November 28, 2022- Maureen A. Sanders v. New Mexico Corrections Department, No. A-1-CA-36256

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:	2
Filing Date: November 28, 2022	3
No. A-1-CA-36256	4
MAUREEN A. SANDERS, as	5
Personal Representative of the	6
ESTATE OF KATHERINE PAQUIN,	7
Plaintiff-Appellant,	8
v.	9
NEW MEXICO CORRECTIONS	10
DEPARTMENT, GREGG MARCANTEL	11
and CATHLEEN CATANACH,	12
Defendants-Appellees.	13
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	14
Valerie Huling, District Judge	15
Kennedy Kennedy & Ives	16
Adam C. Flores	17
Laura Schauer Ives	18
Albuquerque, NM	19
for Appellant	20
Butt, Thornton & Baehr, P.C.	21
Agnes Fuentevilla Padilla	22
Felicia Boyd	23
Rheba Rutkowski	24
Sarah L. Shore	25
Albuquerque, NM	26
for Appellees	27
Court of Appeals of New Mexico
Filed 11/28/2022 10:29 AM

OPINION	1
DUFFY, Judge.	2
{1} 	Plaintiff Maureen A. Sanders brought a wrongful death lawsuit as personal	3
representative of the Estate of Katherine Paquin after Paquin was killed by	4
Christopher Blattner, an inmate who had been erroneously released from custody.	5
Plaintiff sued the New Mexico Corrections Department (NMCD), NMCD Secretary	6
Gregg Marcantel, and Bureau Records Chief Cathleen Catanach (collectively,	7
Defendants) on the theory that Defendants had negligently released Blattner before	8
he had completed the full term of his sentence—approximately three years early,	9
according to Plaintiff. Defendants moved for summary judgment, arguing they were	10
immune from suit under the New Mexico Tort Claims Act (TCA), NMSA 1978,	11
§§ 41-4-1 to -30 (1976, as amended through 2020). Plaintiff argued that her claims	12
for Defendants’ negligence were actionable under two of the TCA’s waivers of	13
immunity: (1) the building waiver, § 41-4-6(A), and (2) the law enforcement waiver,	14
§ 41-4-12.1 The district court granted Defendants’ motion.	15
{2} 	We reverse the district court’s ruling as to the building waiver but affirm the	16
court’s ruling as to the law enforcement waiver.	17
1 The Legislature amended Section 41-4-12 in 2020. We apply the prior
version of the statute that was in effect when the conduct underlying Plaintiff’s claim
occurred in 2012. All citations in this opinion to Section 41-4-12 are to the 1977
version.

2
BACKGROUND	1
{3} 	Plaintiff alleged in her amended complaint that “Paquin’s killing was the	2
direct result of errors made by [NMCD] and . . . [its] employees, resulting in the	3
premature release of a dangerous inmate named Christopher Blattner.” Blattner	4
began serving time in 2009 for drug trafficking convictions and should have	5
remained incarcerated until the fall of 2015. He was instead released in February	6
2012. Once released, he connected with Paquin, who was sixty-two years old and	7
suffered from mental health issues. Paquin’s neighbors reported seeing Blattner at	8
Paquin’s home frequently. In August 2012, approximately six months following	9
Blattner’s release, a missing person report was filed for Paquin. In the days that	10
followed, Blattner made numerous withdrawals from Paquin’s bank account totaling	11
approximately $63,000. Police officers obtained arrest warrants for Blattner and his	12
wife, and after a standoff, arrested Blattner. Eventually, Blattner’s wife told police	13
that Blattner had killed Paquin and hid her body. Blattner later pled no contest to	14
voluntary manslaughter for Paquin’s death.	15
{4} 	Plaintiff alleged that shortly after Paquin’s death, “NMCD officials conceded	16
there had been an error and . . . Blattner had been released early.” Plaintiff also	17
alleged that in July 2012—approximately one month before Paquin was killed—	18
NMCD Secretary Marcantel acknowledged that NMCD had a problem with	19
accounting for inmate sentences and stated there would be a statewide audit of	20

3
inmate records to evaluate NMCD’s procedures. In a later statement, Secretary	1
Marcantel allegedly reported that the audit had revealed a more significant issue than	2
was previously known and characterized the deficient recordkeeping as “a public	3
safety issue.”	4
{5} 	Plaintiff brought two claims against Defendants under the TCA, one under	5
Section 41-4-6(A) for negligent operation of the NMCD facility from which Blattner	6
had been released, and another under Section 41-4-12 for negligence of law	7
enforcement officers.2 Defendants filed a motion for summary judgment, arguing	8
they were immune from suit under the TCA. They asserted that the building waiver	9
was 	inapplicable 	because 	the 	conduct 	at 	issue 	amounted 	to 	the 	negligent	10
performance of an administrative function for which there is no waiver. They also	11
asserted that the law enforcement waiver was inapplicable because Defendants were	12
not “law enforcement officers.” In response, Plaintiff argued that the building waiver	13
applied because Defendants’ failure to follow statutes and policies governing inmate	14
release resulted in the early release of violent inmates from NMCD before they had	15
served the full measure of their sentence, which created a dangerous condition for	16
the public at large. Plaintiff maintains that this conduct constituted negligence in the	17
operation of a correctional facility and was therefore sufficient to establish a waiver	18
2 Plaintiff also brought a loss of consortium claim against Defendants. This
claim was dismissed by the district court and is not before us on appeal.

4
under 	Section 	41-4-6(A). 	Plaintiff 	also 	argued 	that 	a 	claim 	under 	the 	law	1
enforcement waiver, § 41-4-12, was actionable against NMCD.	2
{6} 	The district court granted summary judgment in favor of Defendants on both	3
issues. Addressing Plaintiff’s first argument, the district court stated that “[t]here is	4
no allegation in the complaint that the wrongful death occurred in NMCD’s	5
facilities, or property surrounding and linked to NMCD’s facilities, or that NMCD	6
Defendants had control and a legal interest in the property where the crime occurred.	7
Thus, the waiver of immunity set out in Section 41-4-6(A) does not apply.”	8
Regarding Plaintiff’s second argument, the district court agreed with Defendants that	9
Plaintiff had not shown that a negligent NMCD employee was a “law enforcement	10
officer” as required to establish waiver under Section 41-4-12. Plaintiff appeals.	11
STANDARD OF REVIEW	12
{7} 	“Summary judgment is proper if there are no genuine issues of material fact	13
and the movant is entitled to judgment as a matter of law.” Roth v. Thompson, 1992-	14
NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241. “We view the facts in a light most	15
favorable to the party opposing the motion for summary judgment and draw all	16
reasonable inferences in support of a trial on the merits. We also review the	17
applicability of the TCA de novo.” Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-	18
040, ¶ 7, 140 N.M. 205, 141 P.3d 1259 (alterations, internal quotation marks, and	19
citation omitted).	20

5
DISCUSSION	1
{8} 	“The TCA grants all government entities and their employees general	2
immunity from actions in tort, but waives that immunity in certain specified	3
circumstances.” Id. ¶ 8. The specific waivers of immunity are contained in Sections	4
41-4-5 to -12 of the TCA. See Encinias v. Whitener Law Firm, P.A., 2013-NMSC-	5
045, ¶ 9, 310 P.3d 611. Plaintiff’s wrongful death suit invoked two of the TCA’s	6
waiver provisions: Section 41-4-6 (the building waiver), which waives the state’s	7
immunity for injuries resulting from the negligent operation or maintenance of state	8
buildings, and Section 41-4-12 (the law enforcement waiver), which waives the	9
state’s immunity for injuries arising from the negligence of law enforcement officers	10
under certain circumstances. In this appeal, we review the district court’s conclusion	11
that neither waiver is applicable.	12
I. 	The Building Waiver Under Section 41-4-6(A)	13
{9} 	The 	building 	waiver 	in 	Section 	41-4-6(A) 	permits 	tort 	claims 	against	14
governmental entities for “damages resulting from . . . wrongful death . . . caused by	15
the negligence of public employees while acting within the scope of their duties in	16
the operation or maintenance of any building.” See Upton, 2006-NMSC-040, ¶ 8.	17
This Section has been termed “a ‘premises liability’ statute,” Encinias, 2013-NMSC-	18
045, ¶ 9 (internal quotation marks and citation omitted), and has historically been	19
interpreted broadly to waive immunity where “an injury arises from an unsafe,	20

6
dangerous, 	or 	defective 	condition 	on 	property 	owned 	and 	operated 	by 	the	1
government.” Id. ¶ 10 (internal quotation marks and citation omitted). Our Supreme	2
Court has made clear that “[t]he waiver applies to more than the operation or	3
maintenance of the physical aspects of the building,” and includes failures to follow	4
appropriate safety protocols. Upton, 2006-NMSC-040, ¶¶ 9, 12-13.	5
{10} 	In the proceedings below, Plaintiff grounded her building waiver claim in the	6
theory that Defendants negligently operated the prison facilities that housed Blattner	7
by failing to follow statutes and policies governing the release of prisoners, thereby	8
creating a dangerous condition—the early release of dangerous inmates—that	9
affected the public at large. When Defendants moved for summary judgment, they	10
argued that “calculating and managing an inmate’s term of confinement” are	11
administrative functions for which Section 41-4-6(A) does not waive immunity. The	12
district court did not address the parties’ arguments on the building waiver. Instead,	13
the court concluded that Section 41-4-6(A) does not waive Defendants’ immunity as	14
a matter of law because the wrongful death did not occur on or adjacent to property	15
owned or controlled by NMCD.	16
{11} 	For the reasons that follow, we conclude that Section 41-4-6(A) does not limit	17
the waiver to claims for injuries occurring on or adjacent to government-controlled	18
property. We reverse the district court’s contrary conclusion, and, as we explain,	19
decline Defendants’ invitation to affirm the district court as right for any reason on	20

7
the basis that Blattner’s release was the result of a discrete administrative decision	1
for which there is no waiver.	2
A. 	The Waiver of Immunity in Section 41-4-6(A) Is Not Limited to Injuries	3
Occurring on or Adjacent to Defendants’ Property	4
{12} 	The first issue is narrow: whether, as a matter of law, there is no waiver under	5
Section 41-4-6(A) for Plaintiff’s claims because the death did not occur on or	6
adjacent to NMCD facilities. In our Supreme Court’s last opinion addressing the	7
building waiver, the Court observed that “[i]n enacting the TCA, the Legislature	8
expressed an intent to waive the state’s immunity in situations that would subject a	9
private party to liability under our common law.” Encinias, 2013-NMSC-045, ¶ 15.	10
Effectuating that intent, the Court held that “the waiver of liability in Section 41-4-	11
6(A) incorporates the concepts of premises liability found in our case law,” and that	12
“the facts of a case will support a waiver under Section 41-4-6(A) if they would	13
support a finding of liability against a private property owner.” Encinias, 2013-	14
NMSC-045, ¶¶ 9, 15. This language of incorporation and equivalence effectively	15
collapses the distinction between the government’s waiver of immunity under	16
Section 41-4-6(A) and premises liability for private parties in general, subject only	17
to limitations found in case law. See, e.g., Encinias, 2013-NMSC-045, ¶¶ 12-14	18
(detailing previously recognized limitations on the waiver of immunity under	19
Section 41-4-6(A)). Consequently, Plaintiff’s building waiver claim should be	20

8
evaluated in light of common law premises liability principles. See Encinias, 2013-	1
NMSC-045, ¶¶ 9, 15.3
2
{13} 	New Mexico’s common law has long recognized that premises liability claims	3
can lie for injuries occurring outside a property’s boundary. “[T]he traditional rule	4
3 We reject Defendants’ contrary argument regarding the analytical framework
governing our review. Defendants rely on Kreutzer v. Aldo Leopold High School,
2018-NMCA-005, ¶¶ 44, 65, 409 P.3d 930, for the proposition that a plaintiff does
not establish waiver by merely alleging negligence under a premises liability theory,
and that waiver must be analyzed separately from the underlying merits of the claim.
In context, however, Kreutzer does not vary from the general proposition articulated
in Encinias—that the facts will support a finding of waiver if they would support a
finding of liability against a private property owner, unless the claim is subject to a
limitation recognized in our case law. See Encinias, 2013-NMSC-045, ¶¶ 9, 15; see
also Kreutzer, 2018-NMCA-005, ¶ 53 (noting that these limits include negligent
supervision and discrete acts of violence). Kreutzer applied the very limitations
recognized in Encinias to conclude that the plaintiffs’ facts did not suffice to
establish a waiver because they demonstrated no more than a claim for negligent
supervision based on a discrete act of student-on-student violence in the parking lot
of a school. Kreutzer, 2018-NMCA-005, ¶¶ 53, 79. The Court also noted the
unremarkable proposition that the merits of a claim are immaterial if the allegations
do not fall within the set of claims enumerated in the statute. Id. ¶ 47.
Likewise, to the extent Defendants and Kreutzer relied on Thompson v. City
of Albuquerque, 2017-NMSC-021, ¶¶ 11, 17, 397 P.3d 1279, for the notion that the
“TCA waiver [is] an issue determined before consideration of the elements of the
claims based on traditional tort concepts,” 	Kreutzer, 2018-NMCA-005, ¶ 44,
Thompson does not stand for the proposition that the building waiver must be
evaluated separately from the merits of the underlying claim. See 2017-NMSC-021,
¶¶ 11, 17 (evaluating a loss of consortium claim brought under the law enforcement
waiver, § 41-4-12, and concluding that such a claim was expressly permitted by the
statutory language of that provision). Nothing in Thompson requires a stepwise
analysis for claims brought under the building waiver, nor does Thompson preclude
an examination of the merits of a claim where, as here, they are integral to the
applicability of the waiver in the first place. See Encinias, 2013-NMSC-045, ¶ 15.
Accordingly, Defendants’ reliance on Kreutzer and Thompson is inapposite here.

9
[is] that one who owns or controls property has a duty to refrain from creating or	1
permitting conditions on such property that will foreseeably lead to an unreasonable	2
risk of harm to others beyond the property’s borders.” Stetz v. Skaggs Drug Ctrs.,	3
Inc., 1992-NMCA-104, ¶ 9, 114 N.M. 465, 840 P.2d 612; see also Bober v. N.M.	4
State Fair, 1991-NMSC-031, ¶ 12, 111 N.M. 644, 808 P.2d 614 (explaining that all	5
landowners have a duty “to exercise ordinary care to avoid creating, or permitting,	6
an unreasonable risk of harm to others” regardless of the identity of the person	7
injured or the fact that the injury occurred outside the property boundary). “[I]njury	8
resulting from a breach of that duty need not occur on the property for the	9
[defendant] to be liable.” Calkins v. Cox Estates, 1990-NMSC-044, ¶ 16, 110 N.M.	10
59, 792 P.2d 36. “If the injury occurs outside the boundaries of the property, but the	11
jury can find that the [defendant’s] breach was responsible for the injury, [there is]	12
no reason to deny liability as a matter of law.” Id. So too with premises liability	13
claims brought against the state under the building waiver. “Like common-law	14
premises liability, the waiver in Section 41-4-6(A) is not limited to injuries occurring	15
on the defendant’s property.” Encinias, 2013-NMSC-045, ¶ 10; see also Bober,	16
1991-NMSC-031, ¶¶ 1, 16, 27, 30 (holding that injuries occurring beyond the	17
property boundary are matters of foreseeability and the owner (or other occupier or	18
possessor) may be held liable if those injuries proximately result from the owner’s	19
breach of the duty of care).	20

10
{14} 	Defendants acknowledge that Section 41-4-6(A) does not contain a situs of	1
the injury requirement and that waiver under Section 41-4-6(A) is not limited to	2
injuries occurring on their property. They nevertheless maintain that the district	3
court’s conclusion was sound because “[i]n cases applying [the building waiver]	4
where injury has occurred beyond the bounds of premises operated/maintained by	5
public employees, the plaintiff used the government premises and was injured on	6
premises in close proximity to the government-operated/maintained premises.”	7
However, the authority on which Defendants rely does not lend itself to such a	8
general rule.	9
{15} 	Of the cases Defendants refer to, only Encinias and Bober involved off-	10
premises injuries, and in Bober, the injured plaintiff had never used the premises.	11
See 1991-NMSC-031, ¶¶ 1-2, 30 (holding that the state fair was not immune from	12
liability where the plaintiff alleged the fair had failed to properly control traffic	13
leaving the fairgrounds, resulting in a car crash that injured the plaintiff, who was a	14
passenger in a car traveling on a roadway bordering the fairgrounds). That leaves	15
only Encinias, where our Supreme Court expressly held that (1) the building waiver	16
is not limited to claims for injuries occurring on the defendant’s property, and (2)	17
the 	building 	waiver 	specifically 	incorporates 	common 	law 	premises 	liability	18
principles. 2013-NMSC-045, ¶¶ 9-10; see id. ¶ 18 (holding that the plaintiff had	19
stated a viable claim under the building waiver for tortious conduct that occurred	20

11
outside of school property in a “hot zone” for student violence and there was a	1
genuine issue of fact as to whether the school exercised reasonable care to discover	2
and prevent the incident). As we have discussed, the common law does not limit	3
liability claims to injuries occurring on or immediately adjacent to the defendant’s	4
property. We accordingly find no basis to draw a geographical limitation on the	5
building waiver from these cases, as Defendants propose.	6
{16} 	Rather than fashioning a bright-line limitation that would cut off liability for	7
off-premises injuries as a matter of law, our courts have treated the geographical	8
location of the injury as a matter of foreseeability, relevant to breach of duty and	9
causation—matters traditionally left for the jury’s resolution. See Calkins, 1990-	10
NMSC-044, ¶¶ 16, 19 (stating that “[t]he fact that plaintiff’s injury occurred beyond	11
the boundaries of the . . . premises may well be relevant in determining whether the	12
[landowner] acted reasonably” (alteration, internal quotation marks, and citation	13
omitted)); Bober, 1991-NMSC-031, ¶ 13 (holding that breach of duty is determined	14
“not 	with 	reference 	to 	physical 	locations, 	but 	rather 	with 	reference 	to 	the	15
foreseeability of harm from the hazardous condition” (internal quotation marks and	16
citation omitted)). Calkins is illustrative. In Calkins, a young child left the apartment	17
complex where he lived through a hole in a fence near the apartment’s playground	18
and was struck and killed by an automobile on a frontage road one-fifth of a mile	19
away. 1990-NMSC-044, ¶¶ 1, 4; id. ¶¶ 21, 28 (Ransom, J., dissenting). In rejecting	20

12
the respondent landlord’s argument that “he cannot be liable for injuries occurring	1
beyond his property’s borders,” 	id. 	¶ 15, the majority opinion reaffirmed the	2
longstanding principle that a landowner has a duty to exercise reasonable care to	3
maintain his property in a reasonably safe condition, and held there is “no reason to	4
deny liability as a matter of law” for injuries occurring outside the boundaries of the	5
property if the injury is caused by the landowner’s breach. Id. ¶¶ 15-16. The Court	6
remanded the case to the district court because “it is yet to be determined whether	7
[the landowner] breached his duty of care,” noting that “[i]n determining whether	8
[the landowner] acted reasonably or breached his duty, it may be relevant to the jury	9
that the injury occurred off the premises. However, the location of the accident is	10
not relevant to the question of duty.” Id. ¶ 19.	11
{17} 	Notably, Justice Ransom dissented, arguing that the remoteness of a risk of	12
harm should be viewed as a policy matter that delimits the existence of duty. Id.	13
¶¶ 22-23 (Ransom, J., dissenting). In his view, as a matter of public policy, it was	14
not “reasonable to impose a duty to avoid a risk of injury which, although	15
foreseeable, is remote.” Id. ¶ 25 (Ransom, J., dissenting). He would have courts	16
determine the existence of a duty in each case by evaluating whether a “hazard was	17
too remote as a matter of law to constitute a risk of injury.” Id. ¶¶ 22, 25 (Ransom,	18
J., dissenting). Under the facts presented in Calkins, he would have concluded it was	19
unreasonable to impose a duty on a landowner to safeguard a child from “risks of	20

13
injury on streets not immediately adjoining the property.” Id. ¶ 29 (Ransom, J.	1
dissenting).	2
{18} 	While the dissent in this case appears to endorse the same approach, our	3
Supreme Court has expressly eschewed it. The Court revisited Justice Ransom’s	4
concept of remoteness in Rodriguez v. Del Sol Shopping Center Associates, L.P.,	5
2014-NMSC-014, 	¶ 13, 	326 	P.3d 	465, 	and 	made 	clear 	that 	“foreseeability,	6
improbability, or remote nature of the risk” were not appropriate bases for deciding	7
that a defendant does not have a duty or that an existing duty should be limited.	8
Id. ¶ 13; see id. ¶¶ 1, 4 (holding that a duty of ordinary care applies unless a property	9
owner establishes a specific policy reason, unrelated to foreseeability considerations,	10
that compels a limitation on or an exemption from the duty to exercise ordinary	11
care). 4 Remoteness 	and 	foreseeability 	are, 	instead, 	“fact-intensive 	inquir[ies]	12
4Rodriguez states the general rule of duty in premises liability cases, i.e., that
an owner/occupier owes a duty of ordinary care regarding the condition of and the
activities carried out on the property. Id. ¶ 5. This includes “the duty to exercise
ordinary care to prevent harmful conduct from a third person, even if the third
person’s conduct is intentional. 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.” Id. (citation omitted). New Mexico courts have not
previously had occasion to consider a landowner’s duty for intentional conduct by a
third person under the circumstances presented here, though New Mexico has
recognized an affirmative duty to control in other factual contexts based on a special
relation between the parties. See, e.g., Karbel v. Francis, 1985-NMCA-030, ¶¶ 6-10,
103 N.M. 468, 709 P.2d 190 (noting that “[t]he duty of one who takes charge of a
third person whom he knows or should know to be likely to cause harm to others, if
not controlled, is the duty to exercise reasonable care to prevent the person from

14
relevant only to breach of duty and legal cause considerations.” Rodriguez, 2014-	1
NMSC-014, ¶ 1; 	see Morris 	v. Giant Four 	Corners, Inc., 2021-NMSC-028,	2
¶¶ 10-12, 498 P.3d 238 (setting forth the framework for evaluating duty and	3
emphasizing that “[w]hen assessing the existence or scope of a duty, a court does	4
not analyze foreseeability or weigh the evidence”).	5
{19} 	Thus, in line with our common law jurisprudence, the geographic and	6
temporal remoteness of the injury in this case are matters of foreseeability, relevant	7
to whether Defendants acted reasonably under the circumstances or legally caused	8
injury to a particular person. See Rodriguez, 2014-NMSC-014, ¶ 4; Calkins, 1990-	9
NMSC-044, ¶¶ 16-17. While matters of foreseeability are classically fact-intensive	10
and generally require the jury’s consideration, courts still have the ability to decide	11
doing harm” (citing Restatement (Second) of Torts §§ 315, 319 (1965)); see also
Restatement (Second) of Torts § 315 (stating that “[t]here is no duty to control the
conduct of a third person as to prevent him from causing physical harm to another
unless a special relation exists between the actor and the third person [that] imposes
a duty upon the actor to control the third person’s conduct”); Restatement (Second)
of Torts § 319 (stating that “[o]ne who takes charge of a third person whom he knows
or should know to be likely to cause bodily harm to others if not controlled is under
a duty to exercise reasonable care to control the third person to prevent him from
doing such harm”). Our review of the summary judgment record has not unearthed
any argument that Defendants owed no duty to Paquin, nor have they argued on
appeal that policy reasons unrelated to foreseeability considerations exist that would
justify limiting the scope of their duty to exercise ordinary care. See Rodriguez,
2014-NMSC-014, ¶ 5; see also Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶ 9,
335 P.3d 1243 (“In reviewing an order on summary judgment, we examine the whole
record on review.”). Consequently, we express no opinion about the existence or
scope of Defendants’ duty in this case. See Rodriguez, 2014-NMSC-014, ¶ 16.

15
“whether a defendant did or did not breach the duty of ordinary care as a matter of	1
law, or that the breach of duty did not legally cause the damages alleged in the case.”	2
Rodriquez, 2014-NMSC-014, ¶ 24. That is, “[t]he judge can enter judgment as a	3
matter of law . . . if the judge concludes that no reasonable jury could decide the	4
breach of duty or legal cause questions except one way.” Id. In this case, however,	5
foreseeability was not raised by the parties and we see no indication that the district	6
court judge engaged in the sort of analysis necessitated under Rodriquez to determine	7
there was no breach of duty or no legal cause as a matter of law. We decline to do	8
so in the first instance, and express no opinion as to whether Defendants acted	9
reasonably under the circumstances or legally caused Paquin’s death.	10
{20} 	In sum, as for the applicability of the building waiver, we find no basis to	11
conclude there is a geographical limit on the location of an injury that would	12
preclude waiver as a matter of law, as the district court concluded. In this case,	13
Defendants are not immune from liability due solely to the fact that Paquin’s death	14
did not occur in or on property linked to NMCD facilities. We hold that summary	15
judgment was improperly granted on this ground.	16
B. 	We Decline to Affirm Based on Defendants’ “Discrete Administrative	17
Function” Argument	18
{21} 	Defendants ask us to affirm the grant of summary judgment as right for any	19
reason, invoking the proposition that “the TCA does not waive immunity for a	20
single, discrete administrative decision affecting only a single person, as opposed to	21

16
a dangerous condition affecting the general public.” Upton, 2006-NMSC-040, ¶ 17.	1
This was the sole argument raised in Defendants’ motion for summary judgment on	2
the building waiver claim, but the district court did not reach the argument in its	3
order granting the motion. As we explain, we decline to affirm on this basis.	4
{22} 	The “discrete administrative function” exception first appeared in Archibeque	5
v. Moya, 1993-NMSC-079, ¶ 8, 116 N.M. 616, 866 P.2d 344, where “a prison	6
administrator negligently failed to check a list of names before placing [the plaintiff]	7
into an area of the prison with his known enemies.” Upton, 2006-NMSC-040, ¶ 20.	8
The plaintiff was assaulted that night. Archibeque, 1993-NMSC-079, ¶ 2. Our	9
Supreme Court declined to equate this with negligent operation of a building under	10
Section 41-4-6(A) because the administrator “was performing an administrative	11
function associated with the operation of the corrections system.” Archibeque, 1993-	12
NMSC-079, ¶ 8. The Court concluded—without analysis—that “Section 41-4-6	13
does 	not 	waive 	immunity 	when 	public 	employees 	negligently 	perform such	14
administrative functions.” 	Archibeque, 1993-NMSC-079, ¶ 8. 	The 	Archibeque	15
Court went on to explain that even though the administrator’s “misclassification of	16
[the plaintiff] put him at risk, the negligence did not create an unsafe condition on	17
the prison premises as to the general prison population.” Id. ¶ 11 (emphasis added);	18
see id. ¶ 14 n.3 (observing that “[w]hile a segment of the population at risk might	19
justify waiver of immunity under Section 41-4-6, a situation in which a single inmate	20

17
is 	put 	at 	risk 	is 	not 	comparable”). 	Chief 	Justice 	Ransom 	wrote 	separately,	1
emphasizing the difference between “cases involving only a ‘discrete administrative	2
decision’ 	that 	did 	not 	make 	the 	premises 	any 	more 	dangerous 	and 	cases	3
demonstrating ‘a general condition of unreasonable risk from negligent security	4
practices,’ for which the TCA does waive immunity.” See Upton, 2006-NMSC-040,	5
¶ 20 (quoting Archibeque, 1993-NMSC-079, ¶¶ 17, 18 (Ransom, C.J., specially	6
concurring)).	7
{23} 	That general condition of unreasonable risk surfaced the following year in	8
Callaway v. New Mexico Department of Corrections, 1994-NMCA-049, ¶ 18, 117	9
N.M. 637, 875 P.2d 393, when prison officials allowed known gang members with	10
a prior history of violence against other inmates to mingle with the general prison	11
population, “thereby creating a dangerous condition based on more than just a single	12
administrative decision affecting only one inmate as in Archibeque.” Upton, 2006-	13
NMSC-040, ¶ 20 (distinguishing Callaway from Archibeque); see Callaway, 1994-	14
NMCA-049, ¶¶ 4, 18. This Court distinguished Archibeque on its facts because the	15
officials’ negligence in Callaway had put the prison’s general population at risk.	16
Callaway, 1994-NMCA-049, ¶ 18. This Court ultimately concluded that the plaintiff	17
had successfully stated a claim under Section 41-4-6(A) because the defendants	18
“knew or should have known that roaming gang members with a known propensity	19
for violence had access to potential weapons in the recreation area, that such gang	20

18
members created a dangerous condition on the premises of the penitentiary, and that	1
the danger to other inmates was foreseeable.” Callaway, 1994-NMCA-049, ¶ 19; see	2
also Garner v. Dep’t of Corrs., 1995-NMCA-103, ¶ 8, 120 N.M. 547, 903 P.2d 858	3
(observing that “in Archibeque, the danger was unique to Archibeque and its	4
realization 	thus 	a 	function 	of 	Archibeque’s 	classification, 	[whereas]	5
in . . . Callaway . . ., there was a generally present danger to members of the prison	6
population at large”).	7
{24} 	In this case, it is undisputed that Blattner was released from a NMCD facility	8
before he was eligible. Defendants characterize Blattner’s release as the product of	9
alleged negligence in “obtaining and reviewing Blattner’s inmate file to calculate	10
the time remaining on his sentence and determine whether he could be [released].”	11
Relying on 	Archibeque, Defendants maintain these actions are administrative	12
functions associated with the operation of the corrections system.	13
{25} 	Plaintiff responded below by detailing how Defendants failed to follow	14
prisoner release and documentation policies requiring NMCD staff to: (1) ensure the	15
accuracy and proper maintenance of inmate files, (2) closely monitor the files of	16
inmates with pending charges, (3) document all contacts with detaining authorities,	17
(4) review files for charging documents and untried indictments, and (5) conduct	18
complete file audits within sixty days of an inmate’s release as part of the release	19
process, among other things. Plaintiff submitted evidence to establish that NMCD	20

19
staff did not comply with these directives in conjunction with Blattner’s release.	1
Plaintiff also submitted evidence indicating the premature release of inmates at	2
NMCD was not isolated, and pointed to late-disclosed discovery apparently showing	3
that NMCD had erroneously released hundreds of inmates prematurely. Plaintiff,	4
relying on Callaway, argued that the early release of inmates created a dangerous	5
condition for the public at large and, as a result, NMCD’s actions in this case do not	6
amount to a discrete administrative decision.	7
{26} 	In their right for any reason argument on appeal, Defendants do not address	8
Callaway; nor do they explain, in light of the evidence presented by Plaintiff, why	9
this case ought to be governed by Archibeque and not Callaway. Moreover, whether	10
the record is sufficient to establish a “general condition of unreasonable risk” or to	11
otherwise demonstrate a disputed issue of material fact are fact-dependent inquires.	12
Such inquiries are not well suited to the application of the right for any reason	13
doctrine, particularly in the absence of a well-developed argument from the appellee.	14
See Freeman v. Fairchild, 2018-NMSC-023, ¶ 30, 416 P.3d 264 (“When applying	15
the right for any reason rationale, appellate courts must be careful not to assume the	16
role of the trial court by delving into fact-dependent inquiries.” (alteration, internal	17
quotation marks, and citation omitted)); Atherton v. Gopin, 2015-NMCA-003, ¶ 36,	18
340 P.3d 630; see also State v. Serna, 2018-NMCA-074, ¶¶ 32-34, 429 P.3d 1283	19
(declining to decide an undeveloped, right for any reason argument); State v. Randy	20

20
J., 2011-NMCA-105, ¶¶ 27-30, 150 N.M. 683, 265 P.3d 734 (same). As in Freeman,	1
we conclude “[t]he district court is the appropriate forum to determine the merits of	2
[Defendants’] motion for summary judgment in the first instance.” 2018-NMSC-	3
023, ¶ 35. We therefore decline Defendants’ invitation to affirm on right for any	4
reason grounds.	5
II. 	The Law Enforcement Waiver Under Section 41-4-12	6
{27} 	Plaintiff also brought a claim under the law enforcement waiver in Section	7
41-4-12, which waives the state’s immunity for	8
personal injury, bodily injury, wrongful death or property damage	9
resulting 	from 	assault, 	battery, 	false 	imprisonment, 	false 	arrest,	10
malicious prosecution, abuse of process, libel, slander, defamation of	11
character, violation of property rights or deprivation of any rights,	12
privileges or immunities secured by the constitution and laws of the	13
United States or New Mexico when caused by law enforcement officers	14
while acting within the scope of their duties.	15
{28} 	In their motion for summary judgment, Defendants argued that none of the	16
named defendants, including NMCD, were law enforcement officers under the	17
TCA’s definition of the term. See § 41-4-3(D) (stating that “‘law enforcement	18
officer’ means a full-time salaried public employee of a governmental entity, or a	19
certified part-time salaried police officer employed by a governmental entity, whose	20
principal duties under law are to hold in custody any person accused of a criminal	21
offense, to maintain public order or to make arrests for crimes”). In response,	22
Plaintiff made clear that her claims for damages under Section 41-4-12 are limited	23

21
to NMCD and do not include any of the individually-named Defendants. Plaintiff	1
then argued that NMCD was operating as a law enforcement officer under the TCA.	2
{29} 	The district court correctly recognized that an entity like NMCD can be sued	3
under Section 41-4-12 of the TCA if a plaintiff identifies: “(1) a negligent public	4
employee who meets one of the waiver exceptions under Sections 41-4-5 to -12; and	5
(2) an entity that has immediate supervisory responsibilities over the employee.”	6
Abalos v. Bernalillo Cnty. Dist. Atty. Off., 1987-NMCA-026, ¶ 23, 105 N.M. 554,	7
734 P.2d 794. “If a public employee meets an exception to immunity, then the	8
particular entity that supervises the employee can be named as a defendant in an	9
action under the Tort Claims Act.” Id.; see also Lopez v. Las Cruces Police Dep’t,	10
2006-NMCA-074, ¶¶ 9, 19, 139 N.M. 730, 137 P.3d 670 (stating that “a TCA	11
plaintiff is not required to name an individual public employee as a defendant” in	12
order to maintain an action against an entity). Nevertheless, the district court ruled	13
that Defendants were entitled to summary judgment because Plaintiff had not	14
identified a negligent NMCD employee who was a law enforcement officer.	15
{30} 	On 	appeal, 	Plaintiff 	argues 	that 	she 	specifically 	identified 	a 	NMCD	16
employee—Gloria Chavez—who was “derelict in fulfilling her responsibilities to	17
ensure that Blattner was serving the full measure of his sentence.” Even accepting	18
that as true, Plaintiff did not argue below or present evidence tending to establish	19
that Chavez was a law enforcement officer. To do so, Plaintiff needed to show that	20

22
Chavez’s “principal duties, those duties to which [she] devote[d] a majority of [her]	1
time, be of a law enforcement nature.” Weinstein v. City of Santa Fe ex rel. Santa Fe	2
Police Dep’t, 1996-NMSC-021, ¶¶ 8, 12, 121 N.M. 646, 916 P.2d 1313.	3
{31} 	Having reviewed the record, we agree with the district court’s assessment that	4
Plaintiff’s 	argument 	focused 	on 	whether 	“NMCD itself meets 	the necessary	5
definition of a law enforcement officer.” The same is true on appeal—Plaintiff	6
argues that “there is sufficient evidence from which a reasonable jury could find that	7
NMCD was operating as a law enforcement officer for purposes of the TCA.” This	8
is insufficient to meet the burden under Abalos. See 1987-NMCA-026, ¶ 23. We	9
therefore affirm the district court’s ruling that Plaintiff has not established waiver	10
under Section 41-4-12.	11
CONCLUSION	12
{32} 	For the foregoing reasons, the district court’s summary judgment in favor of	13
Defendants 	is 	reversed 	in 	part, 	affirmed 	in 	part, 	and 	remanded 	for 	further	14
proceedings consistent with this opinion.	15
{33} 	IT IS SO ORDERED.	16
__________________________________	17
MEGAN P. DUFFY, Judge	18
I CONCUR:	19
_________________________________	20
JENNIFER L. ATTREP, Judge	21

23
HANISEE, Chief Judge (dissenting in part and concurring in part).	1
{34} 	I concur in the majority opinion’s interpretation and application of Section 41-	2
4-12 (the law enforcement waiver) but respectfully disagree with the majority’s	3
analysis as it relates to Section 41-4-6(A) (the building waiver). In my view, what	4
once was the latter such exception to public immunity from tort liability under the	5
TCA now swallows the rule. Worse yet, it has done so not by legislative enactment,	6
that source from where the TCA itself comes, but by our appellate courts. More	7
specifically, I disagree with the majority’s conclusion that there is “no basis to	8
conclude there is a geographical limit on the location of the injury that would	9
preclude [the building] waiver as a matter of law.” Maj. op. ¶ 20. Thus, I dissent	10
from Part I., Subsection A., of the majority opinion.	11
{35} 	My concern with the majority’s conclusion today relates to the continued	12
expansion—potentially, in this instance, as the majority remands for a second	13
determination as to the building waiver’s applicability—of public liability for	14
faraway torts, at least as measured by distance and time, from any claimed	15
occurrence of negligence related to a government building. To be fair, the majority	16
opinion flows from our Supreme Court’s interpretation of the building waiver as	17
“broadly . . . waiv[ing] immunity where due to the alleged negligence of public	18
employees an injury arises from an unsafe, dangerous, or defective condition on	19
property owned and operated by the government.” Encinias, 2013-NMSC-045, ¶ 10	20

24
(internal quotation marks and citation omitted). True as well, the building waiver	1
now “applies to more than the operation or maintenance of the physical aspects of	2
the building, and includes safety policies necessary to protect the people who use the	3
building.” Id. (internal quotation marks and citation omitted). And our Supreme	4
Court has announced that “[l]ike common-law premises liability, the [building]	5
waiver. . . is not limited to injuries occurring on the defendant’s property.” Id.	6
Calling into question, at this juncture, whether the word “building” any longer fits	7
into the title of whatever waiver this has grown up to be. See id. Despite all this,	8
though, 	our 	Supreme 	Court 	has 	not 	disavowed 	language 	that 	permits 	my	9
disagreement with today’s majority opinion, having stated that it remains “clear that	10
there are limits to” the building waiver’s applicability. Id. ¶ 12. How truly clear that	11
is might be debatable, but what is clear to me is that if that limit exists somewhere	12
within the boundaries of New Mexico, we have found it.	13
{36} 	If indeed the exception has not yet become engorged to the degree the majority	14
opinion concludes, the precedent cited therein factually illustrates my point. For	15
example, the majority opinion cites Bober, 1991-NMSC-031, and Encinias, 2013-	16
NMSC-045, to support the proposition that the building waiver is not limited to	17
injuries 	occurring 	on 	or adjacent 	to 	the defendant’s 	property. 	See Maj. op.	18
¶¶ 12-13, 15. In Bober—where our Supreme Court held that government immunity	19
was waived where the state fair failed to properly control traffic, resulting in a car	20

25
crash on a roadway bordering the fairgrounds—the injury occurred adjacent to the	1
defendant’s 	property. 	1991-NMSC-031, 	¶¶ 1-2, 	30. 	In 	Encinias—where 	our	2
Supreme Court likewise held that the plaintiff could pursue a claim under the	3
building waiver for injuries sustained on property outside of a public school that had	4
been cordoned off for use by the school’s students—the injury occurred on nearby	5
property that had been specifically designated by the defendants for intended use by	6
public school students. 2013-NMSC-045, ¶¶ 2, 10. Thus, these cases—where our	7
Supreme Court has otherwise waived immunity for off-premises injury caused by a	8
third party—share common facts: the proximity and connection of the off-premises	9
location is close by in terms of physical distance or otherwise connected to the	10
government facility at issue, and involved injury to a “user” of the building—	11
namely, a person recently present upon the premises. In other words, there must be	12
some nexus between the defendant’s property, an injured user thereof, and the off-	13
premises location where the injury occurs.	14
{37} 	The district court granted summary judgment on the basis that “[t]here is no	15
allegation in the complaint that the wrongful death occurred in NMCD’s facilities,	16
or property surrounding and linked to NMCD’s facilities, or that NMCD Defendants	17
had control and a legal interest in the property where the crime occurred. Thus, the	18
waiver of immunity set out in Section 41-4-6(A) does not apply.” While sparsely	19
worded, this to me hits the mark. Applicable precedent has never held that the	20

26
building waiver applies to injuries caused by an intentional tortfeasor at an off-	1
premises location as attenuated and disconnected as here. Indeed, the factual record	2
in this case itself, if taken to be true, establishes that about six months and over 100	3
miles separate the tort from the building to which the waiver purportedly applies.	4
The building waiver is not so untethered, or should not be given the purpose of the	5
TCA and the fact that there are so few exceptions to the public immunity it bestows.	6
My view of the exception would maintain a requirement of core proximity-derived	7
nexuses to the building at issue. Unless the Legislature wishes to revise the TCA to	8
declare otherwise.	9
{38} 	I agree with the district court that to allow “the present matter to proceed under	10
[the building] waiver would be an extension of the law.” For these reasons, I	11
respectfully dissent from Part I., Subsection A., of the majority opinion and would	12
affirm the district court in all respects.	13
__________________________________	14
J. MILES HANISEE, Chief Judge	15