Tort claim filed against county

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By Carol A. Clark

Adam Shipman filed a tort claim notice with the Los Alamos County Clerk’s Office Monday for damage he says was caused to his home at 2399-B 37th Street during phase II of the Diamond Drive Project. A tort claim is a federal or state act which, under certain conditions, waives governmental immunity and allows lawsuits by people who claim they have been harmed by wrongful acts including negligence, by government agencies or their employees.

Shipman states in his claim that the county created a sheer drop on his property line, reaching 12-feet high. In addition to crossing over his property line, Shipman claims the excavation also undercut his property in several places, adding that the encroachment is up to two feet beyond a 20-foot section of the 70.5-foot property line between his house and Diamond Drive.

“The vertical face of the drop is composed of loose soil and existing earth, and it is not structurally supported by any artificial means,” Shipman said. “To date, 59 days since the initial cliff was created, there has not ever been any restraint preventing a fall from my property over the cliff. To be clear, there is not an easement in this section of land.”

Shipman says he met twice with Rey Gonzales, the county’s manager on the project, and said he was never informed of the April 14 excavation of his land.

The excavation destroyed his wood fence and created a “severe safety hazard” for his family, Shipman said, because in addition to the cliff, a large amount of debris with dozens of broken fence pickets with sharp nails exposed was thrown on to his front yard.

“Since I was never approached or notified of the construction that was going to impact my property, I called the county and was connected to Rey Gonzales who agreed to a preconstruction meeting on my property,” Shipman said.

He continued, “In this meeting I had with Rey, I was assured that I would not be impacted in safety or property damage. When I confronted Rey about the destroyed property after the fact, he stated in an e-mail and over the phone that the county had ‘no obligation to me.’ When I told him my resolve to go to the county council meeting that week, he deterred me, stating that it was not the right forum for this and that he would be able to make this right instead.

“I have been told multiple times by Rey, ‘the county has no obligation to you.’ I have called Los Alamos my home for 13 years. I am a homeowner, a taxpayer and a voter. If the county doesn’t have any obligation to me then who are they obligated to?”

Gonzalez addressed the situation during an interview Monday saying the fence in question was actually constructed 4 feet onto the county’s right of way.

He also mentioned that an illegal road cut was discovered leading to the Shipman’s home, which was constructed without county permission.

“If we damaged his property, I’d say we would be obligated to put it back the way it was – but I’m not sure there was any change to his property,” Gonzales said. “This is the first time I’ve ever had an issue of any kind with a property owner. If the contractor did something on his property, then it’s a civil action between him and the contractor. I don’t feel in any way, shape or form that the county has caused any of this.”

Shipman had a conversation April 22 with Mark Otero, a general superintendent with project contractor A.S. Horner, and said the excavation was such a safety hazard that all work had to stop at the site.

“After our conversation, a perimeter was established around the lower portion of the excavation to ensure no one came near the cliff from below,” Shipman said. “An adequate protective barrier has never been established at the top of the cliff either on the county right of way or on my property.”

Shipman expressed his concerns about the danger he said the open cliff presented to him, his wife, 2-year-old daughter and his dogs “multiple times” to Gonzales and Otero.

“The situation was never resolved, and it never appeared that an attempt was ever made to resolve it,” Shipman said.

Otero explained that he wanted to negotiate with Shipman but said Shipman told him he didn’t want to talk because he was mad, had gotten a lawyer and was going to sue the county.

Otero also said that the construction crew redesigned the plan so they aren’t near Shipman’s yard.

“I’m the contractor and I’m stuck between him and the county,” Otero said, adding, “He pretty much said, ‘You can use my property for this much’.”

Otero couldn’t remember the exact figure Shipman allegedly said he wanted but said it was “in the thousands of dollars.”

Shipman said Otero was the one who suggested negotiating and told him and his wife to come up with a figure, then Otero failed to follow through.

The figure presented was so much per square foot, Shipman said, adding that his lawyer handled it and he didn’t readily know the amount.

Gonzales described the contractor as being responsive to the community at large and said they are doing a good job.

 He explained that his job is to be a good steward of the taxpayers’ money and said he can’t be giving things away. He also thanked the community for their patience during the Diamond Drive project.

On June 6, Shipman e-mailed county council members about his situation and he said three councilors have said they would look into the matter.