We have quite a few posts on the requirements of the New Mexico Tort Claims Act. Specifically, we have numerous posts regarding the various deadlines under the Act. Here we will provide a fairly basic and introductory explanation of what exactly the Tort Claims Act is.
Most Personal Injury and Wrongful Death Claims are Excluded from Immunity
To begin, the government enjoys qualified immunity against lawsuits. Before discussing immunity, to avoid confusion or possible surrender of your case, you should know that most but not all personal injury and wrongful death claims are specifically excluded from immunity. In other words, you can bring a suit against the government for personal injury or wrongful death.
Immunity basically means that there are many types of claims that cannot be brought against the government. Most states and the federal government provide some level of immunity from lawsuits.
However, there are many areas that are specifically excluded from the immunity protections. For our readers, the most important exclusions are for civil rights claims and most personal injury/wrongful death claims.
To read the exclusions, you may want to read the actual Tort Claims Act regarding the specific exclusions. You will also find there the numerous restrictions, deadlines and other requirements for a claim against the government.
The exclusions from immunity are fairly narrow under the New Mexico Tort Claims Act. If there is no specific exclusion then immunity attaches as set forth in NMSA §41-4-4:
“A. A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act [28-22-1 NMSA 1978] and by Sections 41-4-5 through 41-4-12 NMSA 1978. Waiver of this immunity shall be limited to and governed by the provisions of Sections 41-4-13 through 41-4-25 NMSA 1978, but the waiver of immunity provided in those sections does not waive immunity granted pursuant to the Governmental Immunity Act [41-13-1 NMSA 1978].”
This can be a little confusing. We cited it in its entirety to be clear that immunity is broad and waiver of immunity is narrow and statutorily defined.
Governmental Immunity is Broad With Specifically Enumerated Exceptions
In any event, it is very important to determine whether or not a claim falls under the exclusions set forth in the Tort Claims Act at the beginning of a claim. If there is no exclusion, then it is extremely unlikely that a lawsuit against the government would be successful.
The immunity runs to all governmental entities within the state. This includes state, county and local governmental entities. Specifically, it includes hospitals, schools, public facilities, publicly ran transportation, law enforcement, the courts and so on.
The types of personal injury and wrongful death claims that will arise in the governmental setting are too numerous to state. The most common are auto accidents, slip and fall accidents (premises liability) and medical malpractice. These are specifically excluded from immunity under the Tort Claims Act.
As always with any discussion of claims against New Mexico governmental entities, you should know that the first deadline (Tort Claims Notice deadline) runs in only 90 days in a personal injury case and 6 months in a wrongful death case. Missing the deadline will bar the claim completely.
Because of the somewhat confusing nature of the Act, and more importantly the deadlines and requirements that apply to any personal injury or wrongful death lawsuit against New Mexico governmental entities, it is highly advisable to seek the guidance of an attorney experienced in these types of claims.