Rodgers v. City of Loving , 91 N.M. 306 ( 1977 )

OPINION

HERNANDEZ, Judge.

This case involves an appeal and a cross appeal. The second point of error on the cross appeal is dispositive of the matter.

The plaintiffs sued the defendants for the wrongful destruction of their buildings and contents and the consequent interruption of their business. The jury returned a verdict in their favor against the City of Loving and James Williams. The defendant Dale Hamilton was dismissed from the suit by order of the Court on an issue which will be discussed later.

On February 28, 1974, Hamilton, (an employee of the City of Loving) while acting under orders, (aided by Williams) was burning dead weeds and grass on the property of Williams’ mother, which adjoins plaintiffs’ property. The fire spread onto plaintiffs’ property, resulting in the destruction of their property and interruption of their business.

The second point of error on the cross appeal is that the trial court erred in giving the following instruction:

“That defendants were engaged in what is known as an abnormally dangerous activity when they engaged in open burning of weeds in the city limits of Loving and in the vicinity of the buildings owned by Quentin and Evelyn Rodgers and that they are strictly liable for the damage resulting therefrom even if they exercised due care in the burning operation.

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“One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent such harm.

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“In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;

(b) Whether the gravity of the harm which may result from it is likely to be great;

(c) Whether the risk cannot be eliminated by the exercise of reasonable care;

(d) Whether the activity is not a matter of common usage;

(e) Whether the activity is inappropriate to the place where it is carried on; and

(f) The value of the activity to the community.”

The second and third instructions above are nearly verbatim copies of § 519(1) and § 520 of the Restatement (Second) of Torts (1965).

The rationale of the rule most generally followed on this question and which we elect to adopt, is the following:

“The dangerous potentialities of fire seem to have been recognized very early. Something approaching strict liability for fire apparently was imposed upon landholders by the early common law. * *

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“The American courts . . have consistently rejected the older rule, and have held, in the absence of legislation, that there is no liability for the escape of fire where the defendant was not negligent. It is recognized, of course, that fire is a dangerous thing, and a great amount of care is required in dealing with it. . But its utility is so great, and it is so clearly sanctioned by universal use, that strict liability, even on the part of industrial enterprises, is not considered convenient or desirable.” W. Prosser, The Law of Torts (4th ed. 1971) § 77, at 503, 504.

Even if we were to apply the rule of strict liability as stated in § 519 and § 520 of the Restatement (Second) of Torts, supra, the instant situation does not present one of the factors necessary for the imposition: “inability to eliminate the risk by the exercise of reasonable care.” The trial court erred in giving the instruction on strict liability.

To aid the trial court on the retrial of this matter we will comment on the first point of error in the cross appeal. This point is that the doctrine of sovereign immunity precludes plaintiffs’ claim against the City of Loving.

The fire occurred on February 28, 1974; however, plaintiffs did not file their suit until July 28,1975. At the time of the fire, Ch. 300, § 14-9-7, 1965 N.M.Laws was in effect:

“No personal action shall be maintained in any court of this state against any member or officer of a municipality for any tort or act done, or attempted to be done, when done by the authority of the municipality or in execution of its orders. In all such cases, the municipality shall be responsible. Any member or officer of the municipality may plead the provisions of this section in bar of such action whether it is now pending or hereafter commenced.”

Chapter 333, §§ 1 and 3, 1959 N.M.Laws, states:

“Section 1. The purpose of this act shall be to provide a means for recovery of damages for death, personal injury or property damage, resulting from the employer’s or employee’s negligence, which occur [sic] during the course of employment for state, county, city, school district, district, state institution, public agency or public corporation, its officers, deputies, assistants, agents and employees.”

“Section 3. Suits may be maintained against the state, county, city, school district, district, state institution, public agency, or public corporation of the state and the persons involved for the negligence of officers, deputies, assistants, agents or such employees in the course of employment; provided, however, no judgment shall run against the state, county, city, school district, district, state institution, public agency or public corporation of the state unless there be liability insurance to cover the amount and cost of such judgment.”

All of these sections were repealed effective July 1, 1975, by Chapter 334, § 18, 1975 N.M.Laws. The same chapter of the statutes included the Public Officers and Employees Liability Act, Ch. 334, §§ 1-17, 1975 N.M.Laws. Section 2 sets out the purpose of the act:

“The purpose of this act is to modify the common-law doctrine of sovereign immunity by providing a permissive method whereby the state or a local public body may elect to protect itself and its officers and employees from personal liability arising out of certain acts committed during the performance of governmental and proprietary activities and to compensate the individuals wrongfully harmed by these actions.”

Section 16 provides:

“The Public Officers and Employees Liability Act does not apply to any claim against a public officer or employee arising before the effective date of the Public Officers and Employees Liability Act.”

The effective date of the Act was July 1, 1975, after the acts at issue had occurred. (The Act was repealed by Ch. 58, § 27, 1976 N.M.Laws.)

The cross appellants contend that since Ch. 333, §§ 1 and 3, 1959 N.M.Laws, supra, were no longer in effect when this suit was filed and Public Officers and Employees Liability Act did not apply, the common law doctrine of sovereign immunity applied and was a bar to plaintiffs’ suit. We do not agree.

As a general rule, if a right is based solely upon a statute, there being no such right at common law, the repeal of the statute abolishes the right, unless the repealing statute includes a saving clause or unless the right has vested. Southern Service Company v. Los Angeles County, 15 Cal.2d 1, 97 P.2d 963 (1940). However, in this state the right of a litigant need not have vested but his claim must be contained in a pending case. Article IV, § 34 of the Constitution of New Mexico provides: “No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.” Since the 1959 and 1965 statutes quoted above were repealed before this action was brought, however, this case was not a “pending case” within the meaning of the Constitution when the statutes were repealed. The constitutional provision does not apply and there is no saving clause in the 1975 Public Officers and Employees Liability Act; nonetheless, the general rule is inapplicable where the new statute continues the basic policy of the old statute that it repeals. That is, even though the language of a repealing statute may be unqualified, if the substance of the previous statute is continued in the new one, it will be regarded as an extension of the old statute, and prior rights although not vested or pending in a case will not abate. The Public Officers and Employees Liability Act continued the policy of limited waiver of sovereign immunity found in Chapter 333, §§ 1 and 3, 1959 N.M.Laws. McLain v. Haley, 53 N.M. 327, 207 P.2d 1013 (1949); State v. Thompson, 37 N.M. 229, 20 P.2d 1030 (1933); Cortesy v. Territory, 7 N.M. 89, 32 P. 504, 19 A.L.R. 349 (1893); Alameda v. Kuchel, 32 Cal.2d 193, 195 P.2d 17 (1948). The City of Loving is therefore subject to liability to the extent of its insurance coverage.

The defendant Hamilton moved that he be dismissed on the basis that he was exempt from suit by the provisions of Chapter 300, § 14-9-7, supra. The trial court granted his motion. Appellants did not appeal Hamilton’s dismissal. Section 14-9-7, supra, was repealed by § 18, supra, but not continued in §§ 1-17.

Appellants contend that the trial court ruled correctly and consequently the City of Loving is solely responsible without limitation as to the amount of liability. Appellants are mistaken. None of the provisions of § 14-9-7, supra, survived its repeal because none of its provisions were continued in the Public Officers and Employees Liability Act.

The judgment of the district court is reversed and the case is remanded for a new trial because of the error in the jury instructions.

IT IS SO ORDERED.

LOPEZ, J., concurs. SUTIN, J., specially concurs and dissents.