New Mexico Sovereign Immunity Waivers Regarding Streets and Roadways

May 7th, 2014 By: Paul Hibner
Topics: New Mexico Tort Claims Act

The government’s sovereign immunity is waived when plaintiff’s injury is caused by a public employee’s negligence in the maintenance of roadways, streets, sidewalks, or highways. NMSA § 41-4-11(A). Immunity can be waived by, inter alia, failing to build or maintain fences along highways, failing to post “Wrong Way” or “Do Not Enter” signs properly, or failing to post signs warning of animal crossings. Rutherford v. Chaves Cnty., 2003-NMSC-010,¶22. Waiver should be construed broadly to ensure “highways are made safe and kept safe for the traveling public.” Id ¶11.

Failure to take adequate measures to prevent entrance to a roadway when it is dangerous may constitute a dangerous condition. In Rutherford, plaintiff alleged defendant was aware floodwaters where decedent perished would sometimes run at dangerous levels, yet failed to control traffic in a timely fashion to prevent decedent from entering. Rutherford, 2003-NMSC-010, ¶23. Because Defendant failed to timely institute proper traffic controls, decedent entered the roadway, and drowned. Id.  The Court rejected defendant’s claim for summary judgment, finding the allegation defendant negligently failed to control traffic was sufficient to merit trial. Id. Indeed, the Court found plaintiff’s objective “entirely consistent with the notion of highway maintenance as developed by our appellate courts.” Id.

The absence of proper traffic controls can constitute a dangerous condition. In Grano v. Roadrunner Trucking, Inc., 1982-NMCA-080, plaintiff motorist was involved in an accident at an intersection of a street and an entrance to the highway. Plaintiff claimed defendant maintained the intersection negligently by failing to institute proper traffic controls. The Court of Appeals affirmed denial of summary judgment, as maintaining proper traffic controls is part of maintenance. Id ¶5. The Court noted “[s]ince the claimed vice is that there should have been traffic control devices at the intersection where the accident occurred, it is a question of negligence in the maintenance of the highway. The State is not immune from liability.” Id ¶8.

Whether the government has a duty to take remedial measures regarding a dangerous condition turns on whether Defendant had actual and/or constructive notice of the condition. Ryan v. N.M. State Highway & Transp. Dep’t, 1998-NMCA-116, ¶ 13. The government also has an expansive duty to identify and remedy dangerous conditions. Rutherford, 2003-NMSC-010, ¶¶12, 25 (“identification of hazards on roadways is essential[,]” to proper maintenance). Whether the government had such notice is usually a question for the jury. Id. See also Martinez v. N.M. DOT, 2013-NMSC-005, ¶ 41. 

For purposes of notice, Courts determine the location of the dangerous condition broadly. Evidence of other collisions occurring in the general area of the accident may be relevant to notice. Martinez v. N.M. DOT, 2013-NMSC-005. The New Mexico Supreme Court has cautioned against taking a static, rigid view of the “location” of the accident for purposes of notice. Id ¶ 43.

The government’s duty to remedy known dangerous conditions is not averted by the danger’s obviousness, nor plaintiff’s contributory negligence. In Lerma v. State Highway Dep’t, 1994-NMSC-069, a 13-year old girl climbed over a fence along the highway and was hit by a car. The Supreme Court of New Mexico affirmed reversal of summary judgment for defendant, as the government could not avoid liability by claiming plaintiff was negligent and/or the dangerous condition was open and obvious.Id¶¶8, 14. Rather, the government has a duty to“protect the public from the public’s own foreseeable negligence.” Id ¶14.

Likewise, the government’s duty to ensure safe roadways is not obviated by third-party negligence. In Rickerson v. State, 1980-NMCA-050, plaintiff’s claim was based on the city’s failure to install adequate traffic controls at the intersection where decedent was killed. Id, ¶2.The Court found neither the existing traffic controls, nor a third party’s admission of negligence in causing the accident, was a complete answer to plaintiff’s claims.Id ¶¶4-6. Rather,defendant could be held liable for its contribution to decedent’s death, and a jury could reasonably conclude defendant’s failure to institute better safety controls gave rise to liability. Id ¶¶4-6.