Chaleunphonh v. Parks & Recreation Division

DISSENT

BUSTAMANTE, Judge.

18. I respectfully dissent. As the briefs describe the lease arrangement between the United States and the State of New Mexico, the federal government has retained responsibility for management and maintenance of all the physical facilities within the Elephant Butte Reservoir area which could constitute “works” as the term is used in the Tort Claims Act. Plaintiffs assert, and the Defendants do not disagree, that State employees are not engaged in operation or maintenance of the “works.” State employees are exclusively employed to operate and maintain the facilities used for the public recreation purposes allowed under the lease. Assuming this is an accurate description of the division of responsibility between the State and the federal government, the effect of our ruling today is to protect the State from an activity it is not engaged in and from a responsibility it has not undertaken. I do not believe it is necessary to go to this length to give full effect to the legislative aim embodied in NMSA1978, Section 41-4-6 (Repl. Pamp.1989).

19. As described in NMSA1978, Section 41-4-2 (Repl.Pamp.1989), the Tort Claims Act is a legislative compromise aimed at accommodating the need to compensate those injured by State action or inaction with the recognition that the State’s potential exposure to liability is very broad. Paraphrasing the Tort Claims Act, because its power to act for the public good is almost without limit, the State should not have imposed upon it the duty to do everything that might be done. Section 41^-2(A). Thus, the Tort Claims Act limits State liability to certain governmental activities excepted from a blanket grant of immunity. NMSA1978, §§ 41-4-5 to -13 (Repl.Pamp.1989). And, liability may only “be based upon the traditional tort concepts of duty and the reasonably prudent person’s standard of care in the performance of that duty.” Section 41^4-2(B); see Saiz v. Belen Sch. Dist., 113 N.M. 387, 827 P.2d 102 (1992). There is nothing in this design indicating that the legislature intended to protect the State from activities it has not undertaken or responsibilities it has not accepted.

20. The majority opinion immunizes the State because of the nature of the Elephant Butte Reservoir as a “works” even though the State is not involved in the maintenance or operation of the work. With obvious exceptions such as respondeat superior and situations involving non-delegable duties, tort Lability in negligence flows from acts, or failures to act, not from status. Id. To this extent the majority ruling is a departure from traditional tort concepts. My proposed distinction would preserve the immunity sought by the legislature as well as allow claims for those activities contemplated in the first sentence of Section 41 — 4—6. My approach would also preserve the “dual purpose equals immunity” holding of Allocca v. New Mexico Department of Energy Minerals & Natural Resources, 118 N.M. 668, 884 P.2d 824 (Ct.App.), cert. denied, 118 N.M. 731, 885 P.2d 1325 (1994).

21. While Plaintiffs have argued the factual predicate to my position, I acknowledge they have not stated the legal issue in precisely the way I have framed it. From that standpoint, I have some reservation in making my argument because the conventional theory is that opinions should determine points raised by the parties and that it is improper to inject new issues or apply principles not argued by counsel. I agree that in most cases we should not stray from the case presented by the parties. Certainly, if the court chooses to deal substantively with a new issue, an opportunity should be granted to the parties to provide supplemental briefing. For example, if we were proposing to reverse here based on my theory of the case, I would request additional briefing. However, I also believe that appellate judges are more than “referees at a dog fight.” The function of an appellate court is to decide cases, not simply to judge a debate between counsel.