2019 New Mexico Statutes
Chapter 41 - Torts
Article 4 - Tort Claims
Section 41-4-11 - Liability; highways and streets.

A. The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance, of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.

B. The liability for which immunity has been waived pursuant to Subsection A of this section shall not include liability for damages caused by:

(1) a defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area;

(2) the failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; or

(3) a deviation from standard geometric design practices for any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area allowed on a case-by-case basis for appropriate cultural, ecological, economic, environmental, right-of-way through Indian lands, historical or technical reasons; provided that the deviation:

(a) is required by extraordinary circumstances;

(b) has been approved by the governing authority; and

(c) is reasonable and necessary as determined by the application of sound engineering principles taking into consideration the appropriate cultural, ecological, economic, environmental, right-of-way through Indian lands, historical or technical circumstances.

C. All irrigation and conservancy districts that authorize a portion of their property to be used as a road available for use by the general public, and their employees acting lawfully and within the scope of their duties, are excluded from the waiver of immunity under Subsection A of this section in regard to that portion of property; provided that the:

(1) irrigation or conservancy district has entered into a written agreement with the state agency or governmental entity operating and maintaining that road; and

(2) state agency or governmental entity has agreed to assume the operation and maintenance of that portion of the district's property used for that road.

D. The state agency or governmental entity operating and maintaining the road available for use by the general public pursuant to Subsection C of this section shall be subject to liability as provided in the Tort Claims Act.

History: 1953 Comp., § 5-14-11, enacted by Laws 1976, ch. 58, § 11; 1977, ch. 386, § 8; 1991, ch. 205, § 2; 2019, ch. 104, § 1.

The 2019 amendment, effective June 14, 2019, provided an exclusion from the waiver of immunity for irrigation and conservancy districts that authorize a portion of their property for use as a roadway by the public or a governmental entity, and provided that a state agency or governmental entity operating and maintaining the road owned by these districts is subject to liability as provided in the Tort Claims Act; and added Subsections C and D.

The 1991 amendment, effective July 1, 1991, in Subsection A, substituted "41-4-4 NMSA 1978" for "14-4 NMSA 1953" and substituted "duties during the construction, and in subsequent maintenance of any bridge" for "duties in the maintenance of or for the existence of any bridge"; and, in Subsection B, added Paragraph (3) and made a related stylistic change.

Slip and fall instruction. — Where plaintiff tripped and fell over a city water meter in an alley, the court erred in refusing to give the basic slip and fall instruction, UJI 1318 NMRA, together with UJI 13-1317 NMRA, which states the general duty of a city to maintain its alleys in a safe condition, because the slip and fall instruction includes the elements that a city has a duty to maintain alleys in a safe condition whether or not a dangerous condition is obvious and whether or not the city has notice of any condition that it would have discovered upon reasonable inspection. Benavidez v. City of Gallup, 2007-NMSC-026, 141 N.M. 808, 161 P.3d 853.

Purpose of section. — This section must be construed to effectuate its remedial purpose of ensuring that highways are made safe and kept safe for the traveling public. Rutherford v. Chaves Cnty., 2003-NMSC-010, 133 N.M. 756, 69 P.3d 1199.

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.

The legislature did not intend design immunity to continue in perpetuity. Martinez v. N.M. Dep't of Transp., 2013-NMSC-005, 296 P.3d 468, rev'g 2011-NMCA-082, 150 N.M. 204, 258 P.3d 483.

Remediation measures are maintenance. — Maintenance is not limited to upkeep and repair. The duty to maintain a roadway subsumes within it a duty to remediate a known, dangerous condition, regardless of whether the source of that danger can be traced back to a design feature. It requires a reasonable response to the known dangerous condition on a roadway. When the reasonableness of that response pertains to traffic controls, it is not measured just by size and weight, permanence or mobility, whether the defect is a structural element or is more transitory in nature. Martinez v. N.M. Dep't of Transp., 2013-NMSC-005, 296 P.3d 468, rev'g 2011-NMCA-082, 150 N.M. 204, 258 P.3d 483.

Where a state road was designed partially with and partially without center lane barriers to prevent cross-over collisions; while passing another car, the driver of a car in the eastbound lane lost control of the car, skidded, and collided head-on with the decedents' car in the west bound lane; barriers were not installed at the site of the cross-over collision; and plaintiffs offered evidence of other cross-median, fatal collisions that had occurred within the two mile stretch of road that included the site of the collision and citizen complaints regarding the lack of a center barrier, defendant's decision not to install post-construction barriers at the site of the collision, after being alerted of a potentially dangerous condition at the general location of the collision, was a matter of maintenance, not of design. Martinez v. N.M. Dep't of Transp., 2013-NMSC-005, 296 P.3d 468, rev'g 2011-NMCA-082, 150 N.M. 204, 258 P.3d 483.

Relevant evidence of dangerous condition. — Depending on the particular characteristics of the road, evidence of other collisions occurring in the general area of a particular collision or in other areas with similar characteristics, may be relevant to whether the department of transportation was on notice of a dangerous condition. Martinez v. N.M. Dep't of Transp., 2013-NMSC-005, 296 P.3d 468, rev'g 2011-NMCA-082, 150 N.M. 204, 258 P.3d 483.

Where a state road was designed partially with and partially without center lane barriers to prevent cross-over collisions; while passing another car, the driver of a car in the east bound lane lost control of the car, skidded, and collided head-on with the decedents' car in the west bound lane; barriers were not installed at the site of the cross-over collision; and plaintiffs offered evidence of other cross-median, fatal collisions that had occurred within the two mile stretch of road that include the site of the collision and citizen complaints regarding the lack of a center barrier to show that defendant negligently failed to remedy a dangerous condition when it chose not to install cross-over barriers after it had been put on notice of a dangerous condition, the district court erred in limiting the evidence to the site of the collision. Martinez v. N.M. Dep't of Transp., 2013-NMSC-005, 296 P.3d 468, rev'g 2011-NMCA-082, 150 N.M. 204, 258 P.3d 483.

Purpose of waiver of sovereign immunity in maintenance of highways is to protect the public. Fireman's Fund Ins. Co. v. Tucker, 1980-NMCA-082, 95 N.M. 56, 618 P.2d 894.

"Maintenance" as used in this section means upkeep and repair. Cardoza v. Town of Silver City, 1981-NMCA-061, 96 N.M. 130, 628 P.2d 1126, cert. denied, 96 N.M. 116, 628 P.2d 686 ; Smith v. Village of Corrales, 1985-NMCA-121, 103 N.M. 734, 713 P.2d 4, cert. denied, 103 N.M. 740, 713 P.2d 556 (1986).

The 1991 legislative amendment specifically repudiated the decision of the New Mexico Supreme Court in Miller v. N.M. Dep't of Transp., 1987-NMSC-081, 106 N.M. 253, 741 P.2d 1374, which construed "maintenance" such that the issuance of oversize vehicle permits for transport of a mobile home over a winding road on a busy holiday weekend fit within the statutory waiver of immunity under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Rutherford v. Chaves Cnty., 2003-NMSC-010, 133 N.M. 756, 69 P.3d 1199.

Subsection B grants immunity for road design issues. Bierner v. City of Truth or Consequences, 2004-NMCA-093, 136 N.M. 197, 96 P.3d 322.

Presence of condition on one side of road which might spill over to other side of road did not create a duty on the part of a state entity to alter the road and areas off the road so that the road becomes a barrier to those conditions Bierner v. City of Truth or Consequences, 2004-NMCA-093, 136 N.M. 197, 96 P.3d 322.

Absence of guardrail is defect in design, not maintenance. Moore v. State, 1980-NMCA-170, 95 N.M. 300, 621 P.2d 517, cert. denied sub nom. State v. City of Albuquerque, 95 N.M. 426, 622 P.2d 1046 (1981).

Negligent maintenance of barrier not "plan" nor "design". — Negligent maintenance of a barrier, consisting of posts and a cable, across a service road is neither a "plan" nor "design" within the meaning of Subsection B. O'Brien v. Middle Rio Grande Conservancy Dist., 1980-NMCA-075, 94 N.M. 562, 613 P.2d 432.

State liable for negligent fence maintenance. — The state highway department has always had a common law duty to exercise ordinary care to protect the general public from foreseeable harm on the highways of the state. It is for the factfinder to decide whether this duty includes either the erection or maintenance of fences along an urban freeway for the protection of pedestrians; but if the department is found to have breached it's duty by negligently failing to erect or maintain fences along the highway, it may be held liable because such negligence falls within the waiver of sovereign immunity. Lerma ex rel. Lerma v. State Hwy. Dep't, 1994-NMSC-069, 117 N.M. 782, 877 P.2d 1085.

Addition of wheelchair ramps not "maintenance". — The waiver of immunity for maintenance of streets and sidewalks does not create duty for city to add wheelchair ramps to sidewalks and intersections; instead, such addition is a reconstruction, immunity for which is expressly restored by Subsection B(2). Villanueva v. City of Tucumcari, 1998-NMCA-138, 125 N.M. 762, 965 P.2d 346.

Traffic controls constitute maintenance activities under the Tort Claims Act. Rutherford v. Chaves Cnty., 2003-NMSC-010, 133 N.M. 756, 69 P.3d 1199.

Placement of signals and signs. — Where the plaintiff's allegations, in large part, concern the placement of signals and signs, the state of New Mexico does not enjoy immunity for such decisions, and whether signs or signals were necessary is a question for the jury. Blackburn v. State, 1982-NMCA-073, 98 N.M. 34, 644 P.2d 548.

The absence of traffic controls is a condition of a highway and is, therefore, the subject of maintenance, and the state is not immune from liability. Grano v. Roadrunner Trucking, Inc., 1982-NMCA-080, 99 N.M. 227, 656 P.2d 890, cert. denied, 99 N.M. 358, 658 P.2d 433 (1983).

Placement of signals and signs. — The erection of permanent concrete barriers as part of a road is a matter of road design, not maintenance, and is outside the Tort Claims Act's waiver of immunity. Martinez v. N.M. Dep't of Transp., 2011-NMCA-082, 150 N.M. 204, 258 P.3d 483, cert. granted, 2011-NMCERT-008, 268 P.3d 514.

Placement of concrete barriers was not maintenance. — Where the driver of a vehicle was using the center turn lane to pass a vehicle, lost control, and collided with decedents' vehicle, killing the decedents; and the decedents' estates claimed that the department of transportation negligently failed to maintain the highway because the department failed to perform its duty to erect concrete barriers separating the driving lanes, the lack of permanent barriers in the center turn lane was an attribute of the design of the highway and the department was immune from suit for the alleged failure to install concrete barriers. Martinez v. N.M. Dep't of Transp., 2011-NMCA-082, 150 N.M. 204, 258 P.3d 483, cert. granted, 2011-NMCERT-008, 268 P.3d 514.

The erection of permanent concrete barriers as part of a road is a matter of road design, not maintenance, and is outside the Tort Claims Act's waiver of immunity. Martinez v. N.M. Dep't of Transp., 2011-NMCA-082, 150 N.M. 204, 258 P.3d 483, cert. granted, 2011-NMCERT-008, 268 P.3d 513.

Placement of concrete barriers was not maintenance. — Where the driver of a vehicle was using the center turn lane to pass a vehicle, lost control, and collided with decedents' vehicle, killing the decedents; and the decedents' estates claimed that the department of transportation negligently failed to maintain the highway because the department failed to perform its duty to erect concrete barriers separating the driving lanes, the lack of permanent barriers in the center turn lane was an attribute of the design of the highway and the department was immune from suit for the alleged failure to install concrete barriers. Martinez v. N.M. Dep't of Transp., 2011-NMCA-082, 150 N.M. 204, 258 P.3d 483, cert. granted, 2011-NMCERT-008, 268 P.3d 513.

Identification and remediation of roadway hazards constitutes highway maintenance under this section. Rutherford v. Chaves Cnty., 2003-NMSC-010, 133 N.M. 756, 69 P.3d 1199.

Placement of school bus stop deemed "maintenance". — The placement of a school bus stop involves elements of traffic control, both pedestrian and vehicular, that are quite similar to the placement of traffic lights or other controls on a road. The placement of such controls, or the lack thereof, constitutes "maintenance" of a road under this section. Gallegos v. School Dist. of W. Las Vegas, 1993-NMCA-086, 115 N.M. 779, 858 P.2d 867, cert. denied, 115 N.M. 795, 858 P.2d 1274.

Bus stop designation not part of road design. — The state transportation division of the state board of education was not immune from liability under Subsection A in connection with an accident at a school bus stop, since there was sufficient evidence to support a finding that designation of the bus stop by the division was not a part of the design of the road. Gallegos v. State Bd. of Educ., 1997-NMCA-040, 123 N.M. 362, 940 P.2d 468, cert. denied, 123 N.M. 215, 937 P.2d 76.

Failure to enforce procedures not "maintenance". — The waiver of immunity contained in this section does not apply to tort claims against the director of the motor vehicles division for failure to implement or enforce procedures, as that is not covered by the definition of "maintenance." Dunn v. State ex rel. Taxation & Revenue Dep't, 1993-NMCA-059, 116 N.M. 1, 859 P.2d 469.

Gaps in fence along right-of-way. — The question of whether the department complied with its highway fence design necessarily involves questions of fact such as whether the department secured an agreement from the property owners to construct or maintain fences, or alternatively whether the department made a fact determination that livestock could not enter the highway. If the fact finder determines that the department failed to comply with the design of the highway as governed by 30-8-13 and 30-8-14 NMSA 1978, the lack of agreements or other protective measures would be considered maintenance, and the department would not be entitled to immunity under 41-4-11 NMSA 1978. Because these questions of fact remain to be resolved, summary judgment in favor of the department is precluded. Madrid v. N.M. State Hwy. Dep't, 1994-NMCA-006, 117 N.M. 171, 870 P.2d 133.

Liability of flood control authority for road obstruction. — Placing a steel cable across a service road to prevent public travel on the road is more than the governmental activity of regulating the use of the road through traffic control devices, it is the placing of an obstruction in the service road, a proprietary activity for which Albuquerque metropolitan arroyo flood control authority is liable. A municipality is liable for the negligent failure to keep its streets in a reasonably safe condition. Gallagher v. Albuquerque Metro. Arroyo Flood Control Auth., 1977-NMCA-029, 90 N.M. 309, 563 P.2d 103, cert. denied, 90 N.M. 636, 567 P.2d 485.

Traffic control during flood. — In wrongful death action, where county failed to control traffic on a county road to keep it from entering a crossing when water was high, an objective consistent with the notion of regular highway maintenance, the county was not immune from suit where passengers were washed downstream and drowned during a flood. Rutherford v. Chaves Cnty., 2002-NMCA-059, 132 N.M. 289, 47 P.3d 448, aff'd, 2003-NMSC-010, 133 N.M. 756, 69 P.3d 1199.

No sovereign immunity for negligent highway maintenance. — Under this section, sovereign immunity does not apply to liability damages caused by negligent maintenance of highways; rather, the highway department has a common-law duty to exercise ordinary care to protect the public from foreseeable harm on the state's highways. Ryan v. N.M. State Hwy. & Transp. Dep't, 1998-NMCA-116, 125 N.M. 588, 964 P.2d 149, cert. denied, 126 N.M. 107, 967 P.2d 447.

Waiver of immunity extends to private service roads. — Waiver of immunity for negligence in the maintenance of a roadway is not limited to a public roadway, but includes a private service road. O'Brien v. Middle Rio Grande Conservancy Dist., 1980-NMCA-075, 94 N.M. 562, 613 P.2d 432.

Waiver of immunity includes negligence in maintenance of highway fences. Fireman's Fund Ins. Co. v. Tucker, 1980-NMCA-082, 95 N.M. 56, 618 P.2d 894.

Waiver of immunity for maintenance of culvert. — This section waives immunity for the negligent maintenance of a culvert by an irrigation district. Tompkins v. Carlsbad Irrigation Dist., 1981-NMCA-072, 96 N.M. 368, 630 P.2d 767.

Waiver not applicable. — Plaintiffs' claim against a state irrigation district for injuries sustained by their son while playing on state property did not fall within the waiver of immunity set forth in this section for the negligent maintenance of a roadway where plaintiffs' complaint did not even allege the existence of a road, much less that the road was owned by the irrigation district or that the road had any causal relationship with the accident. Noriega v. Stahmann Farms, Inc., 1992-NMCA-010, 113 N.M. 441, 827 P.2d 156, cert. denied, 113 N.M. 449, 827 P.2d 837.

Notice of bridge fire not imputed. — Although deputy sheriff had received actual notice of the bridge fire prior to plaintiff's accident, the deputy had no official responsibility to receive or relay notice of the fire to the officials charged with the duty of maintenance of county highways or roads. Thus, actual notice to the deputy sheriff could not have been actual notice to the board of county commissioners of Valencia county. Sanchez v. Board of Cnty. Comm'rs, 1970-NMCA-058, 81 N.M. 644, 471 P.2d 678, cert. denied, 81 N.M. 668, 472 P.2d 382.

State fair was not immune from liability under the Tort Claims Act for injuries sustained by a passenger in an automobile involved in an accident arising from a large number of cars exiting the fairgrounds onto a city street following a rock concert held on state fairground premises leased by concert promoter. Bober v. N.M. State Fair, 1991-NMSC-031, 111 N.M. 644, 808 P.2d 614.

Expert testimony regarding dangerous road condition. — Trial court did not abuse its discretion in allowing expert testimony concerning allegedly dangerous road conditions in the case of a single car collision. In such a case, a twofold inquiry is called for: (1) what was the plan or design of the roadway; and (2) did the evidence concern itself solely with that plan or design. Romero v. State, 1991-NMSC-071, 112 N.M. 332, 815 P.2d 628.

Municipal school system not liable. — Because a municipal school system had no responsibility for maintaining the crosswalk and accompanying signs and signals in front of one of its schools, this section's street maintenance waiver of immunity was inapplicable to it. Johnson v. School Bd., 1992-NMCA-125, 114 N.M. 750, 845 P.2d 844.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Highways, Streets, and Bridges §§ 104 to 106, 111, 112, 119, 341 to 350, 552; 40 Am. Jur. 2d Highways, Streets and Bridges § 615; 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability §§ 232, 326 to 331.

Liability of municipality for injury to traveler in alley, 44 A.L.R. 814, 48 A.L.R. 434.

Snow removal operations as within doctrine of governmental immunity from tort liability, 92 A.L.R.2d 796.

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.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from ice or snow on surface of highway or street, 97 A.L.R.3d 11.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from failure to repair pothole in surface of highway or street, 98 A.L.R.3d 101.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from defect or obstruction on roadside parkway or parking strip, 98 A.L.R.3d 439.

Liability of governmental unit, private owner or occupant of land abutting highway for injuries or damages sustained when motorist strikes tree or stump on abutting land, 100 A.L.R.3d 510.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge, 2 A.L.R.4th 635.

Liability, in motor vehicle-related cases, of governmental entity for injury, death or property damage resulting from defect or obstruction in shoulder of street or highway, 19 A.L.R.4th 532.

Governmental tort liability as to highway median barriers, 58 A.L.R.4th 559.

Governmental tort liability for injury to roller skater allegedly caused by sidewalk or street defects, 58 A.L.R.4th 1197.

Governmental liability for failure to post highway deer crossing warning signs, 59 A.L.R.4th 1217.

Legal aspects of speed bumps, 60 A.L.R.4th 1249.

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 tort liability for detour accidents, 1 A.L.R.5th 163.

Measure and elements of damages for injury to bridge, 31 A.L.R.5th 171.

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.