SENATE BILL 376

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Joseph Cervantes

 

 

 

 

 

AN ACT

RELATING TO THE TORT CLAIMS ACT; PROHIBITING THE USE OF THE DEFENSE OF QUALIFIED IMMUNITY; CREATING LIMITATIONS ON RECOVERY; REQUIRING ATTORNEY FEES; ESTABLISHING STATUTES OF LIMITATIONS.

 

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

     SECTION 1. Section 41-4-12 NMSA 1978 (being Laws 1976, Chapter 58, Section 12, as amended) is amended to read:

     "41-4-12. LIABILITY--LAW ENFORCEMENT OFFICERS.--

          A. The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights, the independent tort of negligent spoliation of evidence or the independent tort of intentional spoliation of evidence, failure to comply with duties established pursuant to statute or law or any other deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties. For purposes of this section, "law enforcement officer" means a public officer or employee vested by law with the power to maintain order, to make arrests for crime or to detain persons suspected of or convicted of committing a crime, whether that duty extends to all crimes or is limited to specific crimes.

          B. In any claim for damages or relief under this section, it shall not be a defense that the law prohibiting any alleged conduct was not clearly established at the time of the acts or omissions alleged. It shall not be a defense that any action was undertaken in good faith. The subjective knowledge of a party shall not be a defense to any claim brought under this section. No defense of qualified immunity shall be available as a defense to claims brought under this section. Liability under this section shall be established by proving that a violation of this section occurred.

          C. In any successful action or proceeding brought under this section, the court shall award reasonable litigation expenses and attorney fees to any prevailing party.

          D. The provisions of this section shall apply to all cases pending or on appeal on the date of enactment."

     SECTION 2. Section 41-4-15 NMSA 1978 (being Laws 1976, Chapter 58, Section 14, as amended) is amended to read:

     "41-4-15. STATUTE OF LIMITATIONS AND ABATEMENT.--

          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] the minor's 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.] A claim made pursuant to this section shall be commenced no later than three years from the date a claim can be brought unless a longer statute of limitations is otherwise provided by state law."

     SECTION 3. Section 41-4-19 NMSA 1978 (being Laws 1976, Chapter 58, Section 17, as amended) is amended to read:

     "41-4-19. MAXIMUM LIABILITY.--

          A. Unless limited by Subsection B of this section, in any action for damages against a governmental entity or a public employee while acting within the scope of the employee's duties as provided in the Tort Claims Act, the liability shall not exceed:

                (1) the sum of [two hundred thousand dollars ($200,000)] five hundred thousand dollars ($500,000) for each legally described real property for damage to or destruction of that legally described real property arising out of a single occurrence;

                (2) the sum of [three hundred thousand dollars ($300,000)] eight hundred thousand dollars ($800,000) for all past and future medical and medically related expenses arising out of a single occurrence; and

                (3) the sum of [four hundred thousand dollars ($400,000)] one million two hundred thousand dollars ($1,200,000) to any person for any number of claims arising out of a single occurrence for all damages other than real property damage and medical and medically related expenses as permitted under the Tort Claims Act.

          B. The total liability for all claims pursuant to Paragraphs (1) and (3) of Subsection A of this section that arise out of a single occurrence shall not exceed [seven hundred fifty thousand dollars ($750,000)] two million dollars ($2,000,000).

          C. Interest shall be allowed on judgments against a governmental entity or public employee for a tort for which immunity has been waived under the Tort Claims Act at a rate equal to two percentage points above the prime rate as published in the Wall Street Journal on the date of the entry of the judgment. Interest shall be computed daily from the date of the entry of the judgment until the date of payment.

          D. On July 1, 2022 and on July 1 of each successive year, the maximum recovery limit shall be increased by the increase in the cost of living. The increase in the cost of living shall be measured by the percentage increase as of August of the immediately preceding year over the level as of August of the previous year of the consumer price index for all urban consumers, United States city average for all items, or its successor index as published by the United States department of labor or its successor agency, with the amount of the increase rounded to the nearest multiple of ten thousand dollars ($10,000); however, the maximum recovery limit shall not be adjusted downward as a result of a decrease in the cost of living. The risk management division of the general services department shall publish by May 1 of each year the adjusted maximum recovery limit that shall take effect the following July 1.

          [D.] E. No judgment against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act shall include an award for exemplary or punitive damages or for interest prior to judgment.

          F. The provisions of this section shall apply to all cases pending or on appeal on the date of enactment."

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