2019 New Mexico Statutes
Chapter 41 - Torts
Article 4 - Tort Claims
Section 41-4-19 - Maximum liability.
A. Unless limited by Subsection B of this section, in any action for damages against a governmental entity or a public employee while acting within the scope of the employee's duties as provided in the Tort Claims Act, the liability shall not exceed:
(1) the sum of two hundred thousand dollars ($200,000) for each legally described real property for damage to or destruction of that legally described real property arising out of a single occurrence;
(2) the sum of three hundred thousand dollars ($300,000) for all past and future medical and medically related expenses arising out of a single occurrence; and
(3) the sum of four hundred thousand dollars ($400,000) to any person for any number of claims arising out of a single occurrence for all damages other than real property damage and medical and medically related expenses as permitted under the Tort Claims Act.
B. The total liability for all claims pursuant to Paragraphs (1) and (3) of Subsection A of this section that arise out of a single occurrence shall not exceed seven hundred fifty thousand dollars ($750,000).
C. Interest shall be allowed on judgments against a governmental entity or public employee for a tort for which immunity has been waived under the Tort Claims Act at a rate equal to two percentage points above the prime rate as published in the Wall Street Journal on the date of the entry of the judgment. Interest shall be computed daily from the date of the entry of the judgment until the date of payment.
D. No judgment against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act shall include an award for exemplary or punitive damages or for interest prior to judgment.
History: 1953 Comp., § 5-14-3, enacted by Laws 1976, ch. 58, § 17; 1977, ch. 386, § 14; 1991, ch. 205, § 3; 2004, ch. 108, § 1; 2007, ch. 121, § 1.
ANNOTATIONSThe 2007 amendment, effective July 1, 2008, increased the maximum liability from $100,000 to $200,000 for damage or destruction of each legally described real property; and limited the total liability for all claims arising out of a single occurrence to not more that $750,000.
Applicability. — Laws 2007, ch. 121, § 2 provided that Laws 2007, ch. 121, §1 applied only to claims for damages from torts committed on or after July 1, 2008.
The 2004 amendment, effective May 19, 2004, added Subsection B and redesignated former Subsection B as present Subsection C.
The 1991 amendment, effective July 1, 1992, in Subsection A, added Paragraph (2), redesignated former Paragraphs (2) and (3) as Paragraphs (3) and (4), substituted "four hundred thousand dollars ($400,000)" for "three hundred thousand dollars ($300,000)" and inserted "and medical and medically-related expenses" in Paragraph (3), and substituted "seven hundred fifty thousand dollars ($750,000)" for "five hundred thousand dollars ($500,000)" and inserted "other than medical or medically-related expenses" in Paragraph (4).
The cap on damages is constitutional. — The cap on damages does not violate substantive due process or equal protection and does not encroach on the right to trial by jury or the Separation of Powers Clause. Wachocki v. Bernalillo Cnty. Sheriff's Dep't, 2010-NMCA-021, 147 N.M. 720, 228 P.3d 504, aff'd, 2011-NMSC-039, 150 N.M. 650, 265 P.3d 701.
Cap on damages. — In considering the constitutionality of the cap on damages in Subsection A(2), the trial court was mistaken in limiting the facts applicable solely to the defendant city; the city had the burden of demonstrating that enforcement of the cap was substantially related to an important state interest, and the trial court should have considered evidence on the relationship of the cap to public treasuries as an indivisible and statewide whole, both at the time the cap was enacted and at the time the causes of action accrued; Trujillo v. City of Albuquerque, 1990-NMSC-083, 110 N.M. 621, 798 P.2d 571 is withdrawn. Trujillo v. City of Albuquerque, 1995-NMSC-027, 119 N.M. 602, 893 P.2d 1006.
Because the statutory cap on tort recoveries against the state affects economic interests, not fundamental rights, the appropriate level of constitutional scrutiny in an equal protection challenge is rational basis review, not the intermediate scrutiny necessary for statutes affecting fundamental rights. Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305.
Wrongful death action brought by a personal representative is a single claim. — A personal representative, whether consisting of one or more individuals, is the "person" for purposes of 41-4-19A(3) NMSA 1978 because under the Wrongful Death Act [41-2-1 NMSA 1978 et seq.] the personal representative of the deceased person replaces the deceased person and has the sole right to pursue the action on behalf of the statutory beneficiaries. A wrongful death action brought by a personal representative on behalf of multiple statutory beneficiaries is a single claim under 41-4-19A(3) NMSA 1978, rather than multiple claims under 41-4-19A(4) NMSA 1978. Estate of Lajeuenesse v. UNM Bd. of Regents, 2013-NMCA-004, 292 P.3d 485, cert. quashed, 2013-NMCERT-001.
Where the personal representative of the decedent sued defendants for the wrongful death of the decedent based on the negligent medical care provided by defendants; no claims were made by any person other than the personal representative; and the jury awarded plaintiff damages of $750,000, the district court properly applied the monetary limitation of 41-4-19A(3) NMSA 1978, rather than multiple claims limitation under 41-4-19A(4) NMSA 1978, to reduce the verdict to $400,000 because the wrongful death action was a single claim, not multiple claims. Estate of Lajeuenesse v. UNM Bd. of Regents, 2013-NMCA-004, 292 P.3d 485, cert. quashed, 2013-NMCERT-001.
Double costs provision of Rule 1-068 NMRA does not conflict with the Tort Claims Act. — The double costs awarded under Paragraph A of Rule 1-068 NMRA are not punitive damages or prejudgment interest and are not prohibited by Subsection D of 41-4-19 NMSA 1978. Estate of Lajeuenesse v. UNM Bd. of Regents, 2013-NMCA-004, 292 P.3d 485, cert. quashed, 2013-NMCERT-001.
Recovery of costs. — The legislature, in 39-3-30 NMSA 1978, gives express authority, without exception, to the recovery of costs against any losing party, including the state. Kirby v. N.M. State Hwy. Dep't, 1982-NMCA-014, 97 N.M. 692, 643 P.2d 256, cert. denied, 98 N.M. 51, 644 P.2d 1040.
Postjudgment interest. — Plaintiff in wrongful death action was not entitled to postjudgment interest on a prior judgment obtained against the New Mexico State Highway Department. Fought v. State, 1988-NMCA-088, 107 N.M. 715, 764 P.2d 142, overruled in part on other grounds, Folz v. State, 1993-NMCA-066, 115 N.M. 639, 857 P.2d 39, cert. denied, 115 N.M. 602, 856 P.2d 250.
An award of postjudgment interest on judgments against a governmental entity is not permitted under this article. Yardman v. San Juan Downs, Inc., 1995-NMCA-106, 120 N.M. 751, 906 P.2d 742, cert. denied, 120 N.M. 636, 904 P.2d 1061.
"Single occurrence" construed. — In a negligence action against a city for injuries sustained in a collision with a city-owned crane, there was but a single occurrence when successive negligent acts or omissions of the governmental entity combined concurrently to create a singular risk of collision and to proximately cause injury triggered by a discrete event. Trujillo v. City of Albuquerque, 1990-NMSC-083, 110 N.M. 621, 798 P.2d 571.
In a wrongful death and personal injury action brought against the state highway department and others for deaths and injuries from a runaway truck, all injuries proximately caused by a governmental agency's successive negligent acts or omissions that combined concurrently to create a singular, separate, and unitary risk of harm fell within the meaning of a "single occurrence" when triggered by the discrete event of one runaway truck. Folz v. State, 1990-NMSC-075, 110 N.M. 457, 797 P.2d 246.
In an action against a county race track by a jockey who was injured when the horse veered, causing the jockey to fall and strike a post and track rail, the county's failure to replace the rail with a safer system and negligent placement of an exit gap on the rail were not separate occurrences; the plaintiff's injuries, which were alleged to have been caused by successive negligent acts or omissions that combined concurrently to create a risk of harm, constituted a single occurrence. Yardman v. San Juan Downs, Inc., 1995-NMCA-106, 120 N.M. 751, 906 P.2d 742, cert. denied, 120 N.M. 636, 904 P.2d 1061.
Jury consideration of aggravating circumstances not punitive damages. — In a wrongful death action in which the state was a defendant, an instruction allowing the jury to consider mitigating or aggravating circumstances in setting compensatory damages did not violate the prohibition on punitive damages contained in Subsection B. Folz v. State, 1990-NMSC-075, 110 N.M. 457, 797 P.2d 246.
Applicability to claim under federal law. — The Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] limits the damages available under the federal Emergency Medical Treatment and Active Labor Act, 42 U.S.C.S. § 1395dd, by placing a "cap" on damages recoverable under the act from a public hospital. Godwin v. Memorial 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).
Law reviews. — For survey, "Torts: Sovereign and Governmental Immunity in New Mexico," see 6 N.M.L. Rev. 249 (1976).
For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).
For note, "Tort Law Either the Parents or the Child may claim Compensation for the Child's Medical and Non-Medical Damages: Lopez v. Southwest Community Health Services," see 23 N.M. L. Rev. 373 (1993).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability §§ 680 to 696.
Recovery of exemplary or punitive damages from municipal corporations, 1 A.L.R.4th 448.
Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit, 43 A.L.R.4th 19.
