The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: __________
3 Filing Date: June 5, 2025
4 No. A-1-CA-40924
5 TRISHA CONKLIN,
6 Plaintiff-Appellant,
7 v.
8 SIERRA VISTA HOSPITAL GOVERNING 9 BOARD and SIERRA VISTA HOSPITAL,
10 Defendants-Appellees,
11 and
12 DAVID L. PAUSTIAN, D.O.; SURGICARE, 13 LLC, a New Mexico limited liability 14 corporation; CHG MEDICAL STAFFING, 15 INC., a Delaware corporation; QUORUM 16 HEALTH RESOURCES, LLC; QUORUM 17 HEALTH CORPORATION; and QUINCY 18 HEALTH, LLC,
19 Defendants.
20 APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY 21 Roscoe A. Woods, District Court Judge 1 Bencoe & LaCour Law, PC 2 Lori M. Bencoe 3 Cherie L. LaCour 4 Danielle L. Ceballes 5 Albuquerque, NM
6 for Appellant
7 Modrall, Sperling, Roehl, Harris & Sisk, PA 8 Tim L. Fields 9 Elizabeth A. Martinez 10 Mia Kern Lardy 11 Albuquerque, NM
12 for Appellees 1 OPINION
2 HENDERSON, Judge.
3 {1} This appeal arises from Appellant Trisha Conklin’s claims of medical and
4 hospital negligence against Sierra Vista Hospital, Sierra Vista Hospital Governing
5 Board (collectively, Appellees), and others not party to this appeal under the New
6 Mexico Tort Claims Act (TCA), NMSA 1978, §§ 41-4-1 to -27, -30 (1976, as
7 amended through 2020).1 Below, Appellees filed a motion to dismiss Appellant’s
8 TCA claims under Rule 1-012(B)(1) NMRA, arguing that the district court lacked
9 subject matter jurisdiction to hear Appellant’s claims because Appellant gave notice
10 of her tort claims outside of the ninety-day period for giving notice. See § 41-4-
11 16(A), (B). After a period of limited discovery regarding the question of jurisdiction,
12 Appellees filed an amended motion to dismiss or, in the alternative, for summary
13 judgment. The district court granted the motion and found that Appellant had failed
14 to timely give notice of her tort claim and declined to extend the time for filing under
15 Section 41-4-16(B)’s exception for a plaintiff who “is incapacitated from giving the
16 notice by reason of injury.” Accordingly, the district court concluded that it did not
17 have subject matter jurisdiction over Appellant’s TCA claims and dismissed them.
18 On appeal, Appellant argues that the district court erred by finding that Appellant
Section 41-4-30 was explicitly enacted as a “new section of the TCA.” 2010 1
N.M. Laws, ch. 22, § 1. 1 was not “incapacitated from giving the notice.” As a matter of first impression, we
2 conclude that a person is “incapacitated” for purposes of giving notice under the
3 TCA if the person, as a result of injury, was unable to prepare and give notice of
4 their tort claim, or was unable to cause another to give such notice on their behalf.
5 Using this definition, we conclude that there was a dispute of fact regarding
6 Appellant’s capacity precluding the district court’s grant of summary judgment.
7 Therefore, we reverse the district court’s dismissal of Appellant’s claims and remand
8 for further proceedings.
9 FACTUAL BACKGROUND
10 {2} The following facts are undisputed. In early February 2018, Appellant, a
11 paraplegic, suffered accidental burns to her buttocks from using a heating pad. On
12 February 7, Appellant sought care from her outpatient primary care provider, who
13 diagnosed her with a second degree burn, cleaned and treated the area, and
14 recommended a follow-up appointment in one week. One week later, Appellant
15 presented to Appellees’ emergency room (ER) complaining of flu-like symptoms
16 and pain from her burns. She was admitted to the hospital from the ER and over the
17 next two days received treatment for her burns, which included surgical debridement
18 on February 15, and closure of the wound on February 16. During her hospital
19 admission, Appellant received narcotic pain medications, benzodiazepines, and 1 antibiotics. She was discharged from the hospital on February 18 and continued to
2 receive nursing and wound care in her home.
3 {3} On February 22, Appellant returned to Appellees’ ER by ambulance after
4 complaining of post-operative pain and flu-like symptoms. Appellant was not
5 admitted, but was given pain medication and was instructed to return for follow-up
6 with the surgical outpatient clinic the following day. Appellant did so and received
7 no additional care. The next day, on February 24, Appellant returned to Appellees’
8 ER by ambulance, complaining of “uncontrolled pain, excessive sweating[,] and
9 nausea.” Appellant was transferred to MountainView Regional Medical Center,
10 where she received treatment in the hospital until March 13. From the time of her
11 discharge through mid-June 2018, Appellant continued to use numerous prescribed
12 narcotic medications to manage her pain, including fentanyl, oxycodone, and
13 morphine. Additionally, Appellant required assistance managing her daily tasks.
14 Appellant first spoke with a law firm regarding her injuries on June 14, 2018, with
15 her mother’s assistance. On June 20, 2018, Appellant provided written notice of her
16 tort claim to Appellees. Appellant formally retained counsel on June 28, 2018.
17 PROCEDURAL BACKGROUND
18 {4} In January 2020, Appellant filed her complaint for damages resulting from
19 negligence, medical negligence, and hospital negligence. On March 20, 2020,
20 Appellees moved to dismiss Appellant’s claims, arguing that the district court lacked 1 subject matter jurisdiction due to Appellant’s “fail[ure] to provide timely notice of
2 her claim as required by the [TCA].” In response, Appellant argued that “[f]acts
3 support a finding . . . that Appellant’s time for giving notice was deemed tolled
4 during the time period when she was ‘incapacitated from giving [the] notice by
5 reason of her injury.’” Specifically, Appellant asserted that she was incapacitated
6 from February 18, 2018, the date of her discharge from Sierra Vista Hospital, to June
7 20, 2018, when she filed her tort claim notice. In her motion, Appellant sought “time
8 to conduct discovery about actual notice, and to present fact evidence of actual notice
9 and incapacity by reason of injury.” Appellant provided a Rule 1-056(F) NMRA
10 affidavit in support of this request.
11 {5} During a hearing on Appellees’ motion to dismiss in June 2020, the district
12 court granted Appellant’s request for limited discovery as to the court’s subject
13 matter jurisdiction and converted Appellees’ motion into a motion for summary
14 judgment. In September 2021, Appellees filed an amended motion to dismiss,
15 incorporating arguments based on the limited discovery that had been conducted,
16 and moved alternatively for summary judgment. Following multiple evidentiary
17 hearings on the amended motion, the district court made findings of fact, including
18 that Appellant was not “incapacitated from giving [the] notice by reason of injury”
19 and that her notice was therefore untimely. On this basis, the court dismissed
20 Appellant’s claims against Appellees with prejudice. Appellant appeals. 1 DISCUSSION
2 {6} The main issue on appeal is whether the district court erroneously dismissed
3 Appellant’s TCA claims for lack of subject matter jurisdiction because the court
4 incorrectly found that Appellant was not “incapacitated from giving the notice by
5 reason of injury,” as required by Section 41-4-16(B), such that she would be relieved
6 of her duty to file notice of her claims within the ninety days required by Section 41-
7 4-16(A). To fully address this issue, we must first clarify our standard of review for
8 certain Rule 1-012(B)(1) motions to dismiss. Then, we address Appellant’s
9 arguments on the merits.
10 I. Rule 1-012(B)(1) Motions to Dismiss for Lack of Subject Matter 11 Jurisdiction 12 {7} On appeal, Appellant contests the district court’s grant of Appellees’ amended
13 motion to dismiss for lack of subject matter jurisdiction. Appellees argue that the
14 district court’s dismissal pursuant to Rule 1-012(B)(1) should be treated as a motion
15 to dismiss even though matters outside the pleadings were received and considered.
16 We disagree with Appellees and explain by clarifying the proper standard of review
17 for Rule 1-012(B)(1) motions to dismiss.
18 {8} In South v. Lujan, 2014-NMCA-109, 336 P.3d 1000, this Court stated that our
19 review of a Rule 1-012(B)(1) motion to dismiss depends on whether the
20 jurisdictional challenge is facial or is fact-based: 1 In reviewing a facial attack on the complaint, a district court must 2 accept the allegations in the complaint as true. In contrast, in a factual 3 attack, a party may go beyond allegations contained in the complaint 4 and challenge the facts upon which subject matter jurisdiction depends. 5 When reviewing a factual attack on subject matter jurisdiction, a district 6 court may not presume the truthfulness of the complaint’s factual 7 allegations.
8 ....
9 When the challenge is factual, a court has wide discretion to allow 10 affidavits, other documents, and a limited evidentiary hearing to resolve 11 disputed jurisdictional facts.
12 South, 2014-NMCA-109, ¶¶ 8-9 (alterations, internal quotation marks, and citations
13 omitted). “In such instances, a court’s reference to evidence outside the pleadings
14 does not convert the motion [in]to a motion for summary judgment.” Id. ¶ 9
15 (alteration, omission, internal quotation marks, and citation omitted). “However, a
16 [district] court is required to convert a Rule 1-012(B)(1) motion to dismiss into a
17 Rule 1-012(B)(6) motion or a summary judgment motion when resolution of the
18 jurisdictional question is intertwined with the merits of the case.” 2 Id. (alterations,
2 Here, the parties do not argue that we should consider the motion as a Rule 1-012(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Therefore, we only consider whether Appellees’ motion should have been treated as a motion to dismiss under Rule 1-012(B)(1) or as a motion for summary judgment. See Pirtle v. Legis. Council Comm. of N.M. Legislature, 2021-NMSC- 026, ¶ 58, 492 P.3d 586 (“As a general rule, appellate courts rely on adversarial briefing to decide legal issues and avoid reaching out to construct legal arguments that the parties, intentionally or otherwise, have not presented.”); State ex rel. Hum. Servs. Dep’t v. Staples (In re Doe), 1982-NMSC-099, ¶ 3, 98 N.M. 540, 650 P.2d 824 (providing that appellate courts should not consider arguments the parties fail to raise because “courts risk overlooking important facts or legal considerations when 1 omission, internal quotation marks, and citation omitted). This Court, in South, did
2 not specify when a jurisdictional question is intertwined with the merits of the case.
3 Thus, it is necessary to review the case history in this area to clarify the applicable
4 standard of review.
5 {9} In adopting the federal standard of review for jurisdictional challenges in
6 South, this Court relied on Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir.
7 1995), abrogated in part on other grounds by Cent. Green Co. v. United States, 531
8 U.S. 425, 437 (2001). The Tenth Circuit held that “[t]he jurisdictional question is
9 intertwined with the merits of the case if subject matter jurisdiction is dependent on
10 the same statute which provides the substantive claim in the case.” Id. at 1003. In
11 Holt, the plaintiff’s parents were killed after another vehicle slid on an ice slick and
12 hit their car. Id. at 1002. The plaintiff brought claims against the United States under
13 the Federal Tort Claims Act, alleging that the United States Army Corps of
14 Engineers released water from a flood control pool, which subsequently created the
15 ice slick. Id. The plaintiff claimed that the United States was negligent when it failed
16 “to warn the public . . . of the icy road conditions” and failed “to clear the hazardous
17 road conditions.” Id. The United States sought to dismiss the plaintiff’s claims for
18 lack of subject matter jurisdiction because the government was immune from suit,
they take it upon themselves to raise, argue, and decide legal questions overlooked by the lawyers who tailor the case to fit within their legal theories” (alteration, internal quotation marks, and citation omitted)). 1 pursuant to a provision of the federal Flood Control Act of 1928, id., which provides
2 governmental immunity for “any damage from or by floods or flood waters,” 33
3 U.S.C. § 702c. Specifically, the United States asked the district court to find that the
4 “waters which caused the ice slick to form . . . were in fact released for flood control
5 purposes.” Holt, 46 F.3d at 1003. The district court below had concluded that the
6 government was immune and dismissed the plaintiff’s claims pursuant to the federal
7 equivalent of Rule 1-012(B)(1). See Holt, 46 F.3d at 1003. On appeal, the United
8 State Court of Appeals for the Tenth Circuit affirmed the district court’s decision to
9 grant the plaintiff’s motion to dismiss under the federal equivalent of Rule 1-
10 012(B)(1), rather than convert the motion into one for summary judgment, because
11 “resolution of the jurisdictional issue—i.e., whether the government is immune from
12 suit under [the Flood Control Act of 1928]—does not depend on the [Federal Tort
13 Claims Act,] which provides the substantive claims in the case.” Holt, 46 F.3d at
14 1003. Thus, the jurisdictional issue was not intertwined with the merits of the
15 plaintiff’s case, id., and the district court was not required to consider the United
16 States’ motion as one for summary judgment.
17 {10} We read Holt to require more than the same statute to be at issue for the
18 jurisdictional claim to be intertwined with the merits of the case. The jurisdictional
19 issue in Holt required a determination of whether certain facts (the status of the water
20 that caused the ice slick) entitled the United States to immunity. This factual 1 determination was wholly separate from the merits of the plaintiff’s case, which
2 instead required a determination of whether certain facts (the United States’ efforts
3 to warn of or to correct the hazardous road conditions) subjected the United States
4 to liability for negligence. Thus, the district court properly considered evidence
5 outside of the pleadings, namely, evidence related exclusively to the factual dispute
6 over the waters’ status, without converting the United States’ motion into one for
7 summary judgment. By contrast, if the district court had considered evidence outside
8 of the pleadings that related to a factual dispute regarding jurisdiction and the merits
9 of a plaintiff’s case, the district court would have to rule on the motion as one for
10 summary judgment. See Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987)
11 (“We find that the determination of whether [the plaintiff] qualifies as an employee
12 under the federal discrimination statutes is both a jurisdictional question and an
13 aspect of the substantive claim in her discrimination action. . . . [T]he motion was
14 appropriately characterized as a motion for summary judgment.”). Therefore, we
15 conclude that a jurisdictional issue is so intertwined with the merits of the case,
16 requiring the district court to convert a Rule 1-012(B)(1) motion into one for
17 summary judgment, when resolution of the jurisdictional issue requires resolving
18 factual disputes that bear on both jurisdiction and the merits of the underlying claim.
19 {11} When a Rule 1-012(B)(1) motion to dismiss for lack of subject matter
20 jurisdiction is converted into a motion for summary judgment because the 1 jurisdictional issue is intertwined, the motion may only be granted if “there are no
2 genuine issues of material fact and the movant is entitled to judgment as a matter of
3 law,” see Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, ¶ 6, 310 P.3d 611
4 (internal quotation marks and citation omitted). This is consistent with how New
5 Mexico appellate courts review all motions for summary judgment. In resolving a
6 Rule 1-012(B)(1) motion where the jurisdictional issue is intertwined, the district
7 court may not resolve any disputes of fact regarding the intertwined jurisdictional
8 issue. Though the district court has discretion “to allow affidavits, other documents,
9 and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule
10 1-012(B)(1),” South, 2014-NMCA-109, ¶ 9 (alteration, internal quotation marks,
11 and citation omitted), once the motion is converted into one for summary judgment,
12 it is inappropriate for the district court to weigh evidence and judge the credibility
13 of witnesses, Juneau v. Intel Corp., 2006-NMSC-002, ¶ 27, 139 N.M. 12, 127 P.3d
14 548. Therefore, if the district court converts a Rule 1-012(B)(1) motion into one for
15 summary judgment because the jurisdictional issue is intertwined, any genuine
16 disputes of fact must be resolved by a jury as a threshold matter to determine
17 jurisdiction. See Callaway v. N.M. Dep’t of Corr., 1994-NMCA-049, ¶ 8, 117 N.M.
18 637, 875 P.2d 393 (reversing the district court’s determination of jurisdiction when
19 there were disputed facts because the issue was “to be determined by the trier of
20 fact”); see also Erwin v. City of Santa Fe, 1993-NMCA-065, ¶ 10, 115 N.M. 596, 1 855 P.2d 1060 (holding that a question of fact about whether a minor was
2 incapacitated from giving notice precluded summary judgment).
3 {12} In summary, when reviewing a Rule 1-012(B)(1) motion to dismiss for lack
4 of subject matter jurisdiction, the district court must first assess whether the
5 jurisdictional issue presented in the motion is intertwined with the merits of the case.
6 If the jurisdictional issue is not intertwined, the district court may rule on the motion
7 as a motion to dismiss. If the jurisdictional issue is intertwined, the district court
8 must review the motion as one for summary judgment. If there are no disputes of
9 fact, and the movant is entitled to judgment as a matter of law, summary judgment
10 must be granted. If there is a genuine dispute of fact, the dispute must be resolved
11 by a jury. With this framework in mind, we consider the procedural posture of the
12 case before us.
13 {13} Here, it is uncontested that Appellees’ jurisdictional challenge was factual and
14 that the district court considered and referenced evidence outside of the pleadings to
15 resolve the challenge to its jurisdiction. Thus, to determine our standard of review,
16 we must first determine whether the district court could have treated Appellees’
17 motion as one brought pursuant to Rule 1-012(B)(1), or whether it had to convert
18 the motion into one for summary judgment. As explained above, the question before
19 us is whether “resolution of the jurisdictional question is intertwined with the merits 1 of the case.” See South, 2014-NMCA-109, ¶ 9 (internal quotation marks and citation
2 omitted). We conclude that the jurisdictional issue is intertwined.
3 {14} In their motions, Appellees assert that Appellant did not provide timely notice
4 of her TCA claims and thus the district court lacks jurisdiction. In response,
5 Appellant argues that her notice was timely because she was “incapacitated from
6 giving the notice by reason of injury” within the meaning of the TCA, thereby tolling
7 the time in which she had to provide notice. Resolution of the jurisdictional issue—
8 whether Appellant was incapacitated from giving the notice—depends on facts that
9 are relevant to Appellant’s substantive claim of negligence, including her damages.
10 Thus, the jurisdictional issue is intertwined and we review the district court’s grant
11 of Appellees’ motions as a grant of summary judgment.
12 {15} We review a district court’s grant of summary judgment de novo. Kreutzer v.
13 Aldo Leopold High Sch., 2018-NMCA-005, ¶ 26, 409 P.3d 930. To the extent that
14 our analysis requires us to engage in statutory interpretation, our review is also de
15 novo. Maestas v. Zager, 2007-NMSC-003, ¶ 8, 141 N.M. 154, 152 P.3d 141.
16 II. “Incapacitated From Giving the Notice by Reason of Injury” Under 17 Section 41-4-16(B) 18 {16} Appellant argues that the district court has jurisdiction over her claim because
19 she was “incapacitated from giving the notice by reason of injury” within the 1 meaning of Section 41-4-16(B), and her notice was thereby timely.3 Under Section
2 41-4-16(A), a claimant must provide written notice of the “time, place[,] and
3 circumstances of the loss or injury” within ninety days. Absent such notice, “the
4 [district] court shall be without jurisdiction to consider any suit against the state or
5 local public body . . . ‘unless the governmental entity had actual notice of the
6 occurrence.’” Smith v. State ex rel. N.M. Dep’t of Parks & Recreation, 1987-NMCA-
7 111, ¶ 10, 106 N.M. 368, 743 P.2d 124 (quoting Section 41-4-16(B)). However,
8 “[t]he time for giving notice does not include the time, not exceeding ninety days,
9 during which the injured person is incapacitated from giving the notice by reason of
10 injury.” Section 41-4-16(B) (emphasis added).
3 Appellant also contests the district court’s oral finding that she knew or should have known about her injuries on February 22, 2018. The district court did not include this finding in its written findings of fact or conclusions of law. “On appeal, the reviewing court may consider the [district] court’s verbal comments in order to clarify or discern the basis for the order or action of the court below.” Jeantete v. Jeantete, 1990-NMCA-138, ¶ 11, 111 N.M. 417, 806 P.2d 66. Although we “may look to the oral remarks of the [district] court for clarification of a finding of fact,” such remarks cannot be relied upon for reversal. Hopkins v. Guin, 1986- NMCA-097, ¶ 11, 105 N.M. 459, 734 P.2d 237. Because the district court failed to include this finding in its written order, we must assume its omission was intentional, barring a formal review of the finding for purposes of reversal. However, because we reverse and remand on other grounds, we remind the district court that whether a plaintiff “with reasonable diligence should have known of the injury and its cause is a question of fact.” See Roberts v. Sw. Cmty. Health Servs., 1992-NMSC-042, ¶ 28, 114 N.M. 248, 837 P.2d 442. When conflicting inferences may be drawn by the evidence, this question should be resolved by a jury. Williams v. Stewart, 2005- NMCA-061, ¶ 16, 137 N.M. 420, 112 P.3d 281. 1 {17} The purposes of the TCA’s notice requirement are well settled: “(1) to
2 enable . . . investigat[ion of] the matter while the facts are accessible; (2) to question
3 witnesses; (3) to protect against . . . aggravated claims; and (4) to consider whether
4 to pay the claim or to refuse it.” Martens v. City of Albuquerque, 2023-NMCA-037,
5 ¶ 5, 531 P.3d 607 (internal quotation marks and citation omitted).
6 {18} The TCA does not indicate when a claimant is “incapacitated from giving the
7 notice by reason of injury,” and New Mexico courts have yet to address the issue.
8 However, in Galvan v. Board of County Commissioners, 261 F. Supp. 3d 1140
9 (D.N.M. 2017) the United States District Court for the District of New Mexico held
10 that “incapacitated,” as used in Section 41-4-16(B), means “without capacity to act,
11 incapable of acting, or powerless to act.” Galvan, 261 F. Supp. 3d at 1149 (internal
12 quotation marks and citation omitted). Relying on Galvan, Appellant asks this Court
13 to adopt a broad definition of incapacity and hold that a claimant is incapacitated
14 under Section 41-4-16(B) when “the plaintiff’s injury deprives [them] of physical or
15 mental capacity, making [them] ill or too weak to function normally.” By contrast,
16 Defendant asks this Court to hold that a claimant is incapacitated, by reason of
17 injury, from giving notice if they are “mentally incapacitated from making decisions
18 about [their] potential claim.” We find neither the definition espoused in Galvan,
19 nor the definitions proffered by the parties, to be particularly helpful in resolving the
20 issue at hand. Instead, we will conduct our own statutory interpretation analysis. 1 {19} The TCA’s notice provision operates as a statute of limitation. See Tafoya v.
2 Doe, 1983-NMCA-070, ¶ 16, 100 N.M. 328, 670 P.2d 582. “[E]xceptions to statutes
3 of limitation must be construed strictly.” Slade v. Slade, 1970-NMSC-064, ¶ 4, 81
4 N.M. 462, 468 P.2d 627. But see In re Goldsworthy’s Est., 1941-NMSC-036, ¶ 23,
5 45 N.M. 406, 115 P.2d 627 (“[A] statute which tolls the statute of limitations should
6 be liberally construed in order to accomplish that purpose.”). In construing the
7 TCA’s notice provision, “we seek to achieve the intent of the [L]egislature.”
8 Niederstadt v. Town of Carrizozo, 2008-NMCA-053, ¶ 19, 143 N.M. 786, 182 P.3d
9 769. To determine legislative intent, “[w]e look first to the plain meaning of the
10 statute’s words.” Id. (internal quotation marks and citation omitted). “Unless a word
11 or phrase is defined in the statute . . . being construed, its meaning is determined by
12 its context, the rules of grammar and common usage. A word or phrase that has
13 acquired a technical . . . meaning in a particular context has that meaning if it is used
14 in that context.” NMSA 1978, § 12-2A-2 (1997). “When appropriate, we will rely
15 on rules of grammar to aid our construction of the plain language of a statute.”
16 Wilson v. Denver, 1998-NMSC-016, ¶ 16, 125 N.M. 308, 961 P.2d 153.
17 Additionally, when analyzing a statute from a particular act, “we construe the
18 provisions of the [TCA] together to produce a harmonious whole.” Niederstadt,
19 2008-NMCA-053, ¶ 19 (internal quotation marks and citation omitted). We also may
20 look to the judicial decisions of other jurisdictions for guidance “when the 1 [L]egislature does not provide an express definition of an essential statutory
2 term . . . .” Folz v. State, 1990-NMSC-075, ¶ 8 n.3, 110 N.M. 457, 797 P.2d 246.
3 {20} In this case, we first look to the plain language of Section 41-4-16(B). The
4 term “incapacitated” is modified by the phrases “from giving the notice” and “by
5 reason of injury.” Section 41-4-16(B). Thus, to qualify for tolling under Section 41-
6 4-16(B), a claimant must have (1) sustained an injury that (2) incapacitates them
7 from (3) giving notice as required by Section 41-4-16(A). The language of Section
8 41-4-16(B) further clarifies that the tolling provision only applies to cases wherein
9 the claimant is giving “written notice,” § 41-4-16(A), rather than in cases where the
10 governmental entity has “actual notice” of the claim.
11 {21} As it is undisputed in this case that Appellant suffered an injury, we focus our
12 analysis on the latter two elements of the tolling provision. To determine when a
13 claimant is “incapacitated,” we turn to the third element of Section 41-4-16(B),
14 which requires us to consider when a person is required to give written notice. Under
15 Section 41-4-16(A), “[e]very person who claims damages from the state or any local
16 public body under the [TCA] shall cause to be presented . . . , within ninety days
17 after an occurrence giving rise to a claim for which immunity has been waived under
18 the [TCA], a written notice stating the time, place[,] and circumstances of the loss
19 or injury.” As claims brought under the TCA “are controlled by a discovery rule and
20 the cause of action accrues when the [claimant] knows or with reasonable diligence 1 should have known of the injury and its cause,” Maestas, 2007-NMSC-003, ¶ 19,
2 the claimant is required to provide notice of their claims within ninety days from the
3 time their cause of action accrues—or, within ninety days of knowing about the
4 injury and its cause. Cummings v. Bd. of Regents of Univ. of N.M., 2019-NMCA-
5 034, ¶ 23, 444 P.3d 1058. Because the time for a plaintiff to provide notice does not
6 begin until their cause of action accrues, we conclude that the TCA’s tolling
7 provision applies when the claimant knows of their injury and its cause such that the
8 period for giving notice has begun to run, but is otherwise “incapacitated” because
9 of injury from giving notice.
10 {22} Case law from an out-of-state jurisdiction with similar language in its own
11 tort claims statute is helpful to our understanding of when a person is incapacitated
12 from presenting a tort claim notice. The tolling provision of Minnesota’s Tort Claims
13 Act includes an exclusion from the period for giving notice that is virtually identical
14 to the language used by our Legislature: the time during which the person injured
15 “is incapacitated by the injury from giving the notice.” Minn. Stat. Ann. § 3.736,
16 subd. 5 (West 2017). In interpreting this provision, the Minnesota Supreme Court
17 held that whether someone is “incapacitated by the injury from giving the notice” is
18 determined by
19 whether, on the days for which incapacity from giving notice is 20 claimed, [the] plaintiff was [themself] physically unable as a result of 21 the injury to investigate and otherwise prepare and give legally 1 sufficient notice of claim, and, if so, whether plaintiff was during the 2 same time unable to cause another to do it for [them].
3 Wibstad v. City of Hopkins, 190 N.W.2d 125, 127 (Minn. 1971). The Minnesota
4 Supreme Court later clarified that being “incapacitated by the injury . . . conceivably
5 includes more than a claimant’s mere physical inability to investigate, prepare, sign,
6 and serve a sufficient legal notice, or to hire an attorney to do so for [them].”
7 Hestbeck v. Hennepin Cnty., 212 N.W.2d 361, 367 (Minn. 1973). There must also
8 be “an objective consideration of all the circumstances . . . , including the claimant’s
9 mental ability to comprehend [their] situation, understand what must be done, and
10 be moved to act.” Id.
11 {23} These articulations of incapacity are consistent with our own jurisprudence,
12 which instructs that a claimant is not incapacitated from giving notice of their tort
13 claim if they can cause another person to give notice on their behalf. See Ferguson
14 v. N.M. State Highway Comm’n, 1982-NMCA-180, ¶ 13, 99 N.M. 194, 656 P.2d 244
15 (holding that the notice period would not be tolled when the plaintiffs “had retained
16 counsel before the . . . limit for giving notice had run” and “[t]here [was] no showing
17 that counsel, acting on their behalf, could not have given notice within the time
18 provided by the statute”). The TCA contemplates recovery for both physical and
19 mental injury and does not limit a claimant’s “injury” in the way Appellees propose.
20 See § 41-4-16(B). Thus, we need not determine whether the claimant’s incapacity is
21 mental or physical. Instead, determination of a claimant’s “incapacit[y] from giving 1 the notice by reason of injury,” is a fact-dependent inquiry. See Rider v. Albuquerque
2 Pub. Schs., 1996-NMCA-090, ¶ 15, 122 N.M. 237, 923 P.2d 604 (“[District] courts
3 may recognize a disputed question of fact [regarding a minor’s capacity] . . . when
4 someone has been specifically hired or appointed to protect [the minor’s legal]
5 rights.”); Hestbeck, 212 N.W.2d at 366-67 (“[I]ncapacity is necessarily dependent
6 upon the particular facts and circumstances of each case . . . .”). Based on the
7 foregoing considerations, we conclude that a person is “incapacitated” within the
8 meaning of Section 41-4-16(B) if the person was, on the days incapacity is claimed,
9 unable as a result of their injury to prepare and give notice of their tort claim, or to
10 cause another to give such notice on their behalf. With this definition in mind, we
11 now turn to the facts of Appellant’s case.
12 III. Appellant’s Capacity
13 {24} As we concluded above, we review the district court’s dismissal of
14 Appellant’s claims as a grant of summary judgment. Appellant contends that
15 Appellees’ showing of untimely notice was insufficient for a grant of summary
16 judgment. We review a district court’s grant of summary judgment de novo.
17 Kreutzer, 2018-NMCA-005, ¶ 26. “[O]rdinarily [we] review the whole record in the
18 light most favorable to the party opposing summary judgment.” Id. “Summary
19 judgment is appropriate where ‘there is no genuine issue as to any material fact and
20 . . . the moving party is entitled to a judgment as a matter of law.’” Id. ¶ 27 (quoting 1 Rule 1-056(C)). “If the movant establishes that there are no material fact issues and
2 that it is entitled to judgment as a matter of law, the burden shifts to the non[]movant
3 to demonstrate the existence of specific evidentiary facts which would require trial
4 on the merits.” Id. (internal quotation marks and citation omitted). “An issue of fact
5 is ‘genuine’ if the evidence before the court considering a motion for summary
6 judgment would allow a hypothetical fair-minded fact[-]finder to return a verdict
7 favorable to the non[]movant on that particular issue of fact.” Associated Home &
8 RV Sales, Inc. v. Bank of Belen, 2013-NMCA-018, ¶ 23, 294 P.3d 1276 (internal
9 quotation marks and citation omitted).
10 {25} Appellant’s argument on appeal misunderstands the procedural burdens
11 involved in granting summary judgment. Appellees met their initial burden that they
12 were entitled to summary judgment by producing evidence that Appellant’s notice
13 was untimely. Moreover, Appellees had the benefit of a presumption that Appellant
14 had the capacity to provide timely notice. See Lent v. Emp. Sec. Comm’n, 1982-
15 NMCA-147, ¶ 9, 99 N.M. 407, 658 P.2d 1134. Thus, it was Appellant’s burden to
16 demonstrate that there was a genuine issue of material fact precluding summary
17 judgment. We are not concerned with any specific quantum of proof with which
18 Appellant had to rebut this presumption. See Romero v. Philip Morris, Inc., 2010-
19 NMSC-035, ¶¶ 8-9, 148 N.M. 713, 242 P.3d 280 (rejecting the federal standard for 1 summary judgment, which requires the courts to consider the substantive evidentiary
2 burden of the party opposing summary judgment).
3 {26} Appellant has presented evidence to demonstrate a genuine question of
4 material fact regarding her incapacity. From February 18, 2018, to June 20, 2018,
5 Appellant received benzodiazepines and several narcotic pain medications,
6 including fentanyl, oxycodone, and morphine. In an affidavit, a medical expert
7 opined that he would have concerns about such medications impairing a “patient’s
8 ability to make reasoned decisions.” Prior to her first hospitalization, Appellant
9 attested that she was able to care for herself and her apartment. She independently
10 ensured her children attended school, shopped for and purchased groceries, prepared
11 meals, and managed her finances. However, after she was first discharged from the
12 hospital, and during the period she asserts that she was incapacitated, Appellant
13 required her parents’ assistance with childcare, financial affairs, personal
14 care/hygiene, housekeeping, property management, nutrition, transportation, and
15 other responsibilities as a result of her injury. During this period, Appellant’s father’s
16 sworn affidavit states that he picked up her prescriptions, assisted her out of bed,
17 provided meals, and helped her eat and drink. Father also managed Appellant’s
18 finances at this time, including keeping track of and paying her bills, after she forgot
19 to pay her rent. Appellant’s mother moved into Appellant’s apartment to take care
20 of Appellant and Appellant’s children, drove Appellant’s children to school, and 1 often cooked for Appellant and the children. She also provided daily wound care for
2 Appellant and assisted Appellant with her personal hygiene. Both Appellant’s
3 mother and father helped schedule Appellant’s medical appointments and ensured
4 she attended them as her father “d[id] not think [that] she could have remembered
5 [them].” In June 2018, Appellant’s two children moved out of state to live with their
6 father because Appellant “still could not take care of them.”
7 {27} Viewing this evidence in the light most favorable to Appellant, Appellant
8 raised an issue of material fact regarding her ability to prepare and give notice of her
9 tort claim during the relevant period as a result of injury. Thus, the district court
10 erred in granting summary judgment. Additionally, in finding that Appellant was not
11 “incapacitated from giving the notice by reason of injury,” § 41-4-16(B), the district
12 court improperly resolved this dispute of fact. See Callaway, 1994-NMCA-049, ¶ 8.
13 The question of Appellant’s incapacity is a jurisdictional question intertwined with
14 the merits, therefore a jury must resolve this dispute of fact before the district court
15 determines whether it has jurisdiction. As such, we reverse and remand for trial with
16 instructions to the district court to allow the jury to decide the factual question of
17 whether Appellant was “incapacitated from giving the notice by reason of injury.”
18 See § 41-4-16(B).
19 1 CONCLUSION
2 {28} Based on the foregoing, we reverse and remand to the district court for
3 proceedings consistent with this opinion.
4 {29} IT IS SO ORDERED.
5 ___________________________________ 6 SHAMMARA H. HENDERSON, Judge
7 WE CONCUR:
8 _________________________________ 9 MEGAN P. DUFFY, Judge
10 _________________________________ 11 JANE B. YOHALEM, Judge