Fireman's Fund Insurance v. Tucker

(specially concurring).

I join in the result reached by the majority, however, I disagree with their reasoning.

Because liability under the Tort Claims Act is based upon traditional tort concepts of duty and because (at the present stage of this case) we must consider that the Highway Department is liable under § 30-8-13(B), N.M.S.A.1978, the majority hold that the waiver of immunity in the maintenance of highways includes a waiver of immunity in the maintenance of fences. This reasoning disregards the plain wording of § 41-4-4(A), N.M.S.A.1978 (1979 Cum.Supp.); there is immunity except as…