Lucero v. Richardson & Richardson, Inc.

2002 NMCA 013, 39 P.3d 739, 131 N.M. 522
CourtNew Mexico Court of Appeals
DecidedDecember 13, 2001
DocketNo. 21,816
StatusPublished
Cited by9 cases

This text of 2002 NMCA 013 (Lucero v. Richardson & Richardson, Inc.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lucero v. Richardson & Richardson, Inc., 2002 NMCA 013, 39 P.3d 739, 131 N.M. 522 (N.M. Ct. App. 2001).

Opinion

OPINION

PICKARD, Judge.

{1} Plaintiffs appeal from the district court’s grant of summary judgment in favor of the Defendant Albuquerque Public Schools. Plaintiff Yvette Lucero was injured when she tripped and fell on the grounds of the Apache Elementary School, where she had been watching her son’s Little League game. Lucero, her husband, and their two children filed suit for damages, claiming Defendant had waived its immunity from liability under the Tort Claims Act, NMSA 1978, §§ 41-4-1 to 27 (1976 as amended through 2001). Defendant filed a motion for summary judgment, asserting that it was immune from liability under the Recreational Use Statute, NMSA 1978, § 17-4-7 (1967), which limits the liability of landowners who allow the public to use their land free of charge for recreational purposes. The trial court granted summary judgment. We hold that the Recreational Use Statute (RUS) does not provide immunity for organized team sports such as Little League baseball. Accordingly, we reverse.

FACTS AND PROCEEDINGS

{2} Ms. Lucero tripped and fell while walking from her truck to the spectator area of the school ballfield. Plaintiffs filed suit against Defendant to recover damages for Ms. Lucero’s injuries. They allege that the school was negligent because it allowed construction workers to leave the school grounds in a dangerous condition and that Defendant can be held liable under Section 41-4-6, which waives sovereign immunity for the operation and maintenance of public buildings and their grounds. Defendant moved for summary judgment, contending that the RUS controls the outcome of this case. The RUS limits the liability of

[a]ny owner, lessee or person in control of lands who, without charge or other consideration, other than a consideration paid to said landowner by the state, the federal government or any other governmental agency, grants permission to any person or group to use his lands for the purpose of hunting, fishing, trapping, camping, hiking, sightseeing or any other recreational use

Section 17~4-7(A) (emphasis added). Defendant argued that this statute protects APS from liability in this case because APS allows Zia Little League to use the field at Apache Elementary School free of charge. In response, Plaintiffs argued that the statute, though written with no limitation, applies only to privately held land. Plaintiffs also argued that the Little League baseball is not the type of activity that triggers the statutory protection and that the statute is inapplicable in this case because the school was charging a fee for the use of its land. Finally, they argued that the application of the statute to public lands would violate equal protection because it would create differential treatment for similarly situated tort vietims. The trial court, rejecting all Plaintiffs’ arguments, granted summary judgment for Defendant. Plaintiffs raise all but the equal protection argument on appeal.

DISCUSSION

{3} Because we hold that the protections of the RUS apply only when landowners allow free public access for a limited range of outdoor activities, and that organized team sports such as Little League baseball do not fall within that range of activities, we need not decide the more difficult question of whether the statute applies to public as well as private landowners. Nonetheless, we pause to address this issue because the parties have exposed a gap in our statutory scheme, one that could impact the extent of government tort liability in this state. We seek to clarify the issue as presented so that the legislature, if it sees fit, can fill in this gap rather than leaving it to the courts to make what may appear to be tortured efforts at statutory interpretation.

Background of the Recreational Use Statute

{4} The Recreational Use Statute, like many of the statutes passed by our legislature, was adapted from an external source. In 1965, the Council of State Governments published a model statute that proposed limits on the liability of landowners who allow the public to use their land at no charge. See Public Recreation on Private Lands: Limitation on Liability, 24 Suggested State Legislation 150 (1965) (hereinafter “Model Statute”). At that time, approximately one-third of the states had adopted legislation limiting landowner liability in this fashion. Id. Following its publication, several states adopted the proposed statute verbatim. See Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1, 8-9 n. 18 (1986) (listing states in addition to Pennsylvania that had adopted proposed statute without alteration). New Mexico passed a modified version in 1967. As of 1988, 48 states had statutes providing some form of limited liability for landowners who open their lands for public use. See Redinger v. Clapper’s Tree Serv., Inc., 419 Pa.Super. 487, 615 A.2d 743, 745 (1992).

{5} The commentary to the Model Statute makes it clear that the drafters were focusing on private land:

Recent years have seen a growing awareness of the need for additional recreational areas to serve the general public. The acquisition and operation of outdoor recreational facilities by governmental units is on the increase. However, large acreages of private land could add to the outdoor recreation resources available____
[I]n those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.
The suggested act which follows is designed to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property____

Model Statute at 150.

{6} The Model Statute itself, however, provides immunity for “owners of land” without any express limitation to private, as opposed to public, landowners. The Model Statute defines the term owner, somewhat inaccurately, as “the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises,” again without express limitation to private landowners. New Mexico’s statute similarly limits the liability of “[a]ny owner, lessee or person in control of lands” without reservation. Section 17-4-7(A).

{7} Defendant urges a plain meaning analysis of the statutory language, arguing that the phrase “any owner” includes government entities when they own land. Plaintiffs, on the other hand, urge us to look at the intent behind the statute and the context in which it was passed. Most notably, at the time the RUS was passed, governmental bodies enjoyed full immunity fi"om suit under the common law doctrine of sovereign immunity. They bore no liability for injuries occurring on their land and therefore had no need for the protection offered under the statute. The legal landscape changed in 1975, however, when our Supreme Court abolished common law sovereign immunity, see Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), and again in 1976, when the legislature passed the Tort Claims Act, reinstating the government’s immunity generally but waiving immunity in eight specific circumstances.

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Bluebook (online)
2002 NMCA 013, 39 P.3d 739, 131 N.M. 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucero-v-richardson-richardson-inc-nmctapp-2001.