N.M. Stat. § 41-4-1 (2026)

Sections 41-4-1 through 41-4-27 NMSA 1978 [and 41-4-30 NMSA 1978] may be
cited as the "Tort Claims Act".

History: 1953 Comp., § 5-14-1, enacted by Laws 1976, ch. 58, § 1; 1977, ch. 386, § 1;
1981, ch. 118, § 1.

                                    ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not
part of the law.
Cross references. — For immunity from liability for employers for statements in
references of former employees, see 50-12-1 NMSA 1978.

Constitutionality. — The legislature acted constitutionally in enacting the Tort Claims
Act [41-4-1 to 41-4-27 NMSA 1978] following judicial abolition of sovereign immunity.
Ferguson v. N.M. State Hwy. Comm'n, 1982-NMCA-180, 99 N.M. 194, 656 P.2d 244,
cert. denied, 99 N.M. 226, 656 P.2d 889 (1983).

Act does not violate Equal Protection Clauses of the United States and New Mexico
constitutions. Garcia v. Albuquerque Pub. Sch. 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).

Policy of act. — The declared policy of this act indicates that the legislature authorized
the filing of claims against governmental entities except in situations where the state
may not have been able to act for some specific reason, so long as the act complained
of falls within the list set out in this act. Methola v. County of Eddy, 1980-NMSC-145, 95
N.M. 329, 622 P.2d 234.

This act was enacted in response to the judicial abrogation of sovereign immunity in
Hicks v. State, 1975-NMSC-056, 88 N.M. 588, 592, 544 P.2d 1153, and the basic intent
was to reestablish government immunity, while creating specific exceptions for which
the government could be sued for tort liability. Board of Cnty. Comm'rs v. Risk Mgmt.
Div., 1995-NMSC-046, 120 N.M. 178, 899 P.2d 1132.

Important policies underlying enactment of the Tort Claims Act [41-4-1 to 41-4-27
NMSA 1978] were to protect the public treasury, to enable the government to function
unhampered by the threat of legal actions that would inhibit the administration of
traditional state activities, and to enable the government to effectively carry out its
services. Maestas v. Zager, 2005-NMCA-013, 136 N.M. 764, 105 P.3d 317, rev'd on
other grounds, 2007-NMSC-003, 141 N.M. 154, 152 P.3d 141.

Common-law sovereign immunity abolished. — Common-law sovereign immunity
may no longer be interposed as a defense by the state or any of its political subdivisions
in tort actions. Hicks v. State, 1975-NMSC-056, 88 N.M. 588, 544 P.2d 1153 (decided
under prior law).

Reasons justifying legislature's determination to partially retain governmental
immunity are: (1) there is a need to protect the public treasuries; (2) partial immunity
enables the government and its various subdivisions to function unhampered by the
threat of time and energy consuming legal actions which would inhibit the administration
of traditional state activities; and (3) in order to effectively carry out its services, many of
which are financially unprofitable and which would not be provided at a reasonable cost
by private enterprise, the government needs the protection provided by some immunity.
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).
Act is remedial act which applies only prospectively, in the absence of expressed
legislative intent to make it retroactive. Methola v. County of Eddy, 1980-NMSC-145, 95
N.M. 329, 622 P.2d 234.

Act is extension of previous similar statutes. — This act is an extension of previous
statutes that recognized a limited waiver of sovereign immunity. Accordingly, a
claimant's remedy under former 5-6-20, 1953 Comp., to redress a 1974 injury due to the
alleged negligence of a state agency did not abate upon the repeal of that statute in
1975, nor upon the enactment of the Tort Claims Act in 1976. The claim was, thus, not
barred under common-law sovereign immunity, but rather retained its vitality pursuant to
former 5-6-20, 1953 Comp. Romero v. N.M. Health & Env't Dep't, 1988-NMSC-073, 107
N.M. 516, 760 P.2d 1282.

Traditional concepts of negligence. — Liability under this act is premised on
traditional concepts of negligence. Lujan v. N.M. Dep’t of Transp., 2015-NMCA-005,
cert. denied, 2014-NMCERT-010.

Requirements of negligence action. — A negligence action under this act requires
that there be a duty owed from the defendant to the plaintiff, that based on a standard of
reasonable care under the circumstances, the defendant breached that duty, and that
the breach was a cause in fact and proximate cause of the plaintiff’s damages. Lujan v.
N.M. Dep’t of Transp., 2015-NMCA-005, cert. denied, 2014-NMCERT-010.

Duty of ordinary care. — The state has a duty to exercise ordinary care in the
maintenance of its highways, but foreseeability is not a factor to consider when
determining the existence of a duty and is relevant only to determining whether there is
a breach of duty. Lujan v. N.M. Dep’t of Transp., 2015-NMCA-005, cert. denied, 2014-
NMCERT-010.

Questions of fact for a jury. — Whether a defendant breached the duty of ordinary
care and whether an act or omission may be deemed a proximate cause of an injury are
questions of fact for a jury to decide. Lujan v. N.M. Dep’t of Transp., 2015-NMCA-005,
cert. denied, 2014-NMCERT-010.

Wrongful death action. — In a wrongful death action, where the state department of
transportation had a duty to maintain roadways in a safe condition for the benefit of the
public, including reasonable inspections of roadways in order to identify and remove
dangerous debris, and where department failed to exercise ordinary care in its duty,
there were questions of fact as to whether the department had constructive notice of the
dangerous debris, whether the department breached a duty to decedent, and whether
the department’s failure to act was the proximate cause of the accident, making
summary judgment improper. Lujan v. N.M. Dep’t of Transp., 2015-NMCA-005, cert.
denied, 2014-NMCERT-010.

Action not barred by concurrent § 1983 action. — The New Mexico Tort Claims Act
does not prohibit a plaintiff from bringing an action for damages under that act against a
governmental entity or public employee if the plaintiff also pursues, by reason of the
same occurrence or chain of events, an action against the same entity or employee
pursuant to the Federal Civil Rights Act, 42 U.S.C. § 1983. Wells v. County of Valencia,
1982-NMSC-048, 98 N.M. 3, 644 P.2d 517.

Strict construction. — Since this act 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-NMCA-145, 95 N.M.
329, 622 P.2d 234.

This article is in derogation of one's common-law right to sue and is to be strictly
construed. Estate of Gutierrez v. Albuquerque Police Dep't, 1986-NMCA-023, 104 N.M.
111, 717 P.2d 87, cert. denied sub nom. Haney v. Albuquerque Police Dep't., 103 N.M.
798, 715 P.2d 71 (1986), overruled on other grounds by Bracken v. Yates Petroleum
Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.

The Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] must be strictly construed. Fought
v. State, 1988-NMCA-088, 107 N.M. 715, 764 P.2d 142, overruled in part on other
grounds by Folz v. State, 1993-NMCA-066, 115 N.M. 639, 857 P.2d 39, cert. denied,
115 N.M. 602, 856 P.2d 250.

Where there is no liability insurance, defense of sovereign immunity is valid as to
a tort committed prior to July 1, 1976. New Mexico Livestock Bd. v. Dose, 1980-NMSC-
022, 94 N.M. 68, 607 P.2d 606.

Indemnification contract impermissible. — Provision in a contract between a city and
a beverage company under which the city agreed to indemnify the company against
certain liabilities is impermissible to the extent it required the city to assume liability
outside the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978]. 2000 Op. Att'y Gen. No.
00-04.

Law reviews. — For note, "Doctrine of Sovereign Immunity - Statute - Municipal Tort
Liability," see 2 Nat. Resources J. 170 (1962).

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

For note, "Comparative v. Contributory Negligence: The Effect of Plaintiff's Fault," see 6
N.M.L. Rev. 171 (1975).

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

For note, "Negligent Hiring and Retention - Availability of Action Limited by
Foreseeability Requirement," see 10 N.M.L. Rev. 491 (1980).
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 comment, "Survey of New Mexico Law: Torts," see 15 N.M.L. Rev. 363 (1985).

For note, "Tort Claims Act - The Death of the Public Duty - Special Duty Rule: Schear v.
Board of County Commissioners," see 16 N.M.L. Rev. 423 (1986).

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 case note, "Civil Procedure - New Mexico Adopts the Modern View of Collateral
Estoppel: Silva v. State," see 18 N.M.L. Rev. 597 (1988).

For note, "The New Mexico Tort Claims Act: The King Can Do 'Little' Wrong," see 21
N.M.L. Rev. 441 (1991).

For note, "Contracts - The Supreme Court Speaks Where the Legislature Was Silent:
Torrance County Mental Health Program, Inc. v. New Mexico Health & Environment,"
see 23 N.M.L. Rev. 291 (1993).

For note, "Tort Law - Either the Parents or the Child May Claim Compensation for the
Child's Medical and Nonmedical Damages: Lopez v. Southwest Community Health
Services," see 23 N.M.L. Rev. 373 (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: Saiz v. Belen School District," see 23 N.M.L. Rev. 399 (1993).

For note, "Torts - Sovereign Immunity: Caillouette v. Hercules," see 23 N.M.L. Rev. 423
(1993).

For note, "In the aftermath of M.D.R., Holding the State to Its Promises: M.D.R. v. State
Human Services Dep't," see 24 N.M.L. Rev. 557 (1994).

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

For note, "Foreseeability vs. Public Policy Considerations in Determining the Duty of
Physicians to Non-Patients - Lester v. Hall," see 30 N.M.L. Rev. 351 (2000).
For note, "New Mexico Limits Recovery of Negligent Infliction of Emotional Distress to
Sudden, Traumatic Accidents - Fernandez v. Walgreen Hastings Co.," see 30 N.M.L.
Rev. 363 (2000).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County,
School, and State Tort Liability, §§ 61, 62, 67 to 69, 184 to 190.

Damage to property caused by negligence of governmental agents, as "taking,"
"damage," or "use" for public purposes, in constitutional sense, 2 A.L.R.2d 677.

Sovereign immunity doctrine as precluding suit against sister state for tort committed
within forum state, 81 A.L.R.3d 1239.

Liability for child's personal injuries or death resulting from tort committed against child's
mother before child was conceived, 91 A.L.R.3d 316.

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

Liability of one negligently causing fire for injuries sustained by person other than
firefighter in attempt to control fire or to save life or property, 91 A.L.R.3d 1202.

Governmental liability from operation of zoo, 92 A.L.R.3d 832.

Products liability: air guns and BB guns, 94 A.L.R.3d 291.

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.

Immunity of public officer from liability for injuries caused by negligently released
individual, 5 A.L.R.4th 773.

Governmental tort liability for injuries caused by negligently released individual, 6
A.L.R.4th 1155.

Actual notice or knowledge by governmental body or officer of injury or incident resulting
in injury as constituting required claim or notice of claim for injury - modern status, 7
A.L.R.4th 1063.

Modern status of rule excusing governmental unit from tort liability on theory that only
general, not particular, duty was owed under circumstances, 38 A.L.R.4th 1194.

Governmental tort liability for failure to provide police protection to specifically
threatened crime victim, 46 A.L.R.4th 948.
Recoverability from tort-feasor of cost of diagnostic examinations absent proof of actual
bodily injury, 46 A.L.R.4th 1151.

Right of insured, precluded from recovering against owner or operator of uninsured
motor vehicle because of governmental immunity, to recover uninsured motorist
benefits, 55 A.L.R.4th 806.

Social worker malpractice, 58 A.L.R.4th 977.

Tort liability of college or university for injury suffered by student as a result of own or
fellow student's intoxication, 62 A.L.R.4th 81.

State and local government liability for injury or death of bicyclist due to defect or
obstruction in public bicycle path, 68 A.L.R.4th 204.

Governmental liability for negligence in licensing, regulating, or supervising private day-
care home in which child is injured, 68 A.L.R.4th 266.

Liability in tort for interference with attorney-client relationship, 90 A.L.R.4th 621.

Liability of private operator of "halfway house" or group home housing convicted
prisoners before final release for injury to third person caused by inmate, 9 A.L.R.5th
969.

Municipal liability for negligent performance of building inspector's duties, 24 A.L.R.5th
200.

Liability of school or school personnel for injury to student resulting from cheerleader
activities, 25 A.L.R.5th 784.

Collateral source rule: admissibility of evidence of availability to plaintiff of free public
special education on issue of amount of damages recoverable from defendant, 41
A.L.R.5th 771.

Liability of owner, operator, or other parties, for personal injuries allegedly resulting from
snow or ice on premises of parking lot, 74 A.L.R.5th 49.

Tort liability of public schools and institutions of higher learning for accident involving
motor vehicle operated by student, 85 A.L.R.5th 301.

Liability of municipality or other governmental unit for failure to provide police protection
from crime, 90 A.L.R.5th 273.

What constitutes "claim arising in a foreign country" under 28 U.S.C.A. § 2680(k),
excluding such claims from Federal Tort Claims Act, 158 A.L.R. Fed. 137.
Applicability of 28 §§ 2680(a) and 2680(h) to Federal Tort Claims Act liability arising out
of government informant's conduct, 85 A.L.R. Fed. 848.

Calculations of attorneys' fees under Federal Tort Claims Act - 28 USCS § 2678, 86
A.L.R. Fed. 866.

Construction and application of Federal Tort Claims Act provision excepting from
coverage claims arising out of assault and battery (28 UCSC § 2680(h)), 88 A.L.R. Fed.
7

Construction and application of Federal Tort Claims Act provision excepting from
coverage claims arising out of interference with contract rights (28 USCS § 2680(h)), 92
A.L.R. Fed. 186.

Application of collateral source rule in actions under Federal Tort Claims Act (28 USCS
§ 2674), 104 A.L.R. Fed. 492.

Appealability, under collateral order doctrine, of order denying qualified immunity in 42
USCS § 1983 or Bivens action for damages where claim for equitable relief is also
pending - post-Harlow cases, 105 A.L.R. Fed. 851.

When is federal agency employee independent contractor, creating exception to United
States waiver of immunity under Federal Tort Claims Act (28 U.S.C.A. § 2671), 166
A.L.R. Fed. 187.

Claims arising from governmental conduct causing damage to plaintiff's real property as
within discretionary function exception of federal Tort Claims Act (28 U.S.C.A. §
2680(a)), 167 A.L.R. Fed. 1

Liability of United States for failure to warn of danger or hazard not directly created by
act or omission of federal government and not in national parks as affected by
"discretionary function or duty" exception to federal Tort Claims Act, 169 A.L.R. Fed.
421.

Liability of United States for failure to warn of danger or hazard resulting from
governmental act or omission as affected by "discretionary function or duty" exception
to federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 170 A.L.R. Fed. 365.

Liability of United States for failure to warn local police or individuals of discharge,
release, or escape of person who is deemed dangerous to public as affected by
"discretionary act or duty" exception to federal Tort Claims Act, 171 A.L.R. Fed. 655.