building waiver in New Mexico

2024The Department 13 requests our resolution of this alleged conflict and urges us to hold, pursuant to 14 Archibeque v. Moya, 1993-NMSC-079 , 116 N.M. 616 , 866 P.2d 344 , that the 15 Department’s conduct constitutes negligent performance of an administrative 16 function and therefore bars Plaintiff’s building waiver claim. 17 {9} Because the building waiver “has been the subject of considerable judicial 18 attention since its enactment,” our perennial interpretation of the waiver has, in turn, 19 produced extensive and occasionally disparate holdings.

2024See Archibeque v. Moya, 1993-NMSC-079 , ¶¶ 8, 11, 116 N.M. 2 616, 866 P.2d 344 (holding that negligently performing one administrative function 3 “associated with the operation of the corrections system” which results in “risk of 4 harm for a single individual” does not fall under the building waiver); see also 5 Espinoza v. Town of Taos, 1995-NMSC-070 , ¶ 14, 120 N.M. 680 , 905 P.2d 718 6 (concluding that Section 41-4-6 does not waive immunity for negligent supervision 7 resulting in injuries to one child).

2024See Archibeque v. Moya, 1993-NMSC-079 , ¶¶ 8, 11, 116 N.M. 2 616, 866 P.2d 344 (holding that negligently performing one administrative function 3 “associated with the operation of the corrections system” which results in “risk of 4 harm for a single individual” does not fall under the building waiver); see also 5 Espinoza v. Town of Taos, 1995-NMSC-070 , ¶ 14, 120 N.M. 680 , 905 P.2d 718 6 (concluding that Section 41-4-6 does not waive immunity for negligent supervision 7 resulting in injuries to one child).

2024See Archibeque v. Moya, 1993-NMSC-079 , ¶¶ 8, 11, 116 N.M. 2 616, 866 P.2d 344 (holding that negligently performing one administrative function 3 “associated with the operation of the corrections system” which results in “risk of 4 harm for a single individual” does not fall under the building waiver); see also 5 Espinoza v. Town of Taos, 1995-NMSC-070 , ¶ 14, 120 N.M. 680 , 905 P.2d 718 6 (concluding that Section 41-4-6 does not waive immunity for negligent supervision 7 resulting in injuries to one child).

2016In Cobos, the Court held that the building waiver is not limited to public buildings, stating that “[t]he Legislature defined ‘scope of duties’ to mean ‘any duties that a public employee is requested, required, or authorized to perform . . . regardless of the time and place of performance.’ ” Cobos, 1998-NMSC-049, ¶ 8 (omission in original) (quoting Section41-4-3(G)).

2016In 12 Cobos, the Court held that the building waiver is not limited to public buildings, stating 13 that “[t]he Legislature defined ‘scope of duties’ to mean ‘any duties that a public 14 employee is requested, required, or authorized to perform . . . regardless of the time 15 and place of performance.’ ” Cobos, 1998-NMSC-049, ¶ 8 (omission in original) 16 (quoting Section 41-4-3(G)).

2024In this case, 3 Plaintiffs’ allegations implicate the building waiver of Section 41-4-6(A) which 4 allows suits for “bodily injury . . . caused by the negligence of public employees . . . 5 in the operation or maintenance of any building, public park, machinery, equipment 6 or furnishings.” “For the waiver to apply, the negligent ‘operation or maintenance’ 7 must create a dangerous condition that threatens the general public or a class of users 8 of the building.” Upton, 2006-NMSC-040, ¶ 8 .

2024Further, “[t]he waiver applies to 9 more than the operation or maintenance of the physical aspects of the building, and 10 includes safety policies necessary to protect the people who use the building.” Id. 11 ¶ 9. 12 {7} In contrast, “a claim of negligent supervision, standing alone, is not sufficient 13 to bring a cause of action within the waiver of immunity created by Section 41-4-6.” 14 Leithead v. City of Santa Fe, 1997-NMCA-041, ¶ 8 , 123 N.M. 353 , 940 P.2d 459 . 15 To determine whether a claim falls within the building waiver or is instead a stand- 16 alone negligent supervision claim

2024See Martinez, 1987-NMCA-131 , ¶ 10; 17 Callaway v. New Mexico Dep’t of Corrs., 1994-NMCA-049 , ¶ 14, 117 N.M. 637 , 18 875 P.2d 393 ; Young v. Van Duyne, 2004-NMCA-074, ¶ 30 , 135 N.M. 695 , 19 92 P.3d 1269 . 16 1 {30} Archibeque, the case upon which the Department primarily relies, has played 2 a significant role in narrowing the definition of “operation” by excluding 3 “performance of administrative functions” from the building waiver’s scope. 1993- 4 NMSC-079, ¶ 8.

2024See Martinez, 1987-NMCA-131 , ¶ 10; 17 Callaway v. New Mexico Dep’t of Corrs., 1994-NMCA-049 , ¶ 14, 117 N.M. 637 , 18 875 P.2d 393 ; Young v. Van Duyne, 2004-NMCA-074, ¶ 30 , 135 N.M. 695 , 19 92 P.3d 1269 . 16 1 {30} Archibeque, the case upon which the Department primarily relies, has played 2 a significant role in narrowing the definition of “operation” by excluding 3 “performance of administrative functions” from the building waiver’s scope. 1993- 4 NMSC-079, ¶ 8.

2024Further, “[t]he waiver applies to 9 more than the operation or maintenance of the physical aspects of the building, and 10 includes safety policies necessary to protect the people who use the building.” Id. 11 ¶ 9. 12 {7} In contrast, “a claim of negligent supervision, standing alone, is not sufficient 13 to bring a cause of action within the waiver of immunity created by Section 41-4-6.” 14 Leithead v. City of Santa Fe, 1997-NMCA-041, ¶ 8 , 123 N.M. 353 , 940 P.2d 459 . 15 To determine whether a claim falls within the building waiver or is instead a stand- 16 alone negligent supervision claim

2024Further, “[t]he waiver applies to 9 more than the operation or maintenance of the physical aspects of the building, and 10 includes safety policies necessary to protect the people who use the building.” Id. 11 ¶ 9. 12 {7} In contrast, “a claim of negligent supervision, standing alone, is not sufficient 13 to bring a cause of action within the waiver of immunity created by Section 41-4-6.” 14 Leithead v. City of Santa Fe, 1997-NMCA-041, ¶ 8 , 123 N.M. 353 , 940 P.2d 459 . 15 To determine whether a claim falls within the building waiver or is instead a stand- 16 alone negligent supervision claim

2024See Rutherford, 2003-NMSC-010, ¶¶ 21, 24 . 7 {35} Recognizing that the plain language of the building waiver has been variously 8 applied and the meaning assigned to “operation” has been context-specific and fact- 9 dependent, we adopt Miller’s reasoning and conclude the appropriate construction 10 is one that “facilitates [the waiver’s] operation and the achievement of [its] goals.” 11 Miller, 1987-NMSC-081 , ¶ 8.

2024See Rutherford, 2003-NMSC-010, ¶¶ 21, 24 . {35} Recognizing that the plain language of the building waiver has been variously applied and the meaning assigned to “operation” has been context-specific and fact- dependent, we adopt Miller’s reasoning and conclude the appropriate construction is one that “facilitates [the waiver’s] operation and the achievement of [its] goals.” Miller, 1987-NMSC-081 , ¶ 8.

2024See Gallegos v. 14 Trujillo, 1992-NMCA-090 , ¶ 18, 114 N.M. 435 , 839 P.2d 645 (explaining that 15 “operation should not be extended to include funding decisions by a county” 16 (internal quotation marks omitted)); see also Martinez v. Kaune Corp., 1987- 17 NMCA-131, ¶ 10, 106 N.M. 489 , 745 P.2d 714 (stating that the operation or 18 maintenance building waiver “provided by Section 41-4-6 cannot extend to the 19 state’s licensing or inspection of a dairy farm or food store”). 15 1 {28} In Wittkowski v. State, the Court of Appeals employed this method, rejecting 2 the plaintiff’s proffered cons

2024See Gallegos v. 14 Trujillo, 1992-NMCA-090 , ¶ 18, 114 N.M. 435 , 839 P.2d 645 (explaining that 15 “operation should not be extended to include funding decisions by a county” 16 (internal quotation marks omitted)); see also Martinez v. Kaune Corp., 1987- 17 NMCA-131, ¶ 10, 106 N.M. 489 , 745 P.2d 714 (stating that the operation or 18 maintenance building waiver “provided by Section 41-4-6 cannot extend to the 19 state’s licensing or inspection of a dairy farm or food store”). 15 1 {28} In Wittkowski v. State, the Court of Appeals employed this method, rejecting 2 the plaintiff’s proffered cons

2024See Gallegos v. 14 Trujillo, 1992-NMCA-090 , ¶ 18, 114 N.M. 435 , 839 P.2d 645 (explaining that 15 “operation should not be extended to include funding decisions by a county” 16 (internal quotation marks omitted)); see also Martinez v. Kaune Corp., 1987- 17 NMCA-131, ¶ 10, 106 N.M. 489 , 745 P.2d 714 (stating that the operation or 18 maintenance building waiver “provided by Section 41-4-6 cannot extend to the 19 state’s licensing or inspection of a dairy farm or food store”). 15 1 {28} In Wittkowski v. State, the Court of Appeals employed this method, rejecting 2 the plaintiff’s proffered cons

2024See Gallegos v. 14 Trujillo, 1992-NMCA-090 , ¶ 18, 114 N.M. 435 , 839 P.2d 645 (explaining that 15 “operation should not be extended to include funding decisions by a county” 16 (internal quotation marks omitted)); see also Martinez v. Kaune Corp., 1987- 17 NMCA-131, ¶ 10, 106 N.M. 489 , 745 P.2d 714 (stating that the operation or 18 maintenance building waiver “provided by Section 41-4-6 cannot extend to the 19 state’s licensing or inspection of a dairy farm or food store”). 15 1 {28} In Wittkowski v. State, the Court of Appeals employed this method, rejecting 2 the plaintiff’s proffered cons

2024See Brenneman, 2004-NMCA-003, ¶ 19 ; Section 41-4-2(A). 14 {20} When applying the statutory waivers of sovereign immunity, “we first 15 determine the legislative intent in the enactment of the waiver.” Miller v. N.M.

2024See Brenneman, 2004-NMCA-003, ¶ 19 ; Section 41-4-2(A). {20} When applying the statutory waivers of sovereign immunity, “we first determine the legislative intent in the enactment of the waiver.” Miller v. N.M.

2024See Gallegos v. 14 Trujillo, 1992-NMCA-090 , ¶ 18, 114 N.M. 435 , 839 P.2d 645 (explaining that 15 “operation should not be extended to include funding decisions by a county” 16 (internal quotation marks omitted)); see also Martinez v. Kaune Corp., 1987- 17 NMCA-131, ¶ 10, 106 N.M. 489 , 745 P.2d 714 (stating that the operation or 18 maintenance building waiver “provided by Section 41-4-6 cannot extend to the 19 state’s licensing or inspection of a dairy farm or food store”). 15 1 {28} In Wittkowski v. State, the Court of Appeals employed this method, rejecting 2 the plaintiff’s proffered cons

2024See Gallegos v. 14 Trujillo, 1992-NMCA-090 , ¶ 18, 114 N.M. 435 , 839 P.2d 645 (explaining that 15 “operation should not be extended to include funding decisions by a county” 16 (internal quotation marks omitted)); see also Martinez v. Kaune Corp., 1987- 17 NMCA-131, ¶ 10, 106 N.M. 489 , 745 P.2d 714 (stating that the operation or 18 maintenance building waiver “provided by Section 41-4-6 cannot extend to the 19 state’s licensing or inspection of a dairy farm or food store”). 15 1 {28} In Wittkowski v. State, the Court of Appeals employed this method, rejecting 2 the plaintiff’s proffered cons

2024See Gallegos v. 14 Trujillo, 1992-NMCA-090 , ¶ 18, 114 N.M. 435 , 839 P.2d 645 (explaining that 15 “operation should not be extended to include funding decisions by a county” 16 (internal quotation marks omitted)); see also Martinez v. Kaune Corp., 1987- 17 NMCA-131, ¶ 10, 106 N.M. 489 , 745 P.2d 714 (stating that the operation or 18 maintenance building waiver “provided by Section 41-4-6 cannot extend to the 19 state’s licensing or inspection of a dairy farm or food store”). 15 1 {28} In Wittkowski v. State, the Court of Appeals employed this method, rejecting 2 the plaintiff’s proffered cons

2024See Gallegos v. 14 Trujillo, 1992-NMCA-090 , ¶ 18, 114 N.M. 435 , 839 P.2d 645 (explaining that 15 “operation should not be extended to include funding decisions by a county” 16 (internal quotation marks omitted)); see also Martinez v. Kaune Corp., 1987- 17 NMCA-131, ¶ 10, 106 N.M. 489 , 745 P.2d 714 (stating that the operation or 18 maintenance building waiver “provided by Section 41-4-6 cannot extend to the 19 state’s licensing or inspection of a dairy farm or food store”). 15 1 {28} In Wittkowski v. State, the Court of Appeals employed this method, rejecting 2 the plaintiff’s proffered cons

2024We therefore address 18 whether the building waiver may be properly evaluated under a premises liability 19 theory and conclude a premises liability theory is properly applied to building waiver 20 claims. 23 1 {45} The government’s “[l]iability . . . under the [TCA is] based upon the 2 traditional tort concepts,” § 41-4-2(B), and “so we infer that the waiver of liability 3 in Section 41-4-6(A) incorporates the concepts of premises liability found in our 4 case law.” Encinias, 2013-NMSC-045, ¶ 9 .

2024Upton, 2006-NMSC-040 , ¶¶ 19 2, 14. 25 1 {49} Encinias and Upton follow our long line of cases in which the building waiver 2 was evaluated under a premises liability theory recognizing the Legislature’s intent 3 “to waive . . . immunity in situations that would subject a private party to liability 4 under our common law.” Encinias, 2013-NMSC-045, ¶ 15 ; see also Leithead v. City 5 of Santa Fe, 1997-NMCA-041, ¶¶ 1, 15 , 123 N.M. 353 , 940 P.2d 459 (“Failure to 6 provide [swimming pool safety] services . . . makes the premises unsafe giving rise 7 to liability under Section 41-4-6.”); Espinoza

2024State Fair, 1991-NMSC-031 , ¶¶ 1, 27, 111 N.M. 644 , 808 P.2d 614 3 (explaining that the building waiver applies beyond a building’s physical premises); 4 but see Archibeque, 1993-NMSC-079 , ¶ 8 (holding that the purpose of the building 5 waiver is to impose liability for negligence in the operation and maintenance of the 6 physical premises owned by the government).

2024State Fair, 1991-NMSC-031 , ¶¶ 1, 27, 111 N.M. 644 , 808 P.2d 614 3 (explaining that the building waiver applies beyond a building’s physical premises); 4 but see Archibeque, 1993-NMSC-079 , ¶ 8 (holding that the purpose of the building 5 waiver is to impose liability for negligence in the operation and maintenance of the 6 physical premises owned by the government).

2025See, e.g., Lerma, 1974-NMSC-089 , ¶ 2; Crutchfield, 2005-NMCA-022, ¶ 17 ; McDonald, 2020-NMCA-020, ¶ 32 ; see also Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 19 , 146 N.M. 853 , 215 P.3d 791 (“[A]n appellant’s argument that a verdict is excessive based on evidence that conflicts with evidence that supports the verdict will not aid the appellant.”). {19} Second, we understand Defendant also to argue that the district court’s $400,000 damages award was excessive as a matter of law.

2025See, e.g., Lerma, 1974-NMSC-089 , ¶ 2; Crutchfield, 2005-NMCA-022, ¶ 17 ; McDonald, 2020-NMCA-020, ¶ 32 ; see also Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 19 , 146 N.M. 853 , 215 P.3d 791 (“[A]n appellant’s argument that a verdict is excessive based on evidence that conflicts with evidence that supports the verdict will not aid the appellant.”). {19} Second, we understand Defendant also to argue that the district court’s $400,000 damages award was excessive as a matter of law.

1998As we noted in Calkins v. Cox Estates, “[t]he determination of duty in any given situation involves an analysis of the relationship of the parties, the plaintiffs injured interest and the Authority’s conduct; it is essentially a policy decision based on these factors that the plaintiffs interests are entitled to protection.” 110 N.M. 59, 63 , 792 P.2d 36, 40 (1990); see also Merrill, 25 Cal.Rptr. 456 , 375 P.2d at 310 (noting that “a duty to exercise ordinary care not to injure another ... may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a dut

1998As we noted in Calkins v. Cox Estates, “[t]he determination of duty in any given situation involves an analysis of the relationship of the parties, the plaintiffs injured interest and the Authority’s conduct; it is essentially a policy decision based on these factors that the plaintiffs interests are entitled to protection.” 110 N.M. 59, 63 , 792 P.2d 36, 40 (1990); see also Merrill, 25 Cal.Rptr. 456 , 375 P.2d at 310 (noting that “a duty to exercise ordinary care not to injure another ... may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a dut

1998See also Saiz, 113 N.M. at 398 , 827 P.2d at 114 (“[I]t should be remembered that the policy behind the law of torts does more than compensate victims — it encourages reasonable safeguards against the risk of harm.”).

1998See also Saiz, 113 N.M. at 398 , 827 P.2d at 114 (“[I]t should be remembered that the policy behind the law of torts does more than compensate victims — it encourages reasonable safeguards against the risk of harm.”).

1998As we noted in Calkins v. Cox Estates, “[t]he determination of duty in any given situation involves an analysis of the relationship of the parties, the plaintiffs injured interest and the Authority’s conduct; it is essentially a policy decision based on these factors that the plaintiffs interests are entitled to protection.” 110 N.M. 59, 63 , 792 P.2d 36, 40 (1990); see also Merrill, 25 Cal.Rptr. 456 , 375 P.2d at 310 (noting that “a duty to exercise ordinary care not to injure another ... may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a dut

1998As we noted in Calkins v. Cox Estates, “[t]he determination of duty in any given situation involves an analysis of the relationship of the parties, the plaintiffs injured interest and the Authority’s conduct; it is essentially a policy decision based on these factors that the plaintiffs interests are entitled to protection.” 110 N.M. 59, 63 , 792 P.2d 36, 40 (1990); see also Merrill, 25 Cal.Rptr. 456 , 375 P.2d at 310 (noting that “a duty to exercise ordinary care not to injure another ... may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a dut