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To: Sara Torres
From: Joel Ames, Junior Associate
Date: November 24, 2014
RE: Roca Matter
Actual Notice; Notice of claims, Tort Claims Act
Question Presented
Under the notice of claims provision of the Tort Claims Act, NMSA 1978, § 41-4-
16 (1977), was the New Mexico Department of Transportation (NMDOT) given actual
notice of Ms. Roca’s accident when the Risk Management Division and a supervisor of
NMDOT were aware of the accident within ninety days through a police report,
witnesses, and an internal investigation?
Brief Answer
Probably. Actual notice, like written notice, must be given within ninety days of
the accident. Actual notice is the knowledge of the likelihood of litigation ensuing, and it
is given when the entity is aware of the facts and circumstances surrounding the accident.
The entity can learn through a police report like the one in Roca’s case. The police report
gave detailed information about an unmarked lane closure and the accident. Furthermore,
NMDOT can receive actual notice through employees and other affiliated agencies, as
long as they are aware of the facts and circumstances. Both the Risk Management
Division and an employee of the New Mexico Department of Transportation were aware
of the alleged negligence that caused the harm. Finally, the fact that the Risk
Management Division conducted an internal investigation gives more evidence that the
notice provision was satisfied. The NMDOT supervisor spoke with witnesses about the
accident and a malfunctioning sign. For these reasons, the court will probably find that
NMDOT had actual notice.

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Statement of Facts
You have asked me to determine whether Elena Roca can satisfy the requirements
of the notice provision of the Tort Claims Act despite her failure to provide timely
written notice.
On May 5, 2014, Roca was in an automobile accident after swerving out of the far
right lane on I-40 because of an unmarked lane closure. On September 29, 2014, written
notice was filed to the Risk Management Division, and a response letter was returned
indicating that the notice was untimely.
Immediately after the accident on May 5, a police report was filed for the
accident. The report included the investigating officer’s narrative of the surrounding
circumstances. The narrative begins by stating that the accident “occurred near an
unmarked closure of the far right lane.” Moreover, the narrative stated that a witness of
the accident, Lisa Smith, admitted that the second vehicle in the accident was forced to
swerve into the other lane to avoid hitting the barricade at the lane closure.
In addition, the Risk Management Division created an investigation report of the
circumstances surrounding Roca’s accident. An internal memo from Elvira Gabaldon of
the Risk Management Division was created on May 15, and it described the investigation
report. The memo was given to her supervisor and contained information about the
unmarked lane closure that created the dangerous condition on the highway.
Furthermore, it indicated that the Risk Management Division was in direct contact with a
supervisor of the New Mexico Department of Transportation. Elvira Gabaldon and the
supervisor of NMDOT discussed the accident and the unmarked lane closure.

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Additionally, the supervisor confirmed that he had taken statements from witnesses who
informed him of the faulty sign.
Discussion
The New Mexico Department of Transportation probably had actual notice of
potential liability under the notice of claims provision of the Tort Claims Act. Subsection
(B) of the notice of claims provision introduces “actual notice” and explains that a
governmental entity is immune to a lawsuit for an alleged harm “unless the governmental
entity had actual notice of this occurrence.” NMSA 1978, § 41-4-16(B) (1977). New
Mexico courts have explained that the provision “allows the governmental entity to
protect itself against false or exaggerated claims while also permitting it to identify and
settle meritorious claims.” Lopez v. State, 1996-NMSC-071, ¶ 8, 122 N.M. 611. The
notice provision also allows the governmental entity sufficient time to investigate the
matter while facts and witnesses are available. Martinez v. City of Clovis, 1980-NMCA-
078, ¶ 14, 95 N.M. 654.
This notice can come in the form of written or actual notice. In Roca’s case, sub-
sections (A) and (C) of the provision are going to be conceded. Sub-section (A) states
that written notice must be given to the Risk Management Division for claims against the
state within ninety days of the occurrence. Roca did not give written notice of the
accident within ninety days. However, sub-section (A) does establish an important
relationship between the government entity allegedly at fault and the administrative body
that receives the claims, such as the Risk Management Division. This is important in
Roca’s case because it can help determine whether NMDOT was given actual notice

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through the Risk Management Division acting as an agent. Sub-section (C) identifies the
people who can represent the victim in a wrongful death claim, and states how much time
they have to file it. Death did not result from Roca’s accident, which means that sub-
section (C) is irrelevant to this case. Therefore, the only issue is whether the New
Mexico Department of Transportation received actual notice of potential liability.
Defendants have the burden of proof of showing that the notice provision of the
Tort Claims Act was not satisfied. Dutton v. McKinley County Bd. Of Com’rs, 1991-
NMCA-130, ¶ 1, 113 N.M. 51. Therefore, the New Mexico Department of
Transportation must prove that it did not receive actual notice of potential liability
resulting from Roca’s accident. The notice of claims provision does not define the term
“actual notice”, but the New Mexico Supreme Court has stated that it requires notice
within ninety days that “there is possibility litigation will ensue.” Smith v. State ex rel.
N.M. Dept. of Parks & Recreation. 1987-NMCA-111, ¶ 11, 106 N.M. 368. Moreover,
actual notice must be given to the “particular agency that caused the alleged harm.” New
Mexico State Highway Com’n v. Ferguson, 1982-NMSC-107, ¶ 6, 98 N.M. 680.
Nevertheless, the New Mexico Supreme Court has established more specifically
what can constitute sufficient actual notice. First, when a governmental entity knows of
“the facts and circumstances of the occurrence, it may also have knowledge of its own
potential liability.” Lopez, 1996-NMSC-071, ¶ 15. An explicit statement disclosing the
possibility of a lawsuit is not required for actual notice. Id. For example, under some
circumstances police reports explaining the facts of the accidents can constitute actual
notice, if the police report sufficiently puts the governmental entity on notice that a

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possible claim will be made against it. City of Las Cruces v. Garcia, 1984-NMSC-106, ¶
6, 102 N.M. 25.
In addition, in determining who can receive notice for the governmental entity,
New Mexico courts have applied an agency rule for written notice, and have determined
that when an agent of the principal entity investigates and receives written notice, then
the principle entity has sufficient notice as well. See Martinez, 1980-NMCA-078, ¶ 18.
In other words, when notice is given to an agent like the Risk Management Division, that
notice can qualify as notice to the entity that caused the harm. Courts have explained that
the legislature did not intend to require written notice to be given to both the offending
entity and the administrative head of an agency such as the Risk Management Division.
Id. ¶ 11. This is not only true with respect to written notice for large entities like
NMDOT and the Risk Management Division. Similarly, New Mexico courts have
determined that an employee of the governmental entity can receive actual notice for the
whole entity, but only if the employee knew that the alleged negligence of the
government entity caused the harm. See Powell v. New Mexico State Highway and
Transp. Dept. 1994-NMCA-335, ¶ 15, 117 N.M. 415.
In determining whether the governmental entity itself received actual notice, the
courts consider whether that entity was aware of the facts and circumstances surrounding
the accident. For example, in Lopez, the plaintiff was in an accident at the Bernalillo
County Metropolitan Court where she fell down a small set of stairs. 1996-NMSC-071, ¶
1. Immediately after the accident, the Metro Court prepared and sent a detailed accident
report to the Risk Management Division. Id. ¶ 3. This report contained specific
information, including the date, time, and location of the accident. Id. Additionally, the

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report included all witnesses and several descriptions of the surrounding conditions that
allegedly caused the accident. Id. The court held that because the Metro Court sent a
detailed accident report to the Risk Management Division, substantial evidence existed to
conclude that it had actual notice of potential liability within ninety days of the accident.
Id. ¶ 22. The court reasoned that the Metro Court was given actual notice because it had
knowledge of the facts and circumstances surrounding the accident. Id. ¶ ¶ 13,14.
Furthermore, it stated that since the Metro Court prepared the report, it understood that
the plaintiff might file a claim. Id.
Moreover, the courts also consider whether police reports explain the facts and
circumstances of an accident to sufficiently give actual notice to a governmental entity.
For example, in Powell, the plaintiff was injured as a passenger in an automobile after the
driver struck a guardrail on the highway. 1994-NMCA-335, ¶ 3. A police report was
created for the accident and was received by the New Mexico State and Highway
Transportation Department. Id. ¶ 13. The court determined that the police report was
insufficient and did not give the Transportation Department actual notice of potential
liability. Id. ¶ 18. The court reasoned that nothing in the police report stated that the
guardrail caused the injuries. Id. ¶ 13. Consequently, the New Mexico State and
Highway Transportation Department was never aware of its alleged negligent conduct,
and it never received actual notice of potential liability. Id.
In deciding who can receive notice for the governmental agency at fault, New
Mexico Courts have considered the relationship that exists between a governmental entity
and the agency that receives the actual claims. For example, in Martinez, notice of an
occurrence was given to the City’s insurer, which was acting as an agent of the Mayor.

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1980-NMCA-078, ¶ 11. The City’s insurer received letters about the occurrence, which
consequently gave it written notice of the claim. Id. ¶ 16. The court held that the
common law rules of agency applied, and that notice to the City’s insurer was enough to
be notice to the Mayor. Id. ¶ 18. The court reasoned that the notice given to the City’s
insurer also gave notice to the Mayor, and it is not required that both be given notice
separately. Id. ¶ 11.
Additionally, in deciding who can receive actual notice for the governmental
entity, the courts have considered whether it is sufficient that an employee of the entity
was informed that the entity’s alleged negligence caused the harm. In Powell, a
maintenance foreman of the New Mexico State Highway and Transportation Department
stopped by the scene of the accident, and spoke with a police officer about the situation.
1994-NMCA-335, ¶ 4. The court held that the New Mexico Highway and Transportation
Department did not have actual notice of potential liability, because the guardrail was
never discussed as the main cause of the plaintiff’s severed leg. Id. ¶ 18. The court
reasoned that there was nothing to indicate that the foreman knew the guardrail was the
main cause of the plaintiff’s injury. Id. The foreman’s knowledge of this could have
constituted actual notice as an employee of the entity. Id.
In a similar case with an opposite holding, however, employees of the New
Mexico Department of Parks and Recreation were involved in conversations with the
plaintiff’s personal representative about several boating accidents. Smith, 1987-NMCA-
111, ¶ 5. The plaintiff’s personal representative specifically informed the Parks and
Recreation’s boating supervisor, superintendent, and park ranger of the circumstances
surrounding the accident and the alleged negligent conduct that caused the harm. Id. The

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court held that Parks and Recreation received actual notice that a lawsuit was likely to
occur. Id. ¶ 20. Furthermore, the court reasoned that the employees of Parks and
Recreation were well informed of its alleged negligent conduct and the likely possibility
of a lawsuit, which constituted actual notice of the entity as a whole. Id. ¶ 19.
In Roca’s case, the court will probably conclude that the New Mexico Department
of Transportation (“NMDOT”) had actual notice of potential liability for four reasons.
First, NMDOT was aware within ninety days of the facts and circumstances of Roca’s
accident, which means it knew litigation could ensue. As in Lopez, where an accident
report was created following the incident, an investigation report of the circumstances
surrounding Roca’s accident on May 5 was produced ten days after the accident on May
15. The investigation report included detailed information describing the dangerous
condition of the highway. Furthermore, the report stated that only one sign was present
indicating a lane closure and that the sign was not functioning properly. While in Lopez
the Metro Court prepared the report, the courts have held that the governmental entity
only needs to be aware of the circumstances surrounding the incident. Although in
Roca’s case the Risk Management Division conducted the accident investigation, there is
evidence that NMDOT knew the facts and circumstances of the accident. The internal
memo discussing the report states that the supervisor of NMDOT spoke directly with the
Risk Management Division about the investigation and the accident. Furthermore, the
Risk Management Division specified that the NMDOT supervisor took statements about
the malfunctioning sign from several witnesses the day of the accident.
Second, the court will probably find that the police report in Roca’s case was
sufficient to provide actual notice. Unlike the police report in Powell, which did not

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mention the entity’s alleged negligence, the police report for Roca’s accident included the
cause of the accident in the investigating officer’s narrative. The narrative began by
stating that the accident “occurred near an unmarked closure of the far right lane.”
Furthermore, the narrative stated that a witness of the accident, Lisa Smith, admitted that
the second vehicle in the accident was forced to swerve into the other lane to avoid
hitting the barricade at the lane closure. A court would probably conclude that the police
report contained enough information about the accident to give actual notice to NMDOT.
Not only did it expressly identify the unmarked lane closure where the accident occurred,
but it also had witness information explaining that the unmarked lane closure was the
cause of the accident.
Third, the court will probably conclude that the Risk Management Division’s
knowledge of Roca’s accident through the investigation report was sufficient to qualify as
notice for NMDOT. As in Martinez, where the City’s insurer acted as an agent for the
mayor in receiving notice, the agency rule can be applied to Roca’s case. The Risk
Management Division has a statutory duty to receive claims for state entities allegedly at
fault, like NMDOT in Roca’s case. According to Martinez, the legislature did not intend
to require notice to be given to both the governmental entity allegedly at fault and the
administrative head of any other government body. Here, the Risk Management
Division’s investigation clearly provided evidence that it was notified of the accident and
the alleged negligent conduct of NMDOT. Although in Martinez, letters that were given
to the City’s insurer created written notice, actual notice follows the same requirements
without having to be in written form.

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Finally, the court will probably conclude that an employee of NMDOT, the
supervisor, was informed that NMDOT’s alleged negligence caused the harm to Roca,
consequently giving actual notice to the whole entity. Like the employees in Smith, who
learned that negligence of the New Mexico Department of Parks caused several boating
accidents, the NMDOT supervisor learned that NMDOT’s failure to provide proper
warning of a lane closure caused Roca’s accident. According to the internal memo
discussing the accident investigation, Elvira Gabaldon spoke with the supervisor about
the faulty lane closure. Additionally, the supervisor spoke with several witnesses at the
time of the accident, indicating that the faulty sign was the cause of sudden lane changes.
This case therefore differs from Powell, where the maintenance foreman was never told
that the negligent upkeep of the guardrail specifically caused the accident. The NMDOT
supervisor had sufficient knowledge of the alleged negligence, through conversations
with Elvira Gabaldon and several witnesses on the day of the accident.
Therefore, NMDOT was aware of the surrounding facts and circumstances
through the internal memo by the Risk Management Division and the corresponding
police report. The Risk Management Division, the agent that receives all claims against
NMDOT, had sufficient knowledge of the incident within ninety days. Similarly, the
supervisor of NMDOT was aware of the surrounding circumstances through witnesses
and a conversation with Elvira Gabaldon. Consequently, NMDOT had actual notice
within ninety days of the accident. Roca probably satisfied the notice provision of the
Tort Claims Act.