2019 New Mexico Statutes
Chapter 41 - Torts
Article 4 - Tort Claims
Section 41-4-1 - Short title.

Sections 41-4-1 through 41-4-27 NMSA 1978 may be cited as the "Tort Claims Act".

History: 1953 Comp., § 5-14-1, enacted by Laws 1976, ch. 58, § 1; 1977, ch. 386, § 1; 1981, ch. 118, § 1.

Cross references. — For immunity from liability for employers for statements in references of former employees, see 50-12-1 NMSA 1978.

Constitutionality. — The legislature acted constitutionally in enacting the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] following judicial abolition of sovereign immunity. Ferguson v. N.M. State Hwy. Comm'n, 1982-NMCA-180, 99 N.M. 194, 656 P.2d 244, cert. denied, 99 N.M. 226, 656 P.2d 889 (1983).

Act does not violate Equal Protection Clauses of the United States and New Mexico constitutions. Garcia v. Albuquerque Pub. Sch. Bd. of Educ., 1980-NMCA-081, 95 N.M. 391, 622 P.2d 699, cert. denied, 95 N.M. 426, 622 P.2d 1046 (1981).

Policy of act. — The declared policy of this act indicates that the legislature authorized the filing of claims against governmental entities except in situations where the state may not have been able to act for some specific reason, so long as the act complained of falls within the list set out in this act. Methola v. County of Eddy, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.

This act was enacted in response to the judicial abrogation of sovereign immunity in Hicks v. State, 1975-NMSC-056, 88 N.M. 588, 592, 544 P.2d 1153, and the basic intent was to reestablish government immunity, while creating specific exceptions for which the government could be sued for tort liability. Board of Cnty. Comm'rs v. Risk Mgmt. Div., 1995-NMSC-046, 120 N.M. 178, 899 P.2d 1132.

Important policies underlying enactment of the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] were to protect the public treasury, to enable the government to function unhampered by the threat of legal actions that would inhibit the administration of traditional state activities, and to enable the government to effectively carry out its services. Maestas v. Zager, 2005-NMCA-013, 136 N.M. 764, 105 P.3d 317, rev'd on other grounds, 2007-NMSC-003, 141 N.M. 154, 152 P.3d 141.

Common-law sovereign immunity abolished. — Common-law sovereign immunity may no longer be interposed as a defense by the state or any of its political subdivisions in tort actions. Hicks v. State, 1975-NMSC-056, 88 N.M. 588, 544 P.2d 1153 (decided under prior law).

Reasons justifying legislature's determination to partially retain governmental immunity are: (1) there is a need to protect the public treasuries; (2) partial immunity enables the government and its various subdivisions to function unhampered by the threat of time and energy consuming legal actions which would inhibit the administration of traditional state activities; and (3) in order to effectively carry out its services, many of which are financially unprofitable and which would not be provided at a reasonable cost by private enterprise, the government needs the protection provided by some immunity. Garcia v. Albuquerque Pub. Schs. Bd. of Educ., 1980-NMCA-081, 95 N.M. 391, 622 P.2d 699, cert. denied, 95 N.M. 426, 622 P.2d 1046 (1981).

Act is remedial act which applies only prospectively, in the absence of expressed legislative intent to make it retroactive. Methola v. County of Eddy, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.

Act is extension of previous similar statutes. — This act is an extension of previous statutes that recognized a limited waiver of sovereign immunity. Accordingly, a claimant's remedy under former 5-6-20, 1953 Comp., to redress a 1974 injury due to the alleged negligence of a state agency did not abate upon the repeal of that statute in 1975, nor upon the enactment of the Tort Claims Act in 1976. The claim was, thus, not barred under common-law sovereign immunity, but rather retained its vitality pursuant to former 5-6-20, 1953 Comp. Romero v. N.M. Health & Env't Dep't, 1988-NMSC-073, 107 N.M. 516, 760 P.2d 1282.

Traditional concepts of negligence. — Liability under this act is premised on traditional concepts of negligence. Lujan v. N.M. Dep't of Transp., 2015-NMCA-005, cert. denied, 2014-NMCERT-010.

Requirements of negligence action. — A negligence action under this act requires that there be a duty owed from the defendant to the plaintiff, that based on a standard of reasonable care under the circumstances, the defendant breached that duty, and that the breach was a cause in fact and proximate cause of the plaintiff's damages. Lujan v. N.M. Dep't of Transp., 2015-NMCA-005, cert. denied, 2014-NMCERT-010.

Duty of ordinary care. — The state has a duty to exercise ordinary care in the maintenance of its highways, but foreseeability is not a factor to consider when determining the existence of a duty and is relevant only to determining whether there is a breach of duty. Lujan v. N.M. Dep't of Transp., 2015-NMCA-005, cert. denied, 2014-NMCERT-010.

Questions of fact for a jury. — Whether a defendant breached the duty of ordinary care and whether an act or omission may be deemed a proximate cause of an injury are questions of fact for a jury to decide. Lujan v. N.M. Dep't of Transp., 2015-NMCA-005, cert. denied, 2014-NMCERT-010.

Wrongful death action. — In a wrongful death action, where the state department of transportation had a duty to maintain roadways in a safe condition for the benefit of the public, including reasonable inspections of roadways in order to identify and remove dangerous debris, and where department failed to exercise ordinary care in its duty, there were questions of fact as to whether the department had constructive notice of the dangerous debris, whether the department breached a duty to decedent, and whether the department's failure to act was the proximate cause of the accident, making summary judgment improper. Lujan v. N.M. Dep't of Transp., 2015-NMCA-005, cert. denied, 2014-NMCERT-010.

Action not barred by concurrent § 1983 action. — The New Mexico Tort Claims Act does not prohibit a plaintiff from bringing an action for damages under that act against a governmental entity or public employee if the plaintiff also pursues, by reason of the same occurrence or chain of events, an action against the same entity or employee pursuant to the Federal Civil Rights Act, 42 U.S.C. § 1983. Wells v. County of Valencia, 1982-NMSC-048, 98 N.M. 3, 644 P.2d 517.

Strict construction. — Since this act is in derogation of petitioner's common-law rights to sue governmental employees for negligence, the act is to be strictly construed insofar as it modifies the common law. Methola v. County of Eddy, 1980-NMCA-145, 95 N.M. 329, 622 P.2d 234.

This article is in derogation of one's common-law right to sue and is to be strictly construed. Estate of Gutierrez v. Albuquerque Police Dep't, 1986-NMCA-023, 104 N.M. 111, 717 P.2d 87, cert. denied sub nom. Haney v. Albuquerque Police Dep't., 103 N.M. 798, 715 P.2d 71 (1986), overruled on other grounds by Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.

The Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] must be strictly construed. Fought v. State, 1988-NMCA-088, 107 N.M. 715, 764 P.2d 142, overruled in part on other grounds by Folz v. State, 1993-NMCA-066, 115 N.M. 639, 857 P.2d 39, cert. denied, 115 N.M. 602, 856 P.2d 250.

Where there is no liability insurance, defense of sovereign immunity is valid as to a tort committed prior to July 1, 1976. New Mexico Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.

Indemnification contract impermissible. — Provision in a contract between a city and a beverage company under which the city agreed to indemnify the company against certain liabilities is impermissible to the extent it required the city to assume liability outside the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978]. 2000 Op. Att'y Gen. No. 00-04.

Law reviews. — For note, "Doctrine of Sovereign Immunity - Statute - Municipal Tort Liability," see 2 Nat. Resources J. 170 (1962).

For note, "Municipal Assumption of Tort Liability for Damage Caused by Police Officers," see 1 N.M.L. Rev. 263 (1971).

For note, "Comparative v. Contributory Negligence: The Effect of Plaintiff's Fault," see 6 N.M.L. Rev. 171 (1975).

For survey, "Torts: Sovereign and Governmental Immunity in New Mexico," see 6 N.M.L. Rev. 249 (1976).

For note, "Negligent Hiring and Retention - Availability of Action Limited by Foreseeability Requirement," see 10 N.M.L. Rev. 491 (1980).

For note, "Torts - Government Immunity Under the New Mexico Tort Claims Act," see 11 N.M.L. Rev. 475 (1981).

For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).

For comment, "Survey of New Mexico Law: Torts," see 15 N.M.L. Rev. 363 (1985).

For note, "Tort Claims Act - The Death of the Public Duty - Special Duty Rule: Schear v. Board of County Commissioners," see 16 N.M.L. Rev. 423 (1986).

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 case note, "Civil Procedure - New Mexico Adopts the Modern View of Collateral Estoppel: Silva v. State," see 18 N.M.L. Rev. 597 (1988).

For note, "The New Mexico Tort Claims Act: The King Can Do 'Little' Wrong," see 21 N.M.L. Rev. 441 (1991).

For note, "Contracts - The Supreme Court Speaks Where the Legislature Was Silent: Torrance County Mental Health Program, Inc. v. New Mexico Health & Environment," see 23 N.M.L. Rev. 291 (1993).

For note, "Tort Law - Either the Parents or the Child May Claim Compensation for the Child's Medical and Nonmedical Damages: Lopez v. Southwest Community Health Services," see 23 N.M.L. Rev. 373 (1993).

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, "Torts - Sovereign Immunity: Caillouette v. Hercules," see 23 N.M.L. Rev. 423 (1993).

For note, "In the aftermath of M.D.R., Holding the State to Its Promises: M.D.R. v. State Human Services Dep't," see 24 N.M.L. Rev. 557 (1994).

For article, "Reticent Revolution: Prospects for Damage Suits Under the New Mexico Bill of Rights," see 25 N.M.L. Rev. 173 (1995).

For note, "Foreseeability vs. Public Policy Considerations in Determining the Duty of Physicians to Non-Patients - Lester v. Hall," see 30 N.M.L. Rev. 351 (2000).

For note, "New Mexico Limits Recovery of Negligent Infliction of Emotional Distress to Sudden, Traumatic Accidents - Fernandez v. Walgreen Hastings Co.," see 30 N.M.L. Rev. 363 (2000).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability, §§ 61, 62, 67 to 69, 184 to 190.

Damage to property caused by negligence of governmental agents, as "taking," "damage," or "use" for public purposes, in constitutional sense, 2 A.L.R.2d 677.

Sovereign immunity doctrine as precluding suit against sister state for tort committed within forum state, 81 A.L.R.3d 1239.

Liability for child's personal injuries or death resulting from tort committed against child's mother before child was conceived, 91 A.L.R.3d 316.

Liability for overflow of water confined or diverted for public waterpower purposes, 91 A.L.R.3d 1065.

Liability of one negligently causing fire for injuries sustained by person other than firefighter in attempt to control fire or to save life or property, 91 A.L.R.3d 1202.

Governmental liability from operation of zoo, 92 A.L.R.3d 832.

Products liability: air guns and BB guns, 94 A.L.R.3d 291.

Liability of governmental unit for injuries or damage resulting from tree or limb falling onto highway from abutting land, 95 A.L.R.3d 778.

Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.

Governmental tort liability for injuries caused by negligently released individual, 6 A.L.R.4th 1155.

Actual notice or knowledge by governmental body or officer of injury or incident resulting in injury as constituting required claim or notice of claim for injury - modern status, 7 A.L.R.4th 1063.

Modern status of rule excusing governmental unit from tort liability on theory that only general, not particular, duty was owed under circumstances, 38 A.L.R.4th 1194.

Governmental tort liability for failure to provide police protection to specifically threatened crime victim, 46 A.L.R.4th 948.

Recoverability from tort-feasor of cost of diagnostic examinations absent proof of actual bodily injury, 46 A.L.R.4th 1151.

Right of insured, precluded from recovering against owner or operator of uninsured motor vehicle because of governmental immunity, to recover uninsured motorist benefits, 55 A.L.R.4th 806.

Social worker malpractice, 58 A.L.R.4th 977.

Tort liability of college or university for injury suffered by student as a result of own or fellow student's intoxication, 62 A.L.R.4th 81.

State and local government liability for injury or death of bicyclist due to defect or obstruction in public bicycle path, 68 A.L.R.4th 204.

Governmental liability for negligence in licensing, regulating, or supervising private day-care home in which child is injured, 68 A.L.R.4th 266.

Liability in tort for interference with attorney-client relationship, 90 A.L.R.4th 621.

Liability of private operator of "halfway house" or group home housing convicted prisoners before final release for injury to third person caused by inmate, 9 A.L.R.5th 969.

Municipal liability for negligent performance of building inspector's duties, 24 A.L.R.5th 200.

Liability of school or school personnel for injury to student resulting from cheerleader activities, 25 A.L.R.5th 784.

Collateral source rule: admissibility of evidence of availability to plaintiff of free public special education on issue of amount of damages recoverable from defendant, 41 A.L.R.5th 771.

Liability of owner, operator, or other parties, for personal injuries allegedly resulting from snow or ice on premises of parking lot, 74 A.L.R.5th 49.

Tort liability of public schools and institutions of higher learning for accident involving motor vehicle operated by student, 85 A.L.R.5th 301.

Liability of municipality or other governmental unit for failure to provide police protection from crime, 90 A.L.R.5th 273.

What constitutes "claim arising in a foreign country" under 28 U.S.C.A. § 2680(k), excluding such claims from Federal Tort Claims Act, 158 A.L.R. Fed. 137.

Applicability of 28 §§ 2680(a) and 2680(h) to Federal Tort Claims Act liability arising out of government informant's conduct, 85 A.L.R. Fed. 848.

Calculations of attorneys' fees under Federal Tort Claims Act - 28 USCS § 2678, 86 A.L.R. Fed. 866.

Construction and application of Federal Tort Claims Act provision excepting from coverage claims arising out of assault and battery (28 UCSC § 2680(h)), 88 A.L.R. Fed. 7

Construction and application of Federal Tort Claims Act provision excepting from coverage claims arising out of interference with contract rights (28 USCS § 2680(h)), 92 A.L.R. Fed. 186.

Application of collateral source rule in actions under Federal Tort Claims Act (28 USCS § 2674), 104 A.L.R. Fed. 492.

Appealability, under collateral order doctrine, of order denying qualified immunity in 42 USCS § 1983 or Bivens action for damages where claim for equitable relief is also pending - post-Harlow cases, 105 A.L.R. Fed. 851.

When is federal agency employee independent contractor, creating exception to United States waiver of immunity under Federal Tort Claims Act (28 U.S.C.A. § 2671), 166 A.L.R. Fed. 187.

Claims arising from governmental conduct causing damage to plaintiff's real property as within discretionary function exception of federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 167 A.L.R. Fed. 1

Liability of United States for failure to warn of danger or hazard not directly created by act or omission of federal government and not in national parks as affected by "discretionary function or duty" exception to federal Tort Claims Act, 169 A.L.R. Fed. 421.

Liability of United States for failure to warn of danger or hazard resulting from governmental act or omission as affected by "discretionary function or duty" exception to federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 170 A.L.R. Fed. 365.

Liability of United States for failure to warn local police or individuals of discharge, release, or escape of person who is deemed dangerous to public as affected by "discretionary act or duty" exception to federal Tort Claims Act, 171 A.L.R. Fed. 655.