School Violence: Duty of Care in New Mexico Under Principles of Premises Liability

The New Mexico Supreme Court addressed governmental liability and waiver of immunity on premises liability claims. The Court in Encinias v. Whitener stated that governmental entities will be treated the same as any other business in terms of premises liability claims.

The case is interesting for a number of reasons:

1.The case arose in the context of a legal malpractice claims for failure to meet the statute of limitations on a Tort Claim against a school,
2.The underlying claim involved student on student school violence, and
3.The Court provided an extensive discussion of premises liability claims and governmental liability thereon.

To begin, the Court recognized that the state is immune for tort lawsuits under NMSA §41-4-4(A). The Court also recognized that there are exceptions where immunity is waived. One such waiver includes claims against governmental entities for injuries “caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings.”

The Court characterized these as premises liability claims and found that governmental entities will be treated much the same as a private individual or business in terms of duty of care and potential liability.

The Court stated that premises liability is not limited to injuries caused by a physical defect in the property. Just like a private business, a governmental entity has duty to keep its premises safe. There are limits of course, just as there are with private entities.

In New Mexico, there is a duty on the part of businesses to protect its patrons from “the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron.” This duty has been held to apply to criminal acts by the third parties.

The Court stated that the Tort Claims Act was not meant to shield the government from tort claims. They would be treated the same as private businesses. With private entities, there must have been knowledge or reason to know of the dangers, and an opportunity to protect its patrons.

The Court provided numerous examples leading up to its discussion of school violence. The most helpful involved analogies to playground safety. In short, a city, county, or other municipality is not required to supervise the children in a playground. The governmental entity would not be liable for a child‘s fall in the absence of a dangerous condition. Likewise, the government would not be liable for a physical attack of one child upon another without some pattern of violence that suggests protective measures.

Just as the government is not liable for a single act of violence on the playground, it is not liable for a single act of violence at school. However, if there is a pattern of violence at school, then the school does have a duty to protect its students from such violence. It is not acceptable to ignore the situation–putting students at risk of harm.

The case is very important for a number of reasons. First and foremost, it unequivocally suggests a duty on the part of schools to protect students from harm in a violent atmosphere or other dangerous conditions. This should provide great incentive for schools to reign in patterns of violence for the protection of students providing some peace of mind for students and parents.

Second, on a broader note, it makes clear that governmental entities have the same duties to protect its visitors as any private business. In light of the tremendous traffic–most by necessity–through public buildings, this ruling provides significant protection to the public at large.


Related Reading:
Business Owners‘ Duty of Care to Protect Customers from Criminal Acts
Reexamined Duty of Care in New Mexico Personal Injury Lawsuits
Sorting Out Responsibility in a New Mexico Premises Liability Claim

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