2020 New Mexico Statutes
Chapter 41 - Torts
Article 4 - Tort Claims
Section 41-4-3 - Definitions.
As used in the Tort Claims Act:
A. "board" means the risk management advisory board;
B. "governmental entity" means the state or any local public body as defined in Subsections C and H of this section;
C. "local public body" means all political subdivisions of the state and their agencies, instrumentalities and institutions and all water and natural gas associations organized pursuant to Chapter 3, Article 28 NMSA 1978;
D. "law enforcement officer" means a full-time salaried public employee of a governmental entity, or a certified part-time salaried police officer employed by a governmental entity, whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes, or members of the national guard when called to active duty by the governor;
E. "maintenance" does not include:
(1) conduct involved in the issuance of a permit, driver's license or other official authorization to use the roads or highways of the state in a particular manner; or
(2) an activity or event relating to a public building or public housing project that was not foreseeable;
F. "public employee" means an officer, employee or servant of a governmental entity, excluding independent contractors except for individuals defined in Paragraphs (7), (8), (10), (14) and (17) of this subsection, or of a corporation organized pursuant to the Educational Assistance Act [Chapter 21, Article 21A NMSA 1978], the Small Business Investment Act [Chapter 58, Article 29 NMSA 1978] or the Mortgage Finance Authority Act [Chapter 58, Article 18 NMSA 1978] or a licensed health care provider, who has no medical liability insurance, providing voluntary services as defined in Paragraph (16) of this subsection and including:
(1) elected or appointed officials;
(2) law enforcement officers;
(3) persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation;
(4) licensed foster parents providing care for children in the custody of the human services department, corrections department or department of health, but not including foster parents certified by a licensed child placement agency;
(5) members of state or local selection panels established pursuant to the Adult Community Corrections Act [Chapter 33, Article 9 NMSA 1978];
(6) members of state or local selection panels established pursuant to the Juvenile Community Corrections Act [Chapter 33, Article 9A NMSA 1978];
(7) licensed medical, psychological or dental arts practitioners providing services to the corrections department pursuant to contract;
(8) members of the board of directors of the New Mexico medical insurance pool;
(9) individuals who are members of medical review boards, committees or panels established by the educational retirement board or the retirement board of the public employees retirement association;
(10) licensed medical, psychological or dental arts practitioners providing services to the children, youth and families department pursuant to contract;
(11) members of the board of directors of the New Mexico educational assistance foundation;
(12) members of the board of directors of the New Mexico student loan guarantee corporation;
(13) members of the New Mexico mortgage finance authority;
(14) volunteers, employees and board members of court-appointed special advocate programs;
(15) members of the board of directors of the small business investment corporation;
(16) health care providers licensed in New Mexico who render voluntary health care services without compensation in accordance with rules promulgated by the secretary of health. The rules shall include requirements for the types of locations at which the services are rendered, the allowed scope of practice and measures to ensure quality of care;
(17) an individual while participating in the state's adaptive driving program and only while using a special-use state vehicle for evaluation and training purposes in that program;
(18) the staff and members of the board of directors of the New Mexico health insurance exchange established pursuant to the New Mexico Health Insurance Exchange Act [59A-23F-1 to 59A-23F-8 NMSA 1978]; and
(19) members of the insurance nominating committee;
G. "scope of duty" means performing any duties that a public employee is requested, required or authorized to perform by the governmental entity, regardless of the time and place of performance; and
H. "state" or "state agency" means the state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions.
History: 1953 Comp., § 5-14-3, enacted by Laws 1976, ch. 58, § 3; 1977, ch. 386, § 2; 1983, ch. 123, § 2; 1983, ch. 242, § 1; 1985, ch. 76, § 1; 1988, ch. 31, § 1; 1991, ch. 29, § 1; 1991, ch. 205, § 1; 1993, ch. 195, § 1; 1993, ch. 203, § 1; 1994, ch. 123, § 1; 1995, ch. 173, § 2; 2003, ch. 399, § 3; 2007, ch. 104, § 1; 2009, ch. 8, § 2; 2009, ch. 129, § 2; 2009, ch. 249, § 2; 2013, ch. 54, § 11; 2015, ch. 11, § 2.
ANNOTATIONSCompiler's notes. — The following sections make specific entities subject to the Tort Claims Act: 6-21-4 NMSA 1978 (New Mexico finance authority); 21-28-7 NMSA 1978 (research park corporations); 24-10B-4 NMSA 1978 (emergency medical volunteers); 24-10B-8 NMSA 1978 (licensed emergency medical personnel); 33-3-28 NMSA 1978 (jailers); 59A-54-4 NMSA 1978 (New Mexico comprehensive health insurance pool); 76-21-22 NMSA 1978 (agricultural commodity commission); 77-2A-9 NMSA 1978 (New Mexico beef council).
Cross references. — For the risk management advisory board, see 15-7-4 NMSA 1978.
The 2015 amendment, effective June 19, 2015, added "members of the insurance nominating committee" to the definitions section of the Tort Claims Act; and added Paragraph (19) of Subsection F.
The 2013 amendment, effective March 28, 2013, defined "public employee" to include staff and members of the board of directors of the New Mexico health exchange; and added Paragraph (18) of Subsection F.
Severability. — Laws 2013, ch. 54, § 16 provided that if any part or application of Laws 2013, ch. 54, §§ 1 through 15 are held invalid, the remainder or its application to other situations or persons shall not be affected.
The 2009 amendment, effective June 19, 2009, in Subsection D, after "governmental entity", added "or a certified part-time salaried police officer employed by a governmental entity".
The 2007 amendment, effective July 1, 2007, provided tort immunity to a licensed health care provider who has no medical liability insurance and who provides voluntary services without compensation in accordance with rules of the secretary of health.
The 2003 amendment, effective April 8, 2003, inserted "the Small Business Investment Act" following "Educational Assistance Act" near the end of Subsection F; substituted "medical" for "comprehensive health" following "of the New Mexico" near the end of Paragraph F(8); and added Paragraph F(15).
The 1995 amendment, effective June 16, 1995, substituted "and (14)" for "(14) and (15)" in the introductory paragraph, deleted former Paragraph (15) of Subsection F relating to nonprofit corporations that provide developmental disabilities services pursuant to contract, and deleted "and, as provided in the Tort Claims Act, includes developmental disabilities service providers" following "institutions" at the end of Subsection H.
The 1994 amendment, effective March 8, 1994, substituted "foreseeable" for "forseeable" in Paragraph E(2), deleted "and" following "(8)," and added ", (14) and (15)" in Subsection F, substituted "educational retirement board" for "board of the educational retirement association" in Paragraph F(9), deleted "and" following the semicolon in Paragraph F(12), added Paragraphs (F)(14) and (F)(15), and added "and, as provided in the Tort Claims Act, includes developmental disabilities service providers" in Subsection H.
The 1993 amendment, effective June 18, 1993, substituted "Chapter 3, Article 28" for "Sections 3-28-1 through 3-28-19" in Subsection C; and in Subsection F, substituted the language beginning "Paragraphs (7), (8) through (10)" and ending "or the Mortgage Finance Authority Act" for "Paragraphs (6) and (7) of this subsection" in the introductory language, substituted "department of health" for "health and environment department" in Paragraph (4), added present Paragraphs (6) and (10) through (13), making related grammatical changes, and renumbered former Paragraphs (6) through (8) accordingly.
The 1991 amendment, effective July 1, 1992, added Subsection E; redesignated former Subsections E to G as Subsections F to H; in Subsection F, added Paragraph (7), redesignated former Paragraph (7) as Paragraph (8) and made a related and minor stylistic changes; and made a minor stylistic change in Subsection G.
The 1988 amendment, effective February 29, 1988, added the exclusion in the definition of "public employee" near the beginning of Subsection E; deleted "Except as provided by this paragraph, the term does not include an independent contractor" from the end of Subsection E(6); added Subsection E(7); and made minor stylistic changes.
I. GENERAL CONSIDERATION.
Scope of duties. — Where school administrators allegedly used procedures ostensibly based upon statute and regulations and used the mechanism of their employment to harass and attempt to force plaintiff out of her job, the school administrators were acting within the scope of their duties as school administrators and were immune from liability under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Henning v. Rounds, 2007-NMCA-139, 142 N.M. 803, 171 P.3d 317.
Under the definition of "scope of duties" in Subsection G of this section, when reconciled with the indemnification provisions in Subsection E of 41-4-4 NMSA 1978 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.
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. Derringer v. State, 2003-NMCA-073, 133 N.M. 721, 68 P.3d 961, cert. denied, 133 N.M. 727, 69 P.3d 237.
Public employee may be within scope of authorized duty even if the employee's acts are fraudulent, intentionally malicious, or even criminal. 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.
Co-conspirator's acts are imputed to employee. — As long as the act of conspiring is within the scope of a public employee's duties, any co-conspirator's acts that are imputed to the public employee will be, by definition, within the scope of the employee's duties. 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.
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.
II. GOVERNMENTAL ENTITIES.
Corrections department is a "governmental" entity under the Tort Claims Act, not an "employee" of a governmental entity. Therefore, it does not fall within 41-4-6 and 41-4-10 NMSA 1978 (negligence of "public employees"). Silva v. State, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.
City is "governmental entity". — Under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978], a city is a "governmental entity" because of its legal status as a "local public body" and as a "political subdivision of the state." Cole v. City of Las Cruces, 1983-NMSC-007, 99 N.M. 302, 657 P.2d 629.
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 Subsection B of this section. Kreutzer v. Aldo Leopold High School, 2018-NMCA-005.
Issue of whether town or municipality is "local public body" is not open to question. Cozart v. Town of Bernalillo, 1983-NMCA-053, 99 N.M. 737, 663 P.2d 713.
State police and highway departments are "state agencies". — The state police department and the state highway department fit the statutory description of "state" or "state agency." 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.
Foster parents are state actors. — Where personal representative of wrongful death estate of son and guardian ad litem for minor daughter, who were removed from, and then returned to their biological mother, brought a tort claim action against the Children, Youth and Families Department (CYFD), alleging that CYFD placed the children in or subjected them to an injurious and unsafe environment, court held that foster parents are state actors because in the foster care context, a custodial relationship sufficient to establish a special relationship arises when the state assumes control of a child's environment and replaces whatever private source of protection the child had in the free world with a new source of protection. Valdez v. Roybal, 186 F.Supp.3d 1197 (D. N.M. 2016).
Irrigation district is "local public body" for purposes of this section. Tompkins v. Carlsbad Irrigation Dist., 1981-NMCA-072, 96 N.M. 368, 630 P.2d 767.
Privately owned irrigation company is not "local public body" under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978], even though it performs the same function as a public irrigation district, where the company has had the option of reorganizing as a body politic and gaining the benefits and obligations of such status but has chosen not to do so. Carmona v. Hagerman Irrigation Co., 1998-NMSC-007, 125 N.M. 59, 957 P.2d 44.
Water and Sanitation District Act districts are a quasi-municipal governmental entity and fall within the definition of "governmental entity" under the Tort Claims Act. El Dorado Utils., Inc. v. Eldorado Area Water and Sanitation Dist., 2005-NMCA-036, 137 N.M. 217, 109 P.3d 305.
Public defenders' immunity not violation of equal protection. — Public defenders, whether regular employees of the public defender's office or performing as contractors, are immune from malpractice claims, and statutes providing such immunity did not violate the equal protection rights of a former prisoner. Coyazo v. State, 1995-NMCA-056, 120 N.M. 47, 897 P.2d 234.
III. LAW ENFORCEMENT OFFICERS.
Office of state engineer employee. — Where the defendant, who was employed as a water resource specialist and supervisor of the Hondo Basin by the office of the state engineer, who had never actually arrested anyone, who had no law enforcement certification, who did not carry a gun, whose duties were mainly administrative, but included enforcement regarding water rights, and whose vehicle did not have police emergency light, caused the destruction of the plaintiff's dam that diverted water to which the plaintiff had some right pursuant to a compliance order that was based solely on the defendant's field investigation, the defendant did not engage in conduct sufficient to trigger the law enforcement officer waiver of immunity. Limacher v. Spivey, 2008-NMCA-163, 145 N.M. 344, 198 P.3d 370, cert. denied, 2008-NMCERT-011, 145 N.M. 531, 202 P.3d 124.
Animal control officer. — For an animal control officer to come within the definition of "law enforcement officer" under this section, the officer's principal duties under law must be: (a) to hold in custody any person accused of a criminal offense, (b) to maintain public order or (c) to make arrests for crimes. It suffices if an animal control officer's principal duties are either (a), (b) or (c). Baptiste v. City of Las Cruces, 1993-NMCA-117, 115 N.M. 178, 848 P.2d 1105.
Sheriffs and deputies. — The Eddy county sheriff, deputies and the jailers at the Bernalillo county jail are "law enforcement officers" within the meaning of Subsection D. Methola v. County of Eddy, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.
District attorneys are not law enforcement officers. — Neither district attorney nor assistant district attorney is a "law enforcement officer," as defined in Subsection D; rather, both are "public employees" under Subsection E. Candelaria v. Robinson, 1980-NMCA-003, 93 N.M. 786, 606 P.2d 196.
District attorneys and their staffs do not fall within the "law enforcement officer" exception from immunity under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Coyazo v. State, 1995-NMCA-056, 120 N.M. 47, 897 P.2d 234.
Warden and head of department not law enforcement officers. — The secretary of corrections and the penitentiary warden were not proper defendants in a wrongful death suit arising out of the escape of state prisoners, who killed a store owner during a robbery, since they are not "law enforcement officers". Wittkowski v. State, Corr. Dep't, 1985-NMCA-066, 103 N.M. 526, 710 P.2d 93, cert. quashed, 103 N.M. 446, 708 P.2d 1047 (1985), overruled on other grounds by Silva v. State, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.
Secretary of corrections. — The secretary of corrections is not a law enforcement officer within the meaning of 41-4-12 NMSA 1978 as defined in Subsection D of this section. Silva v. State, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.
To determine whether positions are of a law enforcement nature, the court will look at the character of the principal duties involved, those duties to which employees devote the majority of their time. Anchondo v. Corrections Dep't, 1983-NMSC-051, 100 N.M. 108, 666 P.2d 1255.
The statutory requirement that the defendants be law enforcement officers does not focus on the defendants' specific acts at the time of their alleged negligence; instead, it simply requires that the defendants' principal duties, those duties to which they devote a majority of their time, be of a law enforcement nature. The requirement in 41-4-12 NMSA 1978 that the officer must be acting within the scope of his duties simply means that the officer must be acting within the scope of employment in order to be sued in his or her capacity as a law enforcement officer. Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.
County detention center officers. — The director and the captain and assistant director of a county detention center are subject to suit as law enforcement officers under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Davis v. Board of Cnty. Comm'rs, 1999-NMCA-110, 127 N.M. 785, 987 P.2d 1172.
Director of DMV is not law enforcement officer. — The director of the motor vehicle division, whose duties involved principally administrative matters, and who did not serve as a full-time law enforcement officer whose principal duties involved holding in custody persons accused of criminal offenses, maintaining public order or making arrests for crimes, was not a "law enforcement officer" within the contemplation of 41-4-12 NMSA 1978. Dunn v. State ex rel. Taxation & Revenue Dep't, 1993-NMCA-059, 116 N.M. 1, 859 P.2d 469.
Motor vehicle division official who investigated plaintiff's participation in forging automobile title was not acting as a full-time law enforcement officer, as contemplated by Subsection D of this section, and his immunity from suit was not waived. Boydston v. New Mexico Taxation & Revenue Dep't., 125 F.3d 861 (10th Cir. 1997).
Parole officers not law enforcement officers. — Parole officers and their supervisors are not law enforcement officers under Subsection D of this section, and therefore the waiver of immunity in 41-4-12 NMSA 1978 does not apply to them. Vigil v. Martinez, 1992-NMCA-033, 113 N.M. 714, 832 P.2d 405.
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. — 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 enforcing state law, not tribal law. 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. 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.
Navajo police officer not "public employee". — Fact that Navajo Nation police officer was cross-deputized as a county sheriff did not make the officer a "public employee" of a New Mexico governmental body. Williams v. Board of Cnty. Comm'rs, 1998-NMCA-090, 125 N.M. 445, 963 P.2d 522, cert. denied, 125 N.M. 654, 964 P.2d 818.
Prison guards are not law enforcement officers for purposes of Subsection D, because: (1) the principal duties of prison guards are to hold in custody persons who have already been convicted rather than merely accused of a criminal offense; (2) maintenance of public order relates to a public not a penitentiary setting; and (3) although prison guards may have the supplemental power to arrest pursuant to the guidelines of 33-1-10 NMSA 1978, their principal statutory duties are those set forth in 33-2-15 NMSA 1978. Callaway v. N.M. Dep't of Corrs., 1994-NMCA-049, 117 N.M. 637, 875 P.2d 393, cert. denied, 118 N.M. 90, 879 P.2d 91.
A mayor is not a law enforcement officer for purposes of this act. Montes v. Gallegos, 812 F. Supp. 1165 (D.N.M. 1992).
Medical investigator. — The office of the medical investigator and a physician employed as a medical investigator by that office are not law enforcement officers. Dunn v. McFeeley, 1999-NMCA-084, 127 N.M. 513, 984 P.2d 760, cert. denied, 127 N.M. 389, 981 P.2d 1207.
Crime laboratory. — A crime laboratory technician and his employer, the state police crime laboratory, whose duties are to examine and evaluate physical evidence that may relate to a possible offense, are not law enforcement officers. Dunn v. McFeeley, 1999-NMCA-084, 127 N.M. 513, 984 P.2d 760, cert. denied, 127 N.M. 389, 981 P.2d 1207.
Municipal police officers are law enforcement officers. — The officers in this case are municipal police officers subject to 3-13-2 NMSA 1978, and their principal duties entail making arrests for crimes and maintaining public order; accordingly, they are law enforcement officers for purposes of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.
"Any person accused". — A person who has been convicted is no longer an "accused" for the purposes of Subsection D of this section. Vigil v. Martinez, 1992-NMCA-033, 113 N.M. 714, 832 P.2d 405.
"Maintenance of public order". — Maintenance of public order, within the meaning of Subsection D of this section, is not a principal duty of probation and parole officers or their supervisors. Vigil v. Martinez, 1992-NMCA-033, 113 N.M. 714, 832 P.2d 405.
Officers of county detention home. — Whether officers of a county detention home were acting within the scope of their duties in making an employment recommendation about a former employee was a question of fact. Davis v. Board of Cnty. Comm'rs, 1999-NMCA-110, 127 N.M. 785, 987 P.2d 1172.
Scope of duties. — An assistant district attorney's letter to the sheriff, containing quotation from an allegedly defamatory investigation report by the assistant district attorney, was authorized and within the scope of assistant district attorney's duty, and he was immune from liability for the alleged defamation in the letter. Candelaria v. Robinson, 1980-NMCA-003, 93 N.M. 786, 606 P.2d 196.
Deputy sheriff who was involved in accident while driving her assigned department vehicle home was acting within the scope of her duties, because she was required to be available for calls at all times. Medina v. Fuller, 1999-NMCA-011, 126 N.M. 460, 971 P.2d 851.
Liability for failure to detain intoxicated driver. — Law enforcement officers may be liable if they fail to detain an intoxicated driver who then acts with the requisite level of intent to commit a battery while driving intoxicated. Blea v. City of Espanola, 1994-NMCA-008, 117 N.M. 217, 870 P.2d 755, cert. denied, 117 N.M. 328, 871 P.2d 984.
IV. PRIVATE PERSONS, CORPORATIONS AND ENTITIES.
Developmental disabilities center subject to Act for discharge error. — If the state provides developmental disability services by delegating those responsibilities to a private entity under former 28-16-1 to 28-16-18 NMSA 1978, while retaining the right to determine discharge terms and the responsibility to protect patients' constitutional and statutory rights, a sufficient nexus between the private entity's decision and the state has been demonstrated so that the private entity's discharge decision will be considered state action, and the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] is applicable. LaBalbo v. Hymes, 1993-NMCA-010, 115 N.M. 314, 850 P.2d 1017, cert. denied, 115 N.M. 359, 851 P.2d 481 (decided prior to 1995 amendment).
Act not applicable to foster homes. — The department of human services was not liable under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] for negligently placing a child in a foster home, since those duties fall outside of the Act. M.D.R. v. State ex rel. Human Servs. Dep't, 1992-NMCA-082, 114 N.M. 187, 836 P.2d 106.
Guardian ad litem was not a "public employee" within the meaning of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Collins ex rel. Collins v. Tabet, 1991-NMSC-013, 111 N.M. 391, 806 P.2d 40.
A private corporation is generally not the type of "instrumentality" contemplated within the context of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978], although there may be situations where a private corporation may be so organized and controlled, and its affairs so conducted, as to make it merely an instrumentality or adjunct of a municipality under the terms of the act. Cole v. City of Las Cruces, 1983-NMSC-007, 99 N.M. 302, 657 P.2d 629.
Community mental health facility employees. — Employees at a community mental health facility regulated by the health and environment department (now the department of health) were not "public employees" within the meaning of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978], where the regulatory scheme did not give the department the right to control the details of the work of the facility. Armijo v. Department of Health & Env't, 1989-NMCA-043, 108 N.M. 616, 775 P.2d 1333.
Physician. — Where the contract between a physician and a public hospital precluded the physician from practicing medicine except as an employee of the hospital, the hospital could fire the physician with or without cause, and dictated the terms of the physician's service; the hospital required the physician to maintain certain office hours and ask permission to change the office hours, to be an active member of the hospital staff, and to perform other duties and services requested from time to time by the hospital. The hospital compensated the physician with a salary, benefits, and insurance, paid taxes and professional dues, and provided leave time. The hospital billed patients directly for the physician's services; and the hospital provided all of the physician's supplies, equipment, and staff; the physician was a public employee. Blea v. Fields, 2005-NMSC-029, 138 N.M. 348, 120 P.3d 430.
Independent corrections contractor employees. — An employee of an independent corrections contractor is not a "public employee" immune from tort liability under this article. Giron v. Corrs. Corp. of Am., 14 F. Supp. 2d 1245 (D.N.M. 1998).
Volunteers. — It is an express declaration of legislative intent in including volunteers acting on behalf of a governmental entity within the purview of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239.
Tort Claims Act explicitly contemplates that volunteers acting on behalf of the government may become public employees, thereby entitled to the protections of the Tort Claims Act and subject to the reliability of the same. Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239.
Sheriff's department chaplain. — Whether a defendant who volunteered as a chaplain for a county sheriff's department was a public employee or an independent contractor was a question of fact, upon which the "right to control" test would bear. 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.
Where, at the time of the incident, defendant had been an official sheriff's department volunteer chaplain for eight years, and as part of his official duties, defendant was summoned to crime and accident scenes by the department on an as-needed basis where he provided counseling and support services to civilians, acting primarily at the department's request, therefore, defendant was an employee of the department because, considered in context, the department exercised sufficient control over defendant's activities in a manner consistent with the status of employee. Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239.
Law reviews. — For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).
For note, "An Employer's Duty to Third Parties When Giving Employment Recommendations - Davis v. Board of County Commissioners of Dona Ana County," see 30 N.M.L. Rev. 307 (2000).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability §§ 31, 67, 191 to 196.
