2023 New Mexico Statutes › Chapter 37 - Limitation of Actions; Abatement and Revivor › Article 1 - Limitations of Actions › Section 37-1-10 - Minors; incapacitated persons.

The times limited for the bringing of actions by the preceding provisions of this chapter shall, in favor of minors and incapacitated persons, be extended so that they shall have one year from and after the termination of such incapacity within which to commence said actions.
History:
Laws 1880, ch. 5, § 10; C.L. 1884, § 1869; C.L. 1897, § 2922; Code 1915, § 3353; C.S. 1929, § 83-108; 1941 Comp., § 27-109; 1953 Comp., § 23-1-10; Laws 1975, ch. 257, § 8-116.
ANNOTATIONS
Compiler's notes.
— The words "this chapter" refer to ch. 68 of the 1915 Code, which is compiled as 37-1-1 to 37-1-4, 37-1-6 to 37-1-19, 37-1-21, 37-1-22, 37-1-25, 37-1-26 NMSA 1978.
Constitutionality.
— This section does not violate any substantive due process or equal protection rights.
Gomez v. Chavarria
, 2009-NMCA-035, 146 N.M. 46, 206 P.3d 157, cert. quashed, 2009-NMCERT-012, 147 N.M. 601, 227 P.3d 91.
Termination of limitation period after a minor reaches the age of majority.
— A minor's lawsuit for personal injuries is not barred until one year after the minor reaches the age of majority or until three years after the accident, whichever computation of time gives the injured minor the most time to act.
Gomez v. Chavarria
, 2009-NMCA-035, 146 N.M. 46, 206 P.3d 157, cert. quashed, 2009-NMCERT-012, 147 N.M. 601, 227 P.3d 91.
A parent's claim for loss of consortium in a medical malpractice case is tolled alongside the minor's claim from which it is derived.
— Where parents' minor child sustained injuries during the course of his birth and delivery at Lea regional medical center (LRMC) as a result of alleged negligent medical care provided by the child's doctor, and where, approximately five years later, parents and the child's guardian ad litem filed a complaint, asserting various claims, including claims for loss of consortium and negligent medical care against the doctor, the doctor's employer, and LRMC (defendants), and where the district court granted defendants' motion to dismiss parents' loss of consortium claim, concluding that parents brought their claim outside the three-year limitations period under both the Medical Malpractice Act's (MMA) statute of repose, § 41-5-13 NMSA 1978, and the general statute of limitations for personal injuries, § 37-1-8 NMSA 1978, the district court erred in granting defendants' motion to dismiss, because a parent's loss of consortium in a medical malpractice case is tolled alongside the minor's claim from which it is derived, pursuant to the minority tolling provisions of § 41-5-13 and § 37-1-10 NMSA 1978. The rationale for this rule includes protecting individuals from the burden of litigating multiple lawsuits, promoting judicial economy, minimizing the possibility of inconsistent decisions, and safeguarding minors.
Garrity v. Driskill
, 2022-NMCA-054, cert. denied,
overruling Moncor Tr. Co. ex rel. Flynn v. Feil
, 1987-NMCA-015, 105 N.M. 444, 733 P.2d 1327 and
overruling in part Armijo v. Regents of Univ. of N.M.
, 1984-NMCA-118, 103 N.M. 183, 704 P.2d 437.
Purpose of section.
— Statutes of limitation begin to run against everyone, including minors, when the cause of action accrues, and tolling statutes only extend the time for completing the bar of the statute so that the minor shall have an opportunity to act for himself after the disability caused by his minority has been removed.
Slade v. Slade
, 1970-NMSC-064, 81 N.M. 462, 468 P.2d 627.
Personal privilege.
— The disability which saves a person from the operation of the statute of limitations is a personal privilege of the person under the disability only, and cannot confer rights on persons asserting independent actions.
Slade v. Slade
, 1970-NMSC-064, 81 N.M. 462, 468 P.2d 627.
Strict construction.
— Although the law favors the right of action rather than the right of limitation, exceptions to statutes of limitation must be construed strictly.
Slade v. Slade
, 1970-NMSC-064, 81 N.M. 462, 468 P.2d 627.
Persons "under legal disability" do not include convicts
serving a term in the penitentiary at the time of the alleged personal injury.
Musgrave v. McManus
, 1918-NMSC-075, 24 N.M. 227, 173 P. 196 (decided under prior law).
Exceptions contained in statutes of limitation are to be strictly construed and persons imprisoned are not under any legal disability within the meaning of Section 37-1-8 NMSA 1978.
Chavez v. Kitsch
, 1962-NMSC-122, 70 N.M. 439, 374 P.2d 497 (decided under prior law).
Appointment of guardian does not start statute of limitations.
— This section would not bar claims of mentally incompetent children until one year after the termination of incapacity, even if a guardian was appointed for the children who could legally sue on their behalf.
Desert State Life Mgmt. Servs. v. Ass'n of Retarded Citizens
, 939 F. Supp. 835 (D.N.M. 1996).
Section applies to proceedings in probate court.
Browning v. Estate of Browning
, 1886-NMSC-022, 3 N.M. (Gild.) 659, 9 P. 677;
Bent v. Thompson
, 138 U.S. 114, 11 S. Ct. 238, 34 L. Ed. 902 (1891).
Section does not apply to death by wrongful act statute.
Natseway v. Jojola
, 1952-NMSC-104, 56 N.M. 793, 251 P.2d 274.
Negligence suits against municipalities.
— This section does not apply to actions for negligence against municipalities which must be commenced as provided by 37-1-24 NMSA 1978 and a claim of disability did not postpone operation of that section.
Noriega v. City of Albuquerque
, 1974-NMCA-040, 86 N.M. 294, 523 P.2d 29, cert. denied, 86 N.M. 281, 523 P.2d 16.
Suit against builder.
— Section 37-1-27 NMSA 1978 is not a part of "this chapter," as referred to in this section, and the extension effected herein does not apply to suit brought by minor against a builder covered under provisions of 37-1-27 NMSA 1978.
Howell v. Burk
, 1977-NMCA-077, 90 N.M. 688, 568 P.2d 214, cert. denied, 91 N.M. 3, 569 P.2d 413.
Section does not apply to time limitation for filing a workmen's compensation claim.
Lent v. Employment Sec. Comm'n
, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, cert. quashed, 99 N.M. 226, 656 P.2d 889 (1983);
Howie v. Stevens
, 1984-NMCA-052, 102 N.M. 300, 694 P.2d 1365, cert. quashed, 102 N.M. 293, 694 P.2d 1358 (1985).
Plaintiff not entitled to statutory disability.
— The trial court erred in concluding that plaintiff was entitled to the disability which the statute grants to a minor personally for a period of one year after his disability is removed, where the action filed by plaintiff was not in favor of the minor but was her own cause of action seeking a money judgment in her name alone based upon a foreign judgment in her favor.
Slade v. Slade
, 1970-NMSC-064, 81 N.M. 462, 468 P.2d 627.
Reprobate of will.
— A person has no standing in court to ask for reprobate of a will four years after attaining his majority.
Bent v. Thompson
, 138 U.S. 114, 11 S. Ct. 238, 34 L. Ed. 902 (1891).
Law reviews.
— For note, "Tort Law - Either the Parents or the Child May Claim Compensation for the Child's Medical and Nonmedical Damages: Lopez v. Southwest Community Health Services," see 23 N.M.L. Rev. 373 (1993).
For note and comment, "Statutes of Limitations Applied to Minors: The New Mexico Court of Appeals' Balance of Competing States Interests to Favor Children," see 35 N.M.L. Rev. 535 (2005).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 51 Am. Jur. 2d Limitation of Actions §§ 178 to 191, 193 to 199.
Taking disabilities for purposes of the statute of limitations, 53 A.L.R. 1303.
Statute providing that an insane person, minor or other person under disability may bring suit within specified time after removal of disability as affecting right to bring action before disability removed, 109 A.L.R. 954.
One wrongfully adjudged or committed as insane within benefit of provision of statute of limitations allowing time to sue after removal of disability, 166 A.L.R. 960.
Proof of unadjudged incompetency which prevents running of statute of limitations, 9 A.L.R.2d 964.
Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249.
Time of existence of mental incompetency which will prevent or suspend running of statute, 41 A.L.R.2d 726.
Appointment of committee for incompetent or guardian for infant as effecting running of statute of limitations against him, 86 A.L.R.2d 965.
Tolling of state statute of limitations in favor of one commencing action despite existing disability, 30 A.L.R.4th 1092.
Tolling of statute of limitations, on account of minority of injured child, as applicable to parent's or guardian's right of action arising out of same injury, 49 A.L.R.4th 216.
Wrongful death: surviving parent's minority as tolling limitation period on suit for child's wrongful death, 54 A.L.R.4th 362.
Local government tort liability: minority as affecting notice of claim requirement, 58 A.L.R.4th 402.
Medical malpractice statutes of limitation minority provisions, 62 A.L.R.4th 758.
Emotional or psychological "blocking" or repression as tolling running of statute of limitations, 11 A.L.R.5th 588.
Posttraumatic syndrome as tolling running of statute of limitations, 12 A.L.R.5th 546.
Medical malpractice statutes of limitation minority provisions, 71 A.L.R.5th 307.
Effect of appointment of legal representative for person under mental disability on running of state statute of limitations against such person, 111 A.L.R.5th 159.
54 C.J.S. Limitation of Actions §§ 105 to 120.