Fraire v. Belen Consol. Sch. Dist.

IVAN FRAIRE, Plaintiff-Appellant, v. BELEN CONSOLIDATED SCHOOL DISTRICT, Defendant-Appellee,andTYLER EAST, Defendant.

NO. 33,964

COURT OF APPEALS OF THE STATE OF NEW MEXICO

October 6, 2016

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

Violet C. Otero, District Judge

Martinez, Hart & Thompson, P.C.

Bruce E. Thompson

Albuquerque, NM

for Appellant

Narvaez Law Firm, P.A.

Henry F. Narvaez

Carlos E. Sedillo

Albuquerque, NM for Appellee

Tyler East

Albuquerque, NM

Pro Se

MEMORANDUM OPINION

HANISEE, Judge.

{1} Plaintiff Ivan Fraire appeals the district court's summary judgment in favor of Defendant-Appellee, Belen Consolidated School District (the District) on his negligence claim for injuries he suffered when he was attacked by another student at Belen High School. The district court held that the District could not be liable for Plaintiff's injuries as a matter of law because any negligent acts by the District fell outside the scope of the State's waiver of its sovereign immunity under the Tort Claims Act (the TCA), NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015). Recent precedent from our New Mexico Supreme Court instructs our analysis, and we reverse.

BACKGROUND

{2} On April 20, 2009, Tyler East, a senior at Belen High School, approached his wrestling coach, Lee Chaves, to discuss an administrative "graduation hold" that prevented East from graduating the following month unless he first returned his wrestling uniform to Chaves. East located Chaves at the school's football field, whereChaves told East to wait for him to finish "setting [his] class up." We note that at the time, East was training and indeed had signed a professional contract to compete as a Mixed Martial Arts (MMA) fighter. As well, the skill set that East possessed professionally had in the past been applied within the public school setting: he'd been suspended from Los Lunas High School for separate instances in which he fought with a schoolmate and threatened physical harm upon one of his teachers. Additionally, East was given unspecified discipline when he shoved another student after he transferred to Belen High School.

{3} "As a matter of protocol," Chaves promptly called school security in an effort to "make sure . . . East would go back to class" once their discussion had concluded. The record on appeal suggests that before security could arrive and before Chaves could address the topic of graduation with East, East began to assault Plaintiff.¹ Chaves and the other coaches who were present restrained East and had security take him to the principal's office, but not before Plaintiff suffered significant injuries as a result of being beaten by East. East was placed on suspension by the school administration.

{4} Plaintiff sued East for negligence, assault, and battery, and those claims ended in a default judgment, which is not at issue in this appeal. Plaintiff also brought anegligence claim against the District, contending that it was liable for failing to take reasonable steps to prevent the assault. The District filed a motion for summary judgment, arguing that any negligence on the part of the District in failing to prevent Plaintiff's injuries fell outside of the waiver of immunity in the TCA for damages caused by the "negligence of public employees . . . in the operation or maintenance of any building, public park, machinery, equipment or furnishings." Section 41-4-6(A). The district court agreed, and the only issue before us on appeal is whether the district court was correct in its ruling.

DISCUSSION

A. Standard of Review

{5} The appellate courts "review the district court's decision to grant summary judgment de novo." Hydro Res. Corp. v. Gray, 2007-NMSC-061, ¶ 14, 143 N.M. 142, 173 P.3d 749. Generally, New Mexico courts view summary judgment with disfavor, preferring trials to disposition as a matter of law. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 8, 148 N.M. 713, 242 P.3d 280. Accordingly, we review the facts and make all reasonable inferences from the record in favor of the nonmoving party. T.H. McElvain Oil & Gas Ltd. P'ship v. Benson-Montin-Greer Drilling Corp., 2015-NMCA-004, ¶ 19, 340 P.3d 1277, cert. granted, 2014-NMCERT-012, 344 P.3d 988. We will affirm an order granting summary judgment only if the evidence in therecord, viewed in this light, "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 1-056(C) NMRA.

B. Genuine Issues of Fact Preclude Summary Judgment on Plaintiff's Negligence Claim Against the School District

{6} Section 41-4-4(A) of the TCA provides that "[a] 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 41-4-12[.]" The primary issue in this appeal is whether the injuries suffered by Plaintiff at the hands of East fall within the TCA's waiver of immunity for "damages . . . 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." Section 41-4-6(A). As we explain below, we view our Supreme Court to have abandoned any distinction between the government's waiver of its sovereign immunity under Section 41-4-6 and premises liability for private parties in general. See Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶¶ 14-18, 310 P.3d 611. Because there are genuine issues of fact over whether the District breached its duty as a landowner to Plaintiff as an invitee and whether the breach was the legal cause of Plaintiff's injuries, summary judgment was inappropriate.

{7} In Encinias, our Supreme Court held that governmental liability under Section41-4-6 turns on whether "the facts of a case . . . support a finding of liability against a private property owner." 2013-NMSC-045, ¶ 15; see id. ¶ 9 ("[W]e infer that the waiver of liability in Section 41-4-6(A) incorporates the concepts of premises liability found in our case law."). We take this language to mean what it plainly states: if genuine issues of material fact would preclude summary judgment on a premises liability claim against a private defendant, then summary judgment is also inappropriate when the defendant is a public entity. Turning to this question, a single standard of reasonable care under the circumstances applies to landowners or permitted occupants. See Ford v. Bd. of Cty. Comm'rs, 1994-NMSC-077, ¶ 12, 118 N.M. 134, 879 P.2d 766. And with respect to injuries caused by "the harmful acts of third persons[,]" a landowner may be found liable "if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron." Encinias, 2013-NMSC-045, ¶ 16 (internal quotation marks and citation omitted).

{8} "The duty of ordinary care applies unless the owner/occupier can establish a policy reason, unrelated to foreseeability considerations, that compels a limitation on the duty or an exemption from the duty to exercise ordinary care." Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014-NMSC-014, ¶ 5, 326 P.3d 465. A " 'no duty' " or" 'limit[ed] . . . duty' " determination cannot rest on "an improbable or remote nature of risk[,]" however, because any analysis of this question which takes into account the likelihood of harm "usurp[s] the jury's role in determining legal cause and breach." Nat'l Roofing, Inc. v. Alstate Steel, Inc., 2016-NMCA-020, ¶ 3, 366 P.3d 276 (citing Rodriguez, 2014-NMSC-014, ¶¶ 18-19, 22), cert. denied, 2016-NMCERT-001, 370 P.3d 473. Summary judgment on a negligence claim is appropriate only " 'in exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases,' " Rodriguez, 2014-NMSC-014, ¶ 13 (quoting Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7(b) (2010) (alteration omitted)), or when there is simply no evidence that could support a plausible inference in the plaintiff's favor on the jury questions of breach and legal cause. See Rodriguez, 2014-NMSC-014, ¶ 24.

{9} Although Encinias appears to lay to rest any argument that a ewal entity's liability for the harmful actions of third persons under Section 41-4-6 is any different from the liability of a private property owner's, it is difficult at first blush to square this conclusion with the cases Encinias itself cites as good law. For example, Encinias states that Espinoza v. Town of Taos, 1995-NMSC-070, ¶¶ 4, 16, 120 N.M. 680, 905 P.2d 718, may be cited for the proposition that "a municipal summer camp's failure to supervise young children at a playground did not waive the town's immunity fromsuit [under Section 41-4-6]." Encinias, 2013-NMSC-045, ¶ 12. But Espinoza states that "[e]ven if the Town of Taos arguably had a duty in this case, there can be no liability for any breach of that duty because immunity has not been waived." 1995-NMSC-070, ¶ 14.

{10} More pertinent to our analysis in this case, Encinias also reaffirms the "central premise" of Pemberton v. Cordova, 1987-NMCA-020, ¶ 6, 105 N.M. 476, 734 P.2d 254, that "[t]here can be no waiver under Section 41-4-6(A) without a dangerous condition on the premises, and a single act of student-on-student violence does not render the premises unsafe." Encinias, 2013-NMSC-045, ¶ 13 (discussing Pemberton). But like Espinoza, Pemberton also adopted...