{ "id": 1577399, "name": "Eddye TOMPKINS, Mother and Next Friend of Douglas B. Newby, Deceased, Plaintiff-Appellee, v. CARLSBAD IRRIGATION DISTRICT, James R. Craft, L. A. Johnson, L. N. Ferguson, Eugene C. Walterscheid and John Giovengo, Members of the C.I.D. Board of Directors, Defendants-Appellants", "name_abbreviation": "Tompkins ex rel. Newby v. Carlsbad Irrigation District", "decision_date": "1981-06-16", "docket_number": "No. 5068", "first_page": "368", "last_page": "372", "citations": [ { "type": "official", "cite": "96 N.M. 368" }, { "type": "parallel", "cite": "630 P.2d 767" } ], "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": "89 N.M. 379", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861560 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0379-01" ] }, { "cite": "83 N.M. 285", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331794 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0285-01" ] }, { "cite": "41 N.M. 318", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571445 ], "weight": 2, "year": 1937, "opinion_index": 0, "case_paths": [ "/nm/41/0318-01" ] }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0789-01" ] }, { "cite": "333 N.Y.S.2d 456", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1972, "opinion_index": 0 }, { "cite": "70 Misc.2d 159", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1246283 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/misc2d/70/0159-01" ] }, { "cite": "41 N.W. 416", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1889, "opinion_index": 0 }, { "cite": "73 Mich. 322", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1362880 ], "year": 1889, "opinion_index": 0, "case_paths": [ "/mich/73/0322-01" ] }, { "cite": "77 A. 6", "category": "reporters:state_regional", "reporter": "A.", "year": 1910, "opinion_index": 0 }, { "cite": "83 Vt. 502", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4474778 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/vt/83/0502-01" ] }, { "cite": "94 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573180 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0562-01" ] }, { "cite": "88 N.M. 462", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839762 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0462-01" ] }, { "cite": "88 N.M. 148", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838696 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0148-01" ] }, { "cite": "96 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577282 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0287-01" ] }, { "cite": "144 N.W.2d 82", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10800309 ], "opinion_index": 0, "case_paths": [ "/nw2d/144/0082-01" ] }, { "cite": "1 N.M. (Gild.) 263", "category": "reporters:state", "reporter": "N.M. (G.)", "year": 1859, "opinion_index": 0 }, { "cite": "225 P. 577", "category": "reporters:state_regional", "reporter": "P.", "year": 1924, "opinion_index": 0 }, { "cite": "29 N.M. 621", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842173 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nm/29/0621-01" ] }, { "cite": "70 A.L.R. 1261", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1929, "opinion_index": 0 }, { "cite": "34 N.M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556127 ], "weight": 2, "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0346-01" ] }, { "cite": "154 P. 382", "category": "reporters:state_regional", "reporter": "P.", "year": 1915, "opinion_index": 0 }, { "cite": "21 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2387911 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nm/21/0286-01" ] }, { "cite": "90 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868076 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0309-01" ] }, { "cite": "75 N.M. 661", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5376470 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/75/0661-01" ] }, { "cite": "31 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1551459 ], "weight": 2, "year": 1925, "opinion_index": 0, "case_paths": [ "/nm/31/0007-01" ] }, { "cite": "66 N.M. 184", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2849416 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/66/0184-01" ] }, { "cite": "74 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2801254 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0487-01" ] } ], "analysis": { "cardinality": 727, "char_count": 13673, "ocr_confidence": 0.778, "pagerank": { "raw": 2.513534823048486e-07, "percentile": 0.8107978496043592 }, "sha256": "1a1a556008f1a93140e7a81fd4ac5b898efa991038cfaec5c2bf2dfe142f2e3e", "simhash": "1:bd7effc331605621", "word_count": 2226 }, "last_updated": "2023-07-14T16:25:27.930698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, C. J, and LOPEZ, J., concur." ], "parties": [ "Eddye TOMPKINS, Mother and Next Friend of Douglas B. Newby, Deceased, Plaintiff-Appellee, v. CARLSBAD IRRIGATION DISTRICT, James R. Craft, L. A. Johnson, L. N. Ferguson, Eugene C. Walterscheid and John Giovengo, Members of the C.I.D. Board of Directors, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nDouglas, an infant approximately seventeen months old at the time, drowned in water standing in a culvert. The culvert carried irrigation ditch water underneath a highway. Plaintiff sought damages from CID (Carlsbad Irrigation District) and the directors of CID. Defendants moved to dismiss and converted that motion to one for summary judgment by the use of an exhibit showing the organization of CID and certain depositions. Rule of Civ. Proc. 12(b). The trial court denied the motion; we granted defendants\u2019 application for an interlocutory appeal. We discuss: (1) whether a governmental entity is involved; (2) \u00a7 41-4-6, N.M.S.A. 1978; (3) \u00a7 41-4-11, N.M.S.A. 1978; and (4) the legal sufficiency of the damage claim.\nGovernmental Entity\nGovernmental entities and public employees acting within the scope of duty are granted immunity from liability for tort except as provided in the Tort Claims Act, \u00a7 41-4-4(A), N.M.S.A. 1978 (1980 Cum. Supp.). Public employee is defined to include officers of a governmental entity, \u00a7 41 \u2014 4-3(E), N.M.S.A. 1978. The status of the individual defendants as officers of CID is not challenged; the individual defendants are public employees for the purposes of this suit if CID is a governmental entity.\nSection 41 \u2014 1-3, supra,\n1. in subsection B, defines governmental entity as the state or any local public body as defined in subsections C and G;\n2. in subsection C, defines local public body as all political subdivisions of the state and their agencies, instrumentalities and institutions; and\n3. in subsection G, defines state or state agency to mean the State of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions.\nThe organization of CID was completed upon entry of a court order approving organization in 1933. The organization was pursuant to Chapter 73 of the Compiled Laws, 1929, see Ch. 73, Articles 10 and 11, N.M.S.A. 1978. Irrigation districts so organized were validated by Laws 1934 (S.S.), Ch. 9, now appearing as \u00a7\u00a7 73-13 \u2014 43 to 73-13-46, N.M.S.A. 1978. There is no issue as to the valid organization of CID; our concern is with a provision in the 1934 validating law.\nSection 73-13-44, supra, refers to irrigation districts organized under the irrigation law and states \u201cthe aforesaid irrigation districts are hereby created, established and organized and continued bodies corporate and politic . . . . \u201d \u201c[T]he legislature has power to create . . . political subdivisions for a public purpose.\u201d Albuquerque Met. Arroyo Flood Con. A. v. Swinburne, 74 N.M. 487, 394 P.2d 998 (1964).\nThe Legislature having established CID as a \u201cbody politic,\u201d the issue is whether a body politic is a political subdivision and, thus, a local public body under the Tort Claims Act. We do not consider whether CID is a state agency because of the decision in Hooker v. Village of Hatch, 66 N.M. 184, 344 P.2d 699 (1959), which held that the Elephant Butte Irrigation District was not an agency of the state.\nDavy v. McNeill, 31 N.M. 7, 240 P. 482 (1925), states that irrigation districts are not municipal corporations, but public corporations for municipal purposes. See also Daniels v. Watson, 75 N.M. 661, 410 P.2d 193 (1966). We do not involve ourselves with the meaning of quasi-municipal because such is irrelevant in this case. See Gallagher v. Albuquerque Metro., Etc., 90 N.M. 309, 563 P.2d 103 (Ct.App.1977). Whether CID is a quasi-municipal corporation is not an issue; the issue is whether CID is a local public body.\nIn re Dexter-Greenfield Drainage District, 21 N.M. 286, 154 P. 382 (1915), points out that irrigation districts are organized for the purpose of exercising a public function and not for private gain. Gutierrez v. Middle Rio Grande Consv. District, 34 N.M. 346, 282 P. 1, 70 A.L.R. 1261 (1929), states that irrigation is a public use. Gibbany v. Ford, 29 N.M. 621, 225 P. 577 (1924), defined a political subdivision as \u201cformed or maintained for the more effectual or convenient exercise of political power within certain boundaries or localities, to whom the electors residing therein are, to some extent, granted power to locally self-govern themselves.\u201d The provisions of Ch. 73, Articles 10 and 11, N.M.S.A. 1978, meet this definition. Donalson v. San Miguel County, 1 N.M. (Gild.) 263 (1859), held that a county, authorized by the Legislature, was a body \u201cpolitic and corporate.\u201d\nThe authority cited in the immediately preceding paragraph would sustain a holding that CID is a political subdivision. In addition, we have a legislative declaration that an irrigation district, such as CID, is a body corporate and politic. Such a body is a political subdivision. Gallagher v. Albuquerque Metro., Etc., supra; see In re Garrison Diversion Conservancy District, 144 N.W.2d 82 (N.D.1966). CID is a local public body as defined in \u00a7 41-4-3, supra, and is a governmental entity. Accordingly, the Tort Claims Act applies to the claims against defendants.\nSection 41-4-6\nThis section reads:\n41-4-6. Liability; buildings, public parks, machinery, equipment and furnishings.\nThe immunity granted pursuant to Subsection A of Section 41 \u2014 4\u20144 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused 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. Nothing in this section shall be construed as granting waiver of immunity for any damages arising out of the operation or maintenance of works used for diversion or storage of water.\nDefendants contend the last sentence of this section provides immunity from plaintiff\u2019s damage claim. According to the depositions, the ditch involved brought water from CID\u2019s canal; the culvert involved carried the ditch water underneath the highway; the water standing in the culvert resulted from the operation or maintenance of works used for the diversion of water.\nPlaintiff does not contend that, factually, CID does not come within the last sentence of \u00a7 41-4-6, supra. Plaintiff\u2019s contention is: \u201cNowhere does the section use the term irrigation district and ... if this were read into the bill, it would clearly be violative of Art. IV, \u00a7 16\u201d of the Constitution of New Mexico.\nArticle IV, \u00a7 16 of our Constitution, states requirements concerning the title of legislative enactments. The titles to the New Mexico Tort Claims Act, as enacted by Laws 1976, Ch. 58, and to the amendatory act, Laws 1977, Ch. 386, are not involved. The title of both Acts refer to the liability of government in the State of New Mexico. Plaintiff\u2019s argument is not directed to the title of an act, but to a section heading.\nPlaintiff\u2019s argument is directed to the legislatively-enacted section heading to \u00a7 41-4\u20146 which is quoted above. That section heading is of no assistance to plaintiff because there is no ambiguity in \u00a7 41\u20144-6. Immunity is waived for specified items in the first sentence of \u00a7 41\u20144-6; the second sentence limits that waiver of immunity when the claimed negligence is based on the operation or maintenance of works used for diversion or storage of water. The contents of \u00a7 41\u20144-6, being unambiguous, the use of a legislatively-enacted section heading to determine legislative intent is not involved. See State v. Ellenberger, 96 N.M. 287, 629 P.2d 1216 (1981); American Automobile Ass\u2019n, Inc. v. Bureau of Rev., 88 N.M. 148, 538 P.2d 420 (Ct.App.1975), rev\u2019d on other grounds, 88 N.M. 462, 541 P.2d 967 (1975).\nUnder \u00a7 41\u20144-4(A), supra, a governmental entity is immune from liability except as provided in the Tort Claims Act. Section 41\u20144-6, supra, is not a waiver of immunity for damages arising out of the operation or maintenance of works used for diversion or storage of water; \u00a7 41\u20144-6 does not provide a basis for holding defendants liable to plaintiff.\nSection 41-4-11\nThis section reads:\n41-4-11. Liability; highways and streets.\nA. The immunity granted pursuant to Subsection A of Section 41\u20144-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the maintenance of or for the existence of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.\nB. The liability for which immunity has been waived pursuant to Subsection A of this section shall not include liability for damages caused by:\n(1) a defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; or\n(2) the failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.\nPlaintiff contends that \u00a7 41\u20144-11 is a waiver of immunity for negligence in connection with the maintenance or existence of a culvert.\nDefendants contend that the specific limitation of \u00a7 41\u20144-6 (the second sentence of \u00a7 41\u20144-6, discussed above), makes \u00a7 41-4-11 inapplicable. We disagree. The express language of the second sentence of \u00a7 41\u20144-6, supra, shows that the specific limitation applies to \u201cthis section\u201d; thus, the specific limitation applies only to \u00a7 41-4-6. Compare \u00a7 41-4-13, N.M.S.A. 1978, which is a general provision excluding community ditches or acequias from all waivers of immunity.\nSection 41\u20144-11, supra, literally read, states a waiver of immunity in connection with \u201cany culvert\u201d. In O\u2019Brien v. Middle Rio Grande, Etc., 94 N.M. 562, 613 P.2d 432 (Ct.App.1980), we pointed out that \u201cany\u201d means \u201cone or more\u201d or \u201call\u201d. The question is whether the waiver in \u00a7 41\u20144\u201411 literally applies to all culverts.\nWebster\u2019s Third New International Dictionary (1966) defines \u201cculvert\u201d to mean \u201ca transverse drain or waterway (as under a road, railroad, or canal)\u201d. See Herrick v. Town of Holland, 83 Vt. 502, 77 A. 6 (1910). A question arises as to whether \u201cculvert\u201d means \u201cany\u201d such transverse drain because cases have limited the meaning of culvert to drains running under a road, Kowalka v. Village of St. Joseph, 73 Mich. 322, 41 N.W. 416 (1889); DiLorenzo v. Village of Endicott, 70 Misc.2d 159, 333 N.Y.S.2d 456 (1972), and because of the context in which \u201cculvert\u201d is used in the statute.\nThe series of words used in \u00a7 41-4-11, supra, is \u201cbridge, culvert, highway, roadway, street, alley, sidewalk or parking area.\u201d In this context, the Legislature used bridges and culverts as bridges and culverts used in connection with highways, roadways, streets, alleys, sidewalks and parking areas. See American Automobile Ass\u2019n, Inc. v. Bureau of Rev., supra. This resolution of the meaning of \u201cany\u201d culvert is supported by the legislatively-enacted section heading, \u201cLiability; highways and streets.\u201d State v. Ellenberger, supra.\nIn this case, it is not disputed that the culvert is a transverse drain under a highway; the waiver of immunity in \u00a7 41-4-11, supra, is applicable in this case and provides a basis for liability against defendants.\nThe uncontradicted showing in the depositions is that the culvert was erected by either the State Highway Department, or its contractor, in expanding the highway from two lanes to four lanes. Thus, under the showing made, defendants are not to be held liable for the erection of this culvert.\nThere is no showing as to whether defendants were responsible for the maintenance of the culvert. Defendants not having made a showing as to maintenance of the culvert, they were not entitled to summary judgment on the basis that they did not maintain the culvert. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). Sufficiency of the Damage Claim\nThe damage claim is ambiguously stated; it reads:\nPlaintiff has suffered and will continue to suffer physical and mental pain and suffering, her loss of earning capacity by her minor decedent, DOUGLAS B, [sic] NEWBY, her loss of her decedent\u2019s society, and her own personal grief and sorrow, all to the sum of $100,000.00 actual damages.\nThe briefs argue the damage claim as one for wrongful death and for \u201cbystander recovery\u201d. We are not concerned with whether plaintiff, suing as mother and next friend, is the proper party to seek recovery of damages for wrongful death; no issue is raised as to that. Nor are we concerned with bystander recovery in New Mexico. See Curry v. Journal Pub. Co., 41 N.M. 318, 68 P.2d 168 (1937); Aragon v. Speelman, 83 N.M. 285, 491 P.2d 173 (Ct.App.1971).\nThe waiver of immunity in \u00a7 41-4-11 applies \u201cto liability for damages resulting from bodily injury, wrongful death or property damage . . . . \u201d\nThe complaint does not claim property damage. The deposition of plaintiff contains an uncontradicted showing of no bodily injury. Compare Higgins v. Hermes, 89 N.M. 379, 552 P.2d 1227 (Ct.App.1976). Accordingly, the damage claim is limited to damages recoverable for wrongful death.\nThe denial of summary judgment is affirmed on the basis that there is a claim for damages for wrongful death based on defendants\u2019 asserted negligent maintenance of the culvert.\nIT IS SO ORDERED.\nHERNANDEZ, C. J, and LOPEZ, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Carl J. Butkus, Civerolo, Hansen & Wolf, P. A., Albuquerque, Jay W. Forbes, McCormick & Forbes, Carlsbad, for defendants-appellants.", "Tom Cherryhomes, Carlsbad, for plaintiff-appellee." ], "corrections": "", "head_matter": "630 P.2d 767\nEddye TOMPKINS, Mother and Next Friend of Douglas B. Newby, Deceased, Plaintiff-Appellee, v. CARLSBAD IRRIGATION DISTRICT, James R. Craft, L. A. Johnson, L. N. Ferguson, Eugene C. Walterscheid and John Giovengo, Members of the C.I.D. Board of Directors, Defendants-Appellants.\nNo. 5068.\nCourt of Appeals of New Mexico.\nJune 16, 1981.\nCarl J. Butkus, Civerolo, Hansen & Wolf, P. A., Albuquerque, Jay W. Forbes, McCormick & Forbes, Carlsbad, for defendants-appellants.\nTom Cherryhomes, Carlsbad, for plaintiff-appellee." }, "file_name": "0368-01", "first_page_order": 396, "last_page_order": 400 }