2018 New Mexico Statutes
Chapter 41 - Torts
Article 3A - Several Liability
Section 41-3A-1 - Several liability.

A. In any cause of action to which the doctrine of comparative fault applies, the doctrine imposing joint and several liability upon two or more wrongdoers whose conduct proximately caused an injury to any plaintiff is abolished except as otherwise provided hereafter. The liability of any such defendants shall be several.

B. In causes of action to which several liability applies, any defendant who establishes that the fault of another is a proximate cause of a plaintiff's injury shall be liable only for that portion of the total dollar amount awarded as damages to the plaintiff that is equal to the ratio of such defendant's fault to the total fault attributed to all persons, including plaintiffs, defendants and persons not party to the action.

C. The doctrine imposing joint and several liability shall apply:

(1) to any person or persons who acted with the intention of inflicting injury or damage;

(2) to any persons whose relationship to each other would make one person vicariously liable for the acts of the other, but only to that portion of the total liability attributed to those persons;

(3) to any persons strictly liable for the manufacture and sale of a defective product, but only to that portion of the total liability attributed to those persons; or

(4) to situations not covered by any of the foregoing and having a sound basis in public policy.

D. Where a plaintiff sustains damage as the result of fault of more than one person which can be causally apportioned on the basis that distinct harms were caused to the plaintiff, the fault of each of the persons proximately causing one harm shall not be compared to the fault of persons proximately causing other distinct harms. Each person is severally liable only for the distinct harm which that person proximately caused.

E. No defendant who is severally liable shall be entitled to contribution from any other person, nor shall such defendant be entitled to reduce the dollar damages determined by the factfinder to be owed by the defendant to the plaintiff in accordance with Subsection B of this section by any amount that the plaintiff has recovered from any other person whose fault may have also proximately caused injury to the plaintiff.

F. Nothing in this section shall be construed to affect or impair any right of indemnity or contribution arising out of any contract of agreement or any right of indemnity otherwise provided by law.

G. Nothing in this section creates or recognizes, either explicitly or impliedly, any new or different cause of action not otherwise recognized by law. Nothing in this section alters the doctrine of proximate cause.

History: Laws 1987, ch. 141, § 1.

Effective dates. — Laws 1987, ch. 141 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 19, 1987, 90 days after the adjournment of the legislature.

Applicability. — Laws 1987, ch. 141, § 5 made this section applicable to all civil actions initially filed on and after July 1, 1987.

Section 41-3A-1 NMSA 1978 did not change the New Mexico common law regarding vicarious liability, because vicarious liability is a legal fiction imputing the wrongdoing of an agent to a principal who are not joint tortfeasors. Valdez v. R-Way, LLC, 2010-NMCA-068, 148 N.M. 477, 237 P.3d 1289, cert. denied, 2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.

Employer's liability under the doctrine of respondeat superior. — Where an employer's liability arises only by virtue of the doctrine of respondeat superior, and not through any independent negligence of the employer, the employer and the employee are not true joint tortfeasors. Valdez v. R-Way, LLC, 2010-NMCA-068, 148 N.M. 477, 237 P.3d 1289, cert. denied, 2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.

Where plaintiff's vehicle was rear-ended by a vehicle driven by defendant's employee; plaintiff sued defendant's employee for negligence and claimed that defendant was vicariously liable based on respondeat superior; plaintiff and defendant's employee settled; plaintiff fully released defendant's employee for all claims arising from the accident; in the release, plaintiff specifically preserved plaintiff's claim against defendant, the release of defendant's employee released defendant despite the reservation of plaintiff's claim against defendant because defendant's liability was imputed solely based on the negligent conduct of defendant's employee, without fault of defendant, and the release of defendant's employee removed the basis on which defendant's fault was imputed. Valdez v. R-Way, LLC, 2010-NMCA-068, 148 N.M. 477, 237 P.3d 1289, cert. denied, 2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.

Successive torfeasor exception. — Where tortfeasor and other defendants were involved in a chain reaction automobile accident, the fact that there were multiple and separate collisions is not enough by itself to establish successive tortfeasor liability and the lapse of time between the various chain reaction impacts is not enough to deem the other defendants successive tortfeasors. Gulf Ins. Co. v. Cottone, 2006-NMCA-150, 140 N.M. 728, 148 P.3d 814.

The inherently dangerous activity exception does not apply in a chain reaction automobile accident where there is no connection between the activities of the tortfeasor who was a transporter of liquid carbon dioxide and the activities of other defendants who were travelers on the roadway. Gulf Ins. Co. v. Cottone, 2006-NMCA-150, 140 N.M. 728, 148 P.3d 814.

New Mexico has statutorily adopted majority view as articulated in Subsection C(1) of this section. Garcia v. Gordon, 2004-NMCA-114, 136 N.M. 394, 98 P.3d 1044.

Application of comparative-fault principles. — Where the jury only found that defendant's belief that plaintiff was resisting, evading, or obstructing an officer was "unreasonable" and it did not find that defendant acted with the intention of inflicting injury or damage, application of comparative-fault principles is not inconsistent with public policy. Garcia v. Gordon, 2004-NMCA-114, 136 N.M. 394, 98 P.3d 1044.

Unlawful acts doctrine inapplicable. — The extension of the unlawful acts rule, a common law rule of law that a person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal act or transaction to which he is a party, would abrogate judicially and legislatively mandated comparative fault analysis in a wide range of tort claims. Rodriguez v. Williams, 2015-NMCA-074, cert. denied, 2015-NMCERT-006.

Where plaintiff's blood alcohol content was .076 at the time defendant, who was also intoxicated, ran a red light and struck plaintiff's vehicle, plaintiff was not precluded by the unlawful acts doctrine from recovering damages attributed to defendant's comparative negligence. Rodriguez v. Williams, 2015-NMCA-074, cert. denied, 2015-NMCERT-006.

Test for successive or concurrent tortfeasors. — Several factors are relevant in determining whether tortfeasors are successive or concurrent. These factors include: 1) the identity of time and place between the acts of alleged negligence; 2) the nature of the cause of action brought against each defendant; 3) the similarity or differences in the evidence relevant to the causes of action; 4) the nature of the duties allegedly breached by each defendant; and 5) the nature of the harm or damages caused by each defendant. Haceesa v. United States, 309 F.3d 722 (10th Cir. 2002).

Elements of successive tortfeasor liability. — Under successive tortfeasor liability theory, a plaintiff must prove that a first injury is caused by an original tortfeasor and that that injury then casually led to a second distinct injury, or a distinct enhancement of the first injury, caused by a successive tortfeasor. Payne v. Hall, 2006-NMSC-029, 139 N.M. 659, 137 P.3d 599.

Where there are genuine issues of material fact as to causation, summary judgment is improper on successive tortfeasor claim. — In a wrongful death claim premised on joint and several liability, where law enforcement officers, while arresting decedent, hogtied and dragged decedent on rough pavement down the driveway, causing injuries which required hospital care, where negligent medical treatment resulted in decedent's death, plaintiffs presented evidence pointing to genuine issues of material fact as to whether defendants were jointly and severally liable for the death of decedent, specifically as to whether defendants' negligence caused decedent to suffer personal injuries and whether it was foreseeable that those injuries required medical attention. The district court erred in granting defendants' motion for summary judgment. Bustos v. City of Clovis, 2016-NMCA-018, cert. denied, 2016-NMCERT-001.

Successive tortfeasors. — Government-owned hospital that misdiagnosed the decedent's condition first and another hospital that misdiagnosed it days later were successive tortfeasors where the hospitals' alleged negligence occurred days apart from one another and in different locations, the decedent's hantavirus symptoms were more severe when he presented himself to the second hospital than they were when he went to the government-owned hospital, and the duty owed by the hospitals differed because of the advanced state of the decedent's condition. Haceesa v. United States, 309 F.3d 722 (10th Cir. 2002).

Successive tortfeasor liability jury instruction. — Jury instruction that "When a person causes an injury to another which requires medical treatment, it is foreseeable that the treatment, whether provided properly or negligently, will cause additional harm. Therefore, the person causing the original injury is also liable for the additional injury caused by the subsequent medical treatment, if any" properly set forth successive tortfeasor liability. Payne v. Hall, 2006-NMSC-029, 139 N.M. 659, 137 P.3d 599.

Nonnegligent party cannot be held jointly liable or subject to right of contribution. Parker v. E.I. Du Pont de Nemours & Co., 1995-NMCA-086, 121 N.M. 120, 909 P.2d 1.

The application of traditional indemnification is limited to cases premised on vicarious liability. — Traditional indemnification would allow a party who has been found liable without active fault to seek restitution from someone who was actively at fault. Traditional indemnity does not apply when the jury finds a tortfeasor actively at fault and apportions liability using comparative fault principles. One held vicariously liable has an action for traditional indemnification against the person whose act or omission gave rise to the vicarious liability. The legislature left traditional indemnification as the only scheme for a passive joint tortfeasor to recover from the active joint tortfeasor under the four categories of vicarious and derivative liability listed in 41-3A-1(C) NMSA 1978. The application of traditional indemnification is limited to cases truly premised on vicarious or derivative liability. Safeway, Inc. v. Rooter 2000 Plumbing & Drain SSS, 2016-NMSC-009, rev'g 2013-NMCA-021, 297 P.3d 347.

In an appeal arising out of a cross-claim for contractual and traditional indemnification, where contractor negligently installed a diaper changing table in a grocery store belonging to petitioner, and the changing table collapsed causing injuries to plaintiffs, and where, at trial, the jury returned a comparative fault special verdict form, finding petitioner 40% at fault for either failing to exercise ordinary care to provide proper hardware to contractor, failing to supervise the installation of the diaper changing table, or failing to conduct reasonable inspections of the table between the time of installation and the time of plaintiffs' injuries, petitioner sought defense, indemnification, contribution, and damages pursuant to both New Mexico common law and an agreement between contractor and petitioner which provided that contractor would indemnify and defend petitioner for any damages in connection with any cause of action arising from any negligence of contractor. Traditional indemnification was not applicable because plaintiffs clearly advanced, and the jury found, theories of liability that alleged petitioner to be an active tortfeasor, and this was not a true vicarious liability case that would entitle petitioner to traditional indemnity because the jury found petitioner actively at fault. Safeway, Inc. v. Rooter 2000 Plumbing & Drain SSS, 2016-NMSC-009, rev'g 2013-NMCA-021, 297 P.3d 347.

No joint and several liability found. — Electric cooperative could not be held jointly and severally liable for a homeowner's share of fault arising from the death of plaintiff's decedent who was electrocuted while doing construction work on the homeowner's property. Abeita v. N. Rio Arriba Elec. Coop., 1997-NMCA-097, 124 N.M. 97, 946 P.2d 1108.

There is no right to reduction of jury award based on out-of-court settlements when the case is tried on a theory of comparative fault. Atler v. Murphy Enters., Inc., 2005-NMCA-006, 136 N.M. 701, 104 P.3d 1092, cert. quashed, 2005-NMCERT-008, 138 N.M. 330, 119 P.3d 126.

Consideration of co-tortfeasor settlement. — Because a joint tortfeasor who is severally liable is not entitled to contribution, the judgment against that joint tortfeasor will not be reduced by any amount the plaintiff has recovered from any other joint tortfeasor. Servants of Paraclete, Inc. v. Great Am. Ins. Co., 866 F. Supp. 1560 (D.N.M. 1994).

In an action by a subcontractor's workers against the operators of a natural gas well for injuries from a well explosion, since the verdict was based upon principles of comparative fault, negligence, and several liability, the trial court's reduction of the verdict by the amount paid to the workers in settlement by other subcontractors was erroneous. Hinger v. Parker & Parsley Petroleum Co., 1995-NMCA-069, 120 N.M. 430, 902 P.2d 1033, cert. denied, 120 N.M. 213, 900 P.2d 962.

Liability of negligent co-tortfeasor. — Although this section does not address the liability of a negligent tortfeasor when a co-tortfeasor committed an intentional tort, liability of a negligent employer sued for the acts of an employee can still be found by extending the doctrine of respondeat superior to hold that an employer who is liable for negligently hiring an intentional tortfeasor should be vicariously liable for the fault attributed to the tortfeasor-employee even if the employee did not act in the scope of employment. Medina v. Graham's Cowboys, Inc., 1992-NMCA-016, 113 N.M. 471, 827 P.2d 859.

Aided-in-agency theory. — An employer is not generally liable for an employee's intentional torts, because an employee who intentionally injures another individual is generally considered to be acting outside the scope of his or her employment. Under the aided-in-agency theory, however, an employer may be held liable for the intentional torts of an employee acting outside the scope of his or her employment if the employee was aided in accomplishing the tort by the existence of the agency relationship. Spurlock v. Townes, 2016-NMSC-014.

Aided-in-agency theory limited in New Mexico. — New Mexico's adoption of aided-in-agency principles extending vicarious liability is limited to cases where an employee has by reason of his employment substantial power or authority to control important elements of a vulnerable tort victim's life or livelihood. Spurlock v. Townes, 2016-NMSC-014.

Where an on-duty corrections officer used the authority vested in him by his position as a corrections officer to coerce plaintiffs, who were inmates entrusted to his care, into submitting to sexual assault and false imprisonment, the private prison was vicariously liable for compensatory damages caused by the intentional torts of the corrections officer employee when he was aided in accomplishing his assaults by his agency relationship with the private prison and the warden, who were the corrections officer's employers. Spurlock v. Townes, 2016-NMSC-014.

Percentage of fault. — The defendant's liability for the injuries sustained by the plaintiff must be reduced by the percentage of fault attributable to the other defendant. The district court must determine the defendants' percentages of fault and must then reduce the defendant's liability in accordance with the percentages of fault attributable to the other defendant and the plaintiff. Barth v. Coleman, 1994-NMSC-067, 118 N.M. 1, 878 P.2d 319.

Retailer and manufacturer liability. — Extending strict liability to nonnegligent retailers provides two sources from which the injured consumer can obtain relief: the retailer and the manufacturer, and the former may seek indemnification from the latter for any loss suffered. Trujillo v. Berry, 1987-NMCA-072, 106 N.M. 86, 738 P.2d 1331, cert. denied sub nom., H & P Equip. Co., 106 N.M. 24, 738 P.2d 518.

Burden of proof in subsequent medical negligence. — In claims against a subsequent medical tortfeasor the standard adopted in Lujan v. Healthsouth Rehabiltation Corp., 1995-NMSC-057, 120 N.M. 422, 902 P.2d 1025 applies: the plaintiff must prove 1) that the successive tortfeasor's negligence resulted in injuries separate from and in addition to the injuries caused from the initial tort, and 2) the degree of enhancement caused by the medical treatment by introducing evidence of the injuries that would have occurred absent physician's negligence. Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972.

A physician accused of subsequent medical negligence may rebut the plaintiff's evidence of causation through evidence of the initial tortfeasor's responsibility for the entire harm. Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972.

Peculiar risk of harm. — When an employer hires an independent contractor to do work that the law recognizes as likely to create a peculiar risk of harm, the employer is jointly and severally liable for harm resulting if reasonable precautions are not taken against the risk. The liability is direct, not vicarious, and what the independent contractor knew or should have known is not at issue. This imposition of joint and several liability on the employer of an independent contractor falls within the public policy exception of Subsection (C)(4) to the general abolition of joint and several liability set forth in this section. Saiz v. Belen Sch. Dist., 1992-NMSC-018, 113 N.M. 387, 827 P.2d 102.

Inherently dangerous activities. — Felling large dead trees is an inherently dangerous activity, giving rise to joint and several liability under the "public policy" exception of Subsection C(4). Enriquez v. Cochran, 1998-NMCA-157, 126 N.M. 196, 967 P.2d 1136, cert. denied, 126 N.M. 532, 972 P.2d 351 (1998).

Nondelegable duty does not apply to employees of subcontractors. — Generally, engaging in work that is inherently dangerous or carries peculiar risks creates a nondelegable duty of care that can only be effectively enforced through imposition of joint and several liability. Joint and several liability, however, is not applicable to employees of independent contractors because employees of independent contractors are not within the class of persons protected by the general rule. Estate of Saenz v. Ranack Constructors, Inc., 2015-NMCA-113, 362 P.3d 134, rev'd in part on other grounds, 2018-NMSC-032.

Where wife of decedent filed a wrongful death lawsuit against the general contractor and the subcontractor, decedent's employer, after decedent fell and died while working on a construction site, the district court properly held that the general contractor was not jointly and severally liable for damages because employees of independent contractors are not within the class of persons protected by the general rule that engaging in work that is inherently dangerous creates a nondelegable duty of care that can only be effectively enforced through imposition of joint and several liability. Estate of Saenz v. Ranack Constructors, Inc., 2015-NMCA-113, 362 P.3d 134, rev'd in part on other grounds, 2018-NMSC-032.

Law reviews. — For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988).

For article, "The Impact of Non-Mutual Collateral Estoppel on Tort Litigation Involving Several Liability," see 18 N.M.L. Rev. 559 (1988).

For note, "Contract law: New Mexico interprets the insurance clause in the oil and gas anti-indemnity statute: Amoco Production Co. v. Action Well Service, Inc.," 20 N.M.L. Rev. 179 (1990).

For note, "Tort Law - New Mexico Imposes Strict Liability on a Private Employer of an Independent Contractor for Harm From Dangerous Work, but Bestows Immunity on a Government Employer: Saiz v. Belen School District," see 23 N.M.L. Rev. 399 (1993).

For note, "Tort Law - Comparative Fault Eliminates the Need for Indemnification Between Concurrent Tortfeasors: Otero v. Jordan Restaurant Enterprises," see 27 N.M.L. Rev. 679 (1997).

For note, "Tort Law - Original and Successive Tortfeasors and Release Documents in New Mexico Tort Law: Lujan v. Healthsouth Rehabilitation Corporation," see 27 N.M.L. Rev. 697 (1997).

For article, "Bartlett Revisited: New Mexico Tort Law Twenty Years After the Abolition of Joint and Several Liability Part One," see 33 N.M.L. Rev. 1 (2003).

For article, "Bartlett Revisited: The Impact of Several Liability on Pretrial Procedure in New Mexico Part Two", see 35 N.M.L. Rev. 37 (2005).

For article, "Can I Buy your Lawsuit? A Proposed Solution to the Unstated Problem in Gulf Insurance Co. v. Cottone," see 38 N.M. L. Rev. 511 (2008).

For note and comment, "Multiple Tortfeasors Defined by Injury: Successive Tortfeasor Liability After Payne v. Hall," see 37 N.M. L. Rev. 603 (2007).

For note, "Tort Law — The Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence Torres v. El Paso Electric Company," see 300 N.M. L. Rev. 325 (2000).

For note, "Trends in New Mexico Law: 1994 95: Tort Law New Mexico Adopts Proportional Indemnity and Clouds the Distinction between Contract and Tort: Amrep Southwest, Inc. v. Shollenbarger Wood Treating, Inc.," see 26 N.M. L. Rev. 603 (1996).

For note, "Trends in New Mexico Law: 1993 94: Tort Law New Mexico Examines the Doctrine of Comparative Fault in the Context of Promises Liability," see Reichert v. Atler, 25 N.M. L. Rev. 353 (1995).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 74 Am. Jur. 2d Torts §§ 61 to 64.

Comparative negligence: judgment allocating fault in action against less than all potential defendants as precluding subsequent action against parties not sued in original action, 4 A.L.R.5th 753.

Joint and several liability of physicians whose independent negligence in treatment of patient causes indivisible injury, 9 A.L.R.5th 746.

86 C.J.S. Torts § 34 et seq.