TCA waiver in New Mexico

2017M.D.R., 1992-NMCA- 3 082, ¶¶ 12-13 (stating that courts should “read the relevant statutes in a manner that 4 facilitates their operation and the achievement of their goals”; “we have to find the 5 [L]egislature’s goals in the words the [L]egislature chose or in the natural inferences 6 from those words”; the TCA waiver provisions invoked by the plaintiffs did not 7 waive immunity for the claim alleged; “it is not the function of the court of appeals 8 to legislate”; and “[c]orrection of whatever inequity exists in such a situation” is for 9 the Legislature (internal quotation marks and citati

2017M.D.R., 1992-NMCA- 3 082, ¶¶ 12-13 (stating that courts should “read the relevant statutes in a manner that 4 facilitates their operation and the achievement of their goals”; “we have to find the 5 [L]egislature’s goals in the words the [L]egislature chose or in the natural inferences 6 from those words”; the TCA waiver provisions invoked by the plaintiffs did not 7 waive immunity for the claim alleged; “it is not the function of the court of appeals 8 to legislate”; and “[c]orrection of whatever inequity exists in such a situation” is for 9 the Legislature (internal quotation marks and citati

2017M.D.R., 1992-NMCA- 3 082, ¶¶ 12-13 (stating that courts should “read the relevant statutes in a manner that 4 facilitates their operation and the achievement of their goals”; “we have to find the 5 [L]egislature’s goals in the words the [L]egislature chose or in the natural inferences 6 from those words”; the TCA waiver provisions invoked by the plaintiffs did not 7 waive immunity for the claim alleged; “it is not the function of the court of appeals 8 to legislate”; and “[c]orrection of whatever inequity exists in such a situation” is for 9 the Legislature (internal quotation marks and citati

2017Under the TCA, “the rule is immunity; waiver is the exception.” 2 Upton, 2006-NMSC-040, ¶ 29 (Minzner, J., dissenting). 3 {44} Where TCA immunity is waived by an enumerated exception to the general 4 rule of immunity, liability is to be determined “based upon the traditional tort 5 concepts of duty and the reasonably prudent person’s standard of care in the 6 performance of that duty[,]” provided that “[d]etermination of the standard of care 7 required in any particular instance should be made with the knowledge that each 8 governmental entity has financial limitations within which it must exe

2017See Truong, 2010-NMSC-009, ¶ 29 ; Marbob Energy Corp., 2009-NMSC-013, ¶ 9 .

2017See Truong, 2010-NMSC-009, ¶ 29 ; Marbob Energy 19 Corp., 2009-NMSC-013, ¶ 9 .

2006See Espinoza v. Town of Taos, 120 N.M. 680, 683 , 905 P.2d 718, 721 (1995) (“the critical question is whether the condition creates a potential risk to the general public”); 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). {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 “operation or maintena

2006See Espinoza v. Town of Taos, 120 N.M. 680, 683 , 905 P.2d 718, 721 (1995) (“the critical question is whether the condition creates a potential risk to the general public”); 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). {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 “operation or maintena

2006See Espinoza v. Town of Taos, 120 N.M. 680, 683 , 905 P.2d 718, 721 (1995) (“the critical question is whether the condition creates a potential risk to the general public”); 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). {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 “operation or maintena

2006See Espinoza v. Town of Taos, 120 N.M. 680, 683 , 905 P.2d 718, 721 (1995) (“the critical question is whether the condition creates a potential risk to the general public”); 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). {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 “operation or maintena

2024See Handmaker v. Henney, 1999-NMSC-043, ¶ 12 , 128 N.M. 328 , 992 P.2d 879 (noting that the grant of immunity in the TCA is “immunity from liability” (internal quotation marks and citation omitted)). {13} Second, Plaintiff argues that the district court erred in concluding that a claim must be made before Defendants’ duty to defend arises.

2024See Handmaker v. Henney, 1999-NMSC-043, ¶ 12 , 128 N.M. 328 , 992 P.2d 879 (noting that the grant of immunity in the TCA is “immunity from liability” (internal quotation marks and citation omitted)). {13} Second, Plaintiff argues that the district court erred in concluding that a claim must be made before Defendants’ duty to defend arises.

2017In light of the district court’s findings, we suggested that 12 the district court did not abuse its discretion in denying Plaintiff’s motion to amend 13 her complaint to include a TCA claim that appeared to be futile. [CN 5] See id. (“An 14 abuse of discretion occurs when the district court exceeds the bounds of reason, all the 15 circumstances before it being considered.” (internal quotation marks and citation 16 omitted)); see also Krieger v. Wilson Corp., 2006-NMCA-034, ¶ 24 , 139 N.M. 274 , 17 131 P.3d 661 (stating that “[a] party ought to be afforded an opportunity to test its 18 claim o

2017In light of the district court’s findings, we suggested that 12 the district court did not abuse its discretion in denying Plaintiff’s motion to amend 13 her complaint to include a TCA claim that appeared to be futile. [CN 5] See id. (“An 14 abuse of discretion occurs when the district court exceeds the bounds of reason, all the 15 circumstances before it being considered.” (internal quotation marks and citation 16 omitted)); see also Krieger v. Wilson Corp., 2006-NMCA-034, ¶ 24 , 139 N.M. 274 , 17 131 P.3d 661 (stating that “[a] party ought to be afforded an opportunity to test its 18 claim o

2016See 15 Rodriguez, 2014-NMSC-014 , ¶¶ 5, 13, 24; Encinias, 2013-NMSC-045, ¶ 13 . 16 Consequently, we reject the District’s argument that all student-on-student violence 17 is excluded from the purview of Section 41-4-6A’s waiver of immunity. 18 {12} The District next argues that we should hold that it did not owe Plaintiff a duty 19 of care.

2004See, e.g., Harger, 121 N.M. at 663 , 916 P.2d at 1330 ; Armijo v. Dep’t of Health & Env’t, 108 N.M. 616, 620 , 775 P.2d 1333, 1337 (Ct. App.1989) (applying the agency right to control test to a TCA claim). {12} A right to control analysis focuses on whether the principal exercised sufficient control over the agent to hold the principal liable for the acts of the agent.

2004See, e.g., Harger, 121 N.M. at 663 , 916 P.2d at 1330 ; Armijo v. Dep’t of Health & Env’t, 108 N.M. 616, 620 , 775 P.2d 1333, 1337 (Ct. App.1989) (applying the agency right to control test to a TCA claim). {12} A right to control analysis focuses on whether the principal exercised sufficient control over the agent to hold the principal liable for the acts of the agent.

2004See, e.g., Harger, 121 N.M. at 663 , 916 P.2d at 1330 ; Armijo v. Dep’t of Health & Env’t, 108 N.M. 616, 620 , 775 P.2d 1333, 1337 (Ct. App.1989) (applying the agency right to control test to a TCA claim). {12} A right to control analysis focuses on whether the principal exercised sufficient control over the agent to hold the principal liable for the acts of the agent.

2004See, e.g., Harger, 121 N.M. at 663 , 916 P.2d at 1330 ; Armijo v. Dep’t of Health & Env’t, 108 N.M. 616, 620 , 775 P.2d 1333, 1337 (Ct. App.1989) (applying the agency right to control test to a TCA claim). {12} A right to control analysis focuses on whether the principal exercised sufficient control over the agent to hold the principal liable for the acts of the agent.