2019 New Mexico Statutes
Chapter 41 - Torts
Article 4 - Tort Claims
Section 41-4-8 - Liability; public utilities.

A. The immunity granted pursuant to Subsection A of Section 4 [41-4-4 NMSA 1978] of the Tort Claims Act 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 in the operation of the following public utilities and services: gas; electricity; water; solid or liquid waste collection or disposal; heating; and ground transportation.

B. The liability imposed pursuant to Subsection A of this section shall not include liability for damages resulting from bodily injury, wrongful death or property damage:

(1) caused by a failure to provide an adequate supply of gas, water, electricity or services as described in Subsection A of this section; or

(2) arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water.

History: 1953 Comp., § 5-14-8, enacted by Laws 1976, ch. 58, § 8.

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 (now two) 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 (decided prior to 2011 amendment).

"Operation" of public utilities and services. — The inspection by a city of a private sewer clean-out at the time of its initial construction is not part of the "operation" of a liquid waste collection or disposal utility for the purposes of Subsection A and is not activity for which sovereign immunity is waived. Adams v. Japanese Car Care, 1987-NMCA-113, 106 N.M. 376, 743 P.2d 635.

Fire department is not a public utility and the legislature intended the application of this section only to public utilities. McCurry v. City of Farmington, 1982-NMCA-055, 97 N.M. 728, 643 P.2d 292.

Runoff water. — Paragraph B(2) of this section did not preserve a city's immunity for liability arising from property damage and personal injury caused by flooding onto resident's property by water that came from a city arroyo. This paragraph does not include runoff water. Espander v. City of Albuquerque, 1993-NMCA-031, 115 N.M. 241, 849 P.2d 384, overruled on other grounds by Bybee v. City of Albuquerque, 1995-NMCA-061, 120 N.M. 17, 896 P.2d 1164.

Storm runoff water was not "liquid waste" and, therefore, a flood control diversion channel carrying the runoff was not a public utility for which immunity is waived under this section. Bybee v. City of Albuquerque, 1995-NMCA-061, 120 N.M. 17, 896 P.2d 1164 (overruling City of Albuquerque v. Redding, 1980-NMSC-011, 93 N.M. 757,605 P.2d 1156 and Espander v. City of Albuquerque, 1993-NMCA-031, 115 N.M. 241, 849 P.2d 384).

No exemption from liability for negligent maintenance of service facility. — If the city negligently maintains an adequate service facility provided by it, that negligence has no statutory exemption from liability. Holiday Mgmt. Co. v. City of Santa Fe, 1980-NMSC-048, 94 N.M. 368, 610 P.2d 1197.

Liability for maintenance of bicycle path. — City is not immune from suit brought for personal injuries sustained where front wheel of bicycle slipped through drain grate located in road designated as bicycle path. City of Albuquerque v. Redding, 1980-NMSC-011, 93 N.M. 757, 605 P.2d 1156, overruled on other grounds by Bybee v. City of Albuquerque, 1995-NMCA-061, 120 N.M. 17, 896 P.2d 1164.

Negligent maintenance of gas service. — 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.

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

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — Liability of gas or electric light or power company for injury to fireman, policeman or other public employee seeking to prevent damage to person or property of others, 61 A.L.R. 1028.

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

Liability for injury or death resulting when object is manually brought into contact with, or close proximity to, electric line, 33 A.L.R.4th 809.