February 14, 2019- Andrea Hauff v. City of Albuquerque, No. A-1-CA-36202

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ANDREA HAUFF,
3 	Plaintiff-Appellant,
4 v. 	No. A-1-CA-:36202
5 	CITY OF ALBUQUERQUE, and THE
6 ANIMAL HUMANE ASSOCIATION
7 d/b/a ALBUQUERQUE ANIMAL
8 CONTROL CENTER,
9 	Defendants-Appellees.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 	Denise Barela Shepherd, District Judge
12 Houston Ross
13 	Albuquerque, NM
14 for Appellant
15 	City of Albuquerque Office of the City Attorney
16 Jessica L. Nixon, Assistant City Attorney
17 Albuquerque, NM
18 	for Appellees
19 	MEMORANDUM OPINION
20 	VANZI, Judge.
21 	{t} 	Plaintiff Andrea Hauff sued the City of Albuquerque, doing busines~ as the 	'
22 Animal Welfare Department (the Department) (collectively, Defendants), alleging
23 	that Defendants' staff failed to inform her of the behavioral history of a cat Plaintiff
24 adopted from the Department, which later bit Plaintiff, causing injuries requiring
Court of Appeals of New Mexico
Filed 2/14/2019 8:47 AM
Mark Reynolds

1 hospitalization. 	The 	district 	court granted Defendants' 	motion 	to 	dismiss 	the
2 complaint on the ground that Plaintiff failed to state a claim for which immunity had
3 been waived under the New Mexico Tort Claims Act, NMSA 1978, Sections 41-4-
4 	1 through -27 (1976, as amended through 2015) (the NMTCA). We affirm.
5 BACKGROUND
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{2} 	In her complaint, Plaintiff made the following allegations.
6. 	In February 2014 [P]laintiff adopted a cat from [the Department].
It is believed that cat was ID 1588268 and named Caspia.
7. 	Plaintiff was looking to adopt a cat as a household pet for herself
and [her] young child.
8. 	When she adopted Caspia ... [P]laintiff [was] not advised that
the cat had any behavioral problems that would require special care or
handling. In fact, 	on the day after she adopted Caspia, 	[P]laintiff
received a call from the director of [the Department] assuring her that
Caspia was [a] good and gentle pet.
9. 	However, on or about 2/20/14 as [P]laintiff tried to retrieve
Caspia from behind a couch at home, Caspia bit [P]laintiff on the hands.
The cat locked her jaws around one hand [and] would not let go.
10. 	As a result of the bites[, P]laintiff spent several days in the
hospital, had surgery, incurred about $18,000 in medical bills and may
have permanent injuries to her hands.
11. 	Upon returning Caspia to [the Department], Allison Briggs[,] the
intake person she returned the cat to[,] asked "didn't anybody tell you
that this cat was in a behavioral class for very scared cats?"
25 	Plaintiff asserted that Defendants had a duty to disclose Caspia's "known behavioral
26 problems that ... may have increased the likelihood that she would act dangerously
27 and unpredictably[,]" and further alleged that
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19. 	Defendants 	knew that 	Caspia had been in very 	scared 	cat
behavioral classes but failed to disclose that information to the plaintiff
at the time of adoption.
20. 	Defendants not only failed to disclose that Caspia had behavioral
problems at the time of adoption but called [P]laintiff the day after
praising Caspia as a good and gentle pet.
21. 	As a result of [D]efendants' breach of duty[, P]laintiff suffered
damages in the form of medical bills, pain and suffering, emotional
distress, permanent injury and other damages as shall be shown at trial.
22. 	The actions of [the Department] as set out in this complaint were
wanton, reckless or intentional and entitle plaintiff to an award of
punitive damages.
13 	Plaintiff sought damages for Defendants' alleged negligence, as well as a declaratory
14 judgment that the release she signed as part of the adoption was unenforceable.
15 	Defendants answered the complaint and served discovery requests on Plaintiff, to
16 which Plaintiff responded. When Plaintiff failed to prosecute the matter, including
17 failing to conduct her own discovery, the district court dismissed the complaint on
18 	its own motion. See Rule 1-041 (E)(2) NMRA ("Unless a pretrial scheduling order
19 has been entered pursuant to Rule _1-016 NMRA, the court on its own motion . . .
20 may dismiss without prejudice the action ... if the party filing the action or asserting
21 	the claim has failed to take any significant action ... within the previous one hundred
22 and eighty (180) days."). Thereafter, the parties litigated Plaintiffs motion to
23 	reinstate, which the district court eventually granted. Plaintiff filed a motion for a
24 scheduling conference and issued interrogatories and a request for production to
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1 Defendants, to 	which they responded. 	A 	subsequent scheduling order set out
2 deadlines for discovery and other matters. Rule 1-016(B) (addressing scheduling
3 orders).
4 	{3} 	Defendants then filed a motion for judgment on the pleadings, arguing that,
5 even if Plaintiffs allegations are true, she failed to state a claim for which immunity
6 had been waived under the NMTCA. See Rule 1-012(C) NMRA (providing that
7 "[a]fter the pleadings are closed but within such time as not to delay the trial, any
8 party may move for judgment on the pleadings"). Plaintiff responded to Defendants'
9 arguments, but did not request leave to amend the complaint. After a hearing, the
10 	district court granted Defendants' motion in a written order. Plaintiff appeals.
11 	DISCUSSION
12 	{4} 	"We review judgments on the pleadings made pursuant to Rule 1-012(C) ...
13 	according to the same standard as motions for failure to state a claim under Rule 1-
14 	012(B)(6)[.]" Vil/. ofAngel Fire v. Bd. ofCty. Comm 'rs, 2010-NMCA-038, ,r 5, 148
15 	N.M. 804, 242 P.3d 371. "A motion to dismiss for failure to state a claim ... tests
16 the legal sufficiency of the complaint[.]" Derringer v. State, 2003-NMCA-073, ,r 5,
17 	133 N.M. 721, 68 P.3d 961. "In reviewing a district court's decision to dismiss for
18 	failure 	to 	state a claim, we accept all well-pleaded factual 	allegations in the
19 	complaint 	as 	true 	and 	resolve 	all 	doubts 	in 	favor 	of 	sufficiency 	of 	the
20 complaint." Delfino 	v. 	Griffo, 	2011-NMSC-015, 	,r 9, 	150 N.M. 	97, 	257 P.3d
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1 917 (internal quotation marks and citation omitted). "Dismissal . . . is appropriate
2 only if the plaintiff is not entitled to recover under any theory of the facts alleged in
3 [her] complaint." Id. ,-r 12 (first alteration, internal quotation marks, and citation
4 omitted). We review the district court's Rule 1-012(C) ruling de novo. See id. ,-r 9.
5 	{5} 	Under the NMTCA, "[a] governmental entity and any public employee while
6 acting within the scope of duty are granted immunity from liability for any tort
7 except as waived by ... Sections 41-4-5 through 41-4-12[.]" Section 41-4-4(A). The
8 waiver provision relied upon by Plaintiff herein, known as the "building waiver,"
9 waives immunity for "liability for damages resulting from bodily injury, wrongful
10 death[,] or property damage caused by the negligence of public employees while
11 	acting within the scope of their duties in the operation or maintenance of any
12 building[.]" Section 41-4-6(A). To fall within the ambit of Section 41-4-6(A), a
13 	claimant may allege either (1) the existence of some physical defect on the premises;
14 or (2) the operation or maintenance of "a facility in such a way as to create an unsafe
15 	or dangerous condition on the property or in the immediate vicinity." Leithead v.
16 	City of Santa Fe, 1997-NMCA-041, ,-r 5, 123 N.M. 353, 940 P.2d 459. Plaintiff
17 argues that her claim falls within the latter type of waiver. We disagree for two
18 	reasons.
19 	{6} 	First, 	Plaintiffs 	complaint 	does 	not 	allege 	any 	facts 	suggesting 	that
20 Defendants' negligence created "a general condition of unreasonable risk" for which
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1 the NMTCA waives immunity. Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040,
2 120, 140 N.M. 205, 141 P.3d 1259 (internal quotation marks and citation omitted);
3 see Encinias v. 	Whitener Law Firm, P.A., 2013-NMSC-045, 1 13, 310 P.3d 611
4 ("There can be no waiver under Section 41-4-6(A) without a dangerous condition
5 on the premises, and a single act of student-on-student violence does not render the
6 premises unsafe."). We explain.
7 {7} 	In Archibeque v. Moya, our Supreme Court held that "Section 41-4-6 does not
8 waive immunity when public employees negligently perform . . . administrative
9 functions[,]" such as assignment of an inmate to the general population within the
10 prison. 1993-NMSC-079, 18, 116 N.M. 616,866 P.2d 344; see Upton, 2006-NMSC-
l 1 040, 117 (stating that "the [NM]TCA does not waive immunity for a single, discrete
12 administrative decision affecting only a single person, as opposed to a dangerous
13 	condition affecting the general public"). In Archibeque, the plaintiff told a prison
14 	intake officer that one of his enemies was housed in the prison. 1993-NMSC-079,
15 1 2. Without first checking an available printout of current inmates, the prison intake
16 	officer told the plaintiff that his enemy was no longer imprisoned at the penitentiary.
17 Id. The officer then permitted the plaintiff to be released into the general prison
18 population. Id. "That night, [the plaintiff] was assaulted by [his enemy] and several
19 other inmates in the prison weight room." Id. The Court held that, while the prison
20 intake officer's misclassification of the plaintiff put him at risk, the building waiver
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1 did not apply because "the negligence did not create an unsafe condition on the
2 prison premises as to the general prison population." Id. 1 11. Moreover, the Court
3 said, the prison intake officer was not "operating and maintaining the prison's
4 physical premises when she negligently classified [the plaintiff] as an inmate that
5 could be released into the general prison population." Id. 18. Instead, the officer was
6 "performing 	an 	administrative 	function 	associated 	with 	the 	operation 	of the
7 corrections system. Section 41-4-6 does not waive immunity when public employees
8 negligently perform such administrative functions." Id. 	This Court subsequently
9 distinguished Archibeque in Callaway v. New Mexico Department of Corrections, a
10 case in which the plaintiff alleged that he had been injured by the defendants'
11 	negligence "in allowing known, dangerous gang members to roam loose among the
12 	general prison population." 1994-NMCA-049, 113, 117 N.M. 637, 875 P.2d 393. In
13 	Callaway, we held that the plaintiffs ~llegations that the prison population as a
14 whole was unsafe because of the defendants' failure to properly manage the housing
15 	of known gang members were substantively different from those in Archibeque,
16 where the plaintiffs misclassification related to him alone and did not endanger the
17 rest of the prison population. See id. 118.
18 	{8} 	Here, Plaintiff alleges that Defendants' 	employees negligently failed to
19 	inform her of Caspia' s history in a program for "very scared" cats. Although Plaintiff
20 argues on appeal that Defendants could have failed to warn another adopter, her
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1 complaint does not allege that Defendants failed to institute or follow a policy to
2 protect adopters from cats that have behavioral issues or that the management of the
3 "very scared cats" posed a danger to users of the Department's adoption facility in
4 general. Hence, we conclude that, because Plaintiffs allegations involve a discrete
5 administrative function, her complaint more closely resembles the allegations in
6 Archibeque than the factual scenario set forth in the complaint in Callaway. For this
7 reason, we hold that immunity under the NMTCA has not been waived.
8 {9} 	Second, the failure of Defendants' employee to warn Plaintiff did not create
9 an unsafe condition "on the property" operated and maintained by Defendants. See
IO Leithead, 1997-NMCA-041, 15. Plaintiff points to Young v. Van Duyne in support
11 	of her argument that a failure to warn falls within the building waiver. 2004-NMCA-
12 074, 15, 135 N.M. 695, 92 P.3d 1269. However, Young does not support Plaintiffs
13 	position. In that case, although the allegations concerned the Children, Youth and
14 Families Department's (CYFD) failure to warn the plaintiff of the dangerous
15 	potential of a child placed in foster care, the critical issue was whether CYFD
16 "operated" the building where the dangerous condition occurred, namely the foster
17 home. Id. 11 19-23. The Young Court distinguished between the failure to warn
18 	before the child was placed in the foster home, which was arguably "operated" by
19 CYFD, 	and the 	failure 	to 	warn after the 	child was 	adopted, 	when CYFD's
20 obligations to oversee the home were minimal, if not nonexistent. Id. 1125-30. This
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1 Court held that the plaintiff"must be permitted to proceed on the merits of his claim
2 that CYFD operated the Youngs 'foster home within the meaning of the Section 41-
3 4-6 immunity waiver." Id. , 	23 (emphasis added). However, as to the plaintiff's
4 claims related to CYFD' s failure to disclose after the child was adopted, we said,
5 "We ... have before us no statute or regulation that creates any duty or responsibility
6 of CYFD 	and 	its 	employees, 	after an adoption is 	finalized, 	with respect to
7 supervision, oversight, operation, or maintenance of the home into which a child is
8 placed for adoption, after an adoption becomes final." Id. , 27. We then concluded
9 that there was "no reasonable basis ... to broaden the waiver in Section 41-4-6[(A)]
10 to apply to the post-adoption knowledge and negligent failure to disclose" where the
11 	plaintiff adduced no statute or regulation, nor alleged any facts, to "support his
12 position that ... CYFD was operating the home." Id., 30.
13 	{10} 	This Court subsequently relied on Young for the proposition that "the building
14 waiver may apply when an agency undertakes to provide housing for clients when
15 	permitted or required to do so under specific statutory authority." Quevedo v. New
16 Mexico Children, Youth & Families Dep't, 2016-NMCA-101,, 13, 385 P.3d 657.
17 In Quevedo, we held that, where a series of statutes and regulations imposed on
18 	CYFD "an obligation to house children in its care in homes or facilities that meet
19 certain minimum health and safety standards[,]" these obligations may create "a
20 relationship between CYFD, the homes or facilities in which children are placed,
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1 and the children[,]" and "the waiver of immunity in Section 41-4-6(A) permits suit
2 against CYFD when such a relationship exists." Id. 1 17 (emphasis added).
3 	{11} 	In this case, Plaintiffs complaint does not allege any facts demonstrating that
4 Defendants operated or maintained her home, i.e., that Defendants' failure to warn
5 her of Crespia's ·history created a dangerous condition in a building operated or
6 maintained by Defendants. Consequently, under Young, the waiver of immunity
7 pursuant to Section 41-4-6(A) does not apply to these facts. See 2004-NMCA-074,
8 1 30 (holding that the plaintiffs allegations of negligent failure to disclose did not
9 fall within Section 41-4-6(A) where CYFD did not operate or maintain the adoptive
10 home); see also Archibeque, 1993-NMSC-079, 18 ("The purpose of Section 41-4-
11 	6[(A)] is to ensure the general public's safety by requiring public employees to
12 exercise reasonable care in maintaining and operating the physical premises owned
13 	and operated by the governnient.").
14 	{12} 	In her final argument, Plaintiff contends that the allegations in her complaint
15 	"are sufficient to allow [her] to proceed in the case to discover if [Defendants] had
16 safety policies that were designed to prevent dangerous cats from being placed for
17 adoption[,]" if those policies were violated, and, if no policies were in place, whether
18 the "failure to have such policies in place contribute[ d] to the danger [posed to
19 Plaintiff] and other[ s] 	who went to Animal Control while the cat was !up for
20 adoption[.]" In essence, Plaintiff maintains that she μiay be able to amend her
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1 complaint to allege facts to bring her claim within the building waiver if she is
2 permitted to conduct additional discovery. This argument is unavailing.
3 	{13} 	To begin with, Plaintiff failed to seek discovery on these matters or to raise
4 this issue in the district court. In fact, although she sought discovery through
5 interrogatories and requests for production in August 2016, she admitted at the
6 hearing on Defendants' motion that she "didn't specifically allege that [Defendants]
7 violated a particular policy, because [she] wasn't aware of what their policies were."
8 In addition, Plaintiff failed to seek the district court's leave to amend·her complaint
9 even after she knew that Defendants were arguing that they are immune under the
10 NMTCA. See Rule 1-015(A) NMRA ("[A] party may amend its pleading only by
11 	leave of court [after a responsive pleading has been filed] and leave shall be freely
12 given when justice requires."). Plaintiff also failed to alert the district court that she
13 	required additional discovery in order to respond to Defendants' motion. Cf Richey
14 v. Hammond Conservancy Dist., 2015-NMCA-043, ,-r 5, 346 P.3d 1183 (noting that
15 	the "[p]laintiff moved to stay [the d]efendant's Rule 1-012(B)(6) motion pending
16 discovery"). Indeed, after the hearing on the motion to dismiss, Plaintiff joined
17 Defendants in a motion to vacate the trial setting, stating, "further discovery, and the
18 	costs thereof, [has been] deferred in anticipation of [the district c]ourt's ruling on
19 	... Defendants' Motion to Dismiss Pursuant to the [NMTCA]."
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1 {14} 	Moreover, "[a]mendments [that] alter or change the theory of a case [from
2 that 	presented 	to 	the 	district 	court] 	are 	not 	permitted 	on 	appeal."
'
3 Houston v. Young, 1980-NMSC-053,, 7, 94 N.M. 308, 610 P.2d 195. In Houston,
4 our Supreme Court held that the plaintiff would not be permitted to amend her
5 complaint on appeal where "[t]he record show[ed] no motion to amend was made
6 by [the] plaintiff at the [district] court level" because "[t]he right to amend.terminates
7 upon entry of a final order or judgment." Id. Similarly, because Plaintiff failed to
8 raise the issue before the district court and the right to amend termina.ted on entry of
9 the district court's order, we decline to address this contention further.
10 	CONCLUSION
11 	{15} 	We conclude that the allegations in Plaintiffs complaint do not state a claim
12 falling within the waiver of immunity in Section 41-4-6(A). Therefore, we affirm
13 	the district court's order dismissing Plaintiffs complaint.
14 	{16} 	IT IS SO ORDERED.
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17 WE CONCUR:
18 	~&19 JEN~ ATTREP, Judge
UELINE R. MEDINA, Judge
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