{ "id": 1575532, "name": "Steven MOORE, Plaintiff-Appellant, v. STATE of New Mexico, New Mexico State Highway Department and City of Albuquerque, Defendants-Appellees", "name_abbreviation": "Moore v. State", "decision_date": "1980-11-26", "docket_number": "No. 4774", "first_page": "300", "last_page": "302", "citations": [ { "type": "official", "cite": "95 N.M. 300" }, { "type": "parallel", "cite": "621 P.2d 517" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "613 P.2d 433", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1980, "opinion_index": 0 }, { "cite": "94 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573180 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/94/0562-01" ] }, { "cite": "27 N.W.2d 15", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1947, "opinion_index": 0 }, { "cite": "238 Iowa 285", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8642601 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/iowa/238/0285-01" ] }, { "cite": "408 A.2d 408", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "409" } ], "opinion_index": 0 }, { "cite": "50 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577080 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/nm/50/0050-01" ] }, { "cite": "164 F. 376", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6718507 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/f/164/0376-01" ] }, { "cite": "240 F.2d 94", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 419999 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/f2d/240/0094-01" ] }, { "cite": "73 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "148 Ohio St. 45", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 1040464 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/ohio-st/148/0045-01" ] }, { "cite": "150 Cal.Rptr. 216", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1978, "opinion_index": 0 }, { "cite": "86 Cal.App.3d 357", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 1992188 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/cal-app-3d/86/0357-01" ] }, { "cite": "241 S.C. 316", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2116192 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/sc/241/0316-01" ] }, { "cite": "213 Kan. 877", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 552207 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/kan/213/0877-01" ] } ], "analysis": { "cardinality": 479, "char_count": 7979, "ocr_confidence": 0.795, "pagerank": { "raw": 1.3574250275895163e-07, "percentile": 0.6348169333424458 }, "sha256": "9e0757de1c62b26047fe6cb2f382f314a7c352c33d42d5f7ed62600cb8d248c2", "simhash": "1:bd0258dbb2a69a10", "word_count": 1301 }, "last_updated": "2023-07-14T19:05:15.389388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS, J., concurs.", "ANDREWS, J., specially concurs." ], "parties": [ "Steven MOORE, Plaintiff-Appellant, v. STATE of New Mexico, New Mexico State Highway Department and City of Albuquerque, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nPlaintiff appeals a summary judgment rendered in favor of defendants. The trial court found that \u201cThe defendants herein are immune from liability under Section 41-4-ll(B) N.M.S.A.1978, and defendants are, therefore, entitled to Judgment as a matter of law.\u201d' We reverse.\nOn July 18, 1979, at 9:30 a. m., plaintiff, while riding his motorcycle, was forced off the roadway of East Frontage Road in Albuquerque by a mystery car, resulting in a fall approximately 10V2 feet from the road surface into a concrete arroyo which ran under the roadway at that location. The East Frontage Road was a New Mexico state highway and was maintained by the New Mexico State Highway Department (Department) and the City of Albuquerque (City). The portion of the road located over the arroyo was unguarded.\nThe City and the Department entered into a Memorandum Agreement with reference to widening the East Frontage Road of Interstate 25 from the intersection of San Mateo Boulevard north for approximately 700 feet and to alter the channelization island between the frontage road and the northbound Interstate 25 on ramp to allow two lanes of thru traffic on San Mateo Boulevard. To cooperate in completing this construction project and to divide the work necessary, the City and the Department, among other provisions, agreed that:\n1.b. The City shall provide at no cost to the Department all necessary guardrail material.\n2.b. The Department shall perform all work necessary to install the guardrails as required in the project.\nWhat guardrail might be required in this project is unknown. We assume this requirement would be determined after the completion of this project.\nThis case is governed by the \u201cTort Claims Act,\u201d \u00a7 41 \u2014 4-1 et seq., N.M.S.A. 1978. The legislature declared the public policy of New Mexico to be \u201cthat governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act.\u201d Section 41 \u2014 4-2(A).\nSection 41 \u2014 4-4(A) reads:\nA governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by Sections 41-4-5 through 41 \u2014 4-12 NMSA 1978... . [Emphasis added.]\nSection 41 \u2014 4-11 provides for immunity and waiver thereof with reference to highways and streets. Subsection (A) provides that \u201cThe immunity granted ... [a governmental unity] does not apply .... in the maintenance of or for the existence of any ... highway, roadway . .. .\u201d [Emphasis added.] There was a highway in existence. What is meant by the words \u201cthe immunity granted does not apply for the existence of any highway\u201d? The only reasonable interpretation is that a governmental unity waives immunity from liability for a highway that has actually been built. It naturally follows that if a claim is made that the highway in existence is defective, a governmental entity does not enjoy immunity from liability.\nThe reason for this interpretation can be found in subsection (B). It provides that this waiver \u201cshall not include . . .\n(1) a defect in plan or design of any ... highway, roadway . ..; or\n(2) the failure to construct or reconstruct any ... highway, roadway .... \u201d\nIn other words, the City and Department are immune to liability if there is a defect in plan or design, or if they fail to construct or reconstruct the highway.\nA \u201cplan or design\u201d anticipates the building of a highway. There was no defect in the plan or design because the City and Department planned to install guardrails for the safety of the traveling public. It has been held that the absence of a guardrail is a defect in design, not maintenance. Martin v. State Highway Commission, 213 Kan. 877, 518 P.2d 437 (1974). \u201cThe failure to construct or reconstruct any highway or roadway\u201d is the nonperformance of the work. \u201cFailure\u201d is defined as an omission to perform a duty or appointed function. It has reference to an omission or the nonperformance of something due or required to be done and covers both intentional and unintentional nonperformance. State v. Gasque, 241 S.C. 316, 128 S.E.2d 154 (1962); Brown v. Municipal Court of Los Angeles, Etc., 86 Cal.App.3d 357, 150 Cal.Rptr. 216 (1978); State v. Collins, 148 Ohio St. 45, 73 N.E.2d 195 (1947); United States v. Heikkinen, 240 F.2d 94 (7th Cir. 1957); Standard Oil Co. of Indiana v. United States, 164 F. 376 (7th Cir. 1908). Neither of these provisions apply to a highway or roadway already constructed. Therefore, the City and Department waived immunity and are not protected by the immunity provisions of the Act.\nWe conclude that, in the application of the doctrine of immunity and waiver thereof, the legislature intended to make a distinction between a highway in existence and one not in existence. The legislature did not intend to make an existent highway unsafe for the traveling public.\nThe City and Department did reconstruct the highway. The construction or reconstruction of a highway or roadway does not include such work as the installation of guardrails. \u201cThe word \u2018highway\u2019 as ordinarily used means a way over land open to the use of the general public without unreasonable distinction or discrimination, established in a mode provided by the laws of the state where located.\u201d Lovelace v. Hightower, 50 N.M. 50, 53, 168 P.2d 864 (1946). \u201c \u2018Roadway\u2019 is commonly understood to mean \u2018the part of a road over which the vehicle traffic travels.\u2019 \u201d Dupont v. Chagnon, 408 A.2d 408, 409 (N.H.1979); Hayungs v. Falk, 238 Iowa 285, 27 N.W.2d 15 (1947).\nAt the time of plaintiff\u2019s injury, the East Frontage Road was in existence but without guardrails. Plaintiff claims that, in view of the City-Department agreement that they would share the cost and installation of guardrails as a part of their basic design, the absence of guardrails was not a defect in design but a negligent omission by defendants. O\u2019Brien v. Middle Rio Grande, Etc., 94 N.M. 562, 613 P.2d 433 (Ct.App. 1980). They are not immune from liability. All rights of immunity have been waived or lost.\nA genuine issue of material fact exists whether the City and the Department were negligent and whether this negligence was the proximate cause of plaintiff\u2019s injuries.\nReversed.\nIT IS SO ORDERED.\nWALTERS, J., concurs.\nANDREWS, J., specially concurs.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "ANDREWS, Judge\n(specially concurring).\nI concur in the result, but disagree with the thrust of the discussion.\nAppellant raises the existence of genuine issues of material fact \u2014 this is the dispositive contention. For the trial court to have found for the defendants in this action, it would have had to find that there was no issue of fact as to whether the reason the guardrail was not constructed was because of \u201cdesign\u201d or \u201cmaintenance.\u201d\nIf the guardrail was the subject of agreements, and if it, therefore, was anticipated in the design, a failure to install after an extended period would most probably be a maintenance issue. However, we need not reach that point, for there is conflicting evidence as to why the guardrail was not installed, and this fact must be established prior to a determination as to what the effect of that reason would be.\nIn my opinion, there is a genuine issue of material fact as to why the guardrail was not constructed. The trial court should determine whether the reason the guardrail was not constructed is a \u201cdesign\u201d or \u201cmaintenance\u201d defect.", "type": "concurrence", "author": "ANDREWS, Judge" } ], "attorneys": [ "Hayt, Hayt & Landau, Lawrence P. Zamzok, Albuquerque, for plaintiff-appellant.", "Shaffer, Butt, Thornton & Baehr, P. C., Deborah S. Davis, Albuquerque, Attorneys for defendants-appellees State of New Mexico and New Mexico State Highway Department.", "Deborah Slade, Asst. City Atty., Albuquerque, for defendant-appellee City of Albuquerque." ], "corrections": "", "head_matter": "621 P.2d 517\nSteven MOORE, Plaintiff-Appellant, v. STATE of New Mexico, New Mexico State Highway Department and City of Albuquerque, Defendants-Appellees.\nNo. 4774.\nCourt of Appeals of New Mexico.\nNov. 26, 1980.\nHayt, Hayt & Landau, Lawrence P. Zamzok, Albuquerque, for plaintiff-appellant.\nShaffer, Butt, Thornton & Baehr, P. C., Deborah S. Davis, Albuquerque, Attorneys for defendants-appellees State of New Mexico and New Mexico State Highway Department.\nDeborah Slade, Asst. City Atty., Albuquerque, for defendant-appellee City of Albuquerque." }, "file_name": "0300-01", "first_page_order": 332, "last_page_order": 334 }