HOUSE BILL 165

51st legislature - STATE OF NEW MEXICO - second session, 2014

INTRODUCED BY

Terry H. McMillan

AN ACT

RELATING TO TORTS; AMENDING A SECTION OF THE TORT CLAIMS ACT TO PROVIDE FOR AN EXCLUSION FROM THE WAIVER OF IMMUNITY FOR IRRIGATION AND CONSERVANCY DISTRICTS THAT AUTHORIZE PART OF THEIR PROPERTY FOR USE AS A ROADWAY BY THE PUBLIC OR GOVERNMENT ENTITY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 41-4-11 NMSA 1978 (being Laws 1976, Chapter 58, Section 11, as amended) is amended to read:

     "41-4-11. LIABILITY--HIGHWAYS AND STREETS.--

          A. The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance, of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.

          B. The liability for which immunity has been waived pursuant to Subsection A of this section shall not include liability for damages caused by:

                (1) a defect in plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area;

                (2) the failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; or

                (3) a deviation from standard geometric design practices for any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area allowed on a case-by-case basis for appropriate cultural, ecological, economic, environmental, right-of-way through Indian lands, historical or technical reasons, provided the deviation:

                     (a) is required by extraordinary circumstances;

                     (b) has been approved by the governing authority; and

                     (c) is reasonable and necessary as determined by the application of sound engineering principles taking into consideration the appropriate cultural, ecological, economic, environmental, right-of-way through Indian lands, historical or technical circumstances.

          C. All irrigation and conservancy districts and their public employees acting lawfully and within the scope of their duties that authorize any part of their property to be used as a road available for use by the general public by a state agency or local public body are excluded from the waiver of immunity under Subsection A of this section for damages arising out of the operation and maintenance of such roads available for use by the general public if the irrigation or conservancy district has entered into a written agreement with the state agency or local public body operating or maintaining such a road and that state agency or local public body has agreed to assume the operation and maintenance of that portion of the district's property used for such a road; provided that the state agency or local public body operating or maintaining the road available for use by the general public shall be subject to liability as provided in the Tort Claims Act."

- 3 -