If you have a claim against the Government in New Mexico you may need to send out Notice very quickly. The Statute of Limitations against a governmental entity in New Mexico is generally shorter (personal injury is two years in New Mexico as opposed to three years for a non governmental agency) – 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 most cases eliminate the claims completely.
The Tort Claims Notice deadline is 90 days from the date of the negligence for Personal Injury Claims (and most other claims). The deadline on wrongful death claims is 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. (see the statue below)
Again, missing the deadline could and probably will result in an elimination of your lawsuit. 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?
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.
The other exception is for some types of employment claims which have their own notice provisions (for example claims for discrimination for race, color, religion, sex, disability, age and national origin.
The New Mexico Tort Claims Notice Section reads as follows:
41-4-16. Notice of claims.
A. Every person who claims damages from the state or any local public body under the Tort Claims Act [41-4-1 NMSA 1978] shall cause to be presented to the risk management division for claims against the state, the mayor of the municipality for claims against the municipality, the superintendent of the school district for claims against the school district, the county clerk of a county for claims against the county, or to the administrative head of any other local public body for claims against such local public body, within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury.
B. 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. The time for giving notice does not include the time, not exceeding ninety days, during which the injured person is incapacitated from giving the notice by reason of injury.
C. When a claim for which immunity has been waived under the Tort Claims Act is one for wrongful death, the required notice may be presented by, or on behalf of, the personal representative of the deceased person or any person claiming benefits of the proceeds of a wrongful death action, or the consular officer of a foreign country of which the deceased was a citizen, within six months after the date of the occurrence of the injury which resulted in the death; but if the person for whose death the claim is made has presented a notice that would have been sufficient had he lived, an action for wrongful death may be brought without any additional notice.