines Waiver\n{8} Our Legislature has specifically tied Tort Claims Act waivers to the \u201cscope of duties\u201d of public, employees, not to the ownership status of the real property involved. The Act waives immunity for damages \u201ccaused by the negligence of public employees while acting within the scope of their duties in the operation and maintenance of any building.\u201d See NMSA 1978, \u00a7 41-4-6 (1977). The Legislature defined \u201cscope of duties\u201d to mean \u201cany duties that a public employee is requested, required, or authorized to perform ... regardless of the time and place of performance.\u201d NMSA 1978 \u00a7 41-4-3(G) (emphasis added). Accordingly, the \u201cbuilding waiver\u201d in Section 41-4-6 on its face excepts immunity for the negligent operation or maintenance of any building by a public employee acting within the scope of duty. This contrasts with the language immediately following, which waives immunity for negligent operation or maintenance of any \u201cpublic park.\u201d Id. (Emphasis added).\n{9} It also contrasts with provisions from many other states that expressly limit their waivers to public buildings. Compare NMSA 1978, \u00a7 41-4-6 with Colo.Rev.Stat. \u00a7 24 \u2014 10\u2014106(l)(c) (1988) (immunity waived for injuries resulting from \u201cdangerous condition of any public building\u201d (emphasis added)) and Mich.Comp.Laws Ann. \u00a7 691.1406 (West 1987) (government liable for damage resulting from \u201cdangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect\u201d (emphasis added)) and Mo. Ann.Stat. \u00a7 537.600 (Vernon 1988) (immunity waived for \u201c[ijnjuries caused by the condition of a public entity\u2019s property if the plaintiff establishes that the property was in dangerous condition\u201d (emphasis added).). Thus, Section 41-4-6 manifests no intent to restrict the waiver to publicly-owned buildings. Cf. Castillo v. County of Santa Fe, 107 N.M. 204, 206, 755 P.2d 48, 50 (1988) (\u201cBy the legislature\u2019s inclusion of both buildings and parks within the waiver provision, we discern no intent to exclude from that waiver liability for injuries arising from ... property surrounding a public building.\u201d). Also, there is no language that restricts its application to premises liability claims. As we noted in Bober v. New Mexico State Fair, 111 N.M. 644, 653, 808 P.2d 614, 623 (1991): \u201cWhile Section 41-4-6 may appropriately be termed a \u2018premises liability\u2019 statute, the liability envisioned by that section is not limited to claims caused by injuries occurring on or off certain \u2018premises,\u2019 as the words \u2018machinery\u2019 and \u2018equipment\u2019 reveal.\u201d See also Williams v. Central Consol. Sch. Dist. 1998-NMCA-006, \u00b6 14, 124 N.M. 488, 952 P.2d 978 (Nov. 12, 1997) (noting that following Bober \u201cSection 41-4-6 now waives tort immunity for a wider variety of negligent acts.\u201d), cert. denied, 124 N.M. 311, 950 P.2d 284 (1997). We conclude that the Legislature did not intend to limit the building waiver to property in which the public entity has a real property interest or a landowner\u2019s duty.\n{10} Rather, it is clear from our cases that an ownership interest in a building is but one of several ways of proving that a duty to operate or maintain exists. Compare Seal v. Carlsbad Indep. Sch. Dist., 116 N.M. 101, 104-05, 860 P.2d 743, 746-47 (1993) (describing duties of an owner/occupier and citing W. Page Keeton et al., Prosser & Keeton on the Lato of Torts \u00a7 61, at 425-26 (5th ed.1984)) and Castillo, 107 N.M. at 206-07, 755 P.2d at 50-51 (discussing common law duties imposed on an owner or occupier) with Merrill v. Buck, 58 Cal.2d 552, 25 Cal.Rptr. 456, 375 P.2d 304, 309-11 (Cal.1962) (en banc) (holding that real estate salespeople not in privity with building\u2019s owners had a duty to warn tenant of reasonably foreseeable, concealed danger in the premises where salespeople were aware of the danger and had \u201caffirmatively undertaken to show the house to [the tenant] in the regular course of their business with the purpose of earning a commission if she decided to rent it\u201d). As a question of duty, this case is in some ways much simpler than cases like Bober and Castillo because the harm to Plaintiffs family was undisputedly caused by a physical defect within the building, not something external to it. In Castillo, the county\u2019s ownership and operation of a low-income housing project provided the basis of the county\u2019s duty to maintain common areas between the buildings in a safe condition. 107 N.M. at 207, 755 P.2d at 51 (\u201cAs landlord, the defendant [county housing authority] was under a duty to maintain safely those areas expressly reserved for the use in common of the different tenants.\u201d (citation omitted)). Likewise, in Bober v. Neiv Mexico State Fair, the State Fair\u2019s ownership and control of a concert hall imposed duties to prevent unsafe conditions on the property that led to injuries on property adjacent to the public property. 111 N.M. at 646, 653, 808 P.2d at 616, 623 (deciding \u201cwhether a landowner\u2019s duty to avoid creating or permitting an unsafe condition or activity on the premises is limited by the physical boundaries of the land\u201d); see also Schleft v. Board of Educ. of Los Alamos Public Schools, 109 N.M. 271, 274, 784 P.2d 1014, 1017 (Ct.App.1989) (reasoning that the school board as landowner had a duty of care for unsafe condition on the land, including protecting against dangers presented by an electrical facility located inside an easement). We have never held, as Defendants and their amici argue, that an ownership interest in the real property is a prerequisite for the building waiver to apply. To the contrary, we have expressed disagreement with a narrow and formalistic interpretation of Section 41-4-6. See Bober, 111 N.M. at 652-53, 808 P.2d at 622-23 (\u201cWe reject any narrower view of the applicability of [Section 41-4-6] that may be contained in any of the cited court of appeals opinions,\u201d including Gallegos v. State, 107 N.M. 349, 351, 758 P.2d 299, 301 (Ct.App.1987); Martinez v. Kaune Corp., 106 N.M. 489, 491, 745 P.2d 714, 716 (Ct.App. 1987); Pemberton v. Cordova, 105 N.M. 476, 478, 734 P.2d 254, 256 (Ct.App.1987) and Wittkowski v. State, 103 N.M. 526, 710 P.2d 93 (Ct.App.1985)); cf Williams, 1998-NMCA-006, \u00b6\u00b6 11-14, 124 N.M. 488, 952 P.2d 978 (acknowledging that Supreme Court in Bober expressly rejected restrictive interpretation in these cases, stating that, \u201cWe believe the time is ripe to correct any continuing misapprehension regarding the import of that case law.\u201d).\nPart II: Duties op Operation and Maintenance Imposed by Statute, Regulation, and Contract.\n{11} A duty that falls within the building waiver may arise from sources other than the ownership status of real property. As we noted in Calkins v. Cox Estates, \u201c[t]he determination of duty in any given situation involves an analysis of the relationship of the parties, the plaintiffs injured interest and the Authority\u2019s conduct; it is essentially a policy decision based on these factors that the plaintiffs interests are entitled to protection.\u201d 110 N.M. 59, 63, 792 P.2d 36, 40 (1990); see also Merrill, 25 Cal.Rptr. 456, 375 P.2d at 310 (noting that \u201ca duty to exercise ordinary care not to injure another ... may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a duty\u201d).\n{12} Our appellate courts regularly look to statutes, regulations, and contracts as sources of duties of ordinary care imposed on public employees that may bring them within a Tort Claims Act waiver. For example, in Torres v. State, 119 N.M. 609, 612-13, 894 P.2d 386, 389-390 (1995) and Schear v. Board of County Commissioners, 101 N.M. 671, 672-73, 687 P.2d 728, 729-30 (1984), we held that a statute imposing the duty on law enforcement officers to investigate crimes meant that breach of that duty fell within the Tort Claims Act waiver covering law enforcement officers acting within the scope of their duties. Likewise, in Miller v. Neto Mexico Department of Transportation we held that a statute imposing the duty on an agency to regulate oversized vehicles traveling on state highways fell within the waiver in Section 41-4-1KA) of the Tort Claims Act that applied to the maintenance of highways. 106 N.M. 253, 255, 741 P.2d 1374, 1376 (1987) (statutorily superseded by the 1991 amendment to Section 41 \u2014 4\u20143(E)(1), defining \u201cmaintenance\u201d). But, in Armijo v. Dept. of Health and Environment where no claim was recognized, the Court of Appeals looked to the extensive regulations delimiting the duties of the agency, and held that they did not impose duties that would be covered by the relevant Tort Claims Act waiver. 108 N.M. 616, 618, 775 P.2d 1333, 1335 (Ct.App.1989) (finding regulations did not impose the duties of clinical decision-making, which formed the basis of plaintiffs\u2019 complaint, and did not impose duties covered by the Tort Claims Act waiver for \u201coperation of any ... mental institution\u201d); see also M.D.R. v. State ex rel. Human Services Dept., 114 N.M. 187, 191-92, 836 P.2d 106, 110-11 (Ct.App.1992) (Minzner, J., specially concurring) (examining the regulations outlining the obligations of the agency in charge of foster care, and indicating that, if the plaintiffs had relied on those regulatory duties, they might have shown that the agency was in some respects \u201cdriving the bus,\u201d (alluding to Chee Owens v., Leavitts Freight Serv. Inc., 106 N.M. 512, 745 P.2d 1165 (Ct.App.1987), where responsibility for \u201cdriving the bus\u201d would fall within waiver)). In Bober, we indicated that duties imposed or retained in a contract with a private party can fall within the Tort Claims Act building waiver. 111 N.M. at 651-52, 808 P.2d at 621-22 (indicating duty might arise because the lease retained the right to enter and another agreement allowed the agency to employ necessary security).\n{13} In this case, statute, regulations, and a triangle of contracts imposed specific duties to operate and maintain Plaintiffs home with due care. Plaintiffs home was being used by the Authority as part of a housing project under the state Municipal Housing Law, NMSA 1978, \u00a7\u00a7 3-45-1 to 3-45-25 (1965, as amended through 1989), which required the Authority to operate and maintain the project with ordinary care. This law authorizes cities and counties to \u201cconstruct, maintain, operate and manage any housing project.\u201d NMSA 1978, \u00a7 3-45-5(A) (1989) (emphasis added); see also NMSA 1978, \u00a7 3-45-3(A) (1965) (\u201ccity\u201d as used in law includes counties). It defines \u201chousing project\u201d as \u201cany work or undertaking \u201d of the county \u201cto provide decent, safe, and sanitary dwellings ... for persons of low income.\u201d NMSA 1978, \u00a7 3-45-3(J) and (J)(2) (1965) (emphasis added). Further, the Legislature granted local housing agencies the power to \u201carrange or contract for the furnishing by any person or agency, public or private, of services, privileges, works or facilities for ... a housing project.\u201d NMSA 1978, \u00a7 3-45-4(F) (1969) (emphasis added). Thus, the Legislature created the local housing authorities for the purpose of operating and maintaining housing projects to meet the need for \u201cdecent, safe and sanitary dwellings\u201d and contemplated the use of privately-owned facilities to do so when needed.\n{14} The Municipal Housing Law also requires compliance with federal regulations affecting housing authority employees. See NMSA 1978, \u00a7 3-45-4(F) (1969) (requiring the local agencies to \u201ccomply with any conditions the federal government may have attached to its financial aid of the project\u201d). The Do\u00f1a Ana County Housing Authority chose to administer its housing program under a component of the federal Section 8 Existing Housing Program, which allows the Authority to use privately-owned homes, instead of publicly-owned or -built housing, for its participants. The program creates a relationship among the Authority, the private landowners, and the family in need. As the parties agree, the Authority screens for and certifies a qualified needy participant, and represents that it will subsidize the participant\u2019s rental of approved homes to an extent that is prorated by income, need, and family size. The Authority then contracts with the owner of the property to provide rental housing for the participant. The contract provides that the Authority exerts a certain amount of control over the premises. The home must pass an occupancy test based on Housing and Urban Development (HUD) regulations, which are the minimum health and safety requirements for the housing to be considered \u201cdecent, safe, and sanitary.\u201d To ensure that these requirements are met, the regulations require the Authority to inspect the house prior to occupancy and annually after the lease is executed. The owner-landlord is required to maintain and operate the home to ensure that it is \u201cdecent, safe, and sanitary housing,\u201d and the Authority may inspect the home at any time to ensure that minimal HUD requirements are met. If the owner fails to meet this obligation, the Authority \u201cshall have the right ... to terminate or reduce housing assistance payments to the Owner, and to terminate the Contract.\u201d The Authority also retains the right to access the premises \u201cto the extent necessary to determine compliance with this Contract.\u201d Cf Bober, 111 N.M. at 651-52, 808 P.2d at 621-22 (the agency might have a limited contractual duty to operate or maintain in part because the lessor retained the right to enter); Mitchell v. C & H Transportion Co., Inc., 90 N.M. 471, 472, 474, 565 P.2d 342, 343, 345 (1977) (an owner who retains the fight in a lease to enter and make repairs may be exposed to liability despite lease provision placing duty to maintain and repair on lessee). In the event of breach, the Authority\u2019s contract remedies include the right to terminate payments or to require the owner to take corrective action within a prescribed period of time. In return for this control, the Authority promises to pay the home\u2019s rental directly to the owner on behalf of the program participants. The regulations also require that the participants be placed in a home large enough to accommodate the household. Under the state law and the federal regulations, the Authority exercised at least some control over the quality of the private housing by inspecting and selecting the proper dwelling and by providing in its contract with the owners a large degree of control over the building.\n{15} Defendants characterize their relationship with the rented home as one of mere regulation and inspection of private property. They rely on Martinez v. Kaune, 106 N.M. at 490, 745 P.2d at 715 (no liability for negligent cheese inspection) and Pemberton v. Cordova, 105 N.M. at 477, 734 P.2d at 255 (no liability for negligent supervision of students) to argue that Defendants are therefore immune from liability. We disagree. The Legislature created the Authority for the purposes of operating and maintaining housing projects in a decent, safe and sanitary condition. The Housing Authority in Do\u00f1a Ana County chose to do so by using private property in the manner prescribed by the federal regulations. Thus, the privately-owned home was substituted for publicly-owned low-income housing like that in Castillo, and Defendants\u2019 duties under the Municipal Housing Law and Existing Housing Program went far beyond a mere duty to inspect and regulate private conduct.\n{16} We emphasize that Defendants\u2019 duties in this case do not arise as a consequence of the general regulatory relationship between the government and its citizens. Rather, Plaintiff has shown that Defendants engaged in a voluntary undertaking to effectuate the policies in Section 3-45-2 by providing Plaintiffs family with safe housing they could not otherwise obtain. This undertaking gives rise to a more specific relationship among the parties than does general regulation for the public good. If Plaintiff were able to show that the Authority employees performed their maintenance duties in an unreasonable manner and that breach proximately caused this tragedy, nothing in Section 41-4-6 of the Tort Claims Act would prevent her from recovering damages from Defendants.\n{17} Defendants also erroneously characterize the negligence claim as the failure of Defendants to enforce a county smoke detector ordinance, noting that if injured parties were allowed to sue public agencies for failing to prevent private violations of local ordinances, the effect would be that local agencies would have the duty to do \u201ceverything that might be done,\u201d contrary to the intent of the Tort Claims Act. Thus Defendants claim that under these circumstances the government would have a heavy disincentive to regulate private conduct for the public good. However, this claim ignores the fact that Plaintiffs complaint is based on a broader allegation that Defendants failed in their duty to provide decent, safe, and sanitary housing. Cf. Castillo, 107 N.M. at 205, 755 P.2d at 49 (rejecting characterization of claim as failure to enforce animal control ordinance and analyzing as claim that public employees negligently operated and maintained premises). Thus, for the purpose of a motion to dismiss, the record supports Plaintiffs allegations that the failure to require a smoke detector could be found to be negligent, without regard to the existence of the ordinance. The Authority\u2019s director stated that he did not feel Plaintiffs home was safe without a smoke detector, despite his ignorance of the ordinance. Therefore, Plaintiffs claims do not necessarily rely on the lack of enforcement of the ordinance.\n{18} We conclude that the relationships of the actors discussed above imposed at least limited duties of operation or maintenance on Authority employees. Under the Municipal Housing Law, the Authority\u2019s mandate was to \u201cmaintain, operate and manage any housing project.\u201d It chose to pursue this mandate through a federal regulatory scheme that allowed it to arrange for privately-owned housing, instead of publicly-owned housing, and Plaintiffs family qualified for assistance from the Authority precisely because it was unable to secure \u201csafe and sanitary\u201d housing. Under these circumstances, we have no difficulty in determining that the Plaintiff stated a claim for relief because Defendants allegedly failed to exercise ordinary care in the maintenance and operation of the home.\nPart III: Duties Under Municipal Housing Law consistent with Policies of Tort Claims Act.\n{19} As the Court of Appeals correctly noted, it is not enough for the public employees to have a duty \u2014 that duty must fit within the legislative intent of the Tort Claims Act waiver in order to state a meritorious claim for relief. Cobos, 121 N.M. at 24, 908 P.2d at 254; see also Saiz v. Belen Sch. Dist. 113 N.M. 387, 399-400, 402, 827 P.2d 102, 114-15, 117 (1992) (school district\u2019s nondelegable duty to take reasonable precautions against inherent dangers in specially dangerous work done by an independent contractor gives rise to strict liability, which is not actionable under the Tort Claims Act). In other words, the purpose of the agency\u2019s duty must be consistent -with the purpose of the waiver in Section 41-4-6. One of the purposes of the Municipal Housing Law is to impose on the Authority duties of operating and maintaining safe housing for those otherwise unable to secure it. See NMSA 1978, \u00a7 3-45-2(E) (1965) (the Legislature enacted the Municipal Housing Law for the express purpose of \u201cproviding safe and sanitary dwelling accommodations for persons of low means\u201d); 42 U.S.C. \u00a7 1437 (1988) (the express purpose of the federal program is to \u201cassist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income,\u201d and federal policy is \u201cto vest in local public housing agencies the maximum amount of responsibility in the administration of their housing programs\u201d). Similarly, the Legislature intended the building waiver to ensure that public employees fulfill their duties of operation or maintenance in such a way as to keep public housing projects reasonably safe for participants. See Castillo, 107 N.M. at 207, 755 P.2d at 51 (the duty of county to keep premises safe from reasonably known dangerous conditions matched precisely with the Legislative intent of Section 41-4-6 to ensure that public employees fulfill their duties to operate and maintain in such a way to keep buildings safe for public use); see also NMSA 1978, \u00a7 41 \u2014 4-3(E)(2) (1991). The fact that Do\u00f1a Ana County chose to use privately-owned buildings instead of constructing or acquiring its own to deliver services to the poor of Do\u00f1a Ana County does not alter the duties imposed on Defendants by law. See LaBalbo v. Hymes, 115 N.M. 314, 320-21, 850 P.2d 1017, 1023-24 (Ct.App.1993) (concluding that the legislature intended that there be no material distinction between clients receiving habilitation services at private facilities and those receiving them at state-owned facilities). The duties to operate and , maintain imposed by the Municipal Housing Act are precisely the same as the Legislature\u2019s objective in the building waiver \u2014 to help ensure that Authority employees administer housing projects with ordinary care. See also Saiz, 113 N.M. at 398, 827 P.2d at 114 (\u201c[I]t should be remembered that the policy behind the law of torts does more than compensate victims \u2014 it encourages reasonable safeguards against the risk of harm.\u201d). Defendants\u2019 duties affecting Plaintiffs home were precisely the type of activity for which immunity was waived by the Legislature. Compare Castillo 107 N.M. at 206 n. 1, 755 P.2d at 50 n. 1 (the Authority\u2019s obligation to maintain the common premises of a housing project consistent with the Section 41-4-6-waiver) with Smith v. Village of Corrales, 103 N.M. 734, 713 P.2d 4 (Ct.App.1985) (no connection between animal control officer\u2019s duties and goal of Section 41-4-11(A) to keep highways safe for the traveling public).\nIV. Conclusion\n{20} We hold that Section 41-4-6 applies to \u201cany building,\u201d public or private, that public employees have a duty to operate and maintain with ordinary care. The Authority employees had duties of operation and maintenance of this home as part of their control of a housing project. Therefore, we reverse and remand for further proceedings as to the individual defendants. We affirm the dismissal of Plaintiffs claims against the governmental defendants, however, because we declined to grant certiorari on the question of notice, and therefore the Court of Appeals decision on that question stands.\n{21} IT IS SO ORDERED.\nFRANCHINI, C.J., BACA, MINZNER and SERNA, JJ., concur.\n. Plaintiff also alleged counts of breach of contract, negligent infliction of emotional distress, and violation of civil rights, but these claims are not the subject of this appeal.\n. The Legislature amended the definitions section of the Tort Claims Act in 1991 (after the events underlying this case occurred) to provide a negative definition of \"maintenance\": maintenance shall not include \"an activity or event relating to a public building or public housing project that was not foreseeable.\u201d NMSA 1978, \u00a7 41-4-3(E)(2) (1991) (emphasis added).\n. The HUD inspection guidelines in effect at the time of the November 11, 1990, fire did not specifically require smoke detectors in program homes. However, a county ordinance requiring smoke detectors in existing one- and two-family dwellings, including Plaintiff's home, went into effect in April of 1989 (after the initial inspection but before the first annual inspection). See Do\u00f1a Ana County Ordinance No. 61-89. The Authority inspectors were unaware of the county ordinance and, apparently because HUD guidelines did not require it, failed to look for a smoke detector in their first annual inspection. The home was due for its second annual inspection at the time of the fire.\n. Plaintiff's original program home failed to meed HUD requirements in an inspection and her family was relocated to the home in question just over two years before the fire.\n. We clarify that nothing in this opinion should be read to hold Defendants strictly liable for defects in program homes, or to imply that the owners of such homes in any way escape liability for their own negligence by virtue of their contract with the governmental agency.\n. We do not hold that any defendant is vicariously liable for the owner's negligence. It may be that the Authority employees conducted their duties with due care, yet the owner was negligent. Any defendant would only be liable comparatively to the extent that defendant breached a duty to the Plaintiff's family and thereby caused the victim's tragic death.", "type": "majority", "author": "McKinnon, j." } ], "attorneys": [ "Hubert & Hernandez, P.A., Lee E. Peters, Las Cruces, for Petitioner.", "Modrall, Sperling, Roehl, Harris & Sisk, P.A., Mary T. Torres, Las Cruces, for Respondents.", "William H. Carpenter, Michael' B. Browde, Albuquerque, for Amicus Curiae, New Mexico Trial Lawyers Association.", "Nancy Augustus, Albuquerque, for Amicus Curiae, New Mexico Defense Lawyers Association.", "Paul M. Schneider, Santa Fe, for Amicus Curiae, Risk Management Division of New Mexico General Services Department." ], "corrections": "", "head_matter": "1998-NMSC-049\n970 P.2d 1143\nSusana COBOS, Personal Representative of the Estate of Socorro Morales, Luis Daniel Morales, and Crystal Selene Morales, and individually, Plaintiff-Petitioner, v. DO\u00d1A ANA COUNTY HOUSING AUTHORITY, Board of County Commissioners of Do\u00f1a Ana County, Lucia Archuleta, Nancy Alvillar, and Apolonio Montejano, Defendants-Respondents.\nNo. 23,288.\nSupreme Court of New Mexico.\nDec. 3, 1998.\nRehearing Denied Dec. 21, 1998.\nHubert & Hernandez, P.A., Lee E. Peters, Las Cruces, for Petitioner.\nModrall, Sperling, Roehl, Harris & Sisk, P.A., Mary T. Torres, Las Cruces, for Respondents.\nWilliam H. Carpenter, Michael' B. Browde, Albuquerque, for Amicus Curiae, New Mexico Trial Lawyers Association.\nNancy Augustus, Albuquerque, for Amicus Curiae, New Mexico Defense Lawyers Association.\nPaul M. Schneider, Santa Fe, for Amicus Curiae, Risk Management Division of New Mexico General Services Department." }, "file_name": "0418-01", "first_page_order": 456, "last_page_order": 464 }