New Mexico Statutes

N.M. Stat. § 41-4-8 (2026)

Liability; public utilities.

✓ current as of May 2026

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A. The immunity granted pursuant to Subsection A of Section 4 [41-4-4 NMSA
1978] of the Tort Claims Act does not apply to liability for damages resulting from bodily
injury, wrongful death or property damage caused by the negligence of public
employees while acting within the scope of their duties in the operation of the following
public utilities and services: gas; electricity; water; solid or liquid waste collection or
disposal; heating; and ground transportation.

    B. The liability imposed pursuant to Subsection A of this section shall not include
liability for damages resulting from bodily injury, wrongful death or property damage:

       (1)    caused by a failure to provide an adequate supply of gas, water, electricity
or services as described in Subsection A of this section; or

        (2)     arising out of the discharge, dispersal, release or escape of smoke,
vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or
other irritants, contaminants or pollutants into or upon land, the atmosphere or any
watercourse or body of water.

History: 1953 Comp., § 5-14-8, enacted by Laws 1976, ch. 58, § 8.

                                       ANNOTATIONS

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 (now two) 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 (decided prior to 2011 amendment).

"Operation" of public utilities and services. — The inspection by a city of a private
sewer clean-out at the time of its initial construction is not part of the "operation" of a
liquid waste collection or disposal utility for the purposes of Subsection A and is not
activity for which sovereign immunity is waived. Adams v. Japanese Car Care, 1987-
NMCA-113, 106 N.M. 376, 743 P.2d 635.

Fire department is not a public utility and the legislature intended the application of
this section only to public utilities. McCurry v. City of Farmington, 1982-NMCA-055, 97
N.M. 728, 643 P.2d 292.

Runoff water. — Paragraph B(2) of this section did not preserve a city's immunity for
liability arising from property damage and personal injury caused by flooding onto
resident's property by water that came from a city arroyo. This paragraph does not
include runoff water. Espander v. City of Albuquerque, 1993-NMCA-031, 115 N.M. 241,
849 P.2d 384, overruled on other grounds by Bybee v. City of Albuquerque, 1995-
NMCA-061, 120 N.M. 17, 896 P.2d 1164.

Storm runoff water was not "liquid waste" and, therefore, a flood control diversion
channel carrying the runoff was not a public utility for which immunity is waived under
this section. Bybee v. City of Albuquerque, 1995-NMCA-061, 120 N.M. 17, 896 P.2d
1164 (overruling City of Albuquerque v. Redding, 1980-NMSC-011, 93 N.M. 757,605
P.2d 1156 and Espander v. City of Albuquerque, 1993-NMCA-031, 115 N.M. 241, 849
P.2d 384).

No exemption from liability for negligent maintenance of service facility. — If the
city negligently maintains an adequate service facility provided by it, that negligence has
no statutory exemption from liability. Holiday Mgmt. Co. v. City of Santa Fe, 1980-
NMSC-048, 94 N.M. 368, 610 P.2d 1197.

Liability for maintenance of bicycle path. — City is not immune from suit brought for
personal injuries sustained where front wheel of bicycle slipped through drain grate
located in road designated as bicycle path. City of Albuquerque v. Redding, 1980-
NMSC-011, 93 N.M. 757, 605 P.2d 1156, overruled on other grounds by Bybee v. City
of Albuquerque, 1995-NMCA-061, 120 N.M. 17, 896 P.2d 1164.

Negligent maintenance of gas service. — 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.

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

For survey, "Torts: Sovereign and Governmental Immunity in New Mexico," see 6
N.M.L. Rev. 249 (1976).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Liability of gas or electric light or power
company for injury to fireman, policeman or other public employee seeking to prevent
damage to person or property of others, 61 A.L.R. 1028.

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

Liability for injury or death resulting when object is manually brought into contact with, or
close proximity to, electric line, 33 A.L.R.4th 809.

Notes of Decisions

Cited in 25 cases (3 in the last 5 years), 1979–2026 · leading case: Espander v. City of Albuquerque, 849 P.2d 384 (N.M. Ct. App. 1993).

Sort: Relevance Newest Treatment

Espander v. City of Albuquerque, 849 P.2d 384 (N.M. Ct. App. 1993). · cites it 152× “The Espanders claim that immunity is waived in the circumstances of this case by Section 41-4-8, which states: A. The immunity granted pursuant to Subsection A of Section 4 of the Tort Claims Act does not apply to liability for damages resulting from bodily injury, wrongful…”

Bybee v. City of Albuquerque, 896 P.2d 1164 (N.M. 1995). · cites it 8× “Appellant argues Appellee has no immunity from liability under Section 41-4-8(A) because water runoff is “liquid waste” and, therefore, diversion channels are a public utility for which immunity is expressly waived.”

Lymon v. Aramark Corp., 728 F. Supp. 2d 1222 (D.N.M. 2010). · cites it 2× “…(operation or maintenance of motor vehicles, aircraft, and watercraft), NMSA 1978, § 41-4-7 (operation of airports); NMSA 1978, § 41-4-8 (operation of public utilities); NMSA 1978, § 41-4-9 (operation of medical facilities); NMSA 1978, § 41-4-10 (providing healthcare…”

Jacobo v. City of Albuquerque, 118 P.3d 189 (N.M. Ct. App. 2005). · cites it 4× “Plaintiffs also moved to amend the complaint to allege, based on the same facts, that the City's immunity was also waived under Section 41-4-6 (waiving immunity for the negligent operation or maintenance of buildings, public parks, equipment or furnishings), and under Section…”

Holiday Mgmt. Co. v. City of Santa Fe, 610 P.2d 1197 (N.M. 1980). · cites it 4× “The pleadings do not present a case within the immunities covered by Subsection B, but rather they state a claim within the liability covered by Subsection A of Section 41-4-8 for “operation of . solid or liquid waste collection or disposal” service in a negligent manner.”

McCurry v. City of Farmington, 643 P.2d 292 (N.M. Ct. App. 1982). · cites it 4× “Section 41-4-8(A) and § 41-4-8(B)(2) are inapplicable.”

Coyazo v. State, 897 P.2d 234 (N.M. Ct. App. 1995). · cites it 2× “We determine to deal with the equal protection issue raised by Coyazo on its merits. If Coyazo’s attorney was a regular employee of the public defender’s office, he would be a “public employee” and come within the ambit of the Tort Claims Act.”

City of Albuquerque v. Redding, 605 P.2d 1156 (N.M. 1980). · cites it 2× “However, we believe that the more specific statutory provision within the Tort Claims Act which may be applicable is contained in Section 41-4-8(A), N.M.S.A.1978, which insofar as applicable reads: The immunity granted pursuant to Subsection A of Section 4 [41-4-4, NMSA 1978] of…”

McClure v. Town of Mesilla, 601 P.2d 80 (N.M. Ct. App. 1979). · cites it 4× “Plaintiff also claims that her complaint states a claim for relief under the Tort Claims Act because § 41-4-8(A) grants immunity for property damages resulting from "liquid waste collection or disposal," and that § 41-4-8(B)(2), which defeats plaintiff's position, is…”

Jacobo v. City of Albuquerque, 2005 NMCA 105 (N.M. Ct. App. 2005). · cites it 2× “Plaintiffs also moved to amend the complaint to allege, based on the same facts, that the City’s immunity was also waived under Section 41-4-6 (waiving immunity for the negligent operation or maintenance of buildings, public parks, equipment or furnishings), and under Section…”

Armijo v. Dep't of Health & Env., 775 P.2d 1333 (N.M. Ct. App. 1989). · cites it 2× “For example, an initial inspection and approval of a private sewer clean-out is not part of the "operation" of a liquid collection or disposal utility under Section 41-4-8(A). Id. The design, planning, and enforcement of safety rules for school bus transportation was not…”

Evelyn Difelici, f/n/a Evelyn Barnes v. City of Lander, 2013 WY 141 (Wyo. 2013). “N.M. Stat. Ann. § 41-4-8 (A) (West 2018) (emphasis added).”

Show all 25 citing cases →

— N.M. Stat. § 41-4-8(A) — 10 cases

Espander v. City of Albuquerque, 849 P.2d 384 (N.M. Ct. App. 1993). “The Espanders claim that immunity is waived in the circumstances of this case by Section 41-4-8, which states: A. The immunity granted pursuant to Subsection A of Section 4 of the Tort Claims Act does not apply to liability for damages resulting from bodily injury, wrongful…”

Bybee v. City of Albuquerque, 896 P.2d 1164 (N.M. 1995). “Appellant argues Appellee has no immunity from liability under Section 41-4-8(A) because water runoff is “liquid waste” and, therefore, diversion channels are a public utility for which immunity is expressly waived.”

City of Albuquerque v. Redding, 605 P.2d 1156 (N.M. 1980). “However, we believe that the more specific statutory provision within the Tort Claims Act which may be applicable is contained in Section 41-4-8(A), N.M.S.A.1978, which insofar as applicable reads: The immunity granted pursuant to Subsection A of Section 4 [41-4-4, NMSA 1978] of…”

Armijo v. Dep't of Health & Env., 775 P.2d 1333 (N.M. Ct. App. 1989). “For example, an initial inspection and approval of a private sewer clean-out is not part of the "operation" of a liquid collection or disposal utility under Section 41-4-8(A). Id. The design, planning, and enforcement of safety rules for school bus transportation was not…”

McCurry v. City of Farmington, 643 P.2d 292 (N.M. Ct. App. 1982). “Section 41-4-8(A) and § 41-4-8(B)(2) are inapplicable.”

— N.M. Stat. § 41-4-8(B) — 2 cases

Farris v. Moeckel, 664 F. Supp. 881 (D. Del. 1987).

— N.M. Stat. § 41-4-8(B)(2) — 3 cases

McCurry v. City of Farmington, 643 P.2d 292 (N.M. Ct. App. 1982). “Section 41-4-8(A) and § 41-4-8(B)(2) are inapplicable.”

McClure v. Town of Mesilla, 601 P.2d 80 (N.M. Ct. App. 1979). “Plaintiff also claims that her complaint states a claim for relief under the Tort Claims Act because § 41-4-8(A) grants immunity for property damages resulting from "liquid waste collection or disposal," and that § 41-4-8(B)(2), which defeats plaintiff's position, is…”

— N.M. Stat. § 41-4-8(B)(l) — 1 case

Holiday Mgmt. Co. v. City of Santa Fe, 610 P.2d 1197 (N.M. 1980). “The pleadings do not present a case within the immunities covered by Subsection B, but rather they state a claim within the liability covered by Subsection A of Section 41-4-8 for “operation of . solid or liquid waste collection or disposal” service in a negligent manner.”

— N.M. Stat. § 41-4-8(E) — 1 case

Coyazo v. State, 897 P.2d 234 (N.M. Ct. App. 1995). “We determine to deal with the equal protection issue raised by Coyazo on its merits. If Coyazo’s attorney was a regular employee of the public defender’s office, he would be a “public employee” and come within the ambit of the Tort Claims Act.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.