2020 New Mexico Statutes
Chapter 41 - Torts
Article 3 - Contribution Among Tortfeasors
Section 41-3-1 - Joint tortfeasors defined.
For the purposes of this act [41-3-1 to 41-3-8 NMSA 1978] the term "joint tortfeasors" means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.
History: 1941 Comp., § 21-118, enacted by Laws 1947, ch. 121, § 1; 1953 Comp., § 24-1-11.
ANNOTATIONSCross references. — For liability of employer under Worker's Compensation Act, see 52-1-8 NMSA 1978.
Proportional indemnification. — Proportional indemnification need not apply when a factfinder makes a determination that a concurrent tortfeasor is proportionally liable to an injured party. By adopting pure comparative negligence and several liability, the supreme court has already created a system in which each concurrent tortfeasor is liable only for the percentage of damages that is attributable to his or her fault. Similarly, proportional indemnification does not apply when the statute provides for proration of damages among joint tortfeasors. Under the statute, if one tortfeasor has been held liable for more than that his or her share of the fault, that tortfeasor may seek contribution from others who were at fault. Amrep Sw., Inc. v. Shollenbarger Wood Treating, Inc., 1995-NMSC-020, 119 N.M. 542, 893 P.2d 438.
The Uniform Contribution Among Tortfeasors Act does not apply to defendants sued under vicarious liability theories, because vicarious liability is a legal fiction imputing wrongdoing of an agent to a principal who are not joint tortfeasors. Valdez v. R-Way, LLC, 2010-NMCA-068, 148 N.M. 477, 237 P.3d 1289, cert. denied, 2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.
Employer liability under the doctrine of respondeat superior. — Where an employer's liability arises only by virtue of the doctrine of respondeat superior, and not through any independent negligence of the employer, the employer and the employee are not true joint tortfeasors. Valdez v. R-Way, LLC, 2010-NMCA-068, 148 N.M. 477, 237 P.3d 1289, cert. denied, 2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.
Where plaintiff's vehicle was rear-ended by a vehicle driven by defendant's employee; plaintiff sued defendant's employee for negligence and claimed that defendant was vicariously liable based on respondeat superior; plaintiff and defendant's employee settled; plaintiff fully released defendant's employee for all claims arising from the accident; in the release, plaintiff specifically preserved plaintiff's claim against defendant, the release of defendant's employee released defendant despite the reservation of plaintiff's claim against defendant because defendant's liability was imputed solely based on the negligent conduct of defendant's employee, without fault of defendant, and the release of defendant's employee removed the basis on which defendant's fault was imputed. Valdez v. R-Way, LLC, 2010-NMCA-068, 148 N.M. 477, 237 P.3d 1289, cert. denied, 2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.
Insufficient evidence of joint venture or co-employment between parent company and subsidiary. — In a wrongful death lawsuit, where it was determined that the decedent's death was caused by the negligence of defendants, an assisted living facility and three upstream entities in its ownership chain, which plaintiff alleged were joint venturers and co-employers of the staff of the assisted living facility, the district court erred in denying defendant's motion for a directed verdict on plaintiff's theories of joint venture and co-employment and in entering judgment against all four entities jointly and severally, because absent veil piercing, a parent corporation cannot be held vicariously liable in tort as a simultaneous co-employer of its subsidiary's employees, and because the assisted living facility's parent companies structured their businesses to limit losses to the extent of their investments downstream, it is inappropriate for a court to imply a joint venture where it is evident that there is a different business form involved and where there was no evidence whatsoever of any right by the parent company to exercise control over the subsidiary. Wirth v. Sun Healthcare Group, Inc., 2017-NMCA-007.
Applicability of act. — This act is applicable only in instances where joint tortfeasors share a common liability. Beal ex rel. Boatwright v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.
Legislative intent. — It is unreasonable to assume that the New Mexico legislature intended to grant the right of contribution to wrongdoers in pari delicto and take away from persons guilty only of imputed or constructive wrong the right to indemnity from the primary wrongdoer. Thomas v. Malco Refineries, Inc., 214 F.2d 884 (10th Cir. 1954).
Purpose of act. — This act provides for a proportionate allocation of the burden among tortfeasors who are liable. Rio Grande Gas Co. v. Stahmann Farms, Inc., 1969-NMSC-089, 80 N.M. 432, 457 P.2d 364.
Common-law right to indemnity. — The right to indemnity at common law in New Mexico was not abrogated by the enactment of this act. Thomas v. Malco Refineries, Inc., 214 F.2d 884 (10th Cir. 1954).
Workmen's Compensation Act. — The Workmen's Compensation Act [52-1-1 NMSA 1978 et seq.] (now Workers' Compensation Act) abrogates or modifies the Tortfeasor's Act [41-3-1 to 41-3-8 NMSA 1978] to the extent that it has application to the liability of an employer to an employee. If the basis for employer's liability is the injuries to its employees, it is limited by the Workmen's Compensation Act, and there can be no contribution. Beal ex rel. Boatwright v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.
Insofar as negligent employers are relieved from the burden of contribution, the Workmen's Compensation Act [52-1-1 NMSA 1978 et seq.] (now Workers' Compensation Act) does not constitute invalid class legislation. Beal ex rel. Boatwright v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.
Workers' Compensation Act. — Contribution remedy outside the Workers' Compensation Act is not authorized by the Workers' Compensation Act. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.
Employer's liability limitation under Workmen's Compensation Act. — The limitation of employer's liability for injuries sustained by an employee covered by the Workmen's Compensation Act [52-1-1 NMSA 1978 et seq.] (now Workers' Compensation Act) covers all instances where that injury is sought to be made the basis for further and additional liability by the employee or others in the worker's behalf, and indirect liability for such injury is also foreclosed both by the terms of the act and because the employer's liability for such injury is not in tort. Beal ex rel. Boatwright v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.
Defendants under different theories of liability not joint tortfeasors. — Where suits against a defendant and a third-party defendant are based on different theories of liability, there is no joint tort liability and the trial court properly refused to give a jury instruction as to contribution among joint tortfeasors. Exum v. Ferguson, 1981-NMSC-124, 97 N.M. 122, 637 P.2d 553.
Because the respondeat superior form of vicarious liability is imposed upon one party through a legal fiction, the parties are not joint tortfeasors. Kinetics, Inc. v. El Paso Prods. Co., 1982-NMCA-160, 99 N.M. 22, 653 P.2d 522.
In a comparative negligence case, a concurrent tortfeasor is not liable for the entire damage caused by other concurrent tortfeasors. Bartlett v. N.M. Welding Supply, Inc., 1982-NMCA-048, 98 N.M. 152, 646 P.2d 579, cert. denied, 98 N.M. 336, 648 P.2d 794.
Effect of setting aside part of verdict. — While it was the rule of the common law that a verdict set aside as to one joint tortfeasor was set aside as to all, the modern rule is that the court may grant a new trial as to one of several defendants and affirm as to the others. Beal v. Southern Union Gas Co., 1960-NMSC-019, 66 N.M. 424, 349 P.2d 337.
Effect on release and discharge. — This act changed the common-law rule that a release of one joint tortfeasor releases all, and satisfaction of judgment under this act does not operate to discharge all other tortfeasors. Herrera v. Uhl, 1969-NMSC-01180 N.M. 140, 452 P.2d 474.
Effect of granting judgment notwithstanding verdict solely to codefendant. — Where a codefendant was granted a judgment notwithstanding the special verdict of the jury, the defendant in an automobile damage suit was an aggrieved party within the meaning of the rule providing for appeals from entry of final judgment in civil actions in view of the right of contribution among joint tortfeasors under this act. Marr v. Nagel, 1954-NMSC-071, 58 N.M. 479, 272 P.2d 681.
Bank not indispensable party in suit against collection agency. — Debtor on automobile installment sales contract whose car was wrongfully repossessed is entitled to sue the collection agency separate and apart from the bank which authorized the repossession. The failure of jurisdiction over the bank as joint defendant does not compel the sustaining of the collection agency's motion to dismiss the complaint for lack of an indispensable party since the collection agency's right to contribution is preserved even in the absence of the bank as codefendant. Sanford v. Stoll, 1974-NMCA-003, 86 N.M. 6, 518 P.2d 1210.
Liability of joint tortfeasor to bailee where bailor-agent negligent. — Where a pickup truck struck the rear end of a tractor-trailer unit on a highway at night, the driver of the pickup truck was liable to the trailer owner for damages to the trailer where drivers of both vehicles were joint tortfeasors under this section due to their combined negligence, and the driver of pickup truck did not carry the burden of showing that relationship between owner and driver of trailer was more than that of bailor-agent of bailee. The driver of the pickup truck should compensate the trailer owner for the damage to the trailer, subject to the right of contribution provided for in 41-3-2 NMSA 1978. Bailey v. Jeffries-Eaves, Inc., 1966-NMSC-067, 76 N.M. 278, 414 P.2d 503.
No interspousal tort immunity. — There is no immunity from tort liability between spouses by reason of that relationship. Maestas v. Overton, 1975-NMSC-004, 87 N.M. 213, 531 P.2d 947.
Law reviews. — For note, "Comparative v. Contributory Negligence: The Effect of Plaintiff's Fault," see 6 N.M.L. Rev. 171 (1975).
For comment, "Survey of New Mexico Law: Torts," see 15 N.M.L. Rev. 363 (1985).
For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988).
For article, "The Impact of Non-Mutual Collateral Estoppel on Tort Litigation Involving Several Liability," see 18 N.M.L. Rev. 559 (1988).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 74 Am. Jur. 2d Torts § 61.
Legal malpractice: defendant's right to contribution or indemnity from original tortfeasor, 20 A.L.R.4th 338.
Modern status of rule imputing motor vehicle driver's negligence to passenger on joint venture theory, 3 A.L.R.5th 1.
Comparative negligence: judgment allocating fault in action against less than all potential defendants as precluding subsequent action against parties not sued in original action, 4 A.L.R.5th 753.
Release of one joint tortfeasor as discharging liability of others under Uniform Contribution Among Tortfeasors Act and other statutes expressly governing effect of release, 6 A.L.R.5th 883.
Joint and several liability of physicians whose independent negligence in treatment of patient causes indivisible injury, 9 A.L.R.5th 746.
Apportionment of liability between landowners and assailants for injuries to crime victims, 54 A.L.R.5th 379.
42 C.J.S. Indemnity § 59 et seq.; 86 C.J.S. Torts § 37.
