June 9, 2020- Joseph H. Prewitt v. Los Lunas Schools Board of Education, No. A-1-CA-37641

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in Odyssey
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
JOSEPH H. PREWITT,	2
Plaintiff-Appellant,	3
v. 	No. A-1-CA-37641	4
LOS LUNAS SCHOOLS BOARD OF	5
EDUCATION d/b/a LOS LUNAS	6
SCHOOL DISTRICT, and LOS	7
LUNAS HIGH SCHOOL,	8
Defendants-Appellees.	9
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY	10
James Lawrence Sanchez, District Judge	11
Duhigg, Cronin, Spring & Berlin, P.A.	12
David M. Berlin	13
Robert A. Berlin	14
Albuquerque, NM	15
for Appellant	16
YLAW, P.C.	17
April D. White	18
Albuquerque, NM	19
for Appellees	20
MEMORANDUM OPINION	21
MEDINA, Judge.	22
{1} 	Plaintiff Joseph Prewitt appeals the district court’s order granting Los Lunas	23
Schools Board of Education and Los Lunas High School’s (collectively, Defendants)	24
Court of Appeals of New Mexico
Filed 6/9/2020 10:54 AM

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motion to dismiss based on immunity under the Tort Claims Act (TCA), NMSA	1
1978, §§ 41-4-1 to -30 (1976, as amended 2020). We reverse and remand.	2
BACKGROUND	3
{2} 	Plaintiff alleged the following facts in his complaint.1 Although Plaintiff was	4
home-schooled and was not enrolled as a student at Los Lunas High School, he was	5
a member of the high school cross country team. Defendants furnished a weight	6
room to its student athletes, including Plaintiff, who were encouraged by coaches to	7
use the equipment in the room. Defendants “required that spotters2 be used while	8
student athletes were operating or using various free weight equipment, benches[,]	9
and machines.” As evidence of this requirement, Defendants posted a list of rules on	10
the weight room wall including a rule to “[a]lways [u]se a [s]potter.”	11
{3} 	Plaintiff was performing sit-ups using a twenty-five-pound weight on a bench	12
in the weight room without a spotter. As Plaintiff attempted to get off the bench, the	13
1 The factual background is taken from Plaintiff’s first amended complaint.
We disregard allegations contained in the original complaint to the extent the
amended complaint fails to re-allege them. See Griego v. Roybal, 1968-NMSC-077,
¶ 8, 79 N.M. 273, 442 P.2d 585 (stating that “failure to re-allege allegations of an
original pleading constitutes an abandonment of those allegations not re-alleged”);
see also Rule 1-015(E) NMRA (“In every complaint, answer, or reply, amendatory
or supplemental, the party shall set forth in one entire pleading all matters which, by
the rules of pleading, may be set forth in the pleading, and which may be necessary
to the proper determination of the action or defense.”).
2 A “spotter” is defined, in relevant part, as “one that looks or keeps watch[]
such as . . . a person who assists another during exercise (as to prevent injury)[.]”
See Merriam -Webster Dictionary, https://www.merriam-webster.com/dictionary/
spotter (last visited May 28, 2020).

3
weight slipped and fell, crushing one of his fingers. As a result of his injury, Plaintiff	1
underwent several surgical procedures and incurred extensive medical expenses.	2
{4} 	Plaintiff filed suit, asserting that Defendants were negligent in failing to	3
provide a spotter for Plaintiff. Specifically, Plaintiff alleged that “[t]he safe operation	4
of [the] weight room . . . required that spotters be used while student athletes were	5
operating or using various free weight equipment, benches[,] and machines.”	6
Plaintiff further alleged that Defendants had an “unwritten practice of not providing	7
spotters for the student athletes using the weight room[,]” and claimed that this	8
practice 	violated 	Defendants’ 	posted 	rules 	requiring 	spotters 	and 	constituted	9
negligent operation of the school building, thus waiving Defendants’ immunity	10
under Section 41-4-6(A) of the TCA.	11
{5} 	Defendants admitted that the safe operation of the weight room required the	12
use of spotters but denied that it was negligent or had waived immunity under the	13
TCA. Defendants filed a motion to dismiss on the ground that the facts alleged in	14
the amended complaint were insufficient to support a waiver of immunity under	15
Section 41-4-6. Specifically, Defendants argued that Plaintiff’s complaint did not	16
state a claim concerning the safety of the weight room, but rather presented a claim	17
for failure to supervise students in the weight room for which there is no waiver of	18
immunity under the TCA. The district court found that immunity from suit was not	19

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waived in this case and granted Defendants’ motion to dismiss. This appeal	1
followed.	2
DISCUSSION	3
Standard of Review	4
{6} 	“A motion to dismiss for failure to state a claim under Rule 1-012(B)(6)	5
NMRA . . . tests the legal sufficiency of the complaint, not the facts that support it.”	6
Wallis v. Smith, 2001-NMCA-017, ¶ 6, 130 N.M. 214, 22 P.3d 682. A district court	7
may only grant such a motion “where it appears the plaintiff is not entitled to recover	8
under any state of facts provable under the claim asserted in the complaint.” Young	9
v. Van Duyne, 2004-NMCA-074, ¶ 13, 135 N.M. 695, 92 P.3d 1269. “We review de	10
novo a district court’s order granting or denying a motion to dismiss[.]” State Eng’r	11
of N.M. v. Diamond K Bar Ranch, LLC, 2016-NMSC-036, ¶ 12, 385 P.3d 626. In	12
doing so, “we accept all well-pleaded factual allegations in the complaint as true and	13
resolve all doubts in favor of sufficiency of the complaint.” Valdez v. State, 2002-	14
NMSC-028, ¶ 4, 132 N.M. 667, 54 P.3d 71.	15
The District Court Erred in Granting Defendants’ Motion to Dismiss	16
{7} 	The TCA provides that “[a] governmental entity and any public employee	17
while acting within the scope of duty are granted immunity from liability for any tort	18
except as waived” by certain enumerated exceptions. Section 41-4-4(A). One such	19
exception is for “damages resulting from bodily injury, wrongful death or property	20

5
damage caused by the negligence of public employees while acting within the scope	1
of their duties in the operation or maintenance of any building, public park,	2
machinery, equipment or furnishings.” Section 41-4-6(A). “The waiver applies to	3
more than the operation or maintenance of the physical aspects of the building, and	4
includes safety policies necessary to protect the people who use the building.” Upton	5
v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 9, 140 N.M. 205, 141 P.3d 1259. “For	6
the waiver to apply, the negligent ‘operation or maintenance’ must create a	7
dangerous condition that threatens the general public or a class of users of the	8
building.” 	Id. 	¶ 	8. 	On 	the 	other 	hand, 	“a 	claim 	of negligent supervision,	9
standing alone, is not sufficient to bring a cause of action within the waiver of	10
immunity created by Section 41-4-6.” Leithead v. City of Santa Fe, 1997-NMCA-	11
041, ¶ 8, 123 N.M. 353, 940 P.2d 459.	12
{8} 	The sole issue in this appeal is whether Plaintiff’s claim fails to come within	13
Section 41-4-6’s waiver provision as a matter of law. Defendants argue, as they did	14
below, that Plaintiff only raised a claim for negligent supervision, characterizing	15
Plaintiff’s complaint as raising a “singular allegation that [Defendants] failed to	16
enforce the alleged rule requiring the use of spotters in the weight room[.]”	17
(Emphasis added.) We disagree with this characterization, as Plaintiff’s complaint	18
alleged that Defendants had a “practice of not providing spotters for the students	19
athletes using the weight room.” (Emphasis added.) Plaintiff further alleged that this	20

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practice violated the posted rule requiring students to use spotters, a practice	1
which—as Defendants admitted—was necessary for the safe operation of the weight	2
room. As explained below, we conclude Plaintiff’s allegations are sufficient to	3
withstand Defendants’ motion to dismiss.	4
{9} 	We focus our discussion on two cases to which the parties cite to support their	5
respective positions involving more or less analogous circumstances to the ones in	6
the instant case. Defendants argue that Plaintiff’s claim is analogous to the claim for	7
negligent failure to supervise children on a playground in Espinoza v. Town of Taos,	8
1995-NMSC-070, 120 N.M. 680, 905 P.2d 718. Plaintiff, on the other hand, argues	9
that his claim is more analogous to the claim involved in Leithead, in which this	10
Court held that a claim for negligent provision of lifeguard services at a municipal	11
swimming pool fell under Section 41-4-6’s waiver even though the claim involved	12
elements of negligent supervision. Leithead, 1997-NMCA-041, ¶ 1. We agree with	13
Plaintiff.	14
{10} 	In Espinoza, a child was injured when he fell from a slide on a playground at	15
a town summer camp at a time when the camp employees were inattentive. 1995-	16
NMSC-070, ¶¶ 2-3. The parents sued the town, contending that the absence of	17
adequate supervision was a dangerous condition of the playground for which	18
immunity had been waived. Id. ¶ 4. The district court granted summary judgment in	19
favor of the town, and the parents appealed. Id. Our Supreme Court affirmed, holding	20

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that Section 41-4-6 did “not grant a waiver for claims of negligent supervision.”	1
Espinoza, 1995-NMSC-070, ¶ 8. In distinguishing the case from others in which our	2
appellate courts had previously found waiver because the negligent conduct created	3
an unsafe condition, the Court noted that “the negligent [supervision] itself did not	4
create the unsafe conditions. The playground was a safe area for children. . . . [T]he	5
playground itself, particularly the slide, was not a condition requiring supervision.	6
Rather, it was the day-camp undertaking and not the condition of the premises that	7
gave rise to duty.” Id. ¶ 14.	8
{11} 	Following Espinoza, this Court decided Leithead. In that case, parents sued	9
the City of Santa Fe on behalf of their six-year-old daughter when she nearly	10
drowned in a city pool while in the care of a summer recreational program. 1997-	11
NMCA-041, ¶¶ 2-4. Regulations at the pool required adult supervision for children	12
younger than seven and shorter than forty-eight inches. Id. ¶ 2. However, the child—	13
who did not know how to swim—was allowed to enter the pool without any inquiry	14
as to her height or age because lifeguards at the pool failed to inform the recreational	15
program counselors of these regulations. Id. ¶¶ 2-3. She was later found floating face	16
down, with evidence showing that she had been floating in this fashion for four to	17
five minutes before being discovered. Id. ¶ 3. Following a trial on the merits, the city	18
appealed, arguing that the plaintiffs’ claim was merely for negligent supervision for	19
which there is no waiver of immunity. Id. ¶¶ 4, 7. This Court rejected the city’s	20

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argument, holding that the plaintiffs’ claim was much broader, and that the plaintiffs	1
“correctly argue[d] that when City lifeguards did not adequately perform duties that	2
were essential to public safety, they negligently operated the swimming pool and	3
thereby created a condition on the premises that was dangerous to [the child] and the	4
general public.” Id. ¶¶ 8, 12. In so holding, we noted:	5
A swimming pool without an adequate number of trained lifeguards	6
creates a dangerous condition on the physical premises which affects	7
the swimming public at large. In fact, lifeguard services are so essential	8
to the safety of a swimming pool that they seem akin to other kinds of	9
safety equipment, such as lifelines and ladders, that are fundamental in	10
making the premises reasonably safe for the swimming public. Failure	11
to provide those services in reasonable quantity and quality . . . makes	12
the premises unsafe giving rise to liability under Section 41-4-6 of the	13
[TCA].	14
Leithead, 1997-NMCA-041, ¶ 15.	15
{12} 	Taken as true, Plaintiff’s allegations bring the gravamen of his claim closer to	16
Leithead than Espinoza. In this case, Plaintiff alleged that Defendants encouraged	17
student athletes, such as Plaintiff, to use the weight room, which consisted of various	18
free weight equipment, benches, and exercise machines. Recognizing that it was	19
unsafe for students to lift weights or use the equipment without assistance,	20
Defendants posted a sign requiring students to use spotters. However, Plaintiff	21
alleged, Defendants had an unwritten practice of not providing spotters that violated	22
Defendants’ posted rules. Plaintiff further alleged that Defendants’ failure to provide	23

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a spotter caused the injuries Plaintiff sustained while performing sit-ups on a bench	1
with a twenty-five-pound weight.	2
{13} 	Unlike the playground in Espinoza, which “was not a condition requiring	3
supervision,” 1995-NMSC-070, ¶ 14, Plaintiff alleged, and Defendants admitted, it	4
was unsafe for students to use the weight room without another person watching and	5
physically assisting, if need be, the student lift and re-rack weights (i.e., a spotter).	6
Use of the weight room was not akin to playing on safe playground equipment; it	7
consisted of student athletes lifting heavy weights, weights which could, and indeed	8
did in this case, cause significant injury if mishandled. In this sense, the weight room	9
is more akin to the swimming pool in Leithead, as it is an area that requires the	10
services of a third party to supervise and assist users in order to reduce the danger	11
presented by the use of the premises.3 Just as a lifeguard must keep diligent watch	12
and be ready to dive into the water should someone appear to be drowning, so too	13
must the spotter watch the weight lifter and be prepared to lend a helping hand should	14
the weight prove too difficult to manage.	15
{14} 	To put it another way, the weight room—according to Plaintiff’s allegations	16
and Defendants’ admission—could not be safely operated without spotters, and	17
3 We do not mean to imply that all weight rooms and gyms are inherently
unsafe without spotters but only that the weight room in this case—according to
Plaintiff’s allegations and Defendants’ own admission—was unsafe without the use
of spotters.

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therefore, Defendants’ failure to provide spotters arguably created a dangerous	1
condition affecting all student athletes using the facility. Cf. Leithead, 1997-NMCA-	2
041, ¶ 15 (“A swimming pool without an adequate number of trained lifeguards	3
creates a dangerous condition on the physical premises which affects the swimming	4
public at large.”). For this reason, we conclude Plaintiff’s allegations present more	5
than a claim for mere negligent supervision but rather a claim for negligent failure	6
to provide services necessary to safely operate the weight room—a claim which falls	7
within the waiver provision of Section 41-4-6. See Upton, 2006-NMSC-040, ¶ 16	8
(“Section 41-4-6 waives immunity for the operation or maintenance of a public	9
building, which may include proof of negligent acts of employee supervision that is	10
part of the operation of the building.”).	11
{15} 	Defendants dispute such a conclusion, pointing out that “the [c]omplaint is	12
devoid of facts from which it could be reasonably inferred there was anything	13
innately unsafe about the weight room.” However, this ignores the fact that	14
Defendants admitted that “[t]he safe operation of [the] weight room . . . required that	15
spotters be used while student athletes were operating or using various free weight	16
equipment, benches and machines.” “Facts admitted in a pleading by an adverse	17
party do not need to be proven.” Slemmons v. Massie, 1984-NMSC-108, ¶ 7, 102	18
N.M. 33, 690 P.2d 1027. Given Plaintiff’s allegations, which we must accept as true,	19

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see Valdez, 2002-NMSC-028, ¶ 4, and Defendants’ admission, we conclude the	1
district court improperly granted Defendants’ motion to dismiss.4
2
{16} 	Defendants also rely on Upton, 2006-NMSC-040, and Kreutzer v. Aldo	3
Leopold High School, 2018-NMCA-005, 409 P.3d 930, to argue that Plaintiff’s	4
claim fails to satisfy Section 41-4-6 because he did not allege many of the facts	5
which were involved in Upton and were noticeably absent in Kreutzer. However,	6
those cases involved significantly different situations. In Upton, a student died as a	7
result of an asthma attack after her substitute teacher required her to participate in	8
strenuous exercise during a physical education class in violation of an individualized	9
education plan and school employees failed to administer CPR or call 911 in a timely	10
manner. 2006-NMSC-040, ¶¶ 2-6. In Kreutzer, a student attacked another student in	11
a high school parking lot that had no known history for being unsafe. 2018-NMCA-	12
005, ¶¶ 2-9. Importantly, neither of these cases involved incidents that took place at	13
a location that was inherently dangerous to use without the supervision and support	14
of a third party. See Upton, 2006-NMSC-040, ¶ 19 (noting that “a school building is	15
not as inherently dangerous as a swimming pool”); Kreutzer, 2018-NMCA-005, ¶ 77	16
(noting that “[t]he unsupervised public school parking lot in this case bears no	17
similarity to a public swimming pool without the lifeguards and safety equipment	18
4 We note that the questions of whether Defendants, in fact, had a duty to
provide spotters and whether Defendants breached this duty are not before us at this
time. Accordingly, we do not address these issues.

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required 	by regulations”). 	In 	light 	of 	Plaintiff’s 	allegations 	and 	Defendants’	1
admission concerning the necessity of spotters in order to safely operate the weight	2
room, Defendants’ reliance on these cases is misplaced.	3
CONCLUSION	4
{17} 	For the foregoing reasons, we reverse and remand for further proceedings	5
consistent with this opinion.	6
{18} 	IT IS SO ORDERED.	7
______________________________	8
JACQUELINE R. MEDINA, Judge	9
WE CONCUR:	10
_____________________________	11
KRISTINA BOGARDUS, Judge	12
_____________________________	13
BRIANA H. ZAMORA, Judge	14