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.

"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. Monta o 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. Monta o 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. Monta o 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.