0001| AN ACT | 0002| RELATING TO INTERGOVERNMENTAL AGREEMENTS; AMENDING A SECTION OF | 0003| THE TORT CLAIMS ACT; CLARIFYING TREATMENT OF CERTAIN JOINTLY | 0004| OPERATED GOVERNMENTAL FACILITIES; DECLARING AN EMERGENCY. | 0005| | 0006| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: Section 1. Section 41-4-4 NMSA 1978 (being Laws 1976, Chapter 58, Section 4, as | 0007| amended) is amended to read: | 0008| "41-4-4. GRANTING IMMUNITY FROM TORT LIABILITY--AUTHORIZING EX- | 0009| CEPTIONS.-- | 0010| A. A governmental entity and any public employee while acting within the scope | 0011| of duty are granted immunity from liability for any tort except as waived by Sections 41-4-5 | 0012| through 41-4-12 NMSA 1978. Waiver of this immunity shall be limited to and governed by the | 0013| provisions of Sections 41-4-13 through 41-4-25 NMSA 1978. | 0014| B. Unless an insurance carrier provides a defense, a governmental entity shall | 0015| provide a defense, including costs and attorneys' fees, for any public employee when liability is | 0016| sought for: | 0017| (1) any tort alleged to have been committed by the public employee while | 0018| acting within the scope of his duty; or | 0019| (2) any violation of property rights or any rights, privileges or immunities | 0020| secured by the constitution and laws of the United States or the constitution and laws of New | 0021| Mexico when alleged to have been committed by the public employee while acting within the | 0022| scope of his duty. | 0023| C. A governmental entity shall pay any award for punitive or exemplary damages | 0024| awarded against a public employee under the substantive law of a jurisdiction other than New | 0025| Mexico, including but not limited to other states, territories and possessions and the United | 0001| States of America, if the public employee was acting within the scope of his duty. | 0002| D. A governmental entity shall pay any settlement or any final judgment entered | 0003| against a public employee for: | 0004| (1) any tort that was committed by the public employee while acting | 0005| within the scope of his duty; or | 0006| (2) a violation of property rights or any rights, privileges or immunities | 0007| secured by the constitution and laws of the United States or the constitution and laws of New | 0008| Mexico that occurred while the public employee was acting within the scope of his duty. | 0009| E. A governmental entity shall have the right to recover from a public employee | 0010| the amount expended by the public entity to provide a defense and pay a settlement agreed to by | 0011| the public employee or to pay a final judgment if it is shown that, while acting within the scope | 0012| of his duty, the public employee acted fraudulently or with actual intentional malice causing the | 0013| bodily injury, wrongful death or property damage resulting in the settlement or final judgment. | 0014| F. Nothing in Subsections B, C and D of this section shall be construed as a | 0015| waiver of the immunity from liability granted by Subsection A of this section or as a waiver of | 0016| the state's immunity from suit in federal court under the eleventh amendment to the United | 0017| States constitution. | 0018| G. The duty to defend as provided in Subsection B of this section shall continue | 0019| after employment with the governmental entity has been terminated if the occurrence for which | 0020| damages are sought happened while the public employee was acting within the scope of duty | 0021| while the public employee was in the employ of the governmental entity. | 0022| H. The duty to pay any settlement or any final judgment entered against a public | 0023| employee as provided in this section shall continue after employment with the governmental en- | 0024| tity has terminated if the occurrence for which liability has been imposed happened while the | 0025| public employee was acting within the scope of his duty while in the employ of the | 0001| governmental entity. | 0002| I. A jointly operated public school, community center or athletic facility that is | 0003| used or maintained pursuant to a joint powers agreement shall be deemed to be used or | 0004| maintained by a single governmental entity for the purposes of and subject to the maximum | 0005| liability provisions of Section 41-4-19 NMSA 1978. | 0006| J. For purposes of this section, a "jointly operated public school, community | 0007| center or athletic facility" includes a school, school yard, school ground, school building, | 0008| gymnasium, athletic field, building, community center or sports complex that is owned or leased | 0009| by a governmental entity and operated or used jointly or in conjunction with another | 0010| governmental entity for operations, events or programs that include sports or athletic events or | 0011| activities, child-care or youth programs, after-school or before-school activities or summer or | 0012| vacation programs at the facility." | 0013| Section 2. EMERGENCY.--It is necessary for the public peace, health and safety | 0014| that this act take effect immediately. | 0015| |