By Serafina Lomabrdi, NMAA Staff
It is 7pm on a Saturday night, you get a call from a frantic and upset homeowner along the ditch “My home is on the verge of being flooded by the acequia – I’ll sue your pants off if there is any property damage!”
What comes next?
Ideally the Mayordomo/a checks out the situation, and does what they can to divert the flow of water to the proper place, or stop the flow of water and access the situation. Headgates get opened or closed, repairs may be made or scheduled, possibly a parciante is warned to not let the water go onto a neighbor’s property . . . The homeowner is coached on how to manage the situation.
If there has been damage to someone’s property what is the acequia to do?
Despite all the care we give to the acequia a plethora of mishaps can cause unintended damage and drama. We can attempt to play peacemaker and apologize to the person who is affected, but at the end of the day all parties must understand that under NM law the acequia will not be held liable. Any homeowner who could be affected by acequia flooding should take precautions (this could mean building a berm etc.) and avoid building in an area that would be vulnerable to flooding.
All of us who move the water must exercise caution and wisdom when irrigating but if a parciante is willfully or intentionally flooding a neighbor’s property, this is a separate matter.
Back to the acequia’s liability. If someone threatens a tort claim against the acequia here is what you should know: A tort means a breach of a duty owed by one person or entity (the acequia) to another. The legal way of addressing the claim is usually collecting damages, i.e. the money claimed by a person as compensation for the loss or damage resulting from the breach of duty.
Acequias and their officers, employees, and volunteers are generally immune from most tort liability (though there are a many circumstances and facts of the situation to be considered). Even if damages or injury can be proven, and even if the acequia was negligent, the Tort Claims Immunity Act prevents the acequia from being held liable.
What should the Acequia do when we are being sued?
Anyone can sue, but can they win? If the acequia is being sued, consult with a lawyer immediately and raise the tort claims immunity defense.
When are acequias Liable?: Negligent motor vehicle use
There is one important exception to acequias being shielded from tort liability: a tort caused by the negligent use of a motor vehicle while acting within the scope of their duties. In addition to this exception, acequias and their officers or agents may also be responsible for a wide variety of non-tort claims that may give rise to damages, penalties, and other sanctions imposed on them for failure to comply with the law. An acequia that is being sued and is unsure whether the claim is the type of claim covered by the Tort Claims Immunity Act, should seek legal counsel.
Acequias that anticipate frequent or substantial use of a motor vehicle should contact the Risk Management Division of the State’s General Services Department and inquire about obtaining liability insurance. Acequias may also want to ask about other types of coverage generally.
If a landowner raises concerns of being flooded, it is important to inform them of their need to protect their own property, while still doing everything we can to ensure the acequia is functioning smoothly.