2023 New Mexico Statutes › Chapter 41 - Torts › Article 4 - Tort Claims › Section 41-4-15 - Statute of limitations.

A. Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death, except that a minor under the full age of seven years shall have until his ninth birthday in which to file. This subsection applies to all persons regardless of minority or other legal disability.
B. The provisions of Subsection A of this section shall not apply to any occurrence giving rise to a claim which occurred before July 1, 1976.
History:
1953 Comp., § 5-14-14, enacted by Laws 1976, ch. 58, § 14; 1977, ch. 386, § 11.
ANNOTATIONS
Emergency clauses.
— Laws 1977, ch. 386, § 23 contained an emergency clause and was approved April 8, 1977.
I. GENERAL CONSIDERATION.
Fraudulent concealment.
— The doctrine of fraudulent concealment applies to toll 41-4-15 NMSA 1978.
Armijo v. Regents of Univ. of N.M
., 1984-NMCA-118, 103 N.M. 183, 704 P.2d 437,
rev'd in part on other grounds
, 1985-NMSC-057, 103 N.M. 174, 704 P.2d 428.
Constitutionality.
— The failure of this section to provide a tolling provision for persons under a legal disability with claims against governmental entities does not violate the right of a mentally handicapped plaintiff to equal protection of the laws.
Jaramillo v. State Hwy. Dep't
, 1991-NMCA-008, 111 N.M. 722, 809 P.2d 636, cert. denied, 111 N.M. 416, 806 P.2d 65.
The two-year time period of limitations under this section is a reasonable period of time and does not violate a plaintiff's rights to due process.
Jaramillo v. State Hwy. Dep't
, 1991-NMCA-008, 111 N.M. 722, 809 P.2d 636, cert. denied, 111 N.M. 416, 806 P.2d 65.
The language of Subsection A of this section and 41-5-13 NMSA 1978
are both very different than the language of 37-1-8 NMSA 1978.
Maestas v. Zager
, 2005-NMCA-013, 136 N.M. 764, 105 P.3d 317, cert. granted, 2005-NMCERT-001,
rev'd
, 2007-NMSC-003, 141 N.M. 154, 152 P.3d 141.
Claims allowed not limited.
— Subsection A of this section required the additional words "resulting in loss, injury or death" because the claims allowed under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] are not limited to only one act or occurrence.
Maestas v. Zager
, 2005-NMCA-013, 136 N.M. 764, 105 P.3d 317, cert. granted, 2005-NMCERT-001, 137 N.M. 18, 106 P.3d 579,
rev'd
, 2007-NMSC-003, 141 N.M. 154, 152 P.3d 141.
Once loss occurs, limitation period begins.
— Until an occurrence resulting in loss takes place, the statute of limitations cannot begin to run.
Aragon & McCoy v. Albuquerque Nat'l Bank
, 1983-NMSC-020, 99 N.M. 420, 659 P.2d 306.
Time for giving notice in medical malpractice action
is calculated from the time the injury manifests itself in a physically objective manner and is ascertainable.
Tafoya v. Doe
, 1983-NMCA-070, 100 N.M. 328, 670 P.2d 582, cert. quashed
sub nom.
, 100 N.M. 327, 670 P.2d 581.
If governmental entity creates condition that causes injury, notice is still required
of a claim for damages. Section 41-4-16 NMSA 1978, the notice provision, operates in conjunction with this section on the issue of a timely claim.
Tafoya v. Doe
, 1983-NMCA-070, 100 N.M. 328, 670 P.2d 582, cert. quashed
sub nom.
, 100 N.M. 327, 670 P.2d 581.
No relation back.
— The amended complaint sought damages against the state, the department of corrections and its employees under the Tort Claims Act, and because the original complaint was a nullity, there was no relation back.
DeVargas v. State ex rel. N.M. Dep't of Corrs.
, 1982-NMSC-025, 97 N.M. 563, 642 P.2d 166.
Relation back of amendments.
— An action for malpractice and wrongful death brought under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] by the natural parents of a deceased child within the limitation period was not barred because the parents failed to secure court appointment as personal representatives within the two-year limitation period of this section, due to the operation of Rules 15(c) (relation back of amendments) and 17(a) (real party in interest), N.M.R.C.P., (now
see
Paragraph C of Rule 1-015 NMRA and Paragraph A of Rule 1-017 NMRA).
Chavez v. Regents of Univ. of N.M.
, 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883.
General savings provision inapplicable.
— The general savings provision of 37-1-14 NMSA 1978, which protects from limitations a new suit filed within six months after dismissal of a prior suit, does not apply to an action under this article.
Estate of Gutierrez v. Albuquerque Police Dep't
, 1986-NMCA-023, 104 N.M. 111, 717 P.2d 87, cert. denied sub nom., 103 N.M. 798, 715 P.2d 71,
overruled on other grounds by
Bracken v. Yates Petroleum Corp.
, 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.
No equitable tolling while federal jurisdiction asserted.
— Principles of equitable tolling did not apply to an action under this article during the time the claim was being asserted on the basis of pendent jurisdiction in a federal court.
Estate of Gutierrez v. Albuquerque Police Dep't
, 1986-NMCA-023, 104 N.M. 111, 717 P.2d 87, cert. denied sub nom., 103 N.M. 798, 715 P.2d 71,
overruled on other grounds by
Bracken v. Yates Petroleum Corp.
, 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.
When last day of limitation period falls on Saturday.
— Rule 1-006A NMRA, which provides that if the last day of a statutory time period falls on a Saturday, Sunday, or legal holiday, the period runs until the next day that is not a Saturday, Sunday or legal holiday, supersedes former 12-2-2G NMSA 1978 (now 12-2A-7 NMSA 1978), which only extends the time period to the following Monday if the last day falls on a Sunday. Therefore, a claim under the Torts Claim Act was not barred by the two-year statute of limitations of this section when the last day of the two-year period fell on a Saturday and the plaintiff filed a claim on the following Monday.
Dutton v. McKinley Cnty. Bd. of Comm'rs
, 1991-NMCA-130, 113 N.M. 51, 822 P.2d 1134.
Application of Arizona statute.
— New Mexico, as the forum state, is not required to recognize Arizona's statute of limitations attaching or the sovereign immunity granted to its public employees. Therefore, the one-year limitations period applicable to Arizona public employees is not applicable to actions involving these employees when the cause of action accrues in New Mexico.
Sam v. Estate of Sam
, 2004-NMCA-018, 135 N.M. 101, 84 P.3d 1066,
rev'd
, 2006-NMSC-022, 139 N.M. 474, 134 P.3d 761.
II. APPLICABILITY.
Tort Claims Act statute of limitations.
— Where child was eight years old when she was assaulted and statute of limitations required that she file suit by age ten, it was unreasonable as a matter of law to expect the child to comply with the requirements of the statute limitations at such a young age and the application of the statute to the child violated her right to due process of law.
Campos v. Davis
, 2006-NMSC-020, 139 N.M. 474, 134 P.3d 761.
Two-year statute of limitations applies to action for unlawful arrest.
— Where plaintiff brought an action against the state of New Mexico, the New Mexico department of public safety, and a state police officer, asserting a cause of action under the New Mexico constitution arising from his allegedly unlawful arrest, and where plaintiff claimed that New Mexico law does not provide a statute of limitations for claims involving an alleged violation of the New Mexico constitution's prohibition of unreasonable seizures and therefore the four-year statute of limitations set forth in § 37-1-4 NMSA 1978 applies, the court held that defendant's allegations fell squarely within § 41-4-12 NMSA 1978, and the statute of limitations applicable to a § 41-4-12 cause of action under the New Mexico Tort Claims Act (NMTCA) is the two-year period set forth in § 41-4-15(A) NMSA 1978 of the NMTCA.
Rico-Reyes v. New Mexico
, 503 F. Supp. 3d 1055 (D. N.M. 2020)
Section inapplicable to federal civil rights action.
— An action under 42 U.S.C. § 1983 for excessive use of force during an arrest is not governed by the limitations on actions contained in this section but by the general statutory limitations on actions for personal injury, 37-1-8 NMSA 1978, or for miscellaneous claims, 37-1-4 NMSA 1978.
Gunther v. Miller
, 498 F. Supp. 882 (D.N.M. 1980).
Under New Mexico law, the most closely analogous state cause of action for a federal civil rights cause of action under 42 U.S.C. § 1983 is provided for under 41-4-12 NMSA 1978. The statute of limitations applicable to such a cause of action is set forth in this section.
DeVargas v. State ex rel. N.M. Dep't of Corrs.
, 1982-NMSC-025, 97 N.M. 563, 642 P.2d 166.
Since claims under 42 U.S.C. § 1983 are in essence actions to recover for injury to personal rights, 37-1-8 NMSA 1978, not this section, provides the appropriate limitations period.
Garcia v. Wilson
, 731 F.2d 640 (10th Cir. 1984),
aff'd
, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985).
For New Mexico, the United States Supreme Court has identified 37-1-8 NMSA 1978, governing the right to recover for injury to personal rights, as the relevant limitations statute in civil rights cases under 42 U.S.C. § 1983 as a matter of federal law. The court specifically rejected this section's statute of limitations applicable for wrongs committed by public officials.
Walker v. Maruffi
, 1987-NMCA-048, 105 N.M. 763, 737 P.2d 544, cert. denied, 105 N.M. 707, 736 P.2d 985.
Public capacity determined by facts.
— District court correctly applied the law when it estopped the doctor from asserting the statute of limitations defense under this section because by choosing to place the doctor at a private institution, and not identify him as a public employee working in a public capacity, the state engaged in conduct that conveyed the indisputable impression to persons wishing to assert a claim that the doctor was an employee of the private institution; as such, the claim was timely filed within the statute of limitations for actions against private entities, 41-5-13 NMSA 1978.
Hagen v. Faherty
, 2003-NMCA-060, 133 N.M. 605, 66 P.3d 974, cert. denied, 133 N.M. 593, 66 P.3d 962.
Act limited to New Mexico public employees.
— The Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] specifies that only public employees employed by New Mexico governmental entities, not simply any governmental entity, are covered by the act.
Sam v. Estate of Sam
, 2004-NMCA-018, 135 N.M. 101, 84 P.3d 1066,
rev'd
, 2006-NMSC-022, 139 N.M. 474, 134 P.3d 761.
Application of section to action by subrogated insurance company.
— Because a subrogated insurance company is considered to be standing in the shoes of the insured, the two-year statute of limitations in a subrogated action governed by this section begins to run when the insured's cause of action arises.
Health Plus v. Harrell
, 1998-NMCA-064, 125 N.M. 189, 958 P.2d 1239, cert. denied, 125 N.M. 145, 958 P.2d 103.
Two-year statute of limitations applicable to negligence suit involving public utility's employee.
— This section, allowing two years to bring suit, and not the one-year limitation of 37-1-24 NMSA 1978, which refers to the time for bringing suits in negligence against any city, town or village, or any officers thereof, applies to a suit for negligence of a public employee in the operation of a public utility.
Cozart v. Town of Bernalillo
, 1983-NMCA-053, 99 N.M. 737, 663 P.2d 713.
Deadline does not apply to child incapable of meeting it.
— As a matter of due process, a child who is incapable of meeting the deadline in this section cannot have that deadline applied to bar the child's right to legal relief; therefore, dismissal of claim filed shortly after child's ninth birthday is reversed.
Jaramillo v. Board. of Regents
, 2001-NMCA-024, 130 N.M. 256, 23 P.3d 931.
Minority exception under Subsection A applies only to living minors.
Regents of Univ. of N.M. v. Armijo
, 1985-NMSC-057, 103 N.M. 174, 704 P.2d 428.
Tort Claims Act statute of limitations applies to states sued in New Mexico courts.
— In the interests of comity, New Mexico will extend the tort claims statute of limitations to states with similar tort claims acts when they are sued in New Mexico district courts.
Sam v. Estate of Sa
m, 2006-NMSC-022, 139 N.M. 474, 134 P.3d 761.
The doctrine of fraudulent concealment tolls the statute of limitations.
— Where plaintiffs, developmentally disabled patients who were involuntarily committed to state-run institutions, brought an action against the state department of health (DOH), individual DOH officials, and state institutions operated by the DOH, asserting claims pursuant to the New Mexico Tort Claims Act (act), and where DOH defendants moved to dismiss plaintiffs' claims because the act contains a two-year statute of limitations on claims and the act explicitly provides that the limitations period is not subject to tolling, and where plaintiffs', although their claims fell outside the two-year limitations period in the act, asked the court to toll the statute of limitations pursuant to the doctrines of legal disability or fraudulent concealment, the court held that New Mexico law does not provide for tolling on the basis of mental capacity, but that the doctrine of fraudulent concealment, whether active or passive, can toll the running of the statute of limitations, and plaintiffs established the existence of a confidential or fiduciary special relationship that gives rise to a duty to disclose and that defendants breached that duty.
JL v. New Mexico Department of Health
, 165 F.Supp.3d 1048 (D.N.M. 2016).
III. ACCRUAL OF ACTION.
Accrual of action.
— Section 41-4-15A NMSA 1978 is a discovery-based statute of limitations that accrues when a plaintiff knows or with reasonable diligence should have known of the injury and its cause.
Maestas v. Zager
, 2007-NMSC-003, 141 N.M. 154, 152 P.3d 141.
Abuse of process.
— A malicious-abuse-of-process claim accrues immediately upon the improper use of process. Plaintiff's malicious-abuse-of-process claim accrued when police sergeant defendant filed an amended criminal complaint. Pursuant to the 41-4-15A NMSA 1978, plaintiff had two years from that point to file his state tort claims.
Mata v. Anderson
, 685 F.Supp.2d 1223 (D.N.M. 2010),
aff'd
, 635 F.3d 1250 (10th Cir. 2011).
False arrest and false imprisonment.
— The statute of limitations for claims of false arrest and false imprisonment begins to run, under New Mexico law, when the imprisonment ends. Where plaintiff filed her complaint within two years of the end of her imprisonment, her NMTCA claims are timely.
Gose v. Board of Cnty. Comm'rs of the Cnty. of McKinley
, 727 F.Supp.2d 1256 (D.N.M. 2010).
The temporal focus of Subsection A of this section
seems to be on the date of the occurrence rather than the loss, injury, or death.
Maestas v. Zager
, 2005-NMCA-013, 136 N.M. 764, 105 P.3d 317, cert. granted, 2005-NMCERT-001,
rev'd
, 2007-NMSC-003, 141 N.M. 154, 152 P.3d 141.
The limitation period commences when an injury manifests itself and is ascertainable,
rather than when the wrongful or negligent act occurs.
Long v. Weaver
, 1986-NMCA-108, 105 N.M. 188, 730 P.2d 491.
Where, in 1998, the municipality constructed a flood retention pond next to plaintiff's building; in 2004, plaintiff's tenant informed plaintiff that the northeast side of the foundation of the building was substantially cracking, that the ground around the around it was saturated with water, and that the tenant believed that the retention pond caused the damage; and plaintiff filed suit against the municipality for damages in 2008, plaintiff's claims against the municipality were time barred because the tenant's information was sufficient to notify plaintiff, more than three years before plaintiff filed suit, of both serious structural damage requiring further investigation and a causal link between the retention pond and the injury to plaintiff's property.
Yurcic v. City of Gallup
, 2013-NMCA-039, 298 P.3d 500.
An incident does not give rise to a claim until the resulting injury manifests itself in a physically objective manner and is ascertainable. Until these factors are established, the question of fraudulent concealment need not be addressed.
Long v. Weaver
, 1986-NMCA-108, 105 N.M. 188, 730 P.2d 491.
Where plaintiff fell in a ditch and broke an ankle, and it was certain at that time that plaintiff had suffered an injury as a consequence of the alleged wrongful act of another for which the law afforded a remedy, the statute of limitations attached. The fact that the full extent of the injury was not known did not affect the running of the statute of limitations.
Bolden v. Village of Corrales
, 1990-NMCA-096, 111 N.M. 721, 809 P.2d 635, cert. denied, 111 N.M. 77, 801 P.2d 659.
It is not required that all the damages resulting from the negligent act be known before the statute of limitations begins to run. Once plaintiff suffers loss or injury, the statute begins to run.
Bolden v. Village of Corrales
, 1990-NMCA-096, 111 N.M. 721, 809 P.2d 635, cert. denied, 111 N.M. 77, 801 P.2d 659.
Time presents factual matter.
— Where plaintiffs' complaint alleges that the work took place in the last week of July and into the first week of August 2001, and the city does not appear to dispute this factual claim, but argues that the clean-up work was commenced in the last week of July 2001 and therefore the trigger for the statute of limitations was the date the work began, plaintiffs' allegation about the time the work was performed and when the time the injury manifested itself presents a factual matter that must be resolved.
Henderson v. City of Tucumcari
, 2005-NMCA-077, 137 N.M. 709, 114 P.3d 389, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.
Law reviews.
— For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).
For note, "Federal Civil Rights Act - The New Mexico Appellate Courts' Choice of the Proper Limitations Period for Civil Rights Actions Filed Under 42 U.S.C. § 1983: DeVargas v. State ex rel. New Mexico Department of Corrections," see 13 N.M.L. Rev. 555 (1983).
For survey of medical malpractice law in New Mexico, see 18 N.M.L. Rev. 469 (1988).
For note and comment, "Statutes of Limitations Applied to Minors: The New Mexico Court of Appeals Balance of Competing State Interests to Favor Children," see 35 N.M. L. Rev. 535 (2005).
For note, "Tort Law — Either the Parents or the Child may Claim Compensation for the Child's Medical and Non-medical Damages: Lopez v. Southwest Community Health Services," see 23 N.M. L. Rev. 373 (1993).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
What statute of limitations governs actions based on strict liability in tort, 91 A.L.R.3d 455.
Liability of hotel or motel operator for injury or death resulting to guest from defects in furniture in room or suite, 91 A.L.R.3d 483.
When does statute of limitations begin to run upon an action by subrogated insurer against third-party tortfeasor, 91 A.L.R.3d 844.