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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 IVAN FRAIRE,

 3          Plaintiff-Appellant,

 4 v.                                                                            NO. 33,964

 5 BELEN CONSOLIDATED SCHOOL DISTRICT,

 6          Defendant-Appellee,

 7 and

 8 TYLER EAST,

 9          Defendant.

10 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
11 Violet C. Otero, District Judge

12 Martinez, Hart & Thompson, P.C.
13 Bruce E. Thompson
14 Albuquerque, NM

15 for Appellant

16   Narvaez Law Firm, P.A.
17   Henry F. Narvaez
18   Carlos E. Sedillo
19   Albuquerque, NM
 1 for Appellee

 2 Tyler East
 3 Albuquerque, NM

 4 Pro Se

 5                             MEMORANDUM OPINION

 6 HANISEE, Judge.

 7   {1}   Plaintiff Ivan Fraire appeals the district court’s summary judgment in favor of

 8 Defendant-Appellee, Belen Consolidated School District (the District) on his

 9 negligence claim for injuries he suffered when he was attacked by another student at

10 Belen High School. The district court held that the District could not be liable for

11 Plaintiff’s injuries as a matter of law because any negligent acts by the District fell

12 outside the scope of the State’s waiver of its sovereign immunity under the Tort

13 Claims Act (the TCA), NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through

14 2015). Recent precedent from our New Mexico Supreme Court instructs our analysis,

15 and we reverse.

16 BACKGROUND

17   {2}   On April 20, 2009, Tyler East, a senior at Belen High School, approached his

18 wrestling coach, Lee Chaves, to discuss an administrative “graduation hold” that

19 prevented East from graduating the following month unless he first returned his

20 wrestling uniform to Chaves. East located Chaves at the school’s football field, where

                                              2
 1 Chaves told East to wait for him to finish “setting [his] class up.” We note that at the

 2 time, East was training and indeed had signed a professional contract to compete as

 3 a Mixed Martial Arts (MMA) fighter. As well, the skill set that East possessed

 4 professionally had in the past been applied within the public school setting: he’d been

 5 suspended from Los Lunas High School for separate instances in which he fought

 6 with a schoolmate and threatened physical harm upon one of his teachers.

 7 Additionally, East was given unspecified discipline when he shoved another student

 8 after he transferred to Belen High School.

 9   {3}   “As a matter of protocol,” Chaves promptly called school security in an effort

10 to “make sure . . . East would go back to class” once their discussion had concluded.

11 The record on appeal suggests that before security could arrive and before Chaves

12 could address the topic of graduation with East, East began to assault Plaintiff.1

13 Chaves and the other coaches who were present restrained East and had security take

14 him to the principal’s office, but not before Plaintiff suffered significant injuries as a

15 result of being beaten by East. East was placed on suspension by the school

16 administration.

17   {4}   Plaintiff sued East for negligence, assault, and battery, and those claims ended

18 in a default judgment, which is not at issue in this appeal. Plaintiff also brought a

         1
18         According to one witness, East had recently lost his first professional fight and
19 had been teased by Plaintiff regarding his unsuccessful MMA debut.

                                               3
 1 negligence claim against the District, contending that it was liable for failing to take

 2 reasonable steps to prevent the assault. The District filed a motion for summary

 3 judgment, arguing that any negligence on the part of the District in failing to prevent

 4 Plaintiff’s injuries fell outside of the waiver of immunity in the TCA for damages

 5 caused by the “negligence of public employees . . . in the operation or maintenance

 6 of any building, public park, machinery, equipment or furnishings.” Section 41-4-

 7 6(A). The district court agreed, and the only issue before us on appeal is whether the

 8 district court was correct in its ruling.

 9 DISCUSSION

10 A.      Standard of Review

11   {5}   The appellate courts “review the district court’s decision to grant summary

12 judgment de novo.” Hydro Res. Corp. v. Gray, 2007-NMSC-061, ¶ 14, 143 N.M. 142,

13 173 P.3d 749. Generally, New Mexico courts view summary judgment with disfavor,

14 preferring trials to disposition as a matter of law. Romero v. Philip Morris Inc., 2010-

15 NMSC-035, ¶ 8, 148 N.M. 713, 242 P.3d 280. Accordingly, we review the facts and

16 make all reasonable inferences from the record in favor of the nonmoving party. T.H.

17 McElvain Oil & Gas Ltd. P’ship v. Benson-Montin-Greer Drilling Corp., 2015-

18 NMCA-004, ¶ 19, 340 P.3d 1277, cert. granted, 2014-NMCERT-012, 344 P.3d 988.

19 We will affirm an order granting summary judgment only if the evidence in the


                                               4
 1 record, viewed in this light, “show[s] that there is no genuine issue as to any material

 2 fact and that the moving party is entitled to a judgment as a matter of law.” Rule 1-

 3 056(C) NMRA.

 4 B.      Genuine Issues of Fact Preclude Summary Judgment on Plaintiff’s
 5         Negligence Claim Against the School District

 6   {6}   Section 41-4-4(A) of the TCA provides that “[a] governmental entity and any

 7 public employee while acting within the scope of duty are granted immunity from

 8 liability for any tort except as waived by . . . Sections 41-4-5 through 41-4-12[.]” The

 9 primary issue in this appeal is whether the injuries suffered by Plaintiff at the hands

10 of East fall within the TCA’s waiver of immunity for “damages . . . caused by the

11 negligence of public employees while acting within the scope of their duties in the

12 operation or maintenance of any building, public park, machinery, equipment or

13 furnishings.” Section 41-4-6(A). As we explain below, we view our Supreme Court

14 to have abandoned any distinction between the government’s waiver of its sovereign

15 immunity under Section 41-4-6 and premises liability for private parties in general.

16 See Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶¶ 14-18, 310 P.3d 611.

17 Because there are genuine issues of fact over whether the District breached its duty

18 as a landowner to Plaintiff as an invitee and whether the breach was the legal cause

19 of Plaintiff’s injuries, summary judgment was inappropriate.

20   {7}   In Encinias, our Supreme Court held that governmental liability under Section

                                              5
 1 41-4-6 turns on whether “the facts of a case . . . support a finding of liability against

 2 a private property owner.” 2013-NMSC-045, ¶ 15; see id. ¶ 9 (“[W]e infer that the

 3 waiver of liability in Section 41-4-6(A) incorporates the concepts of premises liability

 4 found in our case law.”). We take this language to mean what it plainly states: if

 5 genuine issues of material fact would preclude summary judgment on a premises

 6 liability claim against a private defendant, then summary judgment is also

 7 inappropriate when the defendant is a public entity. Turning to this question, a single

 8 standard of reasonable care under the circumstances applies to landowners or

 9 permitted occupants. See Ford v. Bd. of Cty. Comm’rs, 1994-NMSC-077, ¶ 12, 118

10 N.M. 134, 879 P.2d 766. And with respect to injuries caused by “the harmful acts of

11 third persons[,]” a landowner may be found liable “if, by the exercise of reasonable

12 care, the proprietor could have discovered that such acts were being done or about to

13 be done, and could have protected against the injury by controlling the conduct of the

14 other patron.” Encinias, 2013-NMSC-045, ¶ 16 (internal quotation marks and citation

15 omitted).

16   {8}   “The duty of ordinary care applies unless the owner/occupier can establish a

17 policy reason, unrelated to foreseeability considerations, that compels a limitation on

18 the duty or an exemption from the duty to exercise ordinary care.” Rodriguez v. Del

19 Sol Shopping Ctr. Assocs., 2014-NMSC-014, ¶ 5, 326 P.3d 465. A “ ‘no duty’ ” or


                                               6
 1 “ ‘limit[ed] . . . duty’ ” determination cannot rest on “an improbable or remote nature

 2 of risk[,]” however, because any analysis of this question which takes into account the

 3 likelihood of harm “usurp[s] the jury’s role in determining legal cause and breach.”

 4 Nat’l Roofing, Inc. v. Alstate Steel, Inc., 2016-NMCA-020, ¶ 3, 366 P.3d 276 (citing

 5 Rodriguez, 2014-NMSC-014, ¶¶ 18-19, 22), cert. denied, 2016-NMCERT-001, 370

 6 P.3d 473. Summary judgment on a negligence claim is appropriate only “ ‘in

 7 exceptional cases, when an articulated countervailing principle or policy warrants

 8 denying or limiting liability in a particular class of cases,’ ” Rodriguez, 2014-NMSC-

 9 014, ¶ 13 (quoting Restatement (Third) of Torts: Liability for Physical and Emotional

10 Harm § 7(b) (2010) (alteration omitted)), or when there is simply no evidence that

11 could support a plausible inference in the plaintiff’s favor on the jury questions of

12 breach and legal cause. See Rodriguez, 2014-NMSC-014, ¶ 24.

13   {9}   Although Encinias appears to lay to rest any argument that a ewal entity’s

14 liability for the harmful actions of third persons under Section 41-4-6 is any different

15 from the liability of a private property owner’s, it is difficult at first blush to square

16 this conclusion with the cases Encinias itself cites as good law. For example, Encinias

17 states that Espinoza v. Town of Taos, 1995-NMSC-070, ¶¶ 4, 16, 120 N.M. 680, 905

18 P.2d 718, may be cited for the proposition that “a municipal summer camp’s failure

19 to supervise young children at a playground did not waive the town’s immunity from


                                               7
 1 suit [under Section 41-4-6].” Encinias, 2013-NMSC-045, ¶ 12. But Espinoza states

 2 that “[e]ven if the Town of Taos arguably had a duty in this case, there can be no

 3 liability for any breach of that duty because immunity has not been waived.” 1995-

 4 NMSC-070, ¶ 14.

 5   {10}   More pertinent to our analysis in this case, Encinias also reaffirms the “central

 6 premise” of Pemberton v. Cordova, 1987-NMCA-020, ¶ 6, 105 N.M. 476, 734 P.2d

 7 254, that “[t]here can be no waiver under Section 41-4-6(A) without a dangerous

 8 condition on the premises, and a single act of student-on-student violence does not

 9 render the premises unsafe.” Encinias, 2013-NMSC-045, ¶ 13 (discussing

10 Pemberton). But like Espinoza, Pemberton also adopted the distinction between

11 premises liability and waiver under Section 41-4-6 that Encinias expressly rejected.

12 See Pemberton, 1987-NMCA-020, ¶ 5 (“Plaintiffs ask us to expand the scope of

13 [Section 41-4-6] to include negligent supervision of students. Where the areas of

14 waiver of immunity are specifically presented, we have no authority to read other

15 exceptions into the statute.”).

16   {11}   The District maintains that under Pemberton, even if there are genuine issues

17 of fact over whether it breached its duty of care to Plaintiff and that Plaintiff’s injuries

18 were foreseeable, all student-on-student batteries as a matter of law fall outside the

19 scope of the Section 41-4-6(A)’s waiver of immunity. We disagree. To be sure,


                                                8
 1 Pemberton recognizes a distinction between ordinary premises liability and waiver

 2 under Section 41-4-6(A). See Pemberton, 1987-NMCA-020, ¶ 5. But Encinias

 3 expressly rejects this distinction. See 2013-NMSC-045, ¶ 15. Under Encinias,

 4 Pemberton is now limited to factual circumstances where a “single act of student-on-

 5 student violence” is the “only evidence” offered to support a plaintiff’s premises

 6 liability claim because such an isolated act of student-on-student violence does not

 7 create a dangerous condition on the school premises unless the evidence also

 8 establishes that the school reasonably could have discovered that such harmful acts

 9 were about to occur and could have protected third parties against the resulting injury.

10 Encinias, 2013-NMSC-045, ¶ 13. Thus Pemberton and Rodriguez carve out narrow

11 circumstances supporting TCA immunity as a matter of law and apply where (1)

12 public policy warrants denying or limiting liability in exceptional cases; or (2) no

13 evidence exists to support the reasonable discovery that the dangerous condition is

14 about to occur and can reasonably be prevented to protect others from injury. See

15 Rodriguez, 2014-NMSC-014, ¶¶ 5, 13, 24; Encinias, 2013-NMSC-045, ¶ 13.

16 Consequently, we reject the District’s argument that all student-on-student violence

17 is excluded from the purview of Section 41-4-6A’s waiver of immunity.

18   {12}   The District next argues that we should hold that it did not owe Plaintiff a duty

19 of care. The District notes that it was required by statute to give first “priorit[y] for


                                                9
 1 enrollment” to East, who resided within the geographical limits of the school district.

 2 See NMSA 1978, § 22-1-4(A), (E)(3) (2003, amended 2015). And because East’s last

 3 violent altercation was more than twelve months before his transfer to Belen High

 4 School, the school could not use his prior acts as a basis for denying his admission.

 5 See § 22-1-4(E)(5)(b) (“Grounds for denial of enrollment or re-enrollment shall be

 6 limited to . . . a student’s behavior in another school district or private school in this

 7 state or any other state during the preceding twelve months that is detrimental to the

 8 welfare or safety of other students or school employees.”). The District suggests that

 9 the school’s statutory obligation to admit students like East with a known propensity

10 for violence furnishes a “countervailing principle or policy [that] warrants denying or

11 limiting liability” for negligence because any harmful acts caused by such students

12 stems from this obligation. Rodriguez, 2014-NMSC-014, ¶ 13 (internal quotation

13 marks and citation omitted).

14   {13}   This argument is difficult to square with Encinias, in which our Supreme Court

15 held that a school could indeed be held liable for injuries caused by the violence of

16 another student. 2013-NMSC-045, ¶ 18. To be sure, Encinias did not consider whether

17 or not a school district’s duty of care is changed when the danger to other students

18 arises from its admission of a student as opposed to its negligent failure to monitor an

19 area with a past history of student-on-student violence. But eliminating a school’s


                                               10
 1 duty of care to its students based on a distinction between an area with a history of

 2 violence and a student with a propensity of violence goes to the foreseeability of the

 3 harm and whether it is reasonable to expect a defendant—here the District—to prevent

 4 it, both of which are jury questions under Rodriguez. See 2014-NMSC-014, ¶ 19 (“If

 5 a jury is persuaded that [the p]laintiffs are asking too much of [the d]efendants, the

 6 jury will decline to hold [the d]efendants liable, not because no duty of ordinary care

 7 was owed, but because even having the duty of ordinary care, [the d]efendants either

 8 acted reasonably under the circumstances or their breach of duty did not legally cause

 9 the [plaintiff’s] injuries[.]”). That the District was required by statute to admit East as

10 a student is evidence that it could not reasonably be expected to prevent East’s assault,

11 but under Rodriguez mere compliance with a statute or other rule is not “conslusive

12 evidence that someone has exercised ordinary care.” Id. ¶ 17.

13   {14}   The District next appears to suggest that we should limit Encinias to its facts

14 by holding that a school may only be found liable where there is evidence that student-

15 on-student violence was foreseeable in a geographic area. In the District’s words, “[i]n

16 Encinias, the focus was on the area, and not the specific student combatants.” The

17 District contends that because the football field was not a “geographic ‘hot zone[,]’

18 ” they cannot be held liable for East’s assault on Plaintiff and summary judgment in

19 the District’s favor was appropriate. But whether the “dangerous condition” is


                                               11
 1 characterized as an unmonitored area of the school with a history of attacks or as the

 2 foreseeable danger caused by a particular student with a propensity for violence,

 3 Encinias held that evidence the school knew or should have known of the danger

 4 requires a trial. See Encinias, 2013-NMSC-045, ¶ 17 (“[The government] can be liable

 5 for the violent acts of a third party if the government reasonably should have

 6 discovered and could have prevented the incident.”). Limiting the District’s liability

 7 based on whether the evidence of foreseeability relates to a geographic area of the

 8 school grounds or instead relates to the propensity of the attacker revives the

 9 distinction between ordinary tort liability and statutory waiver under the TCA that

10 Encinias rejects. See Rodriguez, 2014-NMSC-014, ¶ 19 (“Courts should not engage

11 in weighing evidence to determine whether a duty of care exists or should be

12 expanded or contracted—weighing evidence is the providence of the jury; instead,

13 courts should focus on policy considerations when determining the scope or existence

14 of a duty of care.”). Moreover, this distinction would require us to weigh the evidence

15 and make our own assessment that East’s assault was or was not remote, which

16 Rodriguez expressly precludes. See id.

17   {15}   The only remaining path the District advances in support of affirming the

18 district court’s summary judgment order is for us to conclude no evidence gives rise

19 to a genuine issue of fact on the elements of Plaintiff’s premises liability claim against


                                               12
 1 the school district. Plaintiff argues that the following evidence gives rise to a genuine

 2 issues of fact: (1) East’s disciplinary record at Los Lunas High School indicates that

 3 he was handed a short-term suspension for fighting with a schoolmate on March 22,

 4 2006, and a long-term suspension during the fall term of the 2006-2007 school year

 5 after he was arrested for threatening a teacher; (2) A Belen High School assistant

 6 principal testified that the school was not aware of East’s disciplinary record when he

 7 transferred, and that had he been aware of East’s history, he would have placed East

 8 on a discretionary “strict” behavioral contract; (3) Testimony that East had “pushed”

 9 another student at Belen High School on the last day of school in 2008; (4) A security

10 officer’s note on an incident report concerning East’s assault on Plaintiff stating that

11 East was “not at his assigned class, was at a class he was not supposed to be at[;]” and

12 (5) The transcript of a 911 call following East’s assault of Plaintiff in which a school

13 security officer asks for two police officers to be dispatched to the school because East

14 “can be a little violent” and “when [East] gets pissed off, he loses it[.]” Based on this

15 evidence, we agree with Plaintiff and hold that a jury could reasonably conclude that

16 the District breached its duty of care to Plaintiff in failing to act to prevent the attack,

17 and that the school’s omissions could have contributed to Plaintiff’s injuries. See

18 Encinias, 2013-NMSC-045, ¶ 13. In other words, a jury could conclude that the

19 District’s employees were aware of East’s propensity for violence, and could have


                                                13
 1 taken measures that would have prevented East’s assault of Plaintiff.

 2   {16}   Regarding the absence of a strict behavioral contract, the District argues that

 3 “strict” contracts are imposed as a matter of discretion, and the school’s failure to

 4 place such a contract on East, even if negligent, is the kind of “administrative

 5 decision” that does not fall within Section 41-4-6(A)’s waiver of immunity. See

 6 Archibeque v. Moya, 1993-NMSC-079, ¶ 8, 116 N.M. 616, 866 P.2d 344 (“To read

 7 Section 41-4-6 as waiving immunity for negligent performance of administrative

 8 functions would be contrary to the plain language and intended purpose of the

 9 statute.”). But again, the question of governmental liability after Encinias is simply

10 a question of ordinary negligence on a premises liability theory. The fact that a jury

11 could just as reasonably conclude that the District did all it could be expected to do

12 in the situation, and could not have reasonably foreseen East’s sudden assault on

13 Plaintiff, does not alter that which Encinias requires. Characterizing the District’s acts

14 and omissions as “administrative decisions” that do not breach its duty of care to

15 Plaintiff or are too remote from Plaintiff’s injuries to give rise to premises liability

16 would require us to revive the distinction between ordinary liability in tort and the

17 waiver set out in Section 41-4-6(A) or undertake our own evaluation of the

18 reasonableness of the school district’s conduct and the foreseeability of Plaintiff’s

19 injuries. Once material evidence exists to support discovery and a reasonable


                                               14
1 opportunity to prevent injury to others, Rodriguez and our Supreme Court’s

2 controlling interpretation of the TCA in Encinias forbid appellate courts from

3 undertaking such a weighing of the evidence on appeal.

4 CONCLUSION

5   {17}   The district court’s order granting the school district’s motion for summary

6 judgment is reversed, and this case is remanded for further proceedings.

7   {18}   IT IS SO ORDERED.



8                                                _________________________________
9                                                J. MILES HANISEE, Judge


10 WE CONCUR:


11 _________________________________
12 LINDA M. VANZI, Judge


13 _________________________________
14 TIMOTHY L. GARCIA, Judge




                                            15