 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6
 7        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 8 RUTALEE TODD,

 9          Plaintiff-Appellant,

10 v.                                                                           No. 29,960

11 VILLAGE OF RUIDOSO,

12          Defendant-Appellee.

13 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
14 James Waylon Counts, District Judge

15 Jones Witt & Ragsdale
16 Luke W. Ragsdale
17 Roswell, NM

18 for Appellant

19 Hinkle, Hensley, Shanor & Martin LLP
20 Stephen Stuart Shanor
21 Roswell, NM

22 for Appellee



23                                 MEMORANDUM OPINION

24 BUSTAMANTE, Judge.
 1        Plaintiff appeals from the district court’s order granting summary judgment to

 2 Defendant, the Village of Ruidoso (“Village”) based upon sovereign immunity. [MIO

 3 2-3] We proposed to affirm in a notice of proposed summary disposition, and

 4 Plaintiff has filed a timely memorandum in opposition. Remaining unpersuaded by

 5 Plaintiff’s memorandum, we affirm the order granting summary judgment to the

 6 Village.

 7        Summary judgment is appropriate where there are no genuine issues of material

 8 fact and the movant is entitled to judgment as a matter of law. Rule 1-056 NMRA;

 9 See Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d

10 582. We review the district court’s ruling on summary judgment as a question of law.

11 See id. ¶ 6.

12        Plaintiff’s claims against the Village are based on the Village’s allegedly

13 negligent failure to maintain the drainage systems throughout the Village and

14 specifically, the drainage ditches on Plaintiff’s street. [MIO 1; RP 1-2 ¶¶ 7-8] She

15 claims that the Village failed to properly clean the drainage system which caused

16 water runoff to flood her home which damaged her home and personal property.

17 [MIO 1; RP 2 ¶¶ 9-10, 13]




                                             2
 1        As discussed more fully in our notice of proposed summary disposition,

 2 Plaintiff’s complaint was dismissed due to Defendant’s sovereign immunity under the

 3 Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (1976, as amended through

 4 2009) (“TCA”). [RP 60-61] “[W]hether governmental immunity under the TCA bars

 5 a tort claim is a question of law which we review de novo.” Rutherford v. Chaves

 6 County, 2003-NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199. In our notice of

 7 proposed summary disposition, we proposed to hold that there is no section of the

 8 TCA which waives immunity for the claims in Plaintiff’s complaint.

 9        Section 41-4-6(A) of the TCA waives immunity for “liability for damages

10 resulting from bodily injury, wrongful death or property damage 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.” However, as Plaintiff concedes, [MIO 2] Section 41-4-6(B) specifically

14 provides that “[n]othing in this section shall be construed as granting waiver of

15 immunity for any damages arising out of the operation or maintenance of works used

16 for diversion or storage of water.”

17        As this case concerns alleged negligence in the operation or maintenance of a

18 water diversion system, the Village is immune from liability. See Bybee v. City of


                                            3
 1 Albuquerque, 120 N.M. 17, 20-21, 896 P.2d 1164, 1167-68 (Ct. App. 1995) (holding

 2 that the City is immune from damages occurring in its flood control diversion

 3 channel); Noriega v. Stahmann Farms, Inc., 113 N.M. 441, 442-44, 827 P.2d 156,

 4 157-59 (Ct. App. 1992) (holding that the State is immune from liability for damages

 5 caused by a fall into an irrigation ditch because the claim falls within the exception

 6 to the waiver of immunity set forth in Section 41-4-6).

 7        In her memorandum in opposition, Plaintiff argues that the TCA does not

 8 provide sovereign immunity because the failure to provide proper maintenance is not

 9 protected under the TCA. [MIO 2] We disagree and direct Plaintiff to the language

10 of Section 41-4-6(B) which specifically states that there is no waiver of immunity for

11 “damages arising out of the operation or maintenance of works used for diversion or

12 storage of water.” Section 41-4-6(B) (emphasis added). She also argues that

13 sovereign immunity is reserved only for actions, not failures to act. [MIO 2-3] We

14 are unpersuaded because there is nothing in the TCA stating that immunity is waived

15 for failures to act. Furthermore, Plaintiff has cited to no authority for the proposition

16 that a tort based on a negligent failure to act should be treated differently than a tort

17 based on an allegedly negligent action. Cf. UJI 13-1601 NMRA (noting that “[t]he

18 term ‘negligence’ may relate either to an act or a failure to act”); In re Adoption of


                                               4
1 Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (stating that when a party cites

2 no authority to support an argument, we may assume no such authority exists).




                                           5
1 CONCLUSION

2       For the foregoing reasons as well as those set forth in our notice of proposed

3 disposition, we affirm the order granting summary judgment to the Village of

4 Ruidoso.

5       IT IS SO ORDERED.

6
7                                       MICHAEL D. BUSTAMANTE, Judge

8 WE CONCUR:


 9
10 CYNTHIA A. FRY, Chief Judge


11
12 RODERICK T. KENNEDY, Judge




                                           6
