{ "id": 3670013, "name": "Samuel UPTON, Plaintiff-Petitioner, v. CLOVIS MUNICIPAL SCHOOL DISTRICT, Defendant-Respondent", "name_abbreviation": "Upton v. Clovis Municipal School District", "decision_date": "2006-06-12", "docket_number": "No. 29,226", "first_page": "205", "last_page": "212", "citations": [ { "type": "official", "cite": "140 N.M. 205" }, { "type": "parallel", "cite": "2006-NMSC-040" }, { "type": "parallel", "cite": "141 P.3d 1259" } ], "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": "121 N.M. 395", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566489 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0395-01" ] }, { "cite": "1996-NMCA-021", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6\u00b6 10-11" } ], "opinion_index": 0 }, { "cite": "117 N.M. 637", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552722 ], "weight": 6, "pin_cites": [ { "page": "643" }, { "page": "399" }, { "page": "641-42" }, { "page": "397-98", "parenthetical": "roaming gang was threat to prison popula tion" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0637-01" ] }, { "cite": "116 N.M. 616", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727660 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "619" }, { "page": "347" }, { "page": "346" }, { "page": "350", "parenthetical": "Ransom, J., specially concurring" }, { "page": "347", "parenthetical": "holding administrative decision pertaining to a single individual and the specific threats posed to that individual did not qualify under the building waiver" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0616-01" ] }, { "cite": "116 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727730 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "104-05" }, { "page": "746-47" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0101-01" ] }, { "cite": "1997-NMCA-041", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142230 ], "weight": 13, "pin_cites": [ { "page": "\u00b6\u00b6 12, 15-16" }, { "page": "\u00b6\u00b6 12, 15" }, { "page": "\u00b6 8" }, { "parenthetical": "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\"" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0353-01" ] }, { "cite": "111 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715097 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "653" }, { "page": "623" }, { "page": "653" }, { "page": "623", "parenthetical": "holding that the common grounds of the State Fairgrounds constitute a building under Section 41-4-6" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0644-01" ] }, { "cite": "107 N.M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597087 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "207", "parenthetical": "holding the waiver applies because the condition threatened the residents of the public building and their invitees" }, { "page": "51", "parenthetical": "holding the waiver applies because the condition threatened the residents of the public building and their invitees" }, { "page": "206-07" }, { "page": "50-51", "parenthetical": "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" }, { "page": "206" }, { "page": "50", "parenthetical": "stating dangerous condition in the public areas between the county housing structures fell within the waiver" }, { "page": "205" }, { "page": "49", "parenthetical": "roaming dogs were threat to residents and invitees of housing development" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0204-01" ] }, { "cite": "120 N.M. 680", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559000 ], "weight": 13, "year": 1995, "pin_cites": [ { "page": "683", "parenthetical": "\"the critical question is whether the condition creates a potential risk to the general public\"" }, { "page": "721", "parenthetical": "\"the critical question is whether the condition creates a potential risk to the general public\"" }, { "page": "681" }, { "page": "719" }, { "page": "681-82" }, { "page": "719-20" }, { "page": "683-84" }, { "page": "721-22" }, { "page": "683" }, { "page": "721", "parenthetical": "emphasis added" }, { "page": "681" }, { "page": "719", "parenthetical": "holding failure to adequately supervise one specific child on a playground slide did not qualify under the building waiver" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0680-01" ] }, { "cite": "114 N.M. 676", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731565 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/nm/114/0676-01" ] }, { "cite": "88 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839152 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0588-01" ] }, { "cite": "2001-NMCA-033", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352339 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0434-01" ] }, { "cite": "1999-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106517 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0328-01" ] }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] }, { "cite": "2005-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929176 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 1" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0779-01" ] }, { "cite": "120 N.M. 680", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559000 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "683" }, { "page": "721" } ], "opinion_index": 1, "case_paths": [ "/nm/120/0680-01" ] }, { "cite": "2005-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929176 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/137/0779-01" ] } ], "analysis": { "cardinality": 1173, "char_count": 28356, "ocr_confidence": 0.692, "pagerank": { "raw": 1.6135574688251549e-07, "percentile": 0.6860106515862507 }, "sha256": "566daee88b0f9d14e6cd1161c677f86582f81ed1dd10934d173f80ebe4804ee6", "simhash": "1:e2f5fcc939c23424", "word_count": 4598 }, "last_updated": "2023-07-14T22:21:44.975087+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: PATRICIO M. SERNA, PETRA JIMENEZ MAES, and EDWARD L. CH\u00c1VEZ, Justices.", "PAMELA B. MINZNER, Justice (dissenting)." ], "parties": [ "Samuel UPTON, Plaintiff-Petitioner, v. CLOVIS MUNICIPAL SCHOOL DISTRICT, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nBOSSON, Chief Justice.\n{1} The Uptons\u2019 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, \u00a7\u00a7 41^4 \u2014 1 to -29 (1976, as amended through 2004), being part of the \u201coperation or maintenance\u201d of a public building. See \u00a7 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, \u00b6 1, 137 N.M. 779, 115 P.3d 795. We now reverse and remand for further proceedings.\nBACKGROUND\n{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\u2019s parents also took precautions regarding their daughter\u2019s special health needs. After finding out that Sarah, a ninth grader, would have to participate in a mandatory physical education class, Sarah\u2019s mother went to the school to talk with Sarah\u2019s physical education teacher regarding her asthmatic condition. The teacher was aware of Sarah\u2019s asthma and agreed that she could limit her participation if Sarah felt that the physical exercise was triggering an attack. Sarah\u2019s 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.\n{3} On the day of Sarah\u2019s 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.\n{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\u2019s 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.\n{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\u2019s 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.\n{6} The Uptons filed this wrongful death action against the Clovis Municipal School District (the \u201cSchool District\u201d), alleging various acts of negligence on the part of school employees that contributed to Sarah\u2019s death. In response to the School District\u2019s claim of tort immunity, the Uptons argued that Section 41-4-6 of the TCA waives tort immunity in this instance for the \u201cnegligence of public employees while acting within the scope of their duties in the operation or maintenance of [a public] building.\u201d 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 \u201coperation or maintenance of any building\u201d applies in this context.\nDISCUSSION\nStandard of Review\n{7} A district court\u2019s grant of summary judgment is reviewed de novo, and is only appropriate \u201cwhere there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.\u201d Self v. United Parcel Serv., Inc., 1998-NMSC-046, \u00b6 6, 126 N.M. 396, 970 P.2d 582. \u201c[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.\u201d Handmaker v. Henney, 1999-NMSC-043, \u00b6 18, 128 N.M. 328, 992 P.2d 879. We also review the applicability of the TCA de novo. Godwin v. Mem\u2019l Med. Ctr., 2001-NMCA-033, \u00b6 23, 130 N.M. 434, 25 P.3d 273.\nThe Tort Claims Act Building Waiver Under Section 41-4-6\n{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 (1992). See \u00a7\u00a7 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 \u00a7 41\u20144\u20144. The waiver for \u201coperation or maintenance of any building\u201d is just such a circumstance. Section 41-4-6. The waiver allows individual claims against governmental entities that are based on \u201cthe 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 Id. For the waiver to apply, the negligent \u201coperation or maintenance\u201d 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) (\u201cthe critical question is whether the condition creates a potential risk to the general public\u201d); 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).\n{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 \u201coperation or maintenance\u201d 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\u2019s 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, \u00b6\u00b6 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 623 (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).\nThe School District\u2019s Negligence Created a Dangerous Condition for Sarah\n{10} According to the Uptons\u2019 claim, the School District operated Sarah\u2019s school in a manner that put both her and other similarly situated students at risk. The Uptons assert that Sarah\u2019s death was caused by the School District\u2019s 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\u2019s parents disclosed her condition to the school, both verbally and in writing, and received assurances that their daughter\u2019s 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\u2019s death.\n{11} In the second part of their claim, the Uptons challenge the School District\u2019s failure to respond to Sarah\u2019s attack. From the time Sarah\u2019s distress was first noticed, it took the school approximately fifteen minutes to call 911, adverse to the explicit instructions Sarah\u2019s 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\u2019s limited response to Sarah\u2019s 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.\n{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, \u00b6\u00b6 12, 15, 123 N.M. 353, 940 P.2d 459. 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 \u201coperation\u201d of the facility within the meaning of Section 41-4-6. Id. \u00b6\u00b6 3, 12-15 (relying on this Court\u2019s 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 \u201cpresent and acting as such\u201d).\n{13} Similar to Leithead, the School District\u2019s alleged failure to follow procedures established for at-risk students appears to fall comfortably within the Section 41-4-6 waiver for \u201coperation or maintenance\u201d 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\u2019s 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.\n{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 \u201coperation\u201d of the school building within the meaning of the TCA. Sarah\u2019s 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.\nThe School District\u2019s Response: Negligent Supervision Creating a Risk Only for Sarah Individually is not the Operation of a Building Under the TCA\n{15} To rebut the Uptons\u2019 claims, and relying primarily upon our precedent in Espinoza, the School District argues that, at its core, the Uptons\u2019 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 ornease law. Upton, 2005-NMCA-085, \u00b6 11, 137 N.M. 779, 115 P.3d 795.\n{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, \u00b6 8, 123 N.M. 353, 940 P.2d 459 (stating a claim that involves elements of negligent supervision can still fall under the waiver if that supervision is directly tied to the \u201coperation or maintenance\u201d of the building). But the claim cannot be based solely on negligent supervision. See id. (holding \u201ca 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\u201d).\n{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\u2019s 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\u2019 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\u2019s negligent performance of an administrative function, putting at risk a single individual, did not fall under the waiver of immunity).\n{18} Upon close analysis, we find unpersuasive the School District\u2019s attempt to draw a parallel between these cases and the Up-tons\u2019 claim. The Uptons clearly assert much more than negligent supervision of their daughter. As discussed above, the Uptons challenge the School District\u2019s 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\u2019s IEP, to respond appropriately to the specific information it was given about Sarah\u2019s condition, and to implement the specific assurances given to the Uptons about the care the school was to provide in light of Sarah\u2019s 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\u2019s 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.\n{19} We acknowledge that a school building is not as inherently dangerous as a swimming pool, and thus, the distinction between negligent supervision \u201cstanding alone\u201d 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\u2019s 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.\n{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 \u201cdiscrete administrative decision\u201d that did not make the premises any more dangerous beyond \u201cthe reasonable and expected risks of prison life,\u201d and the cases demonstrating \u201ca general condition of unreasonable risk from negligent security practices,\u201d 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.\n{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\u2019s 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 \u201cthe reasonable and expected risks of [school] life.\u201d This case is more closely aligned with Callaway than Archibeque, and it is wholly dissimilar from Espinoza.\n{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 \u201cthe critical question is whether the condition creates a potential risk to the general public.\u201d 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.\n{23} As previously applied by this Court and our Court of Appeals, the reference to the \u201cgeneral public\u201d 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 popula tion); Leithead, 1997-NMCA-041, \u00b6 15, 123 N.M. 353, 940 P.2d 459 (indicating lack of lifeguards was threat to swimming public); Baca v. State, 1996-NMCA-021, \u00b6\u00b6 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).\n{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\u2019s indifference towards Sarah\u2019s 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\u2019s diligence were in place for other at-risk students. This is not a ease of action uniquely affecting only one student. The school\u2019s failures, if proven, created a dangerous condition for all special-needs children, and with regard to emergency responsiveness, for every student at the school.\n{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.\nCONCLUSION\n{26} For the foregoing reasons, we reverse the opinion of the Court of Appeals and remand for further proceedings consistent with this Opinion.\n{27} IT IS SO ORDERED.\nWE CONCUR: PATRICIO M. SERNA, PETRA JIMENEZ MAES, and EDWARD L. CH\u00c1VEZ, Justices.\nPAMELA B. MINZNER, Justice (dissenting).", "type": "majority", "author": "BOSSON, Chief Justice." }, { "text": "MINZNER, Justice\n(dissenting).\n{28} I respectfully dissent. I would affirm the district court\u2019s grant of summary judgment for the Clovis Municipal School District on the basis of the analysis within the Court of Appeals\u2019 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, \u00a7\u00a7 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 \u201cbetween the creation of a dangerous condition that places the general public at risk, which results in a waiver, and negligent supervision, which does not.\u201d Id. \u00b6 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. \u00b6 11. Furthermore, the Court of Appeals noted that our cases have \u201cmade it clear that administrative or supervisory functions do not equate with the \u2018operation of any building\u2019 or call for a waiver of immunity.\u201d Id. \u00b6 12. I also agree with Judge Sutin\u2019s special concurrence, which emphasizes the Legislature\u2019s authority to revise the TCA.\n{29} As the majority opinion notes, the TCA \u201cgrants all government entities and their employees general immunity from actions in tort, but waives that immunity in certain specified circumstances.\u201d Maj. Op. \u00b6 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.\n{30} The majority opinion states that the negligent \u201coperation or maintenance of any building\u201d encompasses all cases in which the negligent action of a government entity creates \u201ca dangerous condition that threatens the general public or a class of users of the building.\u201d Maj. Op. \u00b6 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. \u00b6 22.\n{31} In clarifying the reference to the \u201cgeneral public\u201d in Espinoza, the majority opinion reasons that our cases only require a condition that is dangerous \u201cto the particular class of people that use the building or facility in question.\u201d Maj. Op. \u00b6 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 \u201coperation or maintenance of any building\u201d within Section 414L6. Maj. Op. \u00b6 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.\n{32} As Judge Sutin\u2019s 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\u2019s intent in enacting Section 41-4-6.\n{33} The majority opinion identifies, within a handful of eases, a broad interpretation of the Legislature\u2019s intent \u201cto protect private citizens from the consequences of dangerous conditions created by the negligence of public employees in the \u2018operation or maintenance\u2019 of public buildings.\u201d Maj. Op. \u00b6 9. The Legislature\u2019s intent, however, is expressed in the language the legislators chose. The phrase \u201coperation or maintenance\u201d 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\u2019s 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.\n{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.", "type": "dissent", "author": "MINZNER, Justice" } ], "attorneys": [ "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\u2019 Fund, New Mexico County Insurance Authority." ], "corrections": "", "head_matter": "2006-NMSC-040 141 P.3d 1259\nSamuel UPTON, Plaintiff-Petitioner, v. CLOVIS MUNICIPAL SCHOOL DISTRICT, Defendant-Respondent.\nNo. 29,226.\nSupreme Court of New Mexico.\nJune 12, 2006.\nRehearing Denied Aug. 30, 2006.\nAs Revised Sept. 12, 2006.\nDoeer & Knudson, P.A., Stephen E. Doerr, Portales, NM, for Petitioner.\nBrown & German, Daniel J. Macke, Elizabeth L. German, Albuquerque, NM, for Respondent.\nMichael B. Browde, Albuquerque, NM, MCCML, P.A., Randi McGinn, Albuquerque, NM, for Amicus Curiae New Mexico Trial Lawyers Association.\nMiller Stratvert P.A., Joseph L. Romero, Scott P. Hatcher, Santa Fe, NM, for Amicus Curiae, New Mexico Self Insurers\u2019 Fund, New Mexico County Insurance Authority." }, "file_name": "0205-01", "first_page_order": 241, "last_page_order": 248 }