{
  "id": 1582481,
  "name": "Betty FERGUSON, Guardian and Conservator of the Estate of Robert Lynne Schlueter, an incapacitated and protected person; Santiago G. Chavez, Sr., Personal Representative of the Estate of David Chavez, Deceased; and Ruben Chavez, Plaintiffs-Appellants, v. NEW MEXICO STATE HIGHWAY COMMISSION, Board of Commissioners of Valencia County, State of New Mexico, Defendants-Appellees",
  "name_abbreviation": "Ferguson v. New Mexico State Highway Commission",
  "decision_date": "1981-06-11",
  "docket_number": "No. 4851",
  "first_page": "718",
  "last_page": "720",
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      "cite": "652 P.2d 740"
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      "year": 1980,
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      "reporter": "N.M.",
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      "weight": 3,
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  "last_updated": "2023-07-14T19:13:49.367595+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "WOOD and LOPEZ, JJ., concur."
    ],
    "parties": [
      "Betty FERGUSON, Guardian and Conservator of the Estate of Robert Lynne Schlueter, an incapacitated and protected person; Santiago G. Chavez, Sr., Personal Representative of the Estate of David Chavez, Deceased; and Ruben Chavez, Plaintiffs-Appellants, v. NEW MEXICO STATE HIGHWAY COMMISSION, Board of Commissioners of Valencia County, State of New Mexico, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWALTERS, Judge.\nDavid Chavez was killed, and Ruben Chavez and Robert Sehlueter were seriously injured in a motor vehicle accident occurring on June 11, 1977 on New Mexico State Road 124 in Valencia County. Robert Sehlueter, alleged to have been incompetent from the time of the accident, died in July 1980. All three plaintiffs (David and Robert through their personal representatives) sued these appellees and numerous other defendants on June 6, 1979. Appellees moved for dismissal for failure to state a claim for relief, the State relying on grounds that notice under the Tort Claims Act had not been given within the statutory period. Valencia County was dismissed on the trial court\u2019s finding that no duty on its part to maintain a state highway had been shown.\nThe only issues argued by all of the parties in this appeal are the constitutionality of the notice provision of the Act (\u00a7 41 \u2014 4-16, N.M.S.A.1978), and its applicability to the claims on behalf of decedents Robert and David. These arguments must be directed against the State since the basis for Valencia County\u2019s dismissal is not attacked or briefed. We affirm in part and reverse in part.\nUnder the notice requirements of \u00a7 41-4-16, one claiming damages from the state or any local public body, in the absence of actual knowledge by the governmental entity, must give written notice of the time, place, and circumstances of the injury \u201cwithin ninety days after an occurrence giving rise\u201d to the claim. The section further provides that \u201c[tjhe time for giving notice does not include the time, not exceeding ninety days, during which the injured person is incapacitated from giving notice by reason of injury.\u201d Notice of claims against the State must be made to the risk management division; against the county, to the county clerk; and against local bodies, to the administrative head of the local public body.\nWe perceive a preliminary question in this appeal: Was there actual notice to the State by reason of the official accident report filed by the investigating New Mexico State Police officer on June 11, 1977?\nAttached to plaintiffs\u2019 answers to interrogatories was a police report dated June 11, 1977, filed by Officer Daniel Gonzales of the State Police force. The third sheet of the report, entitled \u201cFatal Accident Supplemental Information,\u201d shows at the bottom: \u201cDistribution: White copy \u2014 Highway Department; Canary copy \u2014 -Department of Motor Vehicles; Pink copy \u2014 Law Enforcement Agency.\u201d On the face of these court-filed documents, then, it appears that the State Highway Department was furnished with notice of the \u201coccurrence giving rise to the claim\u201d at the time of the occurrence or shortly thereafter. The Highway Department filed an affidavit stating that the Department had no record of receiving a copy of the police report in this case. Whether the Highway Department did or did not receive a copy of the police report makes no difference.\nThe notice statute, \u00a7 41-4-16 B, denies maintenance of suit if written notice has not been given as provided in Subsection A \u201cunless the governmental entity had actual notice of the occurrence.\u201d \u201cGovernmental entity\u201d is defined in \u00a7 41-4-3 B as \u201cthe state or any local body as defined in Subsection C and G of this section.\u201d Subsection G declares that \u201c \u2018state\u2019 or \u2018state agency\u2019 means the state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions.\u201d The State Police Department and the State Highway Department fit the statutory description of \u201cstate\u201d or \u201cstate agency.\u201d We hold that the clear language of the Act itself creates a condition of actual notice upon the governmental entities, defendants New Mexico State Highway Commission and the State of New Mexico, because at least one of the State\u2019s \u201cbranches, agencies, departments, boards, instrumentalities or institutions\u201d had actual notice. This interpretation of \u201cactual notice\u201d accords with decisions construing a similar notice provision in workmen\u2019s compensation statutes, and those decisions provide guidance to us in interpreting like questions of first impression under the Tort Claims Act. See Emery v. University of New Mexico Medical Center, 96 N.M. 144, 628 P.2d 1140 (Ct.App.1981); Martinez v. Clovis, 95 N.M. 654, 625 P.2d 583 (1980). See also Beckwith v. Cactus Drilling Corp., 84 N.M. 565, 505 P.2d 1241 (Ct.App.1972); Collins v. Big Four Paving, Inc., 77 N.M. 380, 423 P.2d 418 (1967); Lozano v. Archer, 71 N.M. 175, 376 P.2d 963 (1962).\nThe trial court found that plaintiffs had not \u201cby a preponderance of the evidence shown to this Court that notice was given to the State Highway Commission and the State of New Mexico.\u201d This finding was erroneous in two respects: Procedurally, it was defendants\u2019 burden to sustain their defense that the notice requirements had not been met. See Emery, supra. Substantively, it is uncontradicted that the State Police, a state agency, had actual notice of the occurrence. The State and the State Highway Commission should not have been dismissed from the suit.\nHolding as we do that plaintiffs are excused from giving written notice by reason of the State\u2019s actual notice of the occurrence which resulted in the lawsuit, it is not necessary to reach the constitutional questions raised.\nThe dismissal order is affirmed insofar as it pertains to defendant Valencia County. It is reversed with respect to the State of New Mexico and the State Highway Department. Plaintiffs shall recover their appellate costs.\nIt is so ordered.\nWOOD and LOPEZ, JJ., concur.",
        "type": "majority",
        "author": "WALTERS, Judge."
      }
    ],
    "attorneys": [
      "Deborah S. Davis, Shaffer, Butt, Thornton & Baehr, P.C., Albuquerque, for N.M. State Highway Com\u2019n and State of N.M.",
      "Thomas C. Esquibel, Los Lunas, for Bd. of Com\u2019rs of Valencia County.",
      "Melvin L. Robins, Albuquerque, for plaintiffs-appellants."
    ],
    "corrections": "",
    "head_matter": "652 P.2d 740\nBetty FERGUSON, Guardian and Conservator of the Estate of Robert Lynne Schlueter, an incapacitated and protected person; Santiago G. Chavez, Sr., Personal Representative of the Estate of David Chavez, Deceased; and Ruben Chavez, Plaintiffs-Appellants, v. NEW MEXICO STATE HIGHWAY COMMISSION, Board of Commissioners of Valencia County, State of New Mexico, Defendants-Appellees.\nNo. 4851.\nCourt of Appeals of New Mexico.\nJune 11, 1981.\nDeborah S. Davis, Shaffer, Butt, Thornton & Baehr, P.C., Albuquerque, for N.M. State Highway Com\u2019n and State of N.M.\nThomas C. Esquibel, Los Lunas, for Bd. of Com\u2019rs of Valencia County.\nMelvin L. Robins, Albuquerque, for plaintiffs-appellants."
  },
  "file_name": "0718-01",
  "first_page_order": 756,
  "last_page_order": 758
}