SB 236

                                1  SENATE BILL 236
                                2      57TH LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 2026
                                3  INTRODUCED BY
                                4  Nicole Tobiassen and Crystal Brantley
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                                10  AN ACT
                                11   RELATING TO TORTS; PROVIDING A TORT CLAIMS ACT EXCEPTION TO
                                12   IMMUNITY FOR INSTANCES OF A CHILD ABUSED OR NEGLECTED IN THE
                                13   CUSTODY OF THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT IN
                                14   CERTAIN CIRCUMSTANCES.
                                15
                                16   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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                                17        SECTION 1.      Section 41-4-4 NMSA 1978 (being Laws 1976,
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                                18   Chapter 58, Section 4, as amended) is amended to read:
                                19        "41-4-4.      GRANTING IMMUNITY FROM TORT LIABILITY--
                                20   AUTHORIZING EXCEPTIONS.--
                                21  A.    A governmental entity and any public employee
                                22   while acting within the scope of duty are granted immunity from
                                23   liability for any tort except as waived by the New Mexico
                                24   Religious Freedom Restoration Act and by Sections 41-4-5
                                25   through [41-4-12] 41-4-12.1 NMSA 1978.        Waiver of this immunity
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                                1    shall be limited to and governed by the provisions of Sections
                                2    41-4-13 through 41-4-25 NMSA 1978, but the waiver of immunity
                                3    provided in those sections does not waive immunity granted
                                4    pursuant to the Governmental Immunity Act.
                                5  B.   Unless an insurance carrier provides a defense,
                                6    a governmental entity shall provide a defense, including costs
                                7    and attorney fees, for any public employee when liability is
                                8    sought for:
                                9  (1)   any tort alleged to have been committed by
                                10   the public employee while acting within the scope of [his]
                                11   duty; or
                                12  (2)   any violation of property rights or any
                                13   rights, privileges or immunities secured by the constitution
                                14   and laws of the United States or the constitution and laws of
                                15   New Mexico when alleged to have been committed by the public
                                16   employee while acting within the scope of [his] duty.
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                                17  C.   A governmental entity shall pay any award for
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                                18   punitive or exemplary damages awarded against a public employee
                                19   under the substantive law of a jurisdiction other than New
                                20   Mexico, including other states, territories and possessions and
                                21   the United States of America, if the public employee was acting
                                22   within the scope of [his] duty.
                                23  D.   A governmental entity shall pay any settlement
                                24   or any final judgment entered against a public employee for:
                                25  (1)   any tort that was committed by the public
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                                1    employee while acting within the scope of [his] duty; or
                                2  (2)   a violation of property rights or any
                                3    rights, privileges or immunities secured by the constitution
                                4    and laws of the United States or the constitution and laws of
                                5    New Mexico that occurred while the public employee was acting
                                6    within the scope of [his] duty.
                                7  E.   A governmental entity shall have the right to
                                8    recover from a public employee the amount expended by the
                                9    public entity to provide a defense and pay a settlement agreed
                                10   to by the public employee or to pay a final judgment if it is
                                11   shown that, while acting within the scope of [his] duty, the
                                12   public employee acted fraudulently or with actual intentional
                                13   malice causing the bodily injury, wrongful death or property
                                14   damage resulting in the settlement or final judgment.
                                15  F.   Nothing in Subsections B, C and D of this
                                16   section shall be construed as a waiver of the immunity from
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                                17   liability granted by Subsection A of this section or as a
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                                18   waiver of the state's immunity from suit in federal court under
                                19   the eleventh amendment to the United States constitution.
                                20  G.   The duty to defend as provided in Subsection B
                                21   of this section shall continue after employment with the
                                22   governmental entity has been terminated if the occurrence for
                                23   which damages are sought happened while the public employee was
                                24   acting within the scope of duty while the public employee was
                                25   in the employ of the governmental entity.
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                                1  H.   The duty to pay any settlement or any final
                                2    judgment entered against a public employee as provided in this
                                3    section shall continue after employment with the governmental
                                4    entity has terminated if the occurrence for which liability has
                                5    been imposed happened while the public employee was acting
                                6    within the scope of [his] duty while in the employ of the
                                7    governmental entity.
                                8  I.   A jointly operated public school, community
                                9    center or athletic facility that is used or maintained pursuant
                                10   to a joint powers agreement shall be deemed to be used or
                                11   maintained by a single governmental entity for the purposes of
                                12   and subject to the maximum liability provisions of Section
                                13   41-4-19 NMSA 1978.
                                14  J.   For purposes of this section, a "jointly
                                15   operated public school, community center or athletic facility"
                                16   includes a school, school yard, school ground, school building,
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                                17   gymnasium, athletic field, building, community center or sports
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                                18   complex that is owned or leased by a governmental entity and
                                19   operated or used jointly or in conjunction with another
                                20   governmental entity for operations, events or programs that
                                21   include sports or athletic events or activities, child care or
                                22   youth programs, after-school or before-school activities or
                                23   summer or vacation programs at the facility.
                                24  K.   A fire station that is used for community
                                25   activities pursuant to a joint powers agreement between the
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                                1    fire department or volunteer fire department and another
                                2    governmental entity shall be deemed to be operated or
                                3    maintained by a single governmental entity for the purposes of
                                4    and subject to the maximum liability provisions of Section
                                5    41-4-19 NMSA 1978.    As used in this subsection, "community
                                6    activities" means operations, events or programs that include
                                7    sports or athletic events or activities, child care or youth
                                8    programs, after-school or before-school activities, summer or
                                9    vacation programs, health or education programs and activities
                                10   or community events."
                                11        SECTION 2.    A new section of the Tort Claims Act, Section
                                12   41-4-12.1 NMSA 1978, is enacted to read:
                                13        "41-4-12.1.     [NEW MATERIAL] LIABILITY--CHILDREN, YOUTH AND
                                14   FAMILIES DEPARTMENT.--The immunity granted pursuant to
                                15   Subsection A of Section 41-4-4 NMSA 1978 does not apply to
                                16   liability for abuse of a child caused by the negligence of
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                                17   employees of the children, youth and families department while
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                                18   acting within the scope of the employees' duties when the child
                                19   is in the custody of that department and was removed from the
                                20   child's home because the child was abused or neglected by the
                                21   child's parents pursuant to the provisions of the Abuse and
                                22   Neglect Act."
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