How can I sue the State of New Mexico or local New Mexico Governmental Agencies? Can I use the New Mexico Tort Claims Act?

In New Mexico, under CERTAIN CIRCUMSTANCES AND ACCORDING TO SPECIFIC PROCEDURES, you can sue the State or local governmental offices for their negligence that causes you har.

The New Mexico Tort Claims Act (NMTCA), codified at NMSA 1978, §§ 41-4-1 through 41-4-27, is the exclusive statutory framework governing tort claims against New Mexico governmental entities and their public employees acting within the scope of duty. The Act was enacted in response to the New Mexico Supreme Court’s 1975 decision in Hicks v. State, which abolished the common law doctrine of sovereign immunity. The Legislature responded by reinstating governmental immunity through the NMTCA, while carving out specific, narrowly defined exceptions (waivers) where the government can be held liable for tortious conduct.

The core principle is straightforward: governmental entities and public employees enjoy broad immunity from tort liability, except in specifically enumerated circumstances where that immunity is waived by statute.

When Is Immunity Waived? The Eight Statutory Exceptions

Under NMSA § 41-4-4, immunity is waived only under §§ 41-4-5 through 41-4-12. A claimant must demonstrate that their claim falls within one of these specific waivers:​

Section 41-4-12, the law enforcement waiver, is of particular significance in civil rights and criminal defense contexts. Following the 2020 amendments, this section was expanded to include the independent torts of negligent and intentional spoliation of evidence, and the definition of “law enforcement officer” was broadened to include public employees (not just officers) vested with law enforcement powers.​

Critical point: If your claim does not fit within one of these eight statutory waivers, immunity bars your suit entirely.

The Two Critical Deadlines You Cannot Miss

Deadline #1: The 90-Day Tort Claim Notice (NMSA § 41-4-16)

This is the most critical and most frequently missed deadline under the NMTCA.

Under § 41-4-16(A), every person claiming damages from the state or a local public body must present written notice stating the time, place, and circumstances of the loss or injury within 90 days after the occurrence giving rise to the claim.​

Who receives the notice depends on the entity involved:

Key rules about the 90-day notice:

• Missing the 90-day deadline will, in almost all cases, permanently bar your claim. Courts have consistently upheld this deadline as constitutional and not a denial of due process.
• Incapacity exception: The 90-day clock does not run during any period (not exceeding 90 days) during which the injured person is incapacitated from giving notice by reason of injury.​
• Wrongful death exception: For wrongful death claims, the notice period is extended to 6 months from the date of the occurrence causing death.
• Minors exception: The 90-day notice provision may not apply to minors who are incapable of meeting the responsibility themselves, and minors may not be held to such notice when their parents or relatives are shown to be unable to provide notice.​
• “Actual notice” exception: Under § 41-4-16(B), if the governmental entity had actual notice of the occurrence, the written notice requirement may be excused — but courts define “actual notice” narrowly. It means actual notice that litigation may ensue, not merely awareness that an accident happened. A police report or incident report alone is almost never sufficient.
• Notice applies to governmental entities, not individual employees: The written notice requirement does not apply to claims brought solely against public employees in their individual capacity.​

Deadline #2: The 2-Year Statute of Limitations (NMSA § 41-4-15)

Actions against a governmental entity or public employee for torts must be commenced within two years after the date of the occurrence resulting in loss, injury, or death. This applies to all persons regardless of minority or other legal disability, except that a minor under age seven has until their ninth birthday.​

Damages Caps Under the NMTCA (NMSA § 41-4-19)

Even where immunity is waived, the NMTCA imposes strict caps on recoverable damages:​

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Additionally:

• No punitive damages may be awarded under the NMTCA.​
• No pre-judgment interest is permitted.​
• Post-judgment interest accrues at two percentage points above the prime rate.​

Important note: These caps apply to NMTCA claims only. If you have a viable federal civil rights claim (42 U.S.C. § 1983) or a claim under the New Mexico Civil Rights Act (NMSA § 41-4A-1 et seq.), those claims are not subject to these caps and may allow for significantly greater recovery, including punitive damages.

The Exclusiveness of Remedy (NMSA § 41-4-17)

The NMTCA is the exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived. No other civil action for damages arising from the same occurrence may be brought against the entity or the employee whose act gave rise to the claim. Settlement or judgment under the NMTCA constitutes a complete bar to any further action based on the same occurrence.​

First Step: Filing a Tort Claim Notice — Action Checklist

If you believe you have a viable claim, the following steps should be taken immediately:

1. Determine the date of the occurrence. Calculate 90 days forward — that is your absolute deadline.
2. Identify the governmental entity responsible. Determine whether the entity is state government, a municipality, a county, a school district, or another local public body.
3. Prepare a written Tort Claim Notice. The notice must state:
   • The time of the occurrence
   • The place of the occurrence
   • The circumstances of the loss or injury
4. Send the notice to the correct recipient as identified in the table above. For claims against the State, you may use the online form provided by the Risk Management Division at NM GSD.​
5. Send the notice via certified mail, return receipt requested (or other verifiable method) to create a record of timely delivery.
6. Retain copies of everything you send and receive.
7. Consult an attorney to evaluate whether your claim falls within one of the eight statutory waivers of immunity and to prepare for potential litigation within the two-year statute of limitations.

⚠️ FINAL DISCLAIMER

This analysis is a general educational overview of the New Mexico Tort Claims Act and is NOT legal advice. The NMTCA is a complex statute with nuanced procedural requirements, and the consequences of noncompliance are severe and often irreversible. Individual circumstances may dramatically affect the applicability of these provisions to your case. You should not act or refrain from acting based solely on this information. Contact an attorney for legal advice.