CYFD ABUSE & NEGLECT CASE TORT CLAIMS

SB0236

SENATE BILL 236

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Nicole Tobiassen
and
Crystal Brantley

AN ACT

RELATING TO TORTS; PROVIDING A TORT CLAIMS ACT EXCEPTION TO
IMMUNITY FOR INSTANCES OF A CHILD ABUSED OR NEGLECTED IN THE
CUSTODY OF THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT IN
CERTAIN CIRCUMSTANCES.

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 amended) is amended to read:

"41-4-4. GRANTING IMMUNITY FROM TORT LIABILITY--

AUTHORIZING EXCEPTIONS.--

A. A governmental entity and any public employee
while acting within the scope of duty are granted immunity from
liability for any tort except as waived by the New Mexico
Religious Freedom Restoration Act and by Sections 41-4-5
through [
41-4-12
]
41-4-12.1
NMSA 1978. Waiver of this immunity
shall be limited to and governed by the provisions of Sections
41-4-13 through 41-4-25 NMSA 1978, but the waiver of immunity
provided in those sections does not waive immunity granted
pursuant to the Governmental Immunity Act.

B. Unless an insurance carrier provides a defense,
a governmental entity shall provide a defense, including costs
and attorney fees, for any public employee when liability is
sought for:

(1) any tort alleged to have been committed by
the public employee while acting within the scope of [
his
]
duty; or

(2) any violation of property rights or any
rights, privileges or immunities secured by the constitution
and laws of the United States or the constitution and laws of
New Mexico when alleged to have been committed by the public
employee while acting within the scope of [
his
] duty.

C. A governmental entity shall pay any award for
punitive or exemplary damages awarded against a public employee
under the substantive law of a jurisdiction other than New
Mexico, including other states, territories and possessions and
the United States of America, if the public employee was acting
within the scope of [
his
] duty.

D. A governmental entity shall pay any settlement
or any final judgment entered against a public employee for:

(1) any tort that was committed by the public
employee while acting within the scope of [
his
] duty; or

(2) a violation of property rights or any
rights, privileges or immunities secured by the constitution
and laws of the United States or the constitution and laws of
New Mexico that occurred while the public employee was acting
within the scope of [
his
] duty.

E. A governmental entity shall have the right to
recover from a public employee the amount expended by the
public entity to provide a defense and pay a settlement agreed
to by the public employee or to pay a final judgment if it is
shown that, while acting within the scope of [
his
] duty, the
public employee acted fraudulently or with actual intentional
malice causing the bodily injury, wrongful death or property
damage resulting in the settlement or final judgment.

F. Nothing in Subsections B, C and D of this
section shall be construed as a waiver of the immunity from
liability granted by Subsection A of this section or as a
waiver of the state's immunity from suit in federal court under
the eleventh amendment to the United States constitution.

G. The duty to defend as provided in Subsection B
of this section shall continue after employment with the
governmental entity has been terminated if the occurrence for
which damages are sought happened while the public employee was
acting within the scope of duty while the public employee was
in the employ of the governmental entity.

H. The duty to pay any settlement or any final
judgment entered against a public employee as provided in this
section shall continue after employment with the governmental
entity has terminated if the occurrence for which liability has
been imposed happened while the public employee was acting
within the scope of [
his
] duty while in the employ of the
governmental entity.

I. A jointly operated public school, community
center or athletic facility that is used or maintained pursuant
to a joint powers agreement shall be deemed to be used or
maintained by a single governmental entity for the purposes of
and subject to the maximum liability provisions of Section
41-4-19 NMSA 1978.

J. For purposes of this section, a "jointly
operated public school, community center or athletic facility"
includes a school, school yard, school ground, school building,
gymnasium, athletic field, building, community center or sports
complex that is owned or leased by a governmental entity and
operated or used jointly or in conjunction with another
governmental entity for operations, events or programs that
include sports or athletic events or activities, child care or
youth programs, after-school or before-school activities or
summer or vacation programs at the facility.

K. A fire station that is used for community
activities pursuant to a joint powers agreement between the
fire department or volunteer fire department and another
governmental entity shall be deemed to be operated or
maintained by a single governmental entity for the purposes of
and subject to the maximum liability provisions of Section
41-4-19 NMSA 1978. As used in this subsection, "community
activities" means operations, events or programs that include
sports or athletic events or activities, child care or youth
programs, after-school or before-school activities, summer or
vacation programs, health or education programs and activities
or community events."

SECTION 2.
A new section of the Tort Claims Act, Section
41-4-12.1 NMSA 1978, is enacted to read:

"41-4-12.1. [
NEW MATERIAL
] LIABILITY--CHILDREN, YOUTH AND
FAMILIES DEPARTMENT.--The immunity granted pursuant to
Subsection A of Section 41-4-4 NMSA 1978 does not apply to
liability for abuse of a child caused by the negligence of
employees of the children, youth and families department while
acting within the scope of the employees' duties when the child
is in the custody of that department and was removed from the
child's home because the child was abused or neglected by the
child's parents pursuant to the provisions of the Abuse and
Neglect Act."

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