GavelThe United States District Court for the District of New Mexico recently denied a motion to remand to state court a New Mexico premises liability case based on damages from a slip and fall.  An injured child, who was seven years old at the time of the accident giving rise to the lawsuit, was alleged to have slipped and fallen in a puddle in a store owned by the defendant.  She was alleged to have suffered a broken elbow, a head injury, and back and neck pain, for which she received medical treatment over the course of 16 months.  A lawsuit was filed on behalf of the child and her mother in state court, seeking an award of compensatory damages for pain and suffering during the 16-month period, as well as punitive damages.  The plaintiff mother also sought an award of damages for lost income.

In a demand letter made in December 2016 before the filing of the lawsuit, the plaintiffs requested $99,000 and advised the defendant that if the case proceeded to trial, the jury would be asked to return a verdict in an amount in excess of the $99,000 offer made to try to settle the case.  In October 2017, the plaintiffs filed a state court complaint, seeking compensatory and punitive damages.  The amount of damages sought to be recovered was not specified.  Later, in October 2017, the defendant removed the case to federal court.  The plaintiffs filed a motion to remand the case to state court.  The plaintiffs then offered to settle for $70,000, and they stipulated that their damages were under $75,000.  No settlement was reached.

State and federal courts have concurrent jurisdiction over certain cases, meaning that some cases can be filed and prosecuted in either forum.  Federal courts are perceived by some attorneys who predominantly handle defense work for corporate defendants to offer a forum that is more friendly to defendants.  The slip and fall case initially brought in New Mexico state court was susceptible to removal to federal court if the defendant could show that the plaintiffs and the defendant were residents in different states, and the amount in controversy exceeded $75,000.

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Car AccidentThe United States District Court for the District of New Mexico recently denied a motion to dismiss brought on behalf of an insurance company that sought the dismissal of a class action complaint.  The class action complaint sought recovery of damages against an insurance company based on several theories of liability, including the sale of allegedly illusory underinsured motorist coverage, breach of contract, and assorted violations of New Mexico’s Unfair Insurance Practices Act.

The lead plaintiff, who had been denied coverage by her insurer following a car accident caused by an underinsured driver, filed suit in state court in Bernalillo County.  Her insurer removed the complaint to federal district court and unsuccessfully moved the federal district judge to dismiss the class action lawsuit.

The lead plaintiff alleged that she was driving eastbound on I-40 in Albuquerque when another driver failed to stop for traffic in front of that driver’s vehicle and struck the lead plaintiff’s vehicle, causing serious bodily injuries and other damages.  The lead plaintiff further alleged that the driver whose vehicle struck hers was an underinsured motorist at the time of the accident and that the underinsured driver’s insurance company paid the lead plaintiff $25,000 following the accident.

car accidentThe Court of Appeals of New Mexico recently entered a ruling concerning the obligation of insurance companies to pay punitive damages.  In its ruling, the Court of Appeals reversed a judgment entered by the trial court in favor of an insured car owner that provided the insurance company had to pay him $20,000 in punitive damages, in addition to the $10,000 the insurance company had previously paid the insured by way of compensatory damages.

The insurance coverage dispute arose following a New Mexico car accident that occurred early in the morning, when the owner of a 2001 Chevrolet Suburban was sleeping.  An uninsured motorist, then fleeing from police officers, struck the insured’s car when, fortunately, no one was in the car.  No one sustained any injuries to their bodies when the accident occurred.  But the Chevrolet Suburban sustained disabling damage.

According to the Court of Appeals opinion, the insured incurred $3,566.24 in property damage to his vehicle, and he sought a recovery under the uninsured/underinsured (UM/UIM) property damage provision of his policy.  Under his insurance policy, there were coverage limits of $25,000 per person and $50,000 per accident for bodily injury.  The insurance policy also had a provision providing a recovery with coverage limits of $10,000 for property damage.

Imprint in SnowIn early January 2018, the continental United States experienced record-breaking weather conditions.  Snow came down in parts of the country that usually enjoy mild winters, including Florida, where, reportedly, the cold caused iguanas to lose their grips and fall out of trees.  Inclement weather and the hazards it poses to health and safety can be unexpected.

Property owners and others in New Mexico are obligated to ensure that the premises under their control are safe and do not pose hazards to visitors.  Premises liability can be triggered when there are New Mexico slip and fall accidents within and outside commercial properties, including but not limited to stores, restaurants, and hotels, and residential properties, such as houses and apartment buildings.

To help minimize the occurrence of injurious accidents that can result from hazardous outdoor conditions, New Mexico law has provisions in place imposing obligations on property owners at the municipal level.

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Don't Drive DrunkThe Albuquerque Journal ran an article recently about the outcome of courtroom monitoring in New Mexico drunk driving cases, which led to reporting to the New Mexico Department of Transportation (NMDOT).  The monitoring of 1,106 cases across six New Mexico counties was part of an initiative by Mothers Against Drunk Driving (MADD).  The initiative has resulted in Governor Martinez announcing that the NMDOT will be providing grants in the amounts of $300,000 to the District Attorney’s Office in Bernalillo County and $100,000 to the McKinley County District Attorney’s Office to help fund prosecution efforts against people who drive while intoxicated.  The hope is that additional funding will allow the District Attorneys’ Offices to hire more support staff to help gather evidence, conduct pretrial witness interviews, and coordinate with law enforcement to identify offenders for criminal prosecution and move the cases through the criminal justice system.

The grants were brought about in part because of the rates of dismissals of DWI charges in the six New Mexico counties monitored as part of the MADD initiative:

McKinley County: 48%

pedestrian crossingThe Albuquerque City Council recently passed Council Bill Number F/S O-17-51 to improve safety in the city and reduce the occurrence of Albuquerque pedestrian accidents and related issues.  Under the ordinance, pedestrians are prohibited from occupying certain locations absent an emergency, including those near highway entrance and exit ramps and medians.  The new ordinance also prohibits pedestrians, in the absence of an emergency, from engaging in physical interactions or exchanges with drivers and other occupants of vehicles.  Similarly, occupants of motor vehicles within travel lanes or intersections are prohibited from engaging in physical interactions or exchanges with pedestrians unless an emergency situation makes the interactions or exchanges necessary.  Signs are anticipated to go up soon to advise people of the new city ordinance.

According to a KOB 4 article, the American Civil Liberties Union (ACLU) of New Mexico has expressed concerns that the ordinance violates the First Amendment of the U.S. Constitution because of its impact on panhandling.  The ordinance does not discuss panhandling; it does discuss alarming statistics concerning pedestrian fatality rates in New Mexico in general and in Albuquerque in particular.

Among the statistics cited in the new Albuquerque city ordinance is the fact that New Mexico, as compared to other states, had the highest rate of pedestrian fatalities per 100,000 residents in 2014 and the seventh-highest rate in the year 2015.  The city of Albuquerque is said to have had the second-highest rate of pedestrian fatalities per 100,000 residents among U.S. cities with a population of over 500,000 in 2014.  As Albuquerque-specific statistics go, the city ordinance explains that among all of the pedestrian and bicyclist accidents involving crashes in New Mexico, more than 40% of the crashes occurred in the city of Albuquerque, and over 80% occurred around intersections.  Hopefully, the new measures will reduce accidents and improve safety.

TruckingTechnology-300x194New Mexico residents share the roads with commercial vehicles, including trucks.  Among concerns are accidents caused by truck driver fatigue.  There are resources available to educate truck drivers, who are often under pressure to drive longer hours by their employers.

Technology in the shipping and trucking industries is rapidly advancing. Tesla debuted in November 2017 an electric semi-truck, expected to be manufactured two years from its introduction, which includes autonomous driving capabilities.  An article by Fortune discusses features including Enhanced Autopilot, which is designed to allow a vehicle to stay within a driving lane, match the speed of the vehicle to traffic conditions, and even change lanes without the help of the driver.

Tesla’s new electric semi-truck could dramatically change the shipping and truck driving industries by bringing down costs. It is environmentally friendly and promoted on bases including that a single charge could power a truck for 500 miles while carrying a load of 80,000 pounds.  The Tesla technology could also be used as part of a system described as “platooning,” in which a series of trucks follow a lead truck and synchronize speeds and routes via the use of sensors and RADAR technology.  The platooning system is thought to have advantages including reducing wind resistance and cutting down on emissions from trucks.

alcoholic beveragesDrinking while intoxicated by alcohol reduces the ability of a driver to control a moving vehicle and judge distances, speeds, and movements of other vehicles on the road.

Under New Mexico’s DWI laws, it is illegal for drivers who are 21 years old and older to drive with a breath or blood alcohol concentration of 0.08 or more. The limit is 0.02 for drivers under 21 years of age and 0.04 for drivers of commercial vehicles.  Drivers whose breath or blood tests show they are driving with alcohol levels in their bodies above the legal limit, or drivers who refuse to take a breath or blood test, can lose their licenses to drive, in most cases for a period of over one year.  In New Mexico, a person can also be convicted of DWI in instances in which breath or blood tests show alcohol levels below the legal limit, but the ability to drive is impaired by drugs or alcohol.  People driving while intoxicated also risk heavy fines, increased insurance rates, and jail sentences.  Still, unfortunately, people drink and drive, causing many New Mexico drunk driving accidents.

A program at the Department of Transportation has resulted in a new free smartphone app called Zero Proof to offer children tips on how to avoid underage drinking and handle drunk people whom they encounter.

bike riderBicycling is popular in New Mexico.  Under state law, drivers are expected to share the roads with bicyclists and to be on the lookout.  Sometimes drivers of cars and other large vehicles are not respectful of bicyclists.  Whether or not a bicyclist has taken safety precautions, New Mexico bike crashes and other accidents caused by a reckless driver can result in serious injuries or a fatality for the bicyclist.

New Mexico has taken steps to improve safety.  The Bernalillo County Sheriff’s Department, for example, posts answers to frequently asked questions about the New Mexico Motor Vehicle Code and includes some provisions relating to bicyclist safety online.  Among the provisions of New Mexico’s traffic laws are that, subject to certain exceptions, every person riding a bicycle on a roadway shall be granted all of the rights and shall be subject to all of the duties that are applicable to the driver of a vehicle.  This measure reflects the expectation that bicycles on the road be given the same respect as larger vehicles.

There are also provisions encouraging bicyclists to not endanger themselves.  For example, New Mexico law states that no person riding upon any bicycle, coaster, roller skates, sled, or toy vehicle shall attach the same or himself to any vehicle upon a roadway.  Even when bicyclists are not engaging in such behavior, and when bikes have lights, bells, brakes, and other safety equipment, terrible accidents can happen.  New Mexico has recently undertaken an initiative to try to reduce the number of accidents and create a more pleasant environment for people who travel by bicycle.

school busRecoveries of monetary damages can be had in New Mexico by way of financial compensation for injuries sustained in accidents in moving vehicles.  Injuries can be worse when people are not wearing seat belts.  Currently, New Mexico law does not require school buses to be equipped with seat belts.

A New Mexico school bus accident north of Española that took place in 2013 brought public attention to school bus safety issues. According to reports, at around 7:30 in the morning, a school bus left the road and went down a 30-foot embankment.  The driver had about 30 years of experience and was killed in the accident.  According to a spokesman for the police, nine students between the ages of six and 16 were on board when the accident occurred.  Eight of the children were taken to a local hospital.  Most of the children suffered bumps, bruises, and scrapes – relatively minor injuries, considering the gravity of the accident.  Among the most severe of the immediate injuries sustained by the children who were aboard the bus at the time of the accident were a broken back suffered by an eight-year-old boy and a broken jaw suffered by a 16-year-old girl.

New Mexico seat belt laws require drivers and all passengers in cars to wear a seat belt.  Additionally, child safety seats and booster seats are required for young children. Specifically, New Mexico law requires that all children who weigh less than 60 pounds, as well as all children up to their seventh birthday regardless of their weight, must ride in a child safety seat.  The law also requires that children ages seven to 12 years old ride in a booster seat until adult seat belts fit them properly.  Booster seats need to be used with not only a shoulder belt but also a lap belt.  If a child or any other passengers are not wearing seat belts when stopped, the officer stopping the car can issue child restraint or seat belt violations, depending on the situation, to enforce New Mexico’s seat belt laws.