2019 New Mexico Statutes
Chapter 41 - Torts
Article 4 - Tort Claims
Section 41-4-16 - Notice of claims.

Universal Citation: NM Stat § 41-4-16 (2019)

A. Every person who claims damages from the state or any local public body under the Tort Claims Act shall cause to be presented to the risk management division for claims against the state, the mayor of the municipality for claims against the municipality, the superintendent of the school district for claims against the school district, the county clerk of a county for claims against the county, or to the administrative head of any other local public body for claims against such local public body, within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury.

B. No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against the state or any local public body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence. The time for giving notice does not include the time, not exceeding ninety days, during which the injured person is incapacitated from giving the notice by reason of injury.

C. When a claim for which immunity has been waived under the Tort Claims Act is one for wrongful death, the required notice may be presented by, or on behalf of, the personal representative of the deceased person or any person claiming benefits of the proceeds of a wrongful death action, or the consular officer of a foreign country of which the deceased was a citizen, within six months after the date of the occurrence of the injury which resulted in the death; but if the person for whose death the claim is made has presented a notice that would have been sufficient had he lived, an action for wrongful death may be brought without any additional notice.

History: 1953 Comp., § 5-14-14.1, enacted by Laws 1977, ch. 386, § 12.

ANNOTATIONS

Emergency clauses. — Laws 1977, ch. 386, § 23 contained an emergency clause and was approved April 8, 1977.

Constitutional right to access courts not violated. — The 90-day notice provision of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] does not violate the constitutional right of access to the courts. The legislative purposes requiring timely and reasonable notice to a governmental entity of potential claims are rationally related to legitimate governmental interests such as: (1) to allow investigation of a matter while the evidence is fresh; (2) to allow questioning of witnesses; (3) to protect against stimulated or aggravated claims; or (4) to allow consideration of whether a claim should be paid or not. Powell v. N.M. State Hwy. & Transp. Dep't, 1994-NMCA-035, 117 N.M. 415, 872 P.2d 388, cert. denied, 117 N.M. 524, 873 P.2d 270.

Due process. — The notice requirement is not unreasonably short, thus not constituting a denial of due process. 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).

The period of giving notice does not deny an incapacitated victim due process of law. 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).

Application of the notice provision of Subsection A to any minor, whatever the circumstances, would not, in every circumstance, violate due process. Erwin v. City of Santa Fe, 1993-NMCA-065, 115 N.M. 596, 855 P.2d 1060.

Section inapplicable to claims against public employees. — The language of the written notice section does not include, and therefore does not apply to, claims against public employees. Martinez v. City of Clovis, 1980-NMCA-078, 95 N.M. 654, 625 P.2d 583, cert. denied, 94 N.M. 674, 615 P.2d 991.

The written notice requirement of Subsection A does not apply to public employees, such as a mayor or a police chief. Frappier v. Mergler, 1988-NMCA-021, 107 N.M. 61, 752 P.2d 253.

Section inapplicable to claims only against public employee. — Where a police officer was sued individually in federal court for violation of plaintiff's constitutional rights, the officer asked the municipality to provide a defense and gave a copy of the complaint to the municipal attorney; the municipality refused to provide a defense; the municipality had actual notice of the federal action and was asked to provide a defense within the time for filing an answer to the complaint; the municipality did not dispute that the officer acted within the scope of the officer's employment; the officer defended the federal action pro se; and the officer and plaintiff settled the federal claims; and plaintiff did not give the municipality written notice of the incident within ninety days after the incident occurred, 41-4-16 NMSA 1978 does not require notice to be given by a claimant who sues only a governmental employee and the municipality was required to defend and indemnify the officer and pay the judgment against the officer. Niederstadt v. Town of Carrizozo, 2008-NMCA-053, 143 N.M. 786, 182 P.3d 769, cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.

Purpose of the notice requirement is four-fold: (1) to enable the person or entity to whom notice must be given, or its insurance company, to investigate the matter while the facts are accessible; (2) to question witnesses; (3) to protect against simulated or aggravated claims; and (4) to consider whether to pay the claim or to refuse it. 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).

Affidavit stating intent to make claims attached to a pleading was sufficient notice. — Where plaintiff, as personal representative of her deceased son's estate, brought a class action complaint for medical and other negligence against the university of New Mexico hospital (UNMH) resulting from treatment provided to pediatric cancer patients at UNMH, the district court erred in dismissing plaintiff's claims on grounds that UNMH did not receive notice of plaintiff's claims as required by the Tort Claims Act, because plaintiff, as representative of her deceased son, fell within the class described in two pending class action lawsuits against UNMH, and UNMH had accepted service of the class action lawsuits, and plaintiff had filed an affidavit in support of a motion to consolidate the two class actions that gave UNMH notice that plaintiff actually intended to make claims against UNMH for losses and injuries allegedly caused by the negligence alleged in the class action complaints. Cummings v. UNM Bd. of Regents, 2019-NMCA-034, cert. denied.

Notice was timely. — Where plaintiff, as personal representative of her deceased son's estate, brought a class action complaint for medical and other negligence against the university of New Mexico hospital (UNMH) resulting from treatment provided to pediatric cancer patients at UNMH, and where plaintiff provided notice of a claim by executing an affidavit stating that plaintiff intended to make claims against UNMH for losses and injuries allegedly caused by the negligence of UNMH, and where the affidavit was filed in a court pleading within six months of plaintiff discovering the facts relevant to her claim against UNMH, the notice to UNMH was timely. Cummings v. UNM Bd. of Regents, 2019-NMCA-034, cert. denied.

Plaintiff's report failed to satisfy the purpose of the notice requirement. — Where the purpose of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] notice requirement is to ensure that the agency allegedly at fault is notified that it may be subject to a lawsuit and to reasonably alert the agency to the necessity of investigating the merits of a potential claim against it, and where plaintiff, a resident physician at the university of New Mexico school of medicine, filed a report with residency administrators alleging that she was raped by a senior resident in the residency program, the report was insufficient to notify defendant of a likelihood that litigation may ensue; the district court did not err in dismissing plaintiff's tort claim for failure to comply with the Tort Claim Act's notice requirement. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009.

Contents of notice. — Subsection B does not require that the notice of a claim under this article indicate that a lawsuit will in fact be filed against the state, but, rather, it contemplates that the state must be given notice of a likelihood that litigation may ensue, in order to reasonably alert it to the necessity of investigating the merits of a potential claim against it. Smith v. State ex rel. N.M. Dep't of Parks & Recreation, 1987-NMCA-111, 106 N.M. 368, 743 P.2d 124.

The notice required is not simply actual notice of the occurrence of an accident or injury but rather actual notice that there exists a likelihood that litigation may ensue. Dutton v. McKinley Cnty. Bd. of Comm'rs, 1991-NMCA-130, 113 N.M. 51, 822 P.2d 1134.

Although the plaintiff claimed that the department had actual notice of this claim because of: (1) the information contained in a police report, (2) information derived from the conversation between a maintenance foreman and the police officer investigating the accident, and (3) the department's special knowledge concerning the hazards of blunt-edged guardrails, there was no evidence that the department had notice that this particular accident was likely to result in litigation against the department, or that the plaintiff considered the accident to be the department's fault. The above factors did not satisfy the requirement of actual notice. Powell v. N.M. State Hwy. & Transp. Dep't, 1994-NMCA-035, 117 N.M. 415, 872 P.2d 388, cert. denied, 117 N.M. 524, 873 P.2d 270.

To whom notice necessary. — In an action against the state park and recreation department, for its alleged negligence resulting in a boating accident and ensuing deaths, notice given to both the superintendent of the state park where the drownings occurred and to the boating supervisor at the park, satisfied the notice requirements specified in this section. Notice did not have to be given to the head of the department or its risk management division. Smith v. State ex rel. N.M. Dep't of Parks & Recreation, 1987-NMCA-111, 106 N.M. 368, 743 P.2d 124.

The "actual notice" required by Subsection B is not simply actual notice of the occurrence of an accident or injury but rather, actual notice that there exists a "likelihood" that litigation may ensue. Frappier v. Mergler, 1988-NMCA-021, 107 N.M. 61, 752 P.2d 253.

Lack of notice relieving state from liability. — State was not responsible, under the Tort Claims Act, for paying a federal court judgment against a penitentiary guard when neither the state nor any of its agencies had notice of either the claim or of the federal court suit. Otero v. State, 1987-NMCA-054, 105 N.M. 731, 737 P.2d 90, cert. denied, 105 N.M. 707, 736 P.2d 985.

Notice begins to run when injury manifests itself. — Where the language of this section's notice provisions and the statute of limitations, 41-4-15 NMSA 1978, is similar, the rule that the statute of limitations period begins to run from the time an injury manifests itself in a physically objective manner and is ascertainable is an applicable precedent to the question of when, under the Tort Claims Act, notice begins to run. Emery v. Univ. of N.M. Med. Ctr., 1981-NMCA-059,96 N.M. 144, 628 P.2d 1140.

Notice defense may not be stricken as insufficient. — The notice defense accorded by this section is a defense under which a defendant may be entitled to relief against a plaintiff's claim and, thus, is not to be stricken as insufficient as a matter of law. Emery v. Univ. of N.M. Med. Ctr., 1981-NMCA-059, 96 N.M. 144, 628 P.2d 1140.

Notice requirements of Subsections A and B may not be applied to bar infant's claim. — One unable to comply with a notice requirement by reason of minority is protected by the reasonableness requirements of the common law and the U.S. Const., amend. XIV, or similar provisions in the state constitution. Tafoya v. Doe, 1983-NMCA-070, 100 N.M. 328, 670 P.2d 582, cert. quashed sub nom., 100 N.M. 327, 670 P.2d 581.

The 90-day notice provision does not apply to minors who are incapable themselves of meeting that responsibility, and minors may not be held to such notice when their parents or other relatives are shown to be unable to provide notice for them. Rider v. Albuquerque Pub. Sch., 1996-NMCA-090, 122 N.M. 237, 923 P.2d 604.

Two-year statute of limitations applicable to negligence suit involving public utility's employee. — Section 41-4-15 NMSA 1978 of the Tort Claims Act, allowing two years to bring suit, and not the one-year limitation of 37-1-24 NMSA 1978, which refers to the time for bringing suits in negligence against any city, town or village, or any officers thereof, applies to a suit for negligence of a public employee in the operation of a public utility. Cozart v. Town of Bernalillo, 1983-NMCA-053, 99 N.M. 737, 663 P.2d 713.

Notice to adjustor sufficient. — Notice to an adjustor acting for his principal, and known to the claimant to be the adjustor for the principal, is sufficient notice to satisfy the statute requiring notice to the principal. Martinez v. City of Clovis, 1980-NMCA-078, 95 N.M. 654, 625 P.2d 583, cert. denied, 94 N.M. 674, 615 P.2d 991.

Police report not "actual notice". — An accident report prepared by the state police does not constitute actual notice to the state and to all state agencies. Mere notice of an accident will not necessarily put the government entity on notice that it may become the defendant in a lawsuit. Marrujo v. N.M. State Hwy. Transp. Dep't, 1994-NMSC-116, 118 N.M. 753, 887 P.2d 747.

Actual notice requires notice that there exists a likelihood that litigation may ensue. — Where plaintiff filed a lawsuit asserting claims against the Bernalillo county metropolitan detention center (BCMDC) for violations of the New Mexico Tort Claims Act after a state district court remanded plaintiff to BCMDC to participate in a methadone program to decrease his level of dependence so that he would not incur life endangering withdrawal symptoms, but where plaintiff suffered life threatening withdrawal symptoms for approximately two months after being transferred to the New Mexico Corrections Department in contravention of the state district court's order, the federal district court was without jurisdiction over the tort claims, because plaintiff did not provide written notice to Bernalillo county and there was not sufficient evidence showing that Bernalillo county had actual notice that there existed a likelihood that litigation may ensue in order to reasonably alert the county to the necessity of investigating the merits of the potential claim. Gallegos v. Bernalillo County Board of County Commissioners, 278 F.Supp.3d 1245 (D.N.M. 2017).

Report serves as notice if governmental entity made aware of claim. — Under some circumstances, a police or other report could serve as actual notice under Subsection B, but only where the report contains information which puts the governmental entity allegedly at fault on notice that there is a claim against it. Guerra, City of Las Cruces v. Garcia, 1984-NMSC-106, 102 N.M. 25, 690 P.2d 1019.

Report may serve as notice if agency has knowledge of potential liability. — When the governmental entity allegedly at fault has knowledge of the facts and circumstances of an occurrence, it may have knowledge of its own potential liability, and a particular statement by a victim that there may be a claim is not required. Lopez v. State, 1996-NMSC-071, 122 N.M. 611, 930 P.2d 146.

Notice provisions operate as statutes of limitations since they are conditions precedent to filing a suit. 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).

If governmental entity creates condition that causes injury, notice is still required of a claim for damages. This section operates in conjunction with 41-4-15 NMSA 1978, the statute of limitations section, on the issue of a timely claim. Tafoya v. Doe, 1983-NMCA-070, 100 N.M. 328, 670 P.2d 582, cert. quashed sub nom., 100 N.M. 327, 670 P.2d 581.

Actual notice of accident. — An evidentiary hearing may be required to decide the threshold issue whether, from actual notice of an occurrence, a governmental entity was on notice that it could be subject to a claim. Lopez v. State, 1996-NMSC-071, 122 N.M. 611, 930 P.2d 146.

Burden of proof that notice requirements not met. — It is the defendants' burden to sustain their defense that the notice requirements had not been met. Ferguson v. N.M. State Hwy. Comm'n, 1981-NMCA-071, 98 N.M. 718, 652 P.2d 740, rev'd on other grounds, 1982-NMSC-107, 98 N.M. 680, 652 P.2d 230.

Police accident report not "actual notice". — An accident report prepared by the New Mexico state police does not constitute "actual notice," within the meaning of Subsection B, to the state and to all state agencies. N.M. State Hwy. Comm'n v. Ferguson, 1982-NMSC-107, 98 N.M. 680, 652 P.2d 230.

Weight given statements made in workmen's compensation suits. — Since cases arising under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] almost always present issues of first impression, statements made in workmen's compensation (now workers' compensation) suits regarding the reason for notice should be accorded great weight. Martinez v. City of Clovis, 1980-NMCA-078, 95 N.M. 654, 625 P.2d 583, cert. denied, 94 N.M. 674, 615 P.2d 991.

Federal preemption. — The Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] notice-of-claim requirement is preempted by the federal Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and, therefore, is not applicable to an Emergency Act claim. Godwin v. Mem'l Med. Ctr., 2001-NMCA-033, 130 N.M. 434, 25 P.3d 273, cert. quashed, 132 N.M. 193, 46 P.3d 100, and cert. denied, 537 U.S. 885, 123 S. Ct. 118, 154 L. Ed. 2d 144 (2002).

Summary judgment inappropriate. — Where undisputed facts of the case allow the trier of fact to draw equally logical but conflicting inferences from the facts, summary judgment on the issue of whether the department of corrections had actual notice of the occurrence as required by subsection B is not appropriate. Calloway v. N.M. Dep't of Corr., 1994-NMCA-049, 117 N.M. 637, 875 P.2d 393, cert. denied, 118 N.M. 90, 879 P.2d 91.

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 680, 719, 737, 760, 773, 776, 782.

Attorney's mistake or neglect as excuse for failing to file timely notice of tort claim against state or local governmental unit, 55 A.L.R.3d 930.

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.

Local government tort liability: minority status as affecting notice of claim requirement, 58 A.L.R.4th 402.

Insufficiency of notice of claim against municipality as regards statement of place where accident occurred, 69 A.L.R.4th 484.

Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions, 45 A.L.R.5th 109.

Persons or entities upon whom notice of injury or claim against state or state agencies may or must be served, 45 A.L.R.5th 173.

Sufficiency of notice of claim against local governmental unit as regards identity, name, address, and residence of claimant, 53 A.L.R.5th 617.

Sufficiency of notice of claim against local political entity as regards time when accident occurred, 57 A.L.R.5th 689.

Waiver of, or estoppel to assert, failure to give or defects in notice of claim against state or local political subdivision - modern status, 64 A.L.R.5th 519.

63 C.J.S. Municipal Corporations §§ 922 to 930; 81A C.J.S. States § 310.

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