David RUTHERFORD, as Personal Representative of the Estate of Rhonda Adele Rutherford, Deceased; David Rutherford and Bobbie Flenniken, Individually and as Co-Personal Representatives of the Estates of Taletha Jean Rutherford, Deceased and Joseph Thornton Rutherford, Deceased; John Rutherford; and Michael and Debra Thomas, Individually and as Co-Personal Representatives of the Estate of Donovan J. Thomas, Deceased, Plaintiffs-Appellants, v. CHAVES COUNTY and Board of County Commissioners of Chaves County, Defendants-Appellees, 132 N.M. 289

OPINION FRY, Judge. {1} Plaintiffs appeal from

summary judgment in favor of Defendant Chaves County based on sovereign immunity. We hold that the County was not immune to suit in this case because the County’s allegedly negligent acts constitute highway maintenance, for which the Tort Claims Act (TCA) waives immunity. Accordingly, we reverse. BACKGROUND {2} This is an action for personal injury and wrongful death based on an accident that occurred in July 1996 on Spence Road in Chaves County, New Mexico. Spence Road is a short local access road that intersects Walnut Creek. Walnut Creek is normally a dry arroyo under U.S.

Highway 285 that crosses Spence Road through a dip. There are signs on Spence Road on both sides of the dip at appropriate intervals approaching Walnut Creek warning motorists of the “DIP” and to “WATCH FOR WATER.” {3} On the evening of July 14, 1996, rain on the nearby flood plain and mountains caused Walnut Creek to flow at flood stage across Spence Road, although there was no rain in the immediate vicinity. Two vehicles attempted to drive through the water.

The driver of one of the vehicles was Plaintiff John Rutherford, who was returning home from a party with his wife, Rhonda Adele Rutherford, their two children, Taletha Jean Rutherford and Joseph Thornton Rutherford, and another child, Donovan J. Thomas. The rapidly running water carried Rutherford’s car downstream. Rutherford was able to escape from the car, but his wife and all three children drowned. {4} At the time of the accident, it was the County’s practice to use portable barricades to close Spence Road when it received notification that the arroyo was flooding.

On this particular night, someone told the County sheriffs department that the arroyo was flooding, and the sheriffs department notified the County road department. The road department’s employees were on their way to Spence Road with the barricades when Rutherford attempted to drive through the water. {5} Rutherford and the personal representatives of the decedents’ estates (Plaintiffs) sued the County, claiming that the County could have done more in the event of flooding to prevent injury to motorists on Spence Road. Plaintiffs theorized that the County was negligent in several ways.

Plaintiffs contended the County was negligent in relying on a purely reactive system of dealing with flooding; however, if a reactive system was appropriate, the County negligently failed to include safeguards such as an effective means of communication among public agencies and a systematic approach to flooding. Alternatively, Plaintiffs claimed the County could have implemented a proactive system of dealing with flooding, such as a system of monitoring weather that would permit anticipation of flood conditions. {6} The County sought

summary judgment, arguing that the TCA’s waiver of sovereign immunity for the negligence of public employees in the “maintenance” of a highway does not include the negligent acts or omissions alleged by Plaintiffs. The district court agreed and granted

summary judgment against Plaintiffs. DISCUSSION {7} We review a grant of

summary judgment in the light most favorable to the party opposing the motion. Pollock v. State Highway & Transp. Dep’t, 1999-NMCA-083, ¶ 5, 127 N.M. 521, 984 P.2d 768. The determination of whether governmental immunity under the New Mexico Tort Claims Act bars a tort claim is a question of law which we review de novo. Godwin v. Mem’l Med. Ctr., 2001-NMCA-033, ¶ 23, 130 N.M. 434, 25 P.3d 273, certs. granted, 130 N.M. 459, 26 P.3d 103 (2001). {8} At issue is NMSA 1978, § 41-4-11 (1991) of the Tort Claims Act: A. The immunity granted pursuant to Subsection A of

Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area. B. The liability for which immunity has been waived pursuant to Subsection A of this

section shall not include liability for damages caused by: (1) a defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; (2) the failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area[.] The statute thus waives immunity for maintenance of a highway but not for the design of a highway. {9} We note at the outset that the County seems to have mischaracterized the issue to be decided in this appeal.

The County focuses on only one of Plaintiffs’ allegations of negligence — the failure to implement a proactive weather forecasting system to predict flooding. Through this narrow prism, the County then appears to equate the tort concept of duty with the concept of sovereign immunity; it seems to argue that the TCA’s specific waivers of immunity also define a governmental entity’s duty.

From this the County concludes that the legislature could not have intended to waive immunity for a road maintenance entity’s failure to establish a weather forecasting system. {10} We disagree with the County’s characterization of the issue for two reasons. First, by focusing on Plaintiffs’ theory for a proactive system of flood prediction, the County has overlooked the crux of Plaintiffs’ negligence theory, which is that the County failed to place barricades on Spence Road before flood waters reached dangerous levels.

Plaintiffs posited several actions the County could have taken to achieve this end, including: (1) surveying the County to determine areas in which rainfall culminates in the flooding of road crossings; (2) monitoring “the sky, weather reports, reports from citizens and other agencies and entities to be prepared for a flooding situation before flooding actually occurs”; (3) “educating the public that the road department and the sheriffs department are relying on the public for phone calls to warn them of potential ... or actual flooding situations”; (4) “coordinat[ing] efforts between the sheriffs department and road department to report flooding conditions”; and (5) having a telephone that was answered after regular working hours, given the existing dependence on public reporting.

All of these actions theoretically could provide the County with information that would permit it to place barricades when they were needed. Thus, contrary to the County’s argument, we must assess whether the County’s failure to place barricades at the appi’opriate time constitutes highway maintenance for which the TCA has waived immunity. {11} Second, the concepts of duty and immunity under the TCA are distinct.

It is established law that the TCA cannot be viewed as a source of duties to be imposed on government entities. “Duty or responsibility is not provided in the Tort Claimfs] Act; it must be found outside the Act either at common law or by statute.” Johnson v. Sch. Bd. of Albuquerque Pub. Sch. Sys., 114 N.M. 750, 751, 845 P.2d 844, 845 (Ct.App.1992); see also Fireman’s Fund Ins. Co. v. Tucker, 95 N.M. 56, 59, 618 P.2d 894, 897 (Ct.App.1980) (“No new duties are created by the Tort Claims Act.”). {12} Moreover, the duty the County owed to Plaintiffs in the present case is well established by the common law.

The parties do not dispute that the County had the responsibility to maintain the road in question. This responsibility to maintain is simply another way of saying that the County, as opposed to some other governmental entity, has jurisdiction over the road in question. This responsibility in turn gives rise to a duty to the public: “the [State] Department [of Transportation] has always had the common-law duty to exercise ordinary care to protect the general public from foreseeable harm on the highways of the state.” Lerma v. State Highway Dep’t, 117 N.M. 782, 784, 877 P.2d 1085, 1087 (1994).

It follows that counties have the same duty of care with respect to the maintenance of roads and highways under their jurisdiction. {13} In the context of this established duty of care, there may arise issues of whether the harm sought to be remedied is foreseeable to the highway authority. See, e.g., Ryan v. N.M. State Highway & Transp. Dep’t, 1998-NMCA-116, ¶ 14, 125 N.M. 588, 964 P.2d 149 (holding that highway department’s duty to remedy the danger of elk crossing the highway was contingent on a jury finding that highway department had notice of the danger). Here, there is no such issue.

It is undisputed that the County knew Spence Road flooded at times, as evidenced by the sign warning motorists to watch for water and by the County’s longstanding practice of erecting barricades when the road was flooded. Consequently, there is no question that the County owed Plaintiffs the duty to exercise ordinary care to protect them to some extent from the danger of flooding. {14} It is the extent of effort required that is the source of the County’s concern.

In the County’s view, it should not be required to take the extreme step of establishing its own weather forecasting system in order to predict flooding on Spence Road. In our view, this is a question of whether the County breached its common law duty of care-not a question of sovereign immunity.

If the TCA waives immunity for the County’s alleged acts of negligence in this case-an entirely separate question-it is a fact question whether the County’s posting of warning signs constituted sufficient effort to satisfy its duty to use ordinary care, or whether the County should have taken additional steps to remedy the danger.

See Lerma, 117 N.M. at 784, 877 P.2d at 1087 (explaining that “[i]t is for the factfinder to decide whether [highway department’s] duty includes either the erection or maintenance of fences along an urban freeway” where plaintiff teenager climbed fence adjacent to freeway and was struck while crossing the freeway); Rickerson v. State, 94 N.M. 473, 476, 612 P.2d 703, 706 (Ct.App.1980) (stating that, in a case where TCA maintenance waiver applies, it is a jury question whether highway department was negligent in failing to install adequate signals at intersection).

That fact question is not before us and it was not before the trial court. {15} This leads us to the issue before this Court: whether the County’s alleged negligent acts or omissions constitute maintenance for the purpose of the TCA’s waiver of immunity. We look to Plaintiffs’ specific allegations to determine whether they involve maintenance. Blackburn v. State, 98 N.M. 34, 36, 644 P.2d 548, 550 (Ct.App.1982).

Here, the complaint alleged only that the County was negligent “in maintaining or failing to properly maintain the culvert, highway, roadway, and street.” However, as previously noted, Plaintiffs argued that the County was negligent in failing to barricade Spence Road before flooding reached a dangerous level. Plaintiffs’ expert, David Steitle, explained that the County’s present system does not help the County determine the critical time for erecting barricades.

The present system relies on after-the-fact citizen reporting which can result in the County responding to flooding conditions too late to be preventive. He noted that Walnut Creek runs for many miles before it reaches the site of the accident. Consequently, by the time flood waters reach the Spence Road crossing, it is too late to warn motorists of the danger. In addition, Steitle testified that even if the County’s reactive system was an appropriate means for coping with flooding, the system as it now exists is inefficient and disorganized.

The County relies on citizens to report flooding when it occurs, but citizens have no way of notifying the County after hours because no one at the County’s offices answers the phone at that time.

A citizen’s only recourse would be to contact the sheriffs department which would then contact the County’s road department via cell phone, but this roundabout, uncoordinated reporting method could result in potentially dangerous delay. {16} Steitle further testified that, as an alternative to the existing reactive system, the County could institute a proactive system that might include monitoring of weather radar or the National Weather Service to determine where rainfall is likely or has occurred.

If such monitoring were unavailable or impractical, the County could use “the eyes and ears of the sheriffs department” as a weather monitoring system that would report to the County road department. This would require a coordinated system of communieation between the sheriffs department and the road department. {17} Thus, contrary to the dissent’s view of this case, Plaintiffs’ allegations of negligence rested not only on the failure to implement a proactive system of weather monitoring but also and alternatively on the failure to impose some organization and efficiency on the existing reactive system.

It is clear from Steitle’s testimony that at the heart of these various theories of liability is the notion that the County should have done something more than it did to determine when to prevent motorists from attempting to cross Walnut Creek at times of flooding. A review of our case law on this subject convinces us that this notion is the same thing as saying that the County negligently maintained Spence Road. {18} This Court has analyzed

Section 41-4-11 on numerous occasions and has determined that the following activities do not constitute highway maintenance: permitting dogs to roam loose on streets in violation of animal control ordinances, Smith v. Village of Corrales, 103 N.M. 734, 737, 713 P.2d 4, 7 (Ct.App.1985); issuing a driver’s license without proof of insurance, Dunn v. State ex rel. Taxation & Revenue, 116 N.M. 1, 5, 859 P.2d 469, 473 (Ct.App.1993); and failing to install wheelchair ramps on sidewalks, Villanueva v. City of Tucumcari, 1998-NMCA-138, ¶ 8, 125 N.M. 762, 965 P.2d 346.

In addition, our appellate courts have held that other activities are highway maintenance under the TCA: failing to warn that a right lane is not a right-turn lane, Blackburn, 98 N.M. at 36, 644 P.2d at 550; failing to warn of or correct an allegedly dangerous intersection, Grano v. Roadrunner Trucking, Inc., 99 N.M. 227, 228, 656 P.2d 890, 891 (Ct.App.1982); issuing a highway permit to an oversize vehicle during a busy holiday weekend, Miller v. N.M.

Dep’t of Transp., 106 N.M. 253, 255, 741 P.2d 1374, 1376 (1987), abrogated by NMSA 1978, § 41-4-3(E)(1) (1995) (stating, pursuant to 1991 amendment, that “ ‘maintenance’ does not include ... conduct involved in the issuance of a permit, driver’s license or other official authorization to use the roads or highways of the state in a particular manner”); negligently locating a school bus stop, Gallegos v. Sch. Dist. of W.

Las Vegas, 115 N.M. 779, 781, 858 P.2d 867, 869 (Ct.App.1993); failing to erect or maintain a fence alongside a highway, Lerma, 117 N.M. at 784, 877 P.2d at 1087; failing to warn of the presence of elk in the vicinity of a. highway, Ryan, 1998-NMCA-116, ¶¶ 2-4, 125 N.M. 588, 964 P.2d 149; and failing to post “wrong way” signs on freeway exit ramps, Pollock, 1999-NMCA-083, ¶8, 127 N.M. 521, 984 P.2d 768. {19} At first blush, the alleged negligence in this case seems more like the activities that have been held to constitute maintenance. Closer scrutiny bears this out.

Although highway maintenance has been defined as “care or upkeep,” Smith, 103 N.M. at 736, 713 P.2d at 6, this Court has consistently held that allegations of inadequate or absent traffic controls fall within

Section 41-4-11’s waiver of immunity for highway maintenance. Gallegos, 115 N.M. at 781, 858 P.2d at 869; Grano, 99 N.M. at 228, 656 P.2d at 891; Blackburn, 98 N.M. at 36, 644 P.2d at 550; Rickerson, 94 N.M. at 476, 612 P.2d at 706. Here, Plaintiffs alleged the County could have and should have done something more than it did to determine when to barricade Spence Road in order to prevent motorists from crossing Walnut Creek at times of flooding, which is the same thing as saying that the County’s existing methods of traffic control were inadequate.

Plaintiffs’ allegations all make one basic contention: the County failed to achieve one objective-the timely controlling of traffic on Spence Road to keep it from entering the Walnut Creek crossing when water was high. This objective is entirely consistent with the notion of highway maintenance as developed by our appellate courts. {20} Moreover, contrary to the dissent’s perspective, our case law has not limited the concept of maintenance to “fixed remedies” for static dangerous conditions. Dissent ¶ 42.

For example, the location of the school bus stop in Gallegos and the placement of elk warning signs in Ryan were remedies that may need to be changed as governmental entities learn or should learn about changes in the needs of school children or in the movement of elk. The concept of highway maintenance must have some fluidity in accordance with what government knows or should know about dangerous highway conditions. {21} “The sole purpose of waiver in

Section 41^4-11(

A) is to ensure that highways are made and kept safe for the traveling public.” Miller, 106 N.M. at 255, 741 P.2d at 1376 (emphasis omitted). Plaintiffs’ theory of the County’s liability is consistent with this purpose and with the relevant precedent, and we therefore hold that the County is not immune from suit. CONCLUSION {22} We reverse

summary judgment in favor of the County and remand for proceedings consistent 'with this opinion. {23} IT IS SO ORDERED. I CONCUR: LYNN PICKARD, Judge. JONATHAN B. SUTIN, Judge (dissenting).