2019 New Mexico Statutes
Chapter 41 - Torts
Article 4 - Tort Claims
Section 41-4-4 - Granting immunity from tort liability; authorizing exceptions.

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

A. A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act [28-22-1 to 28-22-5 NMSA 1978] and by Sections 41-4-5 through 41-4-12 NMSA 1978. Waiver of this immunity shall be limited to and governed by the provisions of Sections 41-4-13 through 41-4-25 NMSA 1978, but the waiver of immunity provided in those sections does not waive immunity granted pursuant to the Governmental Immunity Act [41-13-1 to 41-13-3 NMSA 1978].

B. Unless an insurance carrier provides a defense, a governmental entity shall provide a defense, including costs and attorney fees, for any public employee when liability is sought for:

(1) any tort alleged to have been committed by the public employee while acting within the scope of his duty; or

(2) any violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico when alleged to have been committed by the public employee while acting within the scope of his duty.

C. A governmental entity shall pay any award for punitive or exemplary damages awarded against a public employee under the substantive law of a jurisdiction other than New Mexico, including other states, territories and possessions and the United States of America, if the public employee was acting within the scope of his duty.

D. A governmental entity shall pay any settlement or any final judgment entered against a public employee for:

(1) any tort that was committed by the public employee while acting within the scope of his duty; or

(2) a violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico that occurred while the public employee was acting within the scope of his duty.

E. A governmental entity shall have the right to recover from a public employee the amount expended by the public entity to provide a defense and pay a settlement agreed to by the public employee or to pay a final judgment if it is shown that, while acting within the scope of his duty, the public employee acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death or property damage resulting in the settlement or final judgment.

F. Nothing in Subsections B, C and D of this section shall be construed as a waiver of the immunity from liability granted by Subsection A of this section or as a waiver of the state's immunity from suit in federal court under the eleventh amendment to the United States constitution.

G. The duty to defend as provided in Subsection B of this section shall continue after employment with the governmental entity has been terminated if the occurrence for which damages are sought happened while the public employee was acting within the scope of duty while the public employee was in the employ of the governmental entity.

H. The duty to pay any settlement or any final judgment entered against a public employee as provided in this section shall continue after employment with the governmental entity has terminated if the occurrence for which liability has been imposed happened while the public employee was acting within the scope of his duty while in the employ of the governmental entity.

I. A jointly operated public school, community center or athletic facility that is used or maintained pursuant to a joint powers agreement shall be deemed to be used or maintained by a single governmental entity for the purposes of and subject to the maximum liability provisions of Section 41-4-19 NMSA 1978.

J. For purposes of this section, a "jointly operated public school, community center or athletic facility" includes a school, school yard, school ground, school building, gymnasium, athletic field, building, community center or sports complex that is owned or leased by a governmental entity and operated or used jointly or in conjunction with another governmental entity for operations, events or programs that include sports or athletic events or activities, child-care or youth programs, after-school or before-school activities or summer or vacation programs at the facility.

K. A fire station that is used for community activities pursuant to a joint powers agreement between the fire department or volunteer fire department and another governmental entity shall be deemed to be operated or maintained by a single governmental entity for the purposes of and subject to the maximum liability provisions of Section 41-4-19 NMSA 1978. As used in this subsection, "community activities" means operations, events or programs that include sports or athletic events or activities, child care or youth programs, after-school or before-school activities, summer or vacation programs, health or education programs and activities or community events.

History: 1953 Comp., § 5-14-4, enacted by Laws 1976, ch. 58, § 4; 1977, ch. 386, § 3; 1978, ch. 166, § 1; 1981, ch. 267, § 1; 1982, ch. 8, § 1; 1989, ch. 369, § 1; 1996, ch. 68, § 1; 1999, ch. 268, § 1; 2000 (2nd S.S.), ch. 17, § 6; 2001, ch. 211, § 1.

ANNOTATIONS

The 2001 amendment, effective June 15, 2001, added Subsection K.

The 2000 amendment, effective July 3, 2000, inserted "the New Mexico Religious Freedom Restoration Act and by" following "waived by" in Subsection A and deleted "but not limited to" following "including" in Subsection C.

The 1999 amendment, effective June 18, 1999, inserted the language beginning "but the waiver of immunity" in the last sentence of Subsection A.

The 1996 amendment, effective March 5, 1996, added Subsections I and J and made stylistic changes in Paragraphs D(1) and D(2).

The 1989 amendment, effective June 16, 1989, inserted "including costs and attorneys' fees" in the introductory paragraph of Subsection B.

I. GENERAL CONSIDERATION.

Joint operation of a facility. — Without proof of a joint powers agreement plaintiff cannot apply 41-4-4 I and J NMSA 1978. Gutierrez v. W. Las Vegas Sch. Dist., 2002-NMCA-068, 132 N.M. 372, 48 P.3d 761

Modification of common law requires strict construction. — Since the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] 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-NMSC-145, 95 N.M. 329, 622 P.2d 234.

Right to sue and recover under act is limited to the rights, procedures, limitations and conditions prescribed in this act. Methola v. County of Eddy, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.

Agency to be named in complaint. — Under the Tort Claims Act, the particular agency that caused the harm is the party that must be named in the complaint and against whom a judgment may be entered. Begay v. State, 1985-NMCA-117, 104 N.M. 483, 723 P.2d 252, rev'd on other grounds sub nom., Smialek v. Begay, 1986-NMSC-049, 104 N.M. 375, 721 P.2d 1306, cert. denied, 479 U.S. 1020, 93 L. Ed. 2d 727, 107 S. Ct. 677.

Proper defendant. — The statutory structure of the Tort Claims Act indicates that either a governmental entity or an individual public employee can be the sole named defendant. The Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] does not require a plaintiff to name a specific public employee as a defendant to recover damages and a plaintiff may state a claim by naming only a governmental entity. Lopez v. Las Cruces Police Dep't, 2006-NMCA-074, 139 N.M. 730, 137 P.3d 670, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278.

Lawsuit alleging claims against county detention center must name board of county commissioners as a defendant. — Where plaintiff filed a lawsuit asserting claims against the Bernalillo county metropolitan detention center (BCMDC) for violations of the New Mexico Tort Claims Act (NMTCA) after plaintiff was remanded 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 nonetheless suffered life threatening withdrawal symptoms for approximately two months, BCMDC was not a suable entity under the NMTCA, because 4-46-1 NMSA 1978 provides a limitation on the NMTCA, requiring that the proper defendant in all suits against a county is the county's board of county commissioners. Gallegos v. Bernalillo County Board of County Commissioners, 272 F.Supp.3d 1256 (D.N.M. 2017).

Duty and immunity are distinct. — The concepts of duty and immunity are different under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. The Act is not a source of duties to be imposed on government entities. Duty or responsibility must be found outside the act either at common law or by statute. 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 119.

Tort is separate and distinct from constitutional deprivation. — The New Mexico legislature recognizes that a tort is separate and distinct from a constitutional deprivation. Wells v. County of Valencia, 1982-NMSC-048, 98 N.M. 3, 644 P.2d 517.

Denial of immunity claim not immediately appealable. — Since Subsection A of this section provides a defense to liability, and not absolute immunity from suit, a denial of a claim of immunity under that section does not meet the requirements for immediate appellate review under the collateral order exception to the traditional requirement of finality. Allen v. Board of Educ., 1987-NMCA-152, 106 N.M. 673, 748 P.2d 516.

Legislature acted within its powers in limiting liability of public employees in the same manner as it limited the liability of the entity for whom they work. 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).

Suit against state hospital in federal court not permitted. — Congress does not have the power to make statutes such as the Emergency Medical Treatment and Active Labor Act (EMTALA) applicable to state-run hospitals without the state's express consent. As indicated by this section, 41-4-2 NMSA 1978 and 41-4-18 NMSA 1978, New Mexico has not consented to be sued in federal court for violations of EMTALA, nor for any other tort. Ward v. Presbyterian Healthcare Servs., 72 F. Supp. 2d 1285 (D.N.M. 1999).

Suits in federal court. — Although the state has waived its immunity from suit in its own state courts for actions of law enforcement officers, it has not waived its Eleventh Amendment immunity from suit in federal courts. Flores v. Long, 926 F. Supp. 166 (D.N.M. 1995), appeal dismissed, 110 F.3d 730 (10th Cir. 1997).

Governmental entities liable for discriminatory practices. — The Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] does not override or supersede the Human Rights Act [28-1-1 NMSA 1978 et seq.], so as to shield a governmental entity from liability otherwise flowing from a discriminatory practice proscribed by the latter act. Section 28-1-13D NMSA 1978 constitutes a waiver of sovereign immunity for liability imposed on public entities by the human rights commission, or by a district court on appeal from a commission decision, for violations of the Human Rights Act. Luboyeski v. Hill, 1994-NMSC-032, 117 N.M. 380, 872 P.2d 353.

Subpoena power. — The Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] does not protect government actors from a court's subpoena power. Seeds v. Lucero, 2005-NMCA-067, 137 N.M. 589, 113 P.3d 859, cert. denied sub nom. Seeds v. Vandervossen, 2005-NMCERT-005, 137 N.M. 522, 113 P.3d 345.

Liability question of fact. — Question of whether boy scout troop using school district's swimming pool was a business invitee to whom school district owed duty of reasonable care to avoid risk of harm and question as to negligence of school district for failing to provide lifeguard and safety equipment were questions raising genuine issue of material fact precluding summary judgment in wrongful action. Seal v. Carlsbad Indep. Sch. Dist., 1993-NMSC-049, 116 N.M. 101, 860 P.2d 743.

Duty to defend. — 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.

II. IMMUNITY AND WAIVER.

Tort Claims Act grants immunity for strict liability in tort. McCurry v. City of Farmington, 1982-NMCA-055, 97 N.M. 728, 643 P.2d 292.

Subsection A provides government entities with immunity from liability for any tort, except as waived in other sections of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Bierner v. City of Truth or Consequences, 2004-NMCA-093, 136 N.M. 197, 96 P.3d 322.

Prima facie tort is not included in the specific provisions of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]; government entities and public employees acting within the scope of duty therefore enjoy immunity to such claims. Derringer v. State, 2003-NMCA-073, 133 N.M. 721, 68 P.3d 961, cert. denied, 133 N.M. 727, 69 P.3d 237.

Tort Claims Act clearly contemplates including employees who abuse their officially authorized duties, even to the extent of some tortious and criminal activity. Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239.

Liability of governmental entity for torts of employees. — A governmental entity is not immune from liability for any tort of its employee acting within the scope of duties for which immunity is waived. Silva v. State, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.

It is only when a public entity is itself acting through its employee with the right to control the manner in which the details of work are to be done, that the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] comes into play. Silva v. State, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.

The supervision required for naming a public entity includes more than "direct supervision"; it includes the right of control regardless of whether exercised. Silva v. State, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.

Constructive fraud not basis for waiver. — Constructive fraud is not one of the causes of action for which a city's sovereign immunity is waived under this section. Health Plus v. Harrell, 1998-NMCA-064, 125 N.M. 189, 958 P.2d 1239, cert. denied, 125 N.M. 145, 958 P.2d 103; Cordova v. N.M. Taxation & Revenue Dep't, 2005-NMCA-009, 136 N.M. 713, 104 P.3d 1104.

Economic compulsion and constructive fraud are not specifically waived by the statute. Valdez v. State, 2002-NMSC-028, 132 N.M. 667, 54 P.3d 71.

Immunity not waived where negligence did not result in enumerated tort or where law enforcement officer did not breach a statutory duty. — Where plaintiff was traveling on a highway in Bloomfield, New Mexico when her vehicle struck an intoxicated pedestrian, and where plaintiff brought suit against defendants alleging negligence based on the fact that a San Juan County deputy left the pedestrian near the highway after taking the pedestrian into custody due to the pedestrian's intoxication, the district court did not err in dismissing plaintiff's tort claim based on its determination that defendant's immunity was not waived because the negligence of the officer did not result in one of the enumerated torts listed in 41-4-12 NMSA 1978, and the deputy's conduct did not breach a statutory duty owed to plaintiff. Milliron v. County of San Juan, 2016-NMCA-096.

Waiver of immunity. — Section 41-4-21 NMSA 1978 was designed to preserve employment relations between the state, or a subdivision thereof, and its employees; it may not be read to expand Subsection A of this section and to provide a waiver of immunity to allow an educational malpractice action against a public school board. Rubio ex rel. Rubio v. Carlsbad Mun. Sch. Dist., 1987-NMCA-127, 106 N.M. 446, 744 P.2d 919.

Limited liability of law enforcement officers. — The clear meaning of this section is that law enforcement officers are not personally liable for malicious or fraudulent torts when committed while acting within the scope of their duties, except as provided in 41-4-12 NMSA 1978. Methola v. County of Eddy, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.

Waiver of public employees' immunity not allowed. — Section does not allow an attorney of public employees who enjoy sovereign immunity to waive such immunity at trial. Garcia v. Board of Educ., 777 F.2d 1403 (10th Cir. 1985), cert. denied, 479 U.S. 814, 107 S. Ct. 66, 93 L. Ed. 2d 24 (1986).

III. SCOPE OF DUTY.

No distinction shall be drawn with regard to "public" or "special" duty of governmental employees whose immunity to suit for acts of negligence has been excepted under this article. Schear v. Board of Cnty. Comm'rs, 1984-NMSC-079, 101 N.M. 671, 687 P.2d 728.

Act provides immunity to public employee acting within scope of duty. — If either district attorney or assistant district attorney was acting within the scope of his duty as a public employee at the time of an alleged defamation, he is immune from liability under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] regardless of any other immunity afforded to a district attorney or assistant district attorney. Candelaria v. Robinson, 1980-NMCA-003, 93 N.M. 786, 606 P.2d 196.

Scope of duties/course of employment. — One is not in the course of employment unless the conduct in controversy is of the same general nature as that authorized or incidental thereto. Stull v. City of Tucumcari, 1975-NMCA-105, 88 N.M. 320, 540 P.2d 250, cert. denied, 88 N.M. 319, 540 P.2d 249.

Scope of duties. — Under the definition of "scope of duties" in Subsection G of 41-4-3 NMSA 1978, when reconciled with the indemnification provisions in Subsection E of this section and Subsection A of 41-4-17 NMSA, an employee's acts are not excluded simply because they are criminal. Risk Mgmt. Div. v. McBrayer, 2000-NMCA-104, 129 N.M. 778, 14 P.3d 43, cert. denied, 130 N.M. 17, 16 P.3d 442.

Where plaintiff contended that intentional torts are outside the scope of duties of certain state officials, but she failed to specify any actions by the officials which they were not "requested, required, or authorized to perform," defendants were entitled to summary judgment against her on her claims of intentional infliction of emotional distress and defamation. Garcia-Montoya v. State Treasurer's Office, 2001-NMSC-003, 130 N.M. 25, 16 P.3d 1084.

Horseplay did not take place in the course and scope of employee's employment. Rivera v. N.M. Hwy. & Transp. Dep't, 1993-NMCA-057, 115 N.M. 562, 855 P.2d 136, cert. denied, 115 N.M. 545, 854 P.2d 872.

Failing to perform a regular duty, such as timely responding to requests for records, still falls with the scope of duties for purposes of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Derringer v. State, 2003-NMCA-073, 133 N.M. 721, 68 P.3d 961, cert. denied, 133 N.M. 727, 69 P.3d 237.

The defendant failed to show that he was acting in the scope of his duties as a matter of law where his evidence primarily consisted of habit evidence combined with lack of memory and he could not recall anything about his most recent official acts before the accident occurred. Celaya v. Hall, 2003-NMCA-086, 134 N.M. 19, 71 P.3d 1281, aff'd in part and rev'd in part, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239.

Actions outside employment scope. — An officer of the state, who acts outside the scope of authority and in so doing commits a willful and malicious tort, may be held liable for those actions. Allen v. McClellan, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677, overruled on other grounds by, N.M. Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.

IV. SPECIFIC CASES.

Constitutional claims. — The Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] does not waive immunity for separation of powers for unlawful taxation on unlawful special tax claims. Valdez v. State, 2002-NMSC-028, 132 N.M. 667, 54 P.3d 71.

Operation of a swimming pool is not an inherently dangerous activity giving rise to the strict liability from which a school district and its employees would have enjoyed sovereign immunity under this section for the drowning of a handicapped 18-year-old boy. Seal v. Carlsbad Indep. Sch. Dist., 1993-NMSC-049, 116 N.M. 101, 860 P.2d 743.

Charter schools are public schools subject to the Tort Claims Act. — A charter school is a public school that operates as part of a political subdivision of the state and, as such, is a governmental entity within the meaning of the Tort Claims Act. Kreutzer v. Aldo Leopold High School, 2018-NMCA-005.

Where plaintiff sued defendant charter school, asserting a negligence claim based on allegations that defendant owed a duty to plaintiff to use ordinary care to keep the premises of its school safe and breached that duty by failing to take reasonable precautions to keep the school safe, the district court did not err in granting defendant's motion for summary judgment and in ruling that defendant is a public school and, as such, a governmental entity subject to suit only as permitted by an exception to the Tort Claims Act's general rule of immunity. Kreutzer v. Aldo Leopold High School, 2018-NMCA-005.

Police owe no duty to unforeseeable plaintiffs. — As a matter of law, the plaintiffs, children of the deceased killed by law enforcement officers, were unforeseeable as injured parties and, therefore, the defendant officers owed no duty to them. Lucero v. Salazar, 1994-NMCA-066, 117 N.M. 803, 877 P.2d 1106, cert. denied, 117 N.M. 802, 877 P.2d 1105.

No waiver of immunity for conducting physical agility test prior to employment. — There is no waiver of immunity which can impose liability on a school board or school officers when the plaintiff's decedent, while interviewing for the job of security officer and attempting to complete a physical agility test, suffered a heart attack and subsequently died. The conduction of the physical agility test was an administrative function and, additionally, simple negligence in the performance of a law enforcement officer's duty does not amount to commission of a tort. Tafoya v. Bobroff, 865 F. Supp. 742 (D.N.M. 1994), aff'd, 74 F.3d 1250 (10th Cir. 1996).

Liability where ordinance void. — An officer who makes an arrest for the violation of an ordinance committed in his presence, which by law he is required to make, should not be subjected to liability if thereafter it should be judicially determined that the ordinance was void and in fact no offense had been committed. Miller v. Stinnett, 257 F.2d 910 (10th Cir. 1958).

Negligent release of criminal suspect. — Plaintiff's complaint, claiming personal injuries and damages resulting from rape by a criminal suspect following suspect's allegedly negligent release from a detention center, stated a cause of action against the city which operated the center and against the center director. Abalos v. Bernalillo Cnty. Dist. Attorney's Office, 1987-NMCA-026, 105 N.M. 554, 734 P.2d 794, cert. quashed, 106 N.M. 35, 738 P.2d 907.

Liability for placement of signals and signs. — Because 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.

Negligence of city in maintenance of gas service actionable. — If a city negligently maintains a gas service provided by it beyond the statutorily prescribed five-mile limit, that negligence is actionable and there exists no sovereign immunity to shield it from liability under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Cole v. City of Las Cruces, 1983-NMSC-007, 99 N.M. 302, 657 P.2d 629.

No liability for assault of one citizen by another. — A city is not liable for failure to provide adequate policing to protect one citizen from being assaulted by another citizen. A municipality will not be held liable for failure to carry out either a statutory function or a governmental function. Trujillo v. City of Albuquerque, 1979-NMCA-127, 93 N.M. 564, 603 P.2d 303, cert. denied, 94 N.M. 629, 614 P.2d 546.

Government liability for individual assault — Liability for failure to protect one citizen from being assaulted by another citizen would exist only if there had been a specific promise of protection by the police to the victim or if the police officer had affirmatively caused the damage of which the plaintiff was complaining. Trujillo v. City of Albuquerque, 1979-NMCA-127, 93 N.M. 564, 603 P.2d 303, cert. denied, 94 N.M. 629, 614 P.2d 546.

Immunity of state medical examiner. — An allegation of negligent decision-making by the state medical investigator does not fall within an exception to the legislative grant of sovereign immunity contained in the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Begay v. State, 1985-NMCA-117, 104 N.M. 483, 723 P.2d 252, rev'd on other groundssub nom., Smialek v. Begay, 1986-NMSC-049, 104 N.M. 375, 721 P.2d 1306, cert. denied, 479 U.S. 1020, 93 L. Ed. 2d 727, 107 S. Ct. 677.

In an action for damages on the basis of an alleged wrongful decision to perform an autopsy, even if 24-12-4 NMSA 1978, which provides for consent for postmortem examinations, created a private cause of action, it did not override the state medical investigator's grant of immunity under the Tort Claims Act. Begay v. State, 1985-NMCA-117, 104 N.M. 483, 723 P.2d 252, rev'd on other grounds sub nom., Smialek v. Begay, 1986-NMSC-049, 104 N.M. 375, 721 P.2d 1306, cert. denied, 479 U.S. 1020, 93 L. Ed. 2d 727, 107 S. Ct. 677.

In an action for damages on the basis of a wrongful decision to perform an autopsy on decedent, causing emotional distress to family members because the body was not handled according to traditional Navajo religious beliefs, a count alleging interference with plaintiffs' free exercise of religion was dismissed since the state had given no consent to be sued and there was no express waiver for the state medical examiner under the Tort Claims Act. Begay v. State, 1985-NMCA-117, 104 N.M. 483, 723 P.2d 252, rev'd on other grounds sub nom., Smialek v. Begay, 1986-NMSC-049, 104 N.M. 375, 721 P.2d 1306, cert. denied, 479 U.S. 1020, 93 L. Ed. 2d 727, 107 S. Ct. 677.

Immunity of state auditor. — Because state auditor was acting within his scope of duty in commissioning a special audit and publishing the report, no waiver of immunity exists under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] for claims of defamation. Vigil v. State Auditor's Office, 2005-NMCA-096, 138 N.M. 63, 116 P.3d 854, cert. denied, 2005-NMCERT-007, 138 N.M. 146, 117 P.3d 952.

Immunity of building inspector. — City building inspector who inspected building held to have qualified immunity for equal protection claim, but issue raised as to whether inspector had qualified immunity for fourth amendment and first amendments claims. Mimics, Inc. v. Village of Angel Fire, 277 F. Supp. 2d 1131 (D.N.M. 2003), rev'd on other grounds, 394 F. 3d 836 (10th Cir. 2005).

Jeopardy tax assessment. — State officials are not entitled to absolute immunity for jeopardy tax assessments which are primarily investigatory and administrative in nature. Perez v. Ellington, 421 F.3d 1128 (10th Cir. 2005).

Intentional interference with contract. — Under the Tort Claims Act, a governmental entity may not be held liable for damages resulting from the tort of intentional interference with contract. El Dorado Utils., Inc. v. Eldorado Area Water and Sanitation Dist., 2005-NMCA-036, 137 N.M. 217, 109 P.3d 305.

V. DEFENSE AND INDEMNITY.

A tribal police officer, also commissioned as a county deputy sheriff and acting under his state authority as a deputy sheriff, is a "public employee" under the New Mexico Tort Claims Act and is entitled to its benefits. — A tribal officer, who is also commissioned as a county deputy sheriff, is a "public employee" under the New Mexico Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] when the tribal officer is acting in an official capacity and on behalf or in service of the county, and is therefore entitled to the benefits of the New Mexico Tort Claims Act, including a legal defense and indemnification. Loya v. Gutierrez, 2015-NMSC-017, rev'g 2014-NMCA-028, 319 P.3d 656.

Where an on-duty, full time pueblo tribal law enforcement officer, who was also commissioned as a Santa Fe county deputy sheriff, stopped plaintiff's vehicle on a state-maintained highway within the exterior boundaries of the pueblo and arrested plaintiff for reckless driving, the tribal officer was acting under his state authority as a deputy sheriff, not under tribal authority, when he charged, detained, and prosecuted plaintiff under state law; the tribal officer was therefore a "public employee" under the New Mexico Tort Claims Act because he was a person acting on behalf or in service of a governmental entity, in an official capacity, whether with or without compensation. As a "public employee" under the New Mexico Tort Claims Act, the tribal officer was entitled to the benefits of the New Mexico Tort Claims Act, including a legal defense and indemnification. Loya v. Gutierrez, 2015-NMSC-017, rev'g 2014-NMCA-028, 319 P.3d 656.

A governmental entity must provide a defense when liability is sought against its public employees for violation of federal constitutional rights. — This section requires the governmental entity to provide a defense equally for claims that are torts for which sovereign immunity has been waived and for claims that are not torts, such as federal civil rights claims, for which sovereign immunity has not been waived under the New Mexico Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Loya v. Gutierrez, 2015-NMSC-017, rev'g 2014-NMCA-028, 319 P.3d 656.

Where an on-duty, full time pueblo tribal law enforcement officer, who was also commissioned as a Santa Fe county deputy sheriff, stopped plaintiff's vehicle on a state-maintained highway within the exterior boundaries of the pueblo and arrested plaintiff for reckless driving, the tribal officer was acting under his state authority as a deputy sheriff, not under tribal authority, when he charged, detained, and prosecuted plaintiff under state law; the tribal officer was therefore a "public employee" under the New Mexico Tort Claims Act because he was a person acting on behalf or in service of a governmental entity, in an official capacity, whether with or without compensation. As a "public employee" under the New Mexico Tort Claims Act, the tribal officer was entitled to the benefits of the New Mexico Tort Claims Act, including a legal defense and indemnification against claims of federal constitutional rights violations. Loya v. Gutierrez, 2015-NMSC-017, rev'g 2014-NMCA-028, 319 P.3d 656.

Tribal police officer was not a "public employee". — Where an on-duty, full-time pueblo tribal law enforcement officer, acting in the officer's capacity as a commissioned deputy sheriff for the county stopped plaintiff's vehicle on a state-maintained road within the exterior boundaries of the pueblo and arrested plaintiff for reckless driving; the officer was dressed in a full tribal police uniform, displaying a tribal badge of office, and driving a tribal police vehicle; in addition to acting under tribal law, the officer was on duty as a duly commissioned deputy sheriff, which gave the officer authority to arrest, charge, and jail non-Indians for violations of New Mexico state laws; the officer took plaintiff to the tribal police department for processing and later transported plaintiff to the county jail; the officer was not a salaried officer employed by the county; the pueblo was a sovereign Indian tribe; plaintiff sued the officer for violation of plaintiff's constitutional rights, the officer was not a "law enforcement officer" or a "public employee" of a "governmental entity" as defined in 40-4-3 NMSA 1978 and the county did not have a duty under 40-4-4 NMSA 1978 to defend or indemnify the officer for tortious acts committed while exercising the officer's authority as a commissioned deputy sheriff. Loya v. Gutierrez, 2014-NMCA-028, cert. denied, 2014-NMCERT-002.

Attorney fees incurred by an employee in a mandamus action to compel the employee's governmental employer to appoint independent defense counsel to defend the employee are not recoverable by the employee under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Paz v. Tijerina, 2007-NMCA-109, 142 N.M. 391, 165 P.3d 1167.

Defense for mandamus actions. — Subsection B, requiring that the government provide a defense for employees subject to a claim for liability, does not include providing a defense for mandamus actions. Board of Cnty. Comm'rs v. Risk MgMt. Div., 1995-NMSC-046, 120 N.M. 178, 899 P.2d 1132.

The Tort Claims Act does not waive immunity from liability for invasions of privacy. 1987 Op. Att'y Gen. No. 87-63.

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

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 note, "Constitutional Law: Qualified Immunity and 'Factual Correspondence' in New Mexico: The Tension Between Formalism and Legal Realism," see 32 N.M.L. Rev. 439 (2002).

For note, "The Death of Implied Causes of Action: The Supreme Court's Recent Bivens Jurisprudence and the Effect on State Constitutional Tort Jurisprudence: Correctional Services Corp. v. Malesko," see 33 N.M.L. Rev. 401 (2003).

For article, "What Does the Natural Rights Clause Mean to New Mexico?", see 35 N.M. L. Rev. 375 (2009).

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

For note, "Torts Sovereign Immunity: Caillouette v. Hercules," see 23 N.M. L. Rev. 423 (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," see 25 N.M. L. Rev. 173 (1995).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability §§ 4, 130, 184 to 205; 63 Am. Jur. 2d Public Officers and Employees §§ 362, 363, 373.

Municipal immunity from liability for torts, 60 A.L.R.2d 1198.

Right of contractor with federal, state or local public body to latter's immunity from tort liability, 9 A.L.R.3d 382.

Modern status of doctrine of sovereign immunity as applied to public schools and institutions of higher learning, 33 A.L.R.3d 703.

Validity and construction of statute authorizing or requiring governmental unit to indemnify public officer or employee for liability arising out of performance of public duties, 71 A.L.R.3d 90.

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 of governmental officer or entity for failure to warn or notify of release of potentially dangerous individual from custody, 12 A.L.R.4th 722.

State's liability to one injured by improperly licensed driver, 41 A.L.R.4th 111.

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.

Probation officer's liability for negligent supervision of probationer, 44 A.L.R.4th 638.

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

Official immunity of state national guard members, 52 A.L.R.4th 1095.

Liability of school authorities for hiring or retaining incompetent or otherwise unsuitable teacher, 60 A.L.R.4th 260.

Tort liability of public authority for failure to remove apparently abused or neglected children from parents' custody, 60 A.L.R.4th 942.

Liability of operator of ambulance service for personal injuries to person being transported, 68 A.L.R.4th 14.

Municipal liability for negligent fire inspection and subsequent enforcement, 69 A.L.R.4th 739.

Immunity of police or other law enforcement officer from liability in defamation action, 100 A.L.R.5th 341.

Immunity of public officials from personal liability in civil rights actions brought by public employees under 42 USCS § 1983, 63 A.L.R. Fed. 744.

Failure of state or local government to protect child abuse victim as violation of federal constitutional right, 79 A.L.R. Fed. 514.

81A C.J.S. States § 196 to 202.

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