Premises Liability Under The New Mexico Tort Claims Act

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

Under New Mexico’s Tort Claims Act, the government is generally immune from tort claims while acting in the scope of public duty. See NMSA 1978 § 41-4-4 (1978). Immunity is waived, however, when plaintiff’s damage iscaused: (1) by a public employee’s negligence; (2) acting within the scope of their duties; (3) in the operation or maintenance of; (4) any building, public park, machinery, equipment or furnishings. SeeNMSA 1978 § 41-4-6(A).

New Mexico Courts interpret waiver broadly, as the doctrine of sovereign immunity is “anachronistic[,]” “inherently unfair[,]” and “inequitable.” See Fireman’s Fund Ins. Co. v. Tucker, 1980-NMCA-082, ¶7 (the Tort Claims Act is construed liberally);Holiday Mgmt. Co. v. City of Santa Fe, 1980-NMSC-048, ¶10 (rejecting narrow construction of the Tort Claims Act, describing the doctrine of sovereign immunity as “anachronistic”); N.M.S.A. § 41-4-2 (A) (recognizing the inherently unfair and inequitable results arising from strict application of sovereign immunity).

Once immunity is waived, traditional tort concepts apply: the government is liable under the same standard as a private owner. See Encinias v. Whitener Law Firm, P.A., 2013-NMSC-45, ¶9, 310 P.3d 611. The government has a duty to refrain from creating or permitting an unreasonably dangerous, hazardous, or unsafe condition, and cannot turn a blind eye to safety. See id., ¶¶10, 14. The government also has a duty to exercise reasonable care to discover and prevent dangerous conditions. See id. ¶17.

Harmful conditions include, inter alia, allowing wild dogs to roam the premises, not providing safe and adequate ingress/egress for motor vehicles, not providing sufficient security, or failing to institute and follow proper emergency procedures.See id. ¶11. The government may also be liable for failing to address a dangerous pattern in a particular area that might create an unsafe condition. See Encinias, 2013 NMSC 45, ¶14.