“Actual Notice” Under the New Mexico Tort Claims Act

Claims against New Mexico governmental entities have a number of unique rules. Among those are shorter deadlines on claims. The harshest and most frequently missed deadline is the Tort Claims Notice deadline. Missing this deadline will, in all but a very few cases, bar the claims completely.

The Tort Claims Notice deadline is only 90 days from the date of the alleged negligence for personal injury claims. The deadline on wrongful death claims is only 6 months. Prior to the expiration of the deadline, the injured person must send a notice to the appropriate governmental authority putting them on notice of the possible personal injury or wrongful death claims.

Again, missing the deadline will almost always result in a bar to the claims. There are few exceptions. One exception to the rule is where the governmental entity has actual notice of the claims. Actual notice, as simple as it sounds, is actually not so easy to prove.

Tort Claims Act Exception for Actual Notice

The Tort Claims Act addresses actual notice in NMSA § 41-4-16(B), which reads in relevant part as follows:

“No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against the state or any local public body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence…” [Emphasis supplied].

The statutory language seems clear and simple enough. However, as it happens, “actual notice” does not have the same meaning in the courts as it might have with the average citizen.

What is Actual Notice According to the Courts?

So the issue becomes what is “actual notice?” More precisely, the question is notice of what?

The New Mexico courts have made clear that the notice requirement applies to the notice of claims, not the notice of accident or negligence. In other words, the governmental entity may be perfectly aware of the accident but have no notice regarding the possibility of a claim/lawsuit.

What is required is that the governmental entity have actual notice that a lawsuit is likely to arise out of the incident. As a result, it may not even be sufficient that the government knew of the accident and the circumstances suggested possible liability. Notice will most likely not be implied from the circumstances.

For instance, a police report may provide actual notice but the police report would have to state some fairly concrete causes of the accident that establish liability on the part of the governmental entity. Moreover, the police report may state or suggest a number of possible causes which may be insufficient for actual notice of the specific claim against the government. Finally, a police report may suggest liability, but if the proper target of the possible lawsuit was not in receipt of the report, then it might prove difficult to establish actual notice.

Err on the Side of Caution

As suggested, “actual notice” to you or me likely means something very different that it does under the law. It may seem obvious to you that you have a claim for personal injuries based upon the circumstances. However, it is best to assume that this obviousness is insufficient to establish actual notice.

If you are in an accident or otherwise suffer harm from the negligence of another and there is any possibility of governmental liability, then send the notice of claims to the proper authorities. It is reasonably safe to assume that your situation will not meet the “actual notice” exception. And it is best not find out the hard way.

If you or a loved has suffered personal injury or wrongful death as a result of governmental negligence, the Albuquerque personal injury attorneys at Collins & Collins, P.C. are here to help guide you through the process.

DISCLAIMER

Related Reading:
New Mexico Statute of Limitations & Exceptions — Time is Always of the Essence!
Tort Claims Notice Requirements: Contents & Delivery of the Notice
Tolling of Statute of Limitations is Rare

Albuquerque Personal Injury Attorneys