August 4, 2016 – Sherry Milliron v. The County of Juan and the San Juan Sheriff’s Dept. and Richard Stevens, No. 34,347

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: August 4, 2016

NO. 34,347
SHERRY MILLIRON,
Plaintiff-A ppellant,
V.
THE COUNTY OF SAN JUAN,
THE SANJUAN SHERIFF’ S DEPARTMENT,
and RICHARD STEVENS,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF SANJUAN COUNTY
Daylene Marsh, District J udge

Gilpin Law Firm, LLC
Donald G. Gilpin

Albuquerque, NM
for Appellant

Potts & Associates
Amy L. Glasser

Albuquerque, NM

Law Offices of Mark J. Klecan
Mark J. Klecan
Albuquerque, NM

for Appellees

OPINION
WECHSLER, Judge.
{1} 	Appellant Sherry Milliron appeals from the district court’s dismissal of her
negligence claim, brought pursuant to the New Mexico Tort Claims Act, NMSA 1978,
Sections 41-4-1 to -27 (1976, as amended through 2015), against Appellees San Juan
County, San Juan County Sheriff’s Department, and San Juan County Sheriff’s
Department Deputy Richard Stevens. The district court ruled that, under any legal
theory, the facts alleged were insufficient to establish a waiver of the governmental
immunity granted by Section 41-4-4(A). Appellant argues on appeal that the district
court’s Rule 1-012(B)(6) NMRA dismissal was error because the complaint pleaded
facts entitling Appellant to relief for damages caused by Appellees’ negligence.
Appellant also argues that the district court’s ruling indicates a failure to accept the
facts alleged as true as required by Rule 1-012(B)(6).
{2} 	Having 	reviewed 	the 	complaint 	and 	applicable 	law, 	we 	conclude 	that
Appellant’s well-pleaded facts, while potentially sufficient to support a claim of
negligence, are insufficient to establish a waiver of the governmental immunity
granted by Section 41-4-4(A). Because Appellees are immune from suit under the
facts of the case, Appellant has not stated a claim upon which relief may be granted.

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Given this conclusion, we need not review Appellant’s additional Rule 1-012(B)(6)
argument. We affirm.
BACKGROUND
{3} 	On or about January 1, 2012, Appellant was traveling on Highway 550 south
of Bloomfield, New Mexico, when her vehicle struck a pedestrian, Jasper Lopez.
Appellant, alleging negligence, brought this action for personal injuries and property
damage against Appellees. Appellees filed a motion to dismiss that was granted by the
district court. This appeal resulted. To avoid unnecessary repetition, we have
incorporated Appellant’s factual allegations into our discussion of Rule 1-012(B)(6).
STANDARD OF REVIEW
{4} 	In reviewing a district court’s dismissal of a complaint for failure to state a
claim upon which relief can be granted, we “accept as true all facts well pleaded and
question only whether the plaintiff might prevail under any state of facts provable
under the claim.” Cal. First Bank v. State, 1990-NMSC-106, ¶ 2, 111 N.M. 64, 801
P.2d 646 (internal quotation marks and citation omitted). In doing so, “the complaint
must be construed in a light most favorable to [the non-moving party] and with all
doubts resolved in favor of its sufficiency.” Pillsbury v. Blumenthal, 1954-NMSC-
066, ¶ 6, 58 N.M. 422, 272 P.2d 326.

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APPLICATION OF RULE 1-012(B)(6)
{5} 	New Mexico is a notice pleading state. Zamora v. St. Vincent Hosp., 2014-
NMSC-035, ¶ 10, 335 P.3d 1243. While this standard generally benefits plaintiffs in
civil litigation, see Credit Inst. v. Nutrition Corp., 2003-NMCA-010, ¶ 22, 133 N.M.
248, 62 P.3d 339 (holding that “our liberal rules of notice pleading do not require that
specific evidentiary detail be alleged in the complaint”), Rule 1-012(B)(6) nonetheless
requires application of the facts pleaded in the complaint to the applicable law. Cal.
First Bank, 1990-NMSC-106, ¶ 2. This Court is required to make inferences in favor
of the sufficiency of the complaint. Pillsbury, 1954-NMSC-066, ¶ 6. But, in doing so,
we are not permitted to consider facts not pleaded in order to make a plaintiff’s claim
provable. See Prot. and Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149, ¶
17, 145 N.M. 156, 195 P.3d 1 (“[T]he court generally may not consider materials
outside the pleadings on a [federal] Rule 12(b)(6) motion[.]”).
Appellant’s Well-Pleaded Facts
{6} 	The sole count alleged in Appellant’s complaint was for negligence resulting
in personal injuries and property damage. This allegation of negligence was predicated
upon Deputy Stevens’ conduct with respect to Lopez, specifically his decision to leave
Lopez unsupervised near Highway 550.

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{7} 	In support of this allegation, Appellant’s complaint pleaded the following facts:
(1) a motorist called 911 to report a potentially intoxicated pedestrian “wandering on”
Highway 550; (2) the caller expressed concern that the pedestrian would be struck by
passing traffic; (3) Deputy Stevens responded and contacted the pedestrian, Jasper
Lopez; (4) Deputy Stevens took Lopez into his “custody and control” for the purpose
of transporting him home; (5) Deputy Stevens received an emergency call related to
a traffic accident; (6) Deputy Stevens told Lopez to exit the vehicle near a gas station
along Highway 550; (7) Lopez did not enter the gas station, but instead reentered
Highway 550, at which time he was struck by Appellant’s vehicle; and (8) Appellant
suffered property damage, physical injuries, and emotional injuries as a result of the
collision.
{8} 	Despite stating that Deputy Stevens took Lopez into his “custody and
control[,]” the complaint did not state as fact that the roadside interaction between
Deputy Stevens and Lopez resulted in Lopez being placed under custodial arrest for
any crime, or that Lopez was being transported 	under 	the 	authority 	of 	the
Detoxification Reform Act, NMSA 1978, §§ 43-2-1.1 to -23 (1976, as amended
through 2005). Nor does the complaint state as fact that Lopez intentionally collided
with Appellant’s vehicle.

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WAIVER OF IMMUNITY UNDER THE TORT CLAIMS ACT
{9} 	As a general rule, governmental entities are immune from tort liability as
provided in Section 41-4-4(A). See § 41-4-4(A) (“A governmental entity and any
public employee while acting within the scope of duty are granted immunity from
liability for any tort[.]”). This immunity is waived with respect to law enforcement
officers acting within the scope of their duties by Section 41-4-12, which provides,
[t]he immunity granted pursuant to [Section 41-4-4(A)] does not apply
to liability for personal injury, bodily injury, wrongful death or property
damage resulting from assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, defamation of
character, violation of property rights or deprivation of any rights,
privileges or immunities secured by the constitution and laws of the
United States or New Mexico[.]
{10} 	It is well-established that a law enforcement officer need not be the direct cause
of injury to trigger a waiver of immunity under Section 41-4-12. Blea v. City of
Espanola, 1994-NMCA-008, ¶ 14, 117 N.M. 217, 870 P.2d 755. Thus, even if a third
party is the direct cause of an injury, the immunity granted by Section 41-4-4(A) is
waived if a plaintiff “demonstrate[s] that the defendants were law enforcement
officers acting within the scope of their duties, and that the plaintiff’s injuries arose
out of either a tort enumerated in [Section 41-4-12] or a deprivation of a right secured
by law.” Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t, 1996-NMSC-
021, ¶ 7, 121 N.M. 646, 916 P.2d 1313. It is, however, equally well-established that

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the mere negligence of a law enforcement officer is insufficient to waive the tort
immunity granted by Section 41-4-4(A) unless such negligence results in one of the
torts enumerated in Section 41-4-12 or a deprivation of a statutory right. See Blea,
1994-NMCA-008, ¶ 12 (“[W]e continue to hold there is no waiver of immunity under
Section 41-4-12 for mere negligence of law enforcement officers that does not result
in one of the enumerated acts.”); Caillouette v. Hercules, Inc., 1992-NMCA-008, ¶ 18,
113 N.M. 492, 827 P.2d 1306 (“[T]he negligence complained of must cause a
specified tort or violation of rights; immunity is not waived for negligence standing
alone.”). Against this backdrop, we determine whether Appellant’s complaint pleaded
facts sufficient to trigger a waiver of the immunity granted to Appellees by Section
41-4-4(A).
Duty Owed to Appellant by Deputy Stevens
{11} 	A common-law negligence claim “requires the existence of a duty from a
defendant to a plaintiff, breach of that duty, which is typically based upon a standard
of reasonable care, and the breach being a proximate cause and cause in fact of the
plaintiff’s damages.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43,
73 P.3d 181. Factual determinations related to breach of duty and proximate causation
are properly left to the jury. Lessard v. Coronado Paint & Decorating Ctr., 2007-
NMCA-122, ¶ 27, 142 N.M. 583, 168 P.3d 155. However, whether a defendant owes

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a duty to a plaintiff is a legal question to be determined by the court. Lujan v. N.M.
Dep’t of Transp., 2015-NMCA-005, ¶ 8, 341 P.3d 1. Our Supreme Court recently
clarified that “foreseeability is not a factor for courts to consider when determining
the existence of a duty[.]” Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014-NMSC-
014, ¶ 1, 326 P.3d 465. Under this standard, the existence of duty is policy, rather than
fact driven. Id. ¶¶ 1, 3.
{12} 	After being dispatched in response to a 911 call, Deputy Sanders located and
contacted the allegedly intoxicated Lopez. Deputy Stevens took Lopez into his
“custody and control[,]” for the purpose of transporting him home. After receiving an
emergency call, Deputy Stevens let Lopez out of the vehicle near a gas station.
Appellant argues that Deputy Stevens’ decision to provide transportation to Lopez
created a duty that was breached by his subsequent decision to terminate the
transportation without ensuring that Lopez no longer posed a threat to himself or
others.
{13} 	In Cross v. City of Clovis, our Supreme Court held that “a law enforcement
officer has the duty in any activity actually undertaken to exercise for the safety of
others that care ordinarily exercised by a reasonably prudent and qualified officer in
light of the nature of what is being done.” 1988-NMSC-045, ¶ 6, 107 N.M. 251, 755
P.2d 589 (footnote omitted). Deputy Stevens actually undertook to transport Lopez.

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Accepting all well-pleaded facts as true, we must view this undertaking as motivated
by either a concern for the safety of Lopez himself or for that of other motorists on
Highway 550. Under Cross, a reasonably prudent and qualified officer would not have
released Lopez back into the dangerous situation from which he was initially removed.
{14} 	This determination does not, however, conclude our inquiry. As discussed in
detail below, even if Deputy Stevens breached a duty owed to Appellant, the
immunity granted by Section 41-4-4(A) is only waived if Appellant suffered a tort
enumerated in Section 41-4-12 or a deprivation of a statutory right. See Caillouette,
1992-NMCA-008, ¶ 18 (“[T]he negligence complained of must cause a specified tort
or violation of rights; immunity is not waived for negligence standing alone.”).
Waiver of Immunity Arising From the Commission of an Enumerated Tort
{15} 	With respect to the torts enumerated in Section 41-4-12, the only one that could
be reasonably inferred from the complaint is battery. Appellant argued, both in a pre-
trial 	motion 	hearing 	and 	at 	oral 	argument 	before 	this 	Court, 	that 	Lopez’s
conduct—that is, the act of entering Highway 550 and colliding with Appellant’s
vehicle—constituted a battery. Appellant’s brief in chief also argues that this case is
analogous to Blea, in which an intoxicated driver caused a fatal traffic accident. 1994-
NMCA-008, ¶ 6.

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{16} 	In Blea, Espanola Police Department officers were alerted to a disturbance at
a local gas station and instructed to search for the suspect’s vehicle. Id. ¶ 3. Within a
few minutes, the vehicle was located and a traffic stop was conducted. Id. During this
stop, the suspect was “extremely intoxicated” and “exhibited impaired judgment,
impaired coordination, and inability to operate a motor vehicle in a safe and lawful
manner.” Id. ¶ 4. The suspect additionally admitted both consuming and possessing
marijuana. Id. Instead of arresting the suspect, the officers ordered him to surrender
the alcohol and marijuana in the vehicle and allowed him to continue driving his
vehicle. Id. ¶¶ 4-5. The suspect subsequently caused a traffic accident, killing a young
woman. Id. ¶ 6.
{17} 	At trial in Blea, the district court ruled that immunity was not waived under
Section 41-4-12 because neither the officers nor the suspect had the requisite intent
to prove battery. Blea, 1994-NMCA-008, ¶ 13. This Court reversed, noting that our
Supreme Court’s discussion of battery in California First Bank was controlling. Blea,
1994-NMCA-008, ¶ 15 (citing Cal. First Bank, 1990-NMSC-106, ¶ 34, n.6).
{18} 	“Battery is the unlawful, intentional touching or application of force to the
person of another, when done in a rude, insolent or angry manner.” NMSA 1978,
§ 30-3-4 (1963) (emphasis added). A tortfeasor is liable for battery if “(a) he acts
intending to cause a harmful or offensive contact with the person of the other or a

10
third person, or an imminent apprehension of such a contact, and (b) an offensive
contact with the person of the other directly or indirectly results.” State v. Ortega,
1992-NMCA-003, ¶ 12, 113 N.M. 437, 827 P.2d 152 (internal quotation marks and
citation omitted). The intent required to commit battery extends only to the physical
touching at issue and not to the resulting harm. See Peña v. Greffet, 108 F.Supp.3d
1030, 1048 (D.N.M. 2015) (“As to the intent required to commit a battery, the
Restatement (Second) of Torts is ambiguous whether intent means showing merely
an intent to touch that person—and that the touching turns out to be offensive or
harmful need not be intended—or if the plaintiff must also show that the harm or
offense was intended. It is clear, however, that an intent to touch in a way that the
defendant understands is not consented to is sufficient, as is an actual intent to
harm.”). California First Bank, which imputed the requisite intent to commit battery
to drunk drivers, and its progeny stand as exceptions to the general rule that both the
crime and tort of battery require proof of intent. See 1990-NMSC-106, ¶ 34, n.6
(stating that the intent element of battery is satisfied if “the actor believes that the
consequences are substantially certain to result from the action taken.” (alteration,
internal quotation marks, and citation omitted)); Blea, 1994-NMCA-008, ¶ 15 (“[A]n
allegation that a party is intentionally intoxicated and driving could be sufficient intent

11
for battery because all that is necessary is the party’s substantial certainty that a
particular result will occur.”).
{19} 	While the rationale of California First Bank’s footnote six clearly applies to
intoxicated drivers, it is inapplicable to the facts of the present case. Lopez was not
an intoxicated driver, but instead, an intoxicated pedestrian. To impute the intent to
commit a battery to Lopez, as our Supreme Court discussed in California First Bank,
we must conclude that injury to a passing motorist was a “substantially certain
outcome” of Lopez’s conduct. 1990-NMSC-106, ¶ 34, n.6. We are unwilling to draw
this conclusion. See State v. Jones, 895 P.2d 643, 644 (Nev. 1995) (“[I]ntoxicated
pedestrians do not present the serious public safety hazard that results from drunk
drivers.”).
{20} 	Lopez’s decision to enter Highway 550 in an allegedly intoxicated state led to
an accidental collision and to his untimely death. However, even reading the
complaint in the manner most favorable to Appellant as required by Rule 1-012(B)(6),
we are unable to infer intent on the part of Lopez to cause a collision as required to
support a claim of battery under New Mexico law. Because Appellant did not suffer
a battery, or any other enumerated tort, Appellees’ immunity from tort liability
granted by Section 41-4-4(A) is not waived on this theory.

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Waiver of Immunity Arising From the Deprivation of a Statutory Right
{21} 	Appellant argues in the alternative that her injuries resulted from a deprivation
of a statutory right. “Section 41-4-12 of the Tort Claims Act waives immunity when
injury has resulted from a deprivation of any right secured by the statutory law of the
United States or New Mexico . . . if caused by a law enforcement officer.” Cal. First
Bank, 1990-NMSC-106, ¶ 32 (internal quotation marks omitted). A plaintiff may
bring a “direct claim for personal injury . . . arising from a violation of a statutory
right.” Weinstein, 1996-NMSC-021, ¶ 26. Such personal injury need not arise from
one of the torts enumerated in Section 41-4-12. See Weinstein, 1996-NMSC-021, ¶ 26
(citing favorably the proposition that damages for emotional distress are recoverable
under Section 41-4-12 if arising from a violation of a statutory right). NMSA 1978,
Section 29-1-1 (1979), which requires that law enforcement officers “investigate all
violations of the criminal laws of the state which are called to the attention of any such
officer or of which he is aware,” is commonly invoked to demonstrate the deprivation
of a statutory right and has been described by our Supreme Court as “designed to
protect individual citizens from harm.” Weinstein, 1996-NMSC-021, ¶ 37.
{22} 	For example, in California First Bank, deputies observed an intoxicated
individual, Harrison Shorty, fire several gun shots outside a bar in Gallup, New
Mexico. 1990-NMSC-106, ¶ 3. Despite observing conduct in violation of New

1See NMSA 1978, § 30-7-4 (1979, amended 1993) (prohibiting the negligent
use of a deadly weapon).
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Mexico law, the deputies elected not to arrest Shorty.1 Id. Shorty subsequently left the
bar and, while driving through a marked intersection, crossed the center line and
collided with another vehicle, killing three people. Id. ¶ 4. Applying Section 29-1-1,
our Supreme Court held that the deputies’ failure “to apprehend Shorty or investigate
the disturbance at [the] bar” proximately caused the injuries and constituted “a
negligent violation of a right secured under New Mexico law[.]” Cal. First Bank,
1990-NMSC-106, ¶ 37. Since California First Bank, our appellate courts have applied
Section 29-1-1 in this manner. See, e.g., Blea, 1994-NMCA-008, ¶¶ 4-6, 19 (applying
Section 29-1-1 in holding tort immunity to be waived when law enforcement officers
detained but failed to arrest an “extremely intoxicated” driver who, later the same
evening, caused a collision that killed a young woman); Weinstein, 1996-NMSC-021,
¶¶ 3, 38 (applying Section 29-1-1 in holding tort immunity to be waived when law
enforcement officers’ failure to diligently file a criminal complaint resulted in the
release of a rape suspect who subsequently raped the plaintiffs’ daughter).
{23} 	Appellant argues that Deputy Stevens’ failure to detain or arrest the allegedly
intoxicated Lopez constituted a breach of a statutory duty imposed by Section 29-1-1.
Given the pleaded facts, Deputy Stevens’ duty to detain or arrest could arguably

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derive from either the Detoxification Reform Act or the Motor Vehicle Code, NMSA
1978, §§ 66-1-1 to -8-141 (1978, as amended through 2015). We discuss the interplay
between these statutes and Section 29-1-1 in turn.
A. 	The Detoxification Reform Act
{24} 	Appellant’s complaint alleged that Lopez was “wandering on” Highway 550 in
an intoxicated state. See Cal. First Bank, 1990-NMSC-106, ¶ 2 (requiring this Court
to accept as true all well-pleaded facts in the complaint). Our Legislature has not
enacted a criminal statute prohibiting public intoxication. See § 43-2-3 (“It is the
policy of this state that intoxicated and incapacitated persons may not be subjected to
criminal prosecution, but rather should be afforded protection.”). As such, Lopez was
not in violation of a criminal statute, and therefore subject to custodial arrest, simply
because he was intoxicated.
{25} 	In her reply brief and during oral argument before this Court, Appellant argued
that the Detoxification Reform Act creates a duty on the part of law enforcement
officers to detain and transport intoxicated persons to safety. We disagree. Section 43-
2-8(A)(1)-(7) provides that
[a]n intoxicated or incapacitated person may be committed to a treatment
facility at the request of an authorized person for protective custody, if
the authorized person has probable cause to believe that the person to be
committed:
(1) 	is disorderly in a public place;

2While Deputy Stevens’ decision to transport Lopez could be interpreted as
action under Section 43-2-8(A), Appellant’s factual allegations contradict this
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(2) 	is unable to care for the person's own safety;
(3) 	has threatened, attempted or inflicted physical harm on
himself or another;
(4) 	has threatened, attempted or inflicted damage to the
property of another;
(5) 	is likely to inflict serious physical harm on himself;
(6) 	is likely to inflict serious physical harm on another; or
(7) 	is incapacitated by alcohol or drugs.
(Emphasis added). The Legislature’s use of the permissive “may” rather than the
mandatory “shall” indicates the discretionary nature of a law enforcement officer’s
authority under Section 43-2-8(A). See Cerrillos Gravel Prods., Inc. v. Bd. of Cty.
Comm’rs of Santa Fe Cty., 2004-NMCA-096, ¶ 10, 136 N.M. 247, 96 P.3d 1167
(“The word ‘may’ is permissive, and is not the equivalent of ‘shall,’ which is
mandatory.”). In State v. Phillips, this Court held that Section 43-2-8(A) provided law
enforcement officers with “actual authority” to take intoxicated persons into protective
custody. 2009-NMCA-021, ¶ 23, 145 N.M. 615, 203 P.3d 146. Contrary to
Appellant’s argument, however, Phillips makes no comment on a law enforcement
officer’s obligation to do so. See generally id.
{26} 	Because Deputy Stevens was under no statutory obligation to detain or transport
Lopez under Section 43-2-8(A), his decision to discontinue such transportation cannot
constitute a deprivation of a statutory right imposed by Section 29-1-1.2 Because

argument. Section 43-2-8(A) authorizes a law enforcement officer to transport an
intoxicated or incapacitated person to “a treatment facility.” Appellant’s complaint
alleged that Deputy Stevens was transporting Lopez “home.”
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Deputy Stevens’ conduct did not breach a statutory duty owed to Appellant,
Appellees’ immunity from tort liability granted by Section 41-4-4(A) is not waived
on this theory.
B. 	The Motor Vehicle Code
{27} 	Appellant additionally argues that Deputy Stevens’ failure to arrest Lopez for
violations of the Motor Vehicle Code constituted a breach of a statutory duty imposed
by Section 29-1-1. We review the Motor Vehicle Code to determine whether Lopez’s
alleged conduct justified his being placed under custodial arrest by Deputy Stevens.
{28} 	Applying again the language of the complaint, violation of certain traffic
statutes would subject Lopez to citation for “wandering on” Highway 550. See § 66-7-
339 (describing required conduct while walking along highways that lack sidewalks);
Section 66-7-334(B) (prohibiting pedestrians from “walk[ing] or run[ing] into the path
of a vehicle”). However, a violation of one or both of these statutes, particularly a
violation that was not witnessed by a law enforcement officer, would not subject
Lopez to custodial arrest. See NMSA 1978, § 66-8-123 (2013) (requiring, subject to
specific exceptions, that an individual arrested for a misdemeanor violation of the
Motor Vehicle Code be cited and released); State v. Reger, 2010-NMCA-056, ¶ 13,

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148 N.M. 342, 236 P.3d 654 (“The [misdemeanor arrest] rule provides that generally,
in New Mexico, an officer may execute a warrantless misdemeanor arrest only if the
offense was committed in the officer’s presence.” (alteration, internal quotation marks,
and citation omitted)).
{29} 	Cases cited by Appellant, including Blea and Torres v. State, 1995-NMSC-025,
¶ 24, 119 N.M. 609, 894 P.2d 386 (holding that the duty to investigate applied to a
specific murder suspect), in support of her argument that Deputy Stevens breached a
statutory duty imposed by 29-1-1 are distinguishable. In Blea, the defendant officers
had probable cause to arrest the suspect for numerous statutory violations during the
initial traffic stop; a course of action that would have removed a significant threat to
the public from the roadways. 1994-NMCA-008, ¶ 19. Similarly, in Torres, our
Supreme Court held that the defendant officers had a statutory duty to investigate a
specific murder suspect prior to his flight to Los Angeles where he murdered two
additional people. 1995-NMSC-025, ¶¶ 6, 25.
{30} 	In the present case, Deputy Stevens investigated a report of a potentially
intoxicated pedestrian “wandering on” Highway 550. Applying these facts as pleaded,
Deputy Stevens lacked statutory authority to place Lopez under custodial arrest for a
violation of the Motor Vehicle Code.

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{31} 	Absent the authority to place Lopez under custodial arrest for a statutory
violation, Deputy Stevens did not breach a statutory duty imposed by Section 29-1-1
by releasing Lopez from his vehicle. Because Deputy Stevens’ conduct did not breach
a statutory duty owed to Appellant, Appellees’ immunity from tort liability granted
by Section 41-4-4(A) is not waived on this theory.
CONCLUSION
{32} 	Because Appellant’s complaint did not allege facts sufficient to establish a
waiver of the governmental immunity granted by Section 41-4-4(A), Appellees are
immune from tort liability. We therefore affirm the district court’s Rule 1-012(B)(6)
dismissal.
{33} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
MICHAEL E. VIGIL, Chief Judge
________________________________
STEPHEN G. FRENCH, Judge