N.M. Stat. § 41-4-4 (2026)

exceptions.
   A. A governmental entity and any public employee while acting within the scope of
duty are granted immunity from liability for any tort except as waived by the New Mexico
Religious Freedom Restoration Act [28-22-1 to 28-22-5 NMSA 1978] and by Sections
41-4-5 through 41-4-12 NMSA 1978. Waiver of this immunity shall be limited to and
governed by the provisions of Sections 41-4-13 through 41-4-25 NMSA 1978, but the
waiver of immunity provided in those sections does not waive immunity granted
pursuant to the Governmental Immunity Act [41-13-1 to 41-13-3 NMSA 1978].

    B. Unless an insurance carrier provides a defense, a governmental entity shall
provide a defense, including costs and attorney fees, for any public employee when
liability is sought for:

       (1)     any tort alleged to have been committed by the public employee while
acting within the scope of his duty; or

        (2)   any violation of property rights or any rights, privileges or immunities
secured by the constitution and laws of the United States or the constitution and laws of
New Mexico when alleged to have been committed by the public employee while acting
within the scope of his duty.

   C. A governmental entity shall pay any award for punitive or exemplary damages
awarded against a public employee under the substantive law of a jurisdiction other
than New Mexico, including other states, territories and possessions and the United
States of America, if the public employee was acting within the scope of his duty.

   D. A governmental entity shall pay any settlement or any final judgment entered
against a public employee for:

      (1)     any tort that was committed by the public employee while acting within the
scope of his duty; or

       (2)    a violation of property rights or any rights, privileges or immunities secured
by the constitution and laws of the United States or the constitution and laws of New
Mexico that occurred while the public employee was acting within the scope of his duty.

    E. A governmental entity shall have the right to recover from a public employee the
amount expended by the public entity to provide a defense and pay a settlement agreed
to by the public employee or to pay a final judgment if it is shown that, while acting
within the scope of his duty, the public employee acted fraudulently or with actual
intentional malice causing the bodily injury, wrongful death or property damage resulting
in the settlement or final judgment.

    F. Nothing in Subsections B, C and D of this section shall be construed as a waiver
of the immunity from liability granted by Subsection A of this section or as a waiver of
the state's immunity from suit in federal court under the eleventh amendment to the
United States constitution.
    G. The duty to defend as provided in Subsection B of this section shall continue
after employment with the governmental entity has been terminated if the occurrence for
which damages are sought happened while the public employee was acting within the
scope of duty while the public employee was in the employ of the governmental entity.

   H. The duty to pay any settlement or any final judgment entered against a public
employee as provided in this section shall continue after employment with the
governmental entity has terminated if the occurrence for which liability has been
imposed happened while the public employee was acting within the scope of his duty
while in the employ of the governmental entity.

   I. A jointly operated public school, community center or athletic facility that is used
or maintained pursuant to a joint powers agreement shall be deemed to be used or
maintained by a single governmental entity for the purposes of and subject to the
maximum liability provisions of Section 41-4-19 NMSA 1978.

    J. For purposes of this section, a "jointly operated public school, community center
or athletic facility" includes a school, school yard, school ground, school building,
gymnasium, athletic field, building, community center or sports complex that is owned or
leased by a governmental entity and operated or used jointly or in conjunction with
another governmental entity for operations, events or programs that include sports or
athletic events or activities, child-care or youth programs, after-school or before-school
activities or summer or vacation programs at the facility.

    K. A fire station that is used for community activities pursuant to a joint powers
agreement between the fire department or volunteer fire department and another
governmental entity shall be deemed to be operated or maintained by a single
governmental entity for the purposes of and subject to the maximum liability provisions
of Section 41-4-19 NMSA 1978. As used in this subsection, "community activities"
means operations, events or programs that include sports or athletic events or activities,
child care or youth programs, after-school or before-school activities, summer or
vacation programs, health or education programs and activities or community events.

History: 1953 Comp., § 5-14-4, enacted by Laws 1976, ch. 58, § 4; 1977, ch. 386, § 3;
1978, ch. 166, § 1; 1981, ch. 267, § 1; 1982, ch. 8, § 1; 1989, ch. 369, § 1; 1996, ch. 68,
§ 1; 1999, ch. 268, § 1; 2000 (2nd S.S.), ch. 17, § 6; 2001, ch. 211, § 1.

                                     ANNOTATIONS

Temporary provisions. — Laws 2020 (1st S.S.), ch. 1, § 1, effective June 26, 2020,
provided:

A. The "New Mexico civil rights commission" is created and shall function from the date
of its appointment until March 31, 2021.
B. The New Mexico civil rights commission consists of nine members, no more than
five of which shall be from the same political party, appointed as follows:

(1) the governor shall appoint three members;

(2) the New Mexico legislative council shall appoint six members; and

(3) the appointing authorities shall make every effort to ensure economic, geographic,
gender, cultural and racial diversity among the appointed members as well as at least
one member experienced in law enforcement.

C. The commission shall elect a chair and may elect such officers as it deems
necessary to carry out its duties.

D. Two absences from meetings of the commission constitutes grounds for removal of
a member of the commission. Upon the request of the chair of the commission, the
appointing authority shall replace the member who has failed to attend two meetings of
the commission.

E. A majority of the members appointed constitutes a quorum for the transaction of
business. The support of a majority of the members appointed is required for adoption
of any action by the commission.

F. The members of the commission shall review policies and develop policy proposals
for laws for the creation of a civil right of action for the deprivation, by a public body or a
person acting on behalf of or under the authority of a public body, of any right, privilege
or immunity secured by the constitution of New Mexico. The commission shall consider
whether such right of action shall provide for monetary damages, including punitive
damages, and other equitable relief, including injunctive relief. The commission shall
consider whether attorney fees shall be mandated for a prevailing plaintiff, the statute of
limitations for the right of action and indemnification of employees of a public body in
cases involving the right of action.

G. The commission shall review the use of qualified immunity as a defense to liability
by an employee of a public body for a claim that would be brought either under 42
U.S.C. Section 1983 or pursuant to the right of action considered by the commission in
Subsection F of this section.

H. The commission shall review and assess the need for and costs of additional
insurance policies for public employees and public bodies, or for persons acting on
behalf of or under the authority of public bodies, if the policies or laws proposed
pursuant to Subsections F and G of this section are adopted.

I. The commission shall submit a report of its findings, including specific
recommendations and proposed legislation, to the governor, the New Mexico legislative
council and the appropriate legislative interim committee dealing with courts, corrections
and justice by November 15, 2020.

J. The commission may hire or contract for appropriate staff. Staff shall assist the
commission as directed by the chair, including conducting interviews with parties that
wish to express their views to the commission and synthesizing this information for the
commission. The commission may request assistance from the legislative council
service and the risk management division of the general services department.

K. Members of the commission are entitled to compensation pursuant to the provisions
of the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] and shall receive no
other perquisite, compensation or allowance.

L. As used in this section, "public body" means the executive, legislative and judicial
branches of state and local governments and all advisory boards, commissions,
committees, agencies or entities created by the constitution of New Mexico or any
branch of government that receives public funding, including political subdivisions,
special taxing districts, school districts and institutions of higher education.

The 2001 amendment, effective June 15, 2001, added Subsection K.

The 2000 amendment, effective July 3, 2000, inserted "the New Mexico Religious
Freedom Restoration Act and by" following "waived by" in Subsection A and deleted
"but not limited to" following "including" in Subsection C.

The 1999 amendment, effective June 18, 1999, inserted the language beginning "but
the waiver of immunity" in the last sentence of Subsection A.

The 1996 amendment, effective March 5, 1996, added Subsections I and J and made
stylistic changes in Paragraphs D(1) and D(2).

The 1989 amendment, effective June 16, 1989, inserted "including costs and attorneys'
fees" in the introductory paragraph of Subsection B.

                         I.     GENERAL CONSIDERATION.

Joint operation of a facility. — Without proof of a joint powers agreement plaintiff
cannot apply 41-4-4 I and J NMSA 1978. Gutierrez v. W. Las Vegas Sch. Dist., 2002-
NMCA-068, 132 N.M. 372, 48 P.3d 761

Modification of common law requires strict construction. — Since the Tort Claims
Act [41-4-1 through 41-4-27 NMSA 1978] 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-NMSC-145, 95
N.M. 329, 622 P.2d 234.
Right to sue and recover under act is limited to the rights, procedures, limitations
and conditions prescribed in this act. Methola v. County of Eddy, 1980-NMSC-145, 95
N.M. 329, 622 P.2d 234.

Agency to be named in complaint. — Under the Tort Claims Act, the particular
agency that caused the harm is the party that must be named in the complaint and
against whom a judgment may be entered. 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.

Proper defendant. — The statutory structure of the Tort Claims Act indicates that either
a governmental entity or an individual public employee can be the sole named
defendant. The Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] does not require a
plaintiff to name a specific public employee as a defendant to recover damages and a
plaintiff may state a claim by naming only a governmental entity. Lopez v. Las Cruces
Police Dep't, 2006-NMCA-074, 139 N.M. 730, 137 P.3d 670, cert. denied, 2006-
NMCERT-006, 140 N.M. 224, 141 P.3d 1278.

Lawsuit alleging claims against county detention center must name board of
county commissioners as a defendant. — Where plaintiff filed a lawsuit asserting
claims against the Bernalillo county metropolitan detention center (BCMDC) for
violations of the New Mexico Tort Claims Act (NMTCA) after plaintiff was remanded to
BCMDC to participate in a methadone program to decrease his level of dependence so
that he would not incur life endangering withdrawal symptoms, but nonetheless suffered
life threatening withdrawal symptoms for approximately two months, BCMDC was not a
suable entity under the NMTCA, because 4-46-1 NMSA 1978 provides a limitation on
the NMTCA, requiring that the proper defendant in all suits against a county is the
county’s board of county commissioners. Gallegos v. Bernalillo County Board of County
Commissioners, 272 F.Supp.3d 1256 (D.N.M. 2017).

Duty and immunity are distinct. — The concepts of duty and immunity are different
under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. The Act is not a source
of duties to be imposed on government entities. Duty or responsibility must be found
outside the act either at common law or by statute. Rutherford v. Chaves Cnty., 2002-
NMCA-059, 132 N.M. 289, 47 P.3d 448, aff’d 2003-NMSC-010, 133 N.M. 756, 69 P.3d
119.

Tort is separate and distinct from constitutional deprivation. — The New Mexico
legislature recognizes that a tort is separate and distinct from a constitutional
deprivation. Wells v. County of Valencia, 1982-NMSC-048, 98 N.M. 3, 644 P.2d 517.

Denial of immunity claim not immediately appealable. — Since Subsection A of this
section provides a defense to liability, and not absolute immunity from suit, a denial of a
claim of immunity under that section does not meet the requirements for immediate
appellate review under the collateral order exception to the traditional requirement of
finality. Allen v. Board of Educ., 1987-NMCA-152, 106 N.M. 673, 748 P.2d 516.

Legislature acted within its powers in limiting liability of public employees in the
same manner as it limited the liability of the entity for whom they work. 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).

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, 41-4-2 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).

Suits in federal court. — Although the state has waived its immunity from suit in its
own state courts for actions of law enforcement officers, it has not waived its Eleventh
Amendment immunity from suit in federal courts. Flores v. Long, 926 F. Supp. 166
(D.N.M. 1995), appeal dismissed, 110 F.3d 730 (10th Cir. 1997).

Governmental entities liable for discriminatory practices. — The Tort Claims Act
[41-4-1 through 41-4-27 NMSA 1978] does not override or supersede the Human Rights
Act [28-1-1 NMSA 1978 et seq.], so as to shield a governmental entity from liability
otherwise flowing from a discriminatory practice proscribed by the latter act. Section 28-
1-13D NMSA 1978 constitutes a waiver of sovereign immunity for liability imposed on
public entities by the human rights commission, or by a district court on appeal from a
commission decision, for violations of the Human Rights Act. Luboyeski v. Hill, 1994-
NMSC-032, 117 N.M. 380, 872 P.2d 353.

Subpoena power. — The Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] does
not protect government actors from a court's subpoena power. 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.

Liability question of fact. — Question of whether boy scout troop using school
district's swimming pool was a business invitee to whom school district owed duty of
reasonable care to avoid risk of harm and question as to negligence of school district for
failing to provide lifeguard and safety equipment were questions raising genuine issue
of material fact precluding summary judgment in wrongful action. Seal v. Carlsbad
Indep. Sch. Dist., 1993-NMSC-049, 116 N.M. 101, 860 P.2d 743.

Duty to defend. — Where a police officer was sued individually in federal court for
violation of plaintiff’s constitutional rights; the officer asked the municipality to provide a
defense and gave a copy of the complaint to the municipal attorney; the municipality
refused to provide a defense, the municipality had actual notice of the federal action and
was asked to provide a defense within the time for filing an answer to the complaint; the
municipality did not dispute that the officer acted within the scope of the officer’s
employment; the officer defended the federal action pro se; and the officer and plaintiff
settled the federal claims; and plaintiff did not give the municipality written notice of the
incident within ninety days after the incident occurred, 41-4-16 NMSA 1978 does not
require notice to be given by a claimant who sues, only a governmental employee, and
the municipality was required to defend and indemnify the officer and pay the judgment
against the officer. Niederstadt v. Town of Carrizozo, 2008-NMCA-053, 143 N.M. 786,
182 P.3d 769, cert. denied 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.

                             II.    IMMUNITY AND WAIVER.

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.

Subsection A provides government entities with immunity from liability for any
tort, except as waived in other sections of the Tort Claims Act [41-4-1 through 41-4-27
NMSA 1978]. Bierner v. City of Truth or Consequences, 2004-NMCA-093, 136 N.M.
197, 96 P.3d 322.

Prima facie tort is not included in the specific provisions of the Tort Claims Act [41-4-
1 through 41-4-27 NMSA 1978]; government entities and public employees acting within
the scope of duty therefore enjoy immunity to such claims. Derringer v. State, 2003-
NMCA-073, 133 N.M. 721, 68 P.3d 961, cert. denied, 133 N.M. 727, 69 P.3d 237.

Tort Claims Act clearly contemplates including employees who abuse their
officially authorized duties, even to the extent of some tortious and criminal activity.
Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239.

Liability of governmental entity for torts of employees. — A governmental entity is
not immune from liability for any tort of its employee acting within the scope of duties for
which immunity is waived. Silva v. State, 1987-NMSC-107, 106 N.M. 472, 745 P.2d
380.

It is only when a public entity is itself acting through its employee with the right to control
the manner in which the details of work are to be done, that the Tort Claims Act [41-4-1
through 41-4-27 NMSA 1978] comes into play. Silva v. State, 1987-NMSC-107, 106
N.M. 472, 745 P.2d 380.

The supervision required for naming a public entity includes more than "direct
supervision"; it includes the right of control regardless of whether exercised. Silva v.
State, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.

Constructive fraud not basis for waiver. — Constructive fraud is not one of the
causes of action for which a city's sovereign immunity is waived under this section.
Health Plus v. Harrell, 1998-NMCA-064, 125 N.M. 189, 958 P.2d 1239, cert. denied,
125 N.M. 145, 958 P.2d 103; Cordova v. N.M. Taxation & Revenue Dep't, 2005-NMCA-
009, 136 N.M. 713, 104 P.3d 1104.

Economic compulsion and constructive fraud are not specifically waived by the
statute. Valdez v. State, 2002-NMSC-028, 132 N.M. 667, 54 P.3d 71.

Immunity not waived where negligence did not result in enumerated tort or where
law enforcement officer did not breach a statutory duty. — Where plaintiff was
traveling on a highway in Bloomfield, New Mexico when her vehicle struck an
intoxicated pedestrian, and where plaintiff brought suit against defendants alleging
negligence based on the fact that a San Juan County deputy left the pedestrian near the
highway after taking the pedestrian into custody due to the pedestrian’s intoxication, the
district court did not err in dismissing plaintiff’s tort claim based on its determination that
defendant’s immunity was not waived because the negligence of the officer did not
result in one of the enumerated torts listed in 41-4-12 NMSA 1978, and the deputy’s
conduct did not breach a statutory duty owed to plaintiff. Milliron v. County of San Juan,
2016-NMCA-096.

Waiver of immunity. — Section 41-4-21 NMSA 1978 was designed to preserve
employment relations between the state, or a subdivision thereof, and its employees; it
may not be read to expand Subsection A of this section and to provide a waiver of
immunity to allow an educational malpractice action against a public school board.
Rubio ex rel. Rubio v. Carlsbad Mun. Sch. Dist., 1987-NMCA-127, 106 N.M. 446, 744
P.2d 919.

Limited liability of law enforcement officers. — The clear meaning of this section is
that law enforcement officers are not personally liable for malicious or fraudulent torts
when committed while acting within the scope of their duties, except as provided in 41-
4-12 NMSA 1978. Methola v. County of Eddy, 1980-NMSC-145, 95 N.M. 329, 622 P.2d
234.

Emergency communications center is a "governmental entity" for purposes of the
Tort Claims Act. — Where plaintiff, a police officer who was injured during a call for
service, filed suit for personal injuries against the Valencia regional emergency
communications center (VRECC), an entity created pursuant to the New Mexico
Enhanced 911 Act, NMSA 1978, §§ 63-9D-1 to 63-9D-11.1, to provide enhanced 911
emergency communications functions for an area that includes the incorporated
boundaries of the villages of Los Lunas and Bosque Farms and Valencia county, and
where the district court dismissed claims against the VRECC, finding that the VRECC
was a governmental entity for purposes of the Tort Claims Act and that immunity had
not been waived, the district court did not err in dismissing claims against the VRECC,
because the VRECC is an entity created pursuant to statute to provide basic safety and
health services on behalf of the villages and Valencia county, is controlled by the
villages and Valencia county, and possesses their same powers and duty with regard to
the health and welfare of their citizens, and is thus a "governmental entity" under the
Tort Claims Act. Gebler v. Valencia Reg'l Emergency Commc'n Ctr., 2023-NMCA-070.
Immunity was not waived for emergency communications center. — Where
plaintiff, a police officer who was injured during a call for service, filed suit for personal
injuries against the Valencia regional emergency communications center (VRECC), an
entity created pursuant to the New Mexico Enhanced 911 Act, NMSA 1978, §§ 63-9D-1
to 63-9D-11.1, to provide enhanced 911 emergency communications functions for an
area that includes the incorporated boundaries of the villages of Los Lunas and Bosque
Farms and Valencia county, and where the district court dismissed claims against the
VRECC, finding that the VRECC was a governmental entity for purposes of the Tort
Claims Act and that immunity had not been waived, the district court did not err in
finding that NMSA 1978, § 41-4-6 did not waive defendant's immunity, because plaintiff
did not submit any evidence that raises a question of fact as to any broad problems that
implicated the core of how the VRECC was operated, that is, plaintiff did not establish
the inadequacy of the training provided to dispatchers, did not assert that the VRECC
failed to maintain the physical plant and equipment appropriately, and did not assert that
the procedures and protocols in place for handling calls and dispatches were
inadequate. The errors alleged by plaintiff are most appropriately deemed simple
employee negligence for which § 41-4-6 does not waive immunity. Gebler v. Valencia
Reg'l Emergency Commc'n Ctr., 2023-NMCA-070.

Waiver of public employees' immunity not allowed. — Section does not allow an
attorney of public employees who enjoy sovereign immunity to waive such immunity at
trial. Garcia v. Board of Educ., 777 F.2d 1403 (10th Cir. 1985), cert. denied, 479 U.S.
814, 107 S. Ct. 66, 93 L. Ed. 2d 24 (1986).

The New Mexico Tort Claims Act (NMTCA) has not waived CYFD's immunity from
suit based on negligent supervision. — Where a mother brought an action against
the children, youth and families department (CYFD) based on negligence due to their
purported failure to supervise a daycare center, following the death of the mother's child
that occurred when the daycare operators left the child in a hot vehicle, the case was
dismissed, because the mother cited no applicable NMTCA provision that waives
immunity for negligent supervision. Under the NMTCA, New Mexico has made it its
public policy that governmental entities and public employees shall only be liable within
the limitations of the Tort Claims Act. Tafoya v. New Mexico, 517 F. Supp. 3d 1250 (D.
N.M. 2021).

                                 III.   SCOPE OF DUTY.

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.

Act provides immunity to public employee acting within scope of duty. — If either
district attorney or assistant district attorney was acting within the scope of his duty as a
public employee at the time of an alleged defamation, he is immune from liability under
the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] regardless of any other
immunity afforded to a district attorney or assistant district attorney. Candelaria v.
Robinson, 1980-NMCA-003, 93 N.M. 786, 606 P.2d 196.

Scope of duties/course of employment. — One is not in the course of employment
unless the conduct in controversy is of the same general nature as that authorized or
incidental thereto. Stull v. City of Tucumcari, 1975-NMCA-105, 88 N.M. 320, 540 P.2d
250, cert. denied, 88 N.M. 319, 540 P.2d 249.

Scope of duties. — Under the definition of "scope of duties" in Subsection G of 41-4-3
NMSA 1978, when reconciled with the indemnification provisions in Subsection E of this
section 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.

Where plaintiff contended that intentional torts are outside the scope of duties of certain
state officials, but she failed to specify any actions by the officials which they were not
"requested, required, or authorized to perform," defendants were entitled to summary
judgment against her on her claims of intentional infliction of emotional distress and
defamation. Garcia-Montoya v. State Treasurer's Office, 2001-NMSC-003, 130 N.M. 25,
16 P.3d 1084.

Horseplay did not take place in the course and scope of employee's employment.
Rivera v. N.M. Hwy. & Transp. Dep't, 1993-NMCA-057, 115 N.M. 562, 855 P.2d 136,
cert. denied, 115 N.M. 545, 854 P.2d 872.

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 [41-4-1 through 41-4-
27 NMSA 1978]. Derringer v. State, 2003-NMCA-073, 133 N.M. 721, 68 P.3d 961, cert.
denied, 133 N.M. 727, 69 P.3d 237.

The defendant failed to show that he was acting in the scope of his duties as a matter of
law where his evidence primarily consisted of habit evidence combined with lack of
memory and he could not recall anything about his most recent official acts before the
accident occurred. 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.

Actions outside employment scope. — An officer of the state, who acts outside the
scope of authority and in so doing commits a willful and malicious tort, may be held
liable for those actions. Allen v. McClellan, 1967-NMSC-114, 77 N.M. 801, 427 P.2d
677, overruled on other grounds by, N.M. Livestock Bd. v. Dose, 1980-NMSC-022, 94
N.M. 68, 607 P.2d 606.

                                IV.     SPECIFIC CASES.
Constitutional claims. — The Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]
does not waive immunity for separation of powers for unlawful taxation on unlawful
special tax claims. Valdez v. State, 2002-NMSC-028, 132 N.M. 667, 54 P.3d 71.

Operation of a swimming pool is not an inherently dangerous activity giving rise to the
strict liability from which a school district and its employees would have enjoyed
sovereign immunity under this section for the drowning of a handicapped 18-year-old
boy. Seal v. Carlsbad Indep. Sch. Dist., 1993-NMSC-049, 116 N.M. 101, 860 P.2d 743.

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 the Tort Claims Act. Kreutzer v.
Aldo Leopold High School, 2018-NMCA-005.

Where plaintiff sued defendant charter school, asserting a negligence claim based on
allegations that defendant owed a duty to plaintiff to use ordinary care to keep the
premises of its school safe and breached that duty by failing to take reasonable
precautions to keep the school safe, the district court did not err in granting defendant’s
motion for summary judgment and in ruling that defendant is a public school and, as
such, a governmental entity subject to suit only as permitted by an exception to the Tort
Claims Act’s general rule of immunity. Kreutzer v. Aldo Leopold High School, 2018-
NMCA-005.

Police owe no duty to unforeseeable plaintiffs. — As a matter of law, the plaintiffs,
children of the deceased killed by law enforcement officers, were unforeseeable as
injured parties and, therefore, the defendant 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.

No waiver of immunity for conducting physical agility test prior to employment. —
There is no waiver of immunity which can impose liability on a school board or school
officers when the plaintiff's decedent, while interviewing for the job of security officer and
attempting to complete a physical agility test, suffered a heart attack and subsequently
died. The conduction of the physical agility test was an administrative function and,
additionally, simple negligence in the performance of a law enforcement officer's duty
does not amount to commission of a tort. Tafoya v. Bobroff, 865 F. Supp. 742 (D.N.M.
1994), aff'd, 74 F.3d 1250 (10th Cir. 1996).

Liability where ordinance void. — An officer who makes an arrest for the violation of
an ordinance committed in his presence, which by law he is required to make, should
not be subjected to liability if thereafter it should be judicially determined that the
ordinance was void and in fact no offense had been committed. Miller v. Stinnett, 257
F.2d 910 (10th Cir. 1958).

Negligent release of criminal suspect. — Plaintiff's complaint, claiming personal
injuries and damages resulting from rape by a criminal suspect following suspect's
allegedly negligent release from a detention center, stated a cause of action against the
city which operated the center and against the center director. Abalos v. Bernalillo Cnty.
Dist. Attorney's Office, 1987-NMCA-026, 105 N.M. 554, 734 P.2d 794, cert. quashed,
106 N.M. 35, 738 P.2d 907.

Liability for placement of signals and signs. — Because the plaintiff's allegations, in
large part, concern the placement of signals and signs, the state of New Mexico does
not enjoy immunity for such decisions, and whether signs or signals were necessary is a
question for the jury. Blackburn v. State, 1982-NMCA-073, 98 N.M. 34, 644 P.2d 548.

Negligence of city in maintenance of gas service actionable. — If a city negligently
maintains a gas service provided by it beyond the statutorily prescribed five-mile limit,
that negligence is actionable and there exists no sovereign immunity to shield it from
liability under 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.

No liability for assault of one citizen by another. — A city is not liable for failure to
provide adequate policing to protect one citizen from being assaulted by another citizen.
A municipality will not be held liable for failure to carry out either a statutory function or a
governmental function. 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.

Government liability for individual assault — Liability for failure to protect one citizen
from being assaulted by another citizen would exist only if there had been a specific
promise of protection by the police to the victim or if the police officer had affirmatively
caused the damage of which the plaintiff was complaining. 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.

Immunity of state medical examiner. — An allegation of negligent decision-making by
the state medical investigator does not fall within an exception to the legislative grant of
sovereign immunity contained in 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
groundssub 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.

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 postmortem
examinations, created a private cause of action, it did not override the state medical
investigator's grant of immunity under the Tort Claims Act. 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.

In an action for damages on the basis of a wrongful decision to perform an autopsy on
decedent, causing emotional distress to family members because the body was not
handled according to traditional Navajo religious beliefs, a count alleging interference
with plaintiffs' free exercise of religion was dismissed since the state had given no
consent to be sued and there was no express waiver for the state medical examiner
under the Tort Claims Act. 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.

Immunity of state auditor. — Because state auditor was acting within his scope of
duty in commissioning a special audit and publishing the report, no waiver of immunity
exists under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] for claims of
defamation. Vigil v. State Auditor's Office, 2005-NMCA-096, 138 N.M. 63, 116 P.3d 854,
cert. denied, 2005-NMCERT-007, 138 N.M. 146, 117 P.3d 952.

Immunity of building inspector. — City building inspector who inspected building held
to have qualified immunity for equal protection claim, but issue raised as to whether
inspector had qualified immunity for fourth amendment and first amendments claims.
Mimics, Inc. v. Village of Angel Fire, 277 F. Supp. 2d 1131 (D.N.M. 2003), rev'd on other
grounds, 394 F. 3d 836 (10th Cir. 2005).

Jeopardy tax assessment. — State officials are not entitled to absolute immunity for
jeopardy tax assessments which are primarily investigatory and administrative in nature.
Perez v. Ellington, 421 F.3d 1128 (10th Cir. 2005).

Intentional interference with contract. — Under the Tort Claims Act, a governmental
entity may not be held liable for damages resulting from the tort of intentional
interference with contract. El Dorado Utils., Inc. v. Eldorado Area Water and Sanitation
Dist., 2005-NMCA-036, 137 N.M. 217, 109 P.3d 305.

State liability for brine well remediation. — The New Mexico Tort Claims Act, 41-4-1
to 41-4-30 NMSA 1978, provides government immunity while simultaneously creating
specific exceptions for which the government might be sued, and therefore, where the
New Mexico state legislature introduced a bill proposing to create a political subdivision
to oversee and coordinate remediation of a Carlsbad brine well, the state would be
immune from liability for any tort associated with its attempts to remediate the Carlsbad
brine well, unless the state expressly waives immunity, and the corporate owner of the
brine well would remain liable for any damages associated with the sink hole created by
the brine well, but given its status under chapter 7 bankruptcy, the owner is likely unable
to pay any damages assessed against it. State Liability for Brine Well Remediation
(1/30/17), Att'y Gen. Adv. Ltr. 2017-01.

                          V.     DEFENSE AND INDEMNITY.

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 and is entitled to its benefits. — 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
acting in an official capacity and on behalf or in service of the county, and is therefore
entitled to the benefits of the New Mexico Tort Claims Act, including a legal defense and
indemnification. 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. As
a "public employee" under the New Mexico Tort Claims Act, the tribal officer was
entitled to the benefits of the New Mexico Tort Claims Act, including a legal defense and
indemnification. Loya v. Gutierrez, 2015-NMSC-017, rev’g 2014-NMCA-028, 319 P.3d
656.

A governmental entity must provide a defense when liability is sought against its
public employees for violation of federal constitutional rights. — This section
requires the governmental entity to provide a defense equally for claims that are torts for
which sovereign immunity has been waived and for claims that are not torts, such as
federal civil rights claims, for which sovereign immunity has not been waived under the
New Mexico Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. 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. As
a "public employee" under the New Mexico Tort Claims Act, the tribal officer was
entitled to the benefits of the New Mexico Tort Claims Act, including a legal defense and
indemnification against claims of federal constitutional rights violations. 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.

Attorney fees incurred by an employee in a mandamus action to compel the
employee’s governmental employer to appoint independent defense counsel to defend
the employee are not recoverable by the employee under the Tort Claims Act [41-4-1
through 41-4-27 NMSA 1978]. Paz v. Tijerina, 2007-NMCA-109, 142 N.M. 391, 165
P.3d 1167.

Defense for mandamus actions. — Subsection B, requiring that the government
provide a defense for employees subject to a claim for liability, does not include
providing a defense for mandamus actions. Board of Cnty. Comm'rs v. Risk MgMt. Div.,
1995-NMSC-046, 120 N.M. 178, 899 P.2d 1132.

The Tort Claims Act does not waive immunity from liability for invasions of privacy.
1987 Op. Att'y Gen. No. 87-63.

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

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 note, "Constitutional Law: Qualified Immunity and 'Factual Correspondence' in New
Mexico: The Tension Between Formalism and Legal Realism," see 32 N.M.L. Rev. 439
(2002).

For note, "The Death of Implied Causes of Action: The Supreme Court's Recent Bivens
Jurisprudence and the Effect on State Constitutional Tort Jurisprudence: Correctional
Services Corp. v. Malesko," see 33 N.M.L. Rev. 401 (2003).

For article, "What Does the Natural Rights Clause Mean to New Mexico?", see 35 N.M.
L. Rev. 375 (2009).
For article, "Reticent Revolution and Prospects for Damage Suits Under the New
Mexico Bill of Rights," see 25 N.M. L. Rev. 173 (1995).

For note, "Torts – Sovereign Immunity: Caillouette v. Hercules," see 23 N.M. L. Rev.
423 (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," see 25 N.M. L. Rev. 173 (1995).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County,
School, and State Tort Liability §§ 4, 130, 184 to 205; 63 Am. Jur. 2d Public Officers
and Employees §§ 362, 363, 373.

Municipal immunity from liability for torts, 60 A.L.R.2d 1198.

Right of contractor with federal, state or local public body to latter's immunity from tort
liability, 9 A.L.R.3d 382.

Modern status of doctrine of sovereign immunity as applied to public schools and
institutions of higher learning, 33 A.L.R.3d 703.

Validity and construction of statute authorizing or requiring governmental unit to
indemnify public officer or employee for liability arising out of performance of public
duties, 71 A.L.R.3d 90.

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.

Liability of governmental officer or entity for failure to warn or notify of release of
potentially dangerous individual from custody, 12 A.L.R.4th 722.

State's liability to one injured by improperly licensed driver, 41 A.L.R.4th 111.

Validity and construction of statute or ordinance limiting the kinds or amount of actual
damages recoverable in tort action against governmental unit, 43 A.L.R.4th 19.

Probation officer's liability for negligent supervision of probationer, 44 A.L.R.4th 638.

Governmental tort liability for failure to provide police protection to specifically
threatened crime victim, 46 A.L.R.4th 948.

Official immunity of state national guard members, 52 A.L.R.4th 1095.

Liability of school authorities for hiring or retaining incompetent or otherwise unsuitable
teacher, 60 A.L.R.4th 260.
Tort liability of public authority for failure to remove apparently abused or neglected
children from parents' custody, 60 A.L.R.4th 942.

Liability of operator of ambulance service for personal injuries to person being
transported, 68 A.L.R.4th 14.

Municipal liability for negligent fire inspection and subsequent enforcement, 69
A.L.R.4th 739.

Immunity of police or other law enforcement officer from liability in defamation action,
100 A.L.R.5th 341.

Immunity of public officials from personal liability in civil rights actions brought by public
employees under 42 USCS § 1983, 63 A.L.R. Fed. 744.

Failure of state or local government to protect child abuse victim as violation of federal
constitutional right, 79 A.L.R. Fed. 514.

81A C.J.S. States § 196 to 202.