N.M. Stat. § 41-4-17 (2026)

A. The Tort Claims Act shall be the exclusive remedy against a governmental entity
or public employee for any tort for which immunity has been waived under the Tort
Claims Act and no other claim, civil action or proceeding for damages, by reason of the
same occurrence, may be brought against a governmental entity or against the public
employee or his estate whose act or omission gave rise to the suit or claim. No rights of
a governmental entity to contribution, indemnity or subrogation shall be impaired by this
section, except a governmental entity or any insurer of a governmental entity shall have
no right to contribution, indemnity or subrogation against a public employee unless the
public employee has been found to have acted fraudulently or with actual intentional
malice causing the bodily injury, wrongful death, property damage or violation of rights,
privileges or immunities secured by the constitution and laws of the United States or
laws of New Mexico resulting in the settlement or final judgment. Nothing in this section
shall be construed to prohibit any proceedings for mandamus, prohibition, habeas
corpus, certiorari, injunction or quo warranto.

   B. The settlement or judgment in an action under the Tort Claims Act shall
constitute a complete bar to any action by the claimant, by reason of the same
occurrence against a governmental entity or the public employee whose negligence
gave rise to the claim.

    C. No action brought pursuant to the provisions of the Tort Claims Act shall name as
a party any insurance company insuring any risk for which immunity has been waived
by that act.

History: 1953 Comp., § 5-14-15, enacted by Laws 1976, ch. 58, § 15; 1977, ch. 386, §
13; 1982, ch. 8, § 2.

                                     ANNOTATIONS

Application of 1977 amendment. — Where an act giving rise to a claim under the Tort
Claims Act [41-4-1 through 41-4-27 NMSA 1978] occurred prior to the effective date of
the 1977 amendment which added "settlement" to Subsection B, but the injury and
settlement occurred after the effective date, the settlement is governed by the amended
subsection. Sugarman v. City of Las Cruces, 1980-NMCA-093, 95 N.M. 706, 625 P.2d
1223.

When settlement does not bar suit. — A suit authorized by the Tort Claims Act [41-4-
1 through 41-4-27 NMSA 1978] and brought against the potentially liable governmental
entity is not barred by a settlement with one who has no statutory liability to the
claimant, nor by a settlement reached with anyone outside the framework of a Tort
Claims Act suit. Sugarman v. City of Las Cruces, 1980-NMCA-093, 95 N.M. 706, 625
P.2d 1223.

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.

Simultaneous pursual of § 1983 action not barred. — 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 where 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.

Double recovery prohibited. — In those cases where tort damages will constitute a
portion of the damages for a deprivation of a constitutional right, general principles
against double recovery will prevail. Wells v. Cnty. of Valencia, 1982-NMSC-048, 98
N.M. 3, 644 P.2d 517.

City entitled to "exclusive remedy" provisions. — The operation of a natural gas
system, even though beyond the statutory limitations imposed by 3-25-3A(2) NMSA
1978, does not deprive a city of the exclusive right, remedy and obligation provision of
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.

Parties. — The exclusive remedy provision in Subsection B did not bar recovery from
the state transportation division of the state board of education because plaintiffs settled
their claims against defendants connected with a county and school district. Gallegos v.
State Bd. of Educ., 1997-NMCA-040, 123 N.M. 362, 940 P.2d 468, cert. denied, 123
N.M. 215, 937 P.2d 76.

Joinder. — Prior to the enactment of Subsection C, there was nothing in the Tort
Claims Act [41-4-1 through 41-4-27 NMSA 1978] which indicated the legislature's
intention to disallow a plaintiff bringing an action under the act from joining an insurance
company as a party defendant. By drawing a logical inference from the legislature's
subsequent enactment of Subsection C, it appears that the legislature realized that
without this subsection a plaintiff could join the insurance company and therefore this
prompted the 1977 amendment which specifically negated the idea of joinder. England
v. N.M. State Hwy. Comm'n, 1978-NMSC-005, 91 N.M. 406, 575 P.2d 96.

In any action which falls within the purview of the Tort Claims Act where the injury
occurred between July 1, 1976, and February of 1977, when the 1977 amendments
became immediately effective, joinder of an insurance company as a party defendant is
allowed. England v. N.M. State Hwy. Comm'n, 1978-NMSC-005, 91 N.M. 406, 575 P.2d
96. (This section was amended by Laws 1977, which contained an emergency clause,
Laws 1977, ch. 386, § 23, and was approved April 8, 1977.)

Wrongful decision to perform autopsy. — 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 post-mortem examinations, created a private cause of action, it
did not override the state medical investigator's grant of immunity under 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 grounds, 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.

Governmental entity not entitled to reimbursement from employee. — A school
district was not entitled to reimbursement from an employee of federal funds it lost due
to the employee's negligence in failing to comply with federal regulations. Daddow v.
Carlsbad Mun. Sch. Dist., 1995-NMSC-032, 120 N.M. 97, 898 P.2d 1235.

No waiver of liability for intentional torts. — Where Indian tribe brought an action
against the state of New Mexico, the governor of New Mexico, and members of the
gaming control board, alleging tortious interference with existing contractual relations,
the New Mexico officials were entitled to qualified immunity because the New Mexico
Tort Claims Act does not waive liability for intentional torts; as a result, New Mexico
officials cannot be held liable for tortious interference with contractual relations. Pueblo
of Pojoaque v. N.M., 214 F.Supp.3d 1028 (D. N.M. 2016).

Mandamus proceedings not prohibited. — The Tort Claims Act does not interfere
with the traditional right to bring a mandamus action against a government official for
failure to perform a required duty. Board of Cnty. Comm'rs v. Risk Mgmt. Div., 1995-
NMSC-046, 120 N.M. 178, 899 P.2d 1132.

Injunction. — Although the Tort Claims Act would not bar a claim for injunctive relief,
an injunction will generally not lie if there is an adequate remedy at law. El Dorado
Utils., Inc. v. Eldorado Area Water & Sanitation Dist., 2005-NMCA-036, 137 N.M. 217,
109 P.3d 305.

Law reviews. — For article, "Constitutional Torts and the New Mexico Torts Claims
Act," see 13 N.M.L. Rev. 1 (1983).
41-4-18. Jurisdiction; appeals; venue.
   A. Exclusive original jurisdiction for any claim under the Tort Claims Act shall be in
the district courts of New Mexico. Appeals may be taken as provided by law.

    B. Venue for any claim against the state or its public employees, pursuant to the
Tort Claims Act, shall be in the district court for the county in which a plaintiff resides, or
in which the cause of action arose, or in Santa Fe county. Venue for all other claims
pursuant to the Tort Claims Act, shall be in the county in which the principal offices of
the governing body of the local public body are located.

History: 1953 Comp., § 5-14-16, enacted by Laws 1976, ch. 58, § 16.

                                      ANNOTATIONS

Section is unconstitutional to extent that it acts to limit pendent jurisdiction of a
federal district court over tort claims against counties, municipalities, and their officers.
Wojciechowski v. Harriman, 607 F. Supp. 631 (D.N.M. 1985).

Constitutional deprivation may be remedied in a jurisdiction other than New
Mexico. Wells v. County of Valencia, 1982-NMSC-048, 98 N.M. 3, 644 P.2d 517.

Federal jurisdiction barred. — Inmate could not pursue claim against the New Mexico
Department of Corrections and its employees acting within the scope of their
employment in the federal district court, but rather was relegated to the state district
court to seek relief consistent with the limited waiver of immunity under this section.
Bishop v. Doe 1, 902 F.2d 809 (10th Cir.), cert. denied, 498 U.S. 873, 111 S. Ct. 198,
112 L. Ed. 2d 159 (1990).

Venue provisions are mandatory. — The second sentence of Subsection B, relating
to venue of actions against public entities or employees other than the state and its
employees, was mandatory as applied to action against board of county commissioners.
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.

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, 41-4-2 NMSA 1978 and 41-4-4 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).

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.

Venue in actions against state educational institutions. — The venue provision of
this section does not delimit choice of forum for tort actions brought against state
educational institutions, which actions are governed by the venue provision set forth in
38-3-1G NMSA 1978. Clothier v. Lopez, 1985-NMSC-088, 103 N.M. 593, 711 P.2d 870.

Federal jurisdiction barred. — A student at the New Mexico School of Mines (now
New Mexico Institute of Mining and Technology), was barred from bringing an action in
the United States District Court for the District of New Mexico, seeking damages for
personal injuries alleged to have resulted from the negligence of the school's board of
regents in the operation of the school, because the action was, in effect, against the
state of New Mexico, and the U.S. Const., amend. XI, barred federal jurisdiction.
Korgich v. Regents of N.M. Sch. of Mines, 582 F.2d 549 (10th Cir. 1978).

Texas’ sovereign immunity recognized as a matter of comity in tort claim lawsuit.
— In a medical negligence case filed against a Texas-based physician who was acting
within the scope of his employment at Texas tech hospital, a governmental unit of the
state of Texas, the district court erred in failing to extend comity to Texas and apply
provisions of the Texas Tort Claims Act (TTCA), because it is not a violation of New
Mexico public policy when a similar action would not be barred under the New Mexico
Tort Claims Act, when Texas appellate courts have previously extended comity and
applied tort claims provisions from other jurisdictions that differed from the TTCA’s
provisions, when Texas’ strong public policy interest in applying uniform standards of
liability and immunity to the conduct of state-employed physicians who provide medical
care at state-run facilities is not outweighed by New Mexico’s interest in providing a
forum for New Mexicans who seek redress for medical negligence, and when failing to
extend immunity to Texas in this case would encourage forum shopping by allowing
plaintiffs to name Texas state employees in lawsuits in New Mexico when those
plaintiffs could not do so in Texas. Montaño v. Frezza, 2017-NMSC-015, rev’g, 2015-
NMCA-069.

Principles of comity applied to determine choice of law when tort is committed by
non-resident. — Comity, the principle that the courts of one state give effect to the laws
of another state or extend immunity to a sister sovereign, not as a rule of law, but rather
out of deference or respect, should be extended to other states but only if doing so will
not violate or undermine New Mexico’s public policies. In determining whether to extend
immunity, courts should consider whether the forum state would enjoy similar immunity
under similar circumstances, whether the state sued has or is likely to extend immunity
to other states, whether the forum state has a strong interest in litigating the case, and
whether extending immunity would prevent forum shopping. Montaño v. Frezza, 2015-
NMCA-069, cert. granted, 2015-NMCERT-006, and cert. granted, 2015-NMCERT-006.
In a medical negligence case filed against a Texas-based physician, where the district
court was required to determine whether the New Mexico Tort Claims Act (NMTCA) [41-
4-1 through 41-4-27 NMSA 1978] or Texas law should apply, the district court did not
err in determining that New Mexico law should apply because applying Texas law would
be contrary to New Mexico’s public policies in that applying Texas law would contravene
New Mexico’s broader waiver of immunity, would limit suits to governmental entities and
prohibit suits against individuals, and would impose a notice requirement substantially
more restrictive than that in the NMTCA. Montaño v. Frezza, 2015-NMCA-069, cert.
granted, 2015-NMCERT-006, and cert. granted, 2015-NMCERT-006.

Law reviews. — For article, "Constitutional Torts and the New Mexico Torts Claims
Act," see 13 N.M.L. Rev. 1 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County,
School, and State Tort Liability §§ 649 to 654.