N.M. Stat. § 41-4-2 (2026)

A. The legislature recognizes the inherently unfair and inequitable results which
occur in the strict application of the doctrine of sovereign immunity. On the other hand,
the legislature recognizes that while a private party may readily be held liable for his
torts within the chosen ambit of his activity, the area within which the government has
the power to act for the public good is almost without limit, and therefore government
should not have the duty to do everything that might be done. Consequently, it is
declared to be the public policy of New Mexico that governmental entities and public
employees shall only be liable within the limitations of the Tort Claims Act and in
accordance with the principles established in that act.

   B. The Tort Claims Act shall be read as abolishing all judicially-created categories
such as "governmental" or "proprietary" functions and "discretionary" or "ministerial"
acts previously used to determine immunity or liability. Liability for acts or omissions
under the Tort Claims Act shall be based upon the traditional tort concepts of duty and
the reasonably prudent person's standard of care in the performance of that duty. The
Tort Claims Act in no way imposes a strict liability for injuries upon governmental
entities or public employees. Determination of the standard of care required in any
particular instance should be made with the knowledge that each governmental entity
has financial limitations within which it must exercise authorized power and discretion in
determining the extent and nature of its activities.

History: 1953 Comp., § 5-14-2, enacted by Laws 1976, ch. 58, § 2.

                                    ANNOTATIONS

"In derogation of common law." — Insofar as it reestablished sovereign immunity, the
Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] was in derogation of the common
law, but in its exceptions, the act restored the common law right to sue in those specific
situations; because of the complex relationship between the act and the common law,
the more useful canon of construction is that requiring courts to give effect to the
legislature's intent. Brenneman v. Board of Regents of UNM, 2004-NMCA-003, 135
N.M. 68, 84 P.3d 685, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

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.

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.
Different treatment of government and private tortfeasors. — The legislature never
intended government and private tortfeasors to receive identical treatment. The
liabilities of the private tortfeasor in no way compare with the potential liabilities of the
state highway and transportation department [department of transportation] for the
multitude of daily injuries and deaths on the state's highways. Marrujo v. N.M. State
Hwy. Transp. Dep't, 1994-NMSC-116, 118 N.M. 753, 887 P.2d 747.

Identification of entity against whom liability asserted. — Plaintiffs may not, by
relying on the doctrine of respondeat superior, avoid the need to identify the particular
entity against whom liability is asserted. Silva v. State, 1987-NMSC-107, 106 N.M. 472,
745 P.2d 380.

To hold municipality liable for the conduct of third persons would be contrary to
sound public policy and create policing requirements difficult to fulfill. Trujillo v. City of
Albuquerque, 1979-NMCA-127, 93 N.M. 564, 603 P.2d 303, cert. denied, 94 N.M. 629,
614 P.2d 546.

The Tort Claims Act grants immunity for strict liability in tort. McCurry v. City of
Farmington, 1982-NMCA-055, 97 N.M. 728, 643 P.2d 292.

Immunity waiver is not for indirect or incidental victims. — The legislature did not
intend by this section to waive immunity for injuries to indirect or incidental victims of
tortious acts committed by government employees. The plaintiff's, as children of the
deceased killed by law enforcement officers, were unforeseeable; as injured parties;
therefore, the officers owed no duty to them. Lucero v. Salazar, 1994-NMCA-066, 117
N.M. 803, 877 P.2d 1106, cert. denied, 117 N.M. 802, 877 P.2d 1105.

But extends to claims for loss of consortium. – Once a duty is established, loss of
consortium damages flow from the principles of tort liability; as loss of consortium is a
damage resulting from bodily injury and loss of consortium plaintiffs are foreseeable,
loss of consortium is exactly the type of damage "based upon the traditional tort
concepts of duty" that the legislature intended to include under the applicable waivers of
sovereign immunity in the Tort Claims Act. Brenneman v. Board of Regents of UNM,
2004-NMCA-003, 135 N.M. 68, 84 P.3d 685, cert. denied, 2003-NMCERT-003, 135
N.M. 51, 84 P.3d 668.

Claim for loss of consortium is permissible under the Tort Claims Act. — Where
plaintiffs’ father was shot and killed by law enforcement officers during a stolen vehicle
investigation, the district court erred in dismissing plaintiffs’ complaint on the ground that
their loss of consortium claims did not fall within the Tort Claims Act (TCA), because the
TCA waives a law enforcement officer’s sovereign immunity from liability for personal
injury and for bodily injury damages resulting from battery, and loss of consortium
damages may be characterized as either personal or bodily injury damages, and
therefore both the injury and the tort from which the plaintiff’s claim for loss of
consortium damages derive are specifically enumerated under 41-4-12 NMSA 1978.
Thompson v. City of Albuquerque, 2017-NMSC-021, aff’g 2017-NMCA-002, 386 P.3d
1015.

Damages for loss of consortium may be recovered. — Where plaintiffs’ father was
shot and killed by law enforcement officers during a stolen vehicle investigation, the
district court erred in dismissing plaintiffs’ complaint on the ground that their loss of
consortium claims did not fall within the Tort Claims Act (TCA), because generally,
plaintiffs should be allowed to recover for loss of consortium if the evidence shows that
their relationships with the decedent were sufficiently close financially, socially, or both,
and if it was foreseeable that the injury to the decedent would harm the relationships,
and loss of consortium can be asserted against New Mexico government actors, despite
that it is not specifically mentioned in the TCA, provided that the underlying tort, the one
that caused direct physical injury, itself triggers an immunity waiver under the TCA.
Thompson v. City of Albuquerque, 2017-NMCA-002, cert. granted.

No distinction shall be drawn with regard to "public" or "special" duty of
governmental employees whose immunity to suit for acts of negligence has been
excepted under this article. Schear v. Board of Cnty. Comm'rs, 1984-NMSC-079, 101
N.M. 671, 687 P.2d 728.

The distinction between public and private duty is invalid, and applied retrospectively.
Schear v. Board of Cnty. Comm'rs, 1984-NMSC-079, 101 N.M. 671, 687 P.2d 728;
Wittkowski v. State, 1985-NMCA-066, Corr. Dep't, 103 N.M. 526, 710 P.2d 93, cert.
quashed, 103 N.M. 446, 708 P.2d 1047, overruled on other grounds by Silva v. State,
1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.

Personal actions against public employees barred. — The language of Subsection
F of 5-1-1 NMSA 1978 constitutes a bar to personal actions against public employees; it
does not provide an independent statutory waiver of governmental immunity. Gallegos
v. Trujillo, 1992-NMCA-090, 114 N.M. 435, 839 P.2d 645, cert. denied, 114 N.M. 314,
838 P.2d 468.

Governmental entities can share maintenance responsibilities for road by
agreement. Bierner v. City of Truth or Consequences, 2004-NMCA-093, 136 N.M. 197,
96 P.3d 322.

City duty to maintain road. — Whether a city had either a statutory or a common law
duty to maintain a road is dispositive on the issue of immunity. Bierner v. City of Truth or
Consequences, 2004-NMCA-093, 136 N.M. 197, 96 P.3d 322.

Waiver of immunity inapplicable. — Where there is no question that the highway
department had the sole responsibility to maintain the street in the vicinity where the
accident occurred, the waiver of immunity in Subsection A of this section does not apply
to the city because it had no duty upon which negligence could be premised. Bierner v.
City of Truth or Consequences, 2004-NMCA-093, 136 N.M. 197, 96 P.3d 322.
Navajo police officer not New Mexico "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.

Immunity for 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 sub nom., 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.

School district immune from liability for breach of nondelegable duty. — Direct
liability of the possessor of land under a nondelegable duty to ensure against an
unreasonable risk of injury for a special danger is based not on what the possessor
knew or should have known, but upon breach of duty imputed as a matter of law. This is
strict liability for which the legislature granted immunity under the Tort Claims Act [41-4-
1 through 41-4-27 NMSA 1978]. Consequently, a school district was immune from its
joint and several liability for the acts of independent contractors in constructing a high
voltage lighting system that caused the death of a student attending a school football
game. Saiz v. Belen Sch. Dist., 1992-NMSC-018, 113 N.M. 387, 827 P.2d 102.

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 section, 41-4-4 NMSA 1978 and 41-4-18 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).

Ordinary care for preservation of life and health of arrestee. — When a
governmental entity through its agents, by virtue of its law enforcement powers, has
arrested and imprisoned a human being, it is bound to exercise ordinary and reasonable
care, under the circumstances, for the preservation of the arrestee's life and health. Doe
v. City of Albuquerque, 1981-NMCA-049, 96 N.M. 433, 631 P.2d 728.

Jury instruction on "financial limitations". — Without evidence on the issue of
"financial limitations," a party is not entitled to a jury instruction as to a governmental
entity's standard of care as circumscribed by the "financial limitations" within which it
must exercise authorized power. Doe v. City of Albuquerque, 1981-NMCA-049, 96 N.M.
433, 631 P.2d 728.
Texas’ sovereign immunity recognized as a matter of comity in tort claim lawsuit.
— In a medical negligence case filed agains t 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 survey, "Torts: Sovereign and Governmental Immunity in New
Mexico," see 6 N.M. L. Rev. 249 (1976).

For note and comment, "The Death of Implied Causes of Action: The Supreme Court's
Recent Bivens Jurisprudence and the Effect on State Constitutional Tort
Jurisprudence," see Correctional Services Corp. v. Malesko, 33 N.M. L. Rev. 401
(2003).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County,
School, and State Tort Liability §§ 11, 75 to 81, 110; 63A Am. Jur. 2d Public Officers
and Employees § 358 et seq.

Liability of county for torts in connection with activities which pertain, or are claimed to
pertain, to private or proprietary functions, 16 A.L.R.2d 1079.

Tort liability of public schools and institutions of higher learning, 160 A.L.R. 7, A.L.R.2d
489, 33 A.L.R.3d 703, 34 A.L.R.3d 1166, 34 A.L.R.3d 1210, 35 A.L.R.3d 725, 35
A.L.R.3d 758, 36 A.L.R.3d 361, 37 A.L.R.3d 712, 37 A.L.R.3d 738, 38 A.L.R.3d 830, 23
A.L.R.5th 1.

Tort liability of public schools and institutions of higher learning for accidents occurring
in physical education classes, 66 A.L.R.5th 1.

Tort liability of schools and institutions of higher learning for personal injury suffered
during school field trip, 68 A.L.R.5th 519.

Tort liability of public schools and institutions of higher learning for accidents occurring
during school athletic events, 68 A.L.R.5th 663.

Tort liability of public schools and institutions of higher learning for injury to student
walking to or from school, 72 A.L.R.5th 469.

67 C.J.S. Officers and Public Employees §§ 206 to 209, 251.