Articles Posted in Negligence

Litigants in New Mexico negligence lawsuits risk losing or damaging their cases if they engage in spoliation, which is the intentional destruction, mutilation, alteration or concealment of evidence.  Whether and to what extent to sanction a litigant for spoliation is up to the trial court.  In a recent ruling by the United States District Court for the District of New Mexico, the court concluded that dismissal of the plaintiff’s case for spoliation and imposition of other sanctions sought by the defendant were not warranted.

The ruling was made in the context of a lawsuit brought by a company that repaired its concrete pumping truck following an accident on Interstate 40, allegedly caused by the driver of a tractor-trailer.  The plaintiff alleged that the driver of the tractor-trailer that struck the plaintiff’s concrete pumping truck was distracted at the time of the accident by looking in his vehicle’s rear-view mirror.  The plaintiff sought damages in the amount of $26,000 to reimburse it for repairs and also sought to recover lost profits in the amount of $58,000 for the time during which the truck was out of service.

The defendant moved to dismiss the case on the basis that the plaintiff had engaged in spoliation by beginning repairs on the truck on the day after the accident.  The defendant argued that this resulted in allegedly critical evidence relating to liability and damages ceasing to exist.  Alternatively, the defendant asked for the imposition of a sanction less severe than dismissal of the plaintiff’s case.

The United States District Court for the District of New Mexico recently granted a motion to dismiss a cause of action that had been asserted by plaintiffs under the doctrine of res ipsa loquitur.

Res ipsa loquitur is recognized in common law jurisdictions including New Mexico as a doctrine that can help establish negligence when an accident is of a kind that does not ordinarily occur in the absence of negligence.  The phrase comes from Latin, in which it means the thing speaks for itself.

The plaintiffs asserting the doctrine had filed a complaint in the Fourth Judicial District Court, Guadalupe County, New Mexico, to recover damages following a tractor trailer accident.  After the case was removed to federal court, the plaintiffs filed a first amended complaint alleging negligence, negligence per se, and res ipsa loquitur.  They alleged that it was the defendant’s responsibility to manage and control the  truck involved in the accident, that the accident was a type of event that does not ordinarily occur in the absence of negligence in control of the truck, and, that as a direct and proximate cause of the defendant’s negligence, the plaintiffs suffered a loss.

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The Court of Appeals of New Mexico recently reversed the dismissal of a personal injury case brought by the parents of a child who had been injured in a school-sponsored sports program.  The parents alleged that, when their son was 12 years old and a student at a New Mexico middle school, he joined the wrestling team sponsored by the school.  He had allegedly never before participated in a school-sponsored sports program before joining the wrestling team.  The parents further alleged that on the day of the accident, which was the first day of practice, the boys who were participating were allowed to engage in a game called “king of the mat.”  The game’s object was to score take down points and the minor was allegedly taken down on his neck forcefully enough to injure his cervical area by an older, stronger boy with at least one year of wrestling experience.

Following the trial, a jury found in favor of the defendants, a group which included the school district, the principal and athletic director, and the two coaches who were onsite on the day of the accident.  On appeal the plaintiffs asserted that the district court had erred in refusing to admit into evidence certain exhibits including excerpts from the school district’s policies and personnel manual and an excerpt from the school district’s athletic handbook.

The Court of Appeals applied an abuse of discretion standard in reviewing the exclusion of evidence.  The court explained that an abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by the facts and circumstances of a case.  The court explained further that the party challenging on appeal the exclusion of evidence must show that the erroneous exclusion was prejudicial.  The appellate court then reviewed what had occurred at the trial court level with respect to the exhibits at issue.
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ruling handed down earlier this year shows that New Mexico personal injury lawsuits can be difficult for an individual to prosecute without having the benefit of experienced counsel.  As the ruling explains, a litigant needs to pay court filing fees or achieve leave to proceed without paying fees, the litigant’s complaint needs to state a claim under applicable law including a basis for the court’s exercise of jurisdiction, and the complaint needs to be served on defendants.

The court’s ruling followed the filing of a complaint by a plaintiff acting pro se, a term referring to an individual acting on his or her own behalf.  The plaintiff sued a supermarket chain, alleging that he fell and injured himself because the defendant had failed to remedy a foreseeable hazard.  The plaintiff further alleged that but for the negligence of the supermarket chain in failing to keep its premises safe, the plaintiff would not have fallen and exacerbated his pre-existing conditions.  The plaintiff also alleged that the inactions of the defendant’s management were the proximate and direct causes of the injuries he had sustained.

The plaintiff filed an application seeking to proceed without paying fees or costs, referred to as an application to proceed in forma pauperis.  The court granted the motion based on the plaintiff’s alleged inability to pay, which the plaintiff documented in an affidavit.  The court also took the opportunity to explain what needed to happen before the plaintiff could proceed with his lawsuit.
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Personal injury lawsuits brought in New Mexico typically proceed on the basis that they will be heard by a jury.  Recently a New Mexico federal court granted a motion to compel arbitration brought by a defendant and stayed the plaintiffs’ personal injury lawsuit pending the completion of arbitration.

Allegedly, the plaintiff had been employed as a maintenance engineer in an Albuquerque store of a national retail chain.  While he was at work he was electrocuted and, as a result, fell off of a ladder, causing him to sustain injuries.  The injured employee and his wife sued the store and two managerial employees in the Second Judicial District Court of the State of New Mexico, County of Bernalillo.  Their complaint asserted causes of action for negligence and negligence per se, loss of consortium and conspiracy and sought to hold the defendants jointly and severally liable.  The complaint sought both compensatory and punitive damages.

After being served with the complaint the national retail chain that had employed the plaintiff at the time of the accident removed the lawsuit from state court to federal court.  It then moved the court to compel the plaintiffs to arbitrate their claims against it. Continue reading

Typically it is the defendants in a New Mexico personal injury case that move for summary judgment, arguing that they are entitled to judgment as a matter of law.  In a recent case, a New Mexico federal trial court ruled on a summary judgment motion brought by a plaintiff injured in Albuquerque. The court denied the plaintiff’s opposed motion for summary judgment on the issue of liability, concluding that there were factual issues that should be decided by a jury.

The plaintiff alleged that he was severely injured by a May 1, 2014 shooting and carjacking in the parking lot of a national drug store chain.  The evidence before the court showed that, prior to the plaintiff being severely injured, in the period between April 17, 2011 and May 1, 2014, the Albuquerque Police Department had responded to 298 police calls at the defendants’ Albuquerque location in which the plaintiff was injured.  Police reports reflected break-ins into and theft of automobiles on the defendants’ premises in which the plaintiff had been injured, as well as aggravated assaults and robberies on the premises. Continue reading

It can be very important for litigants asserting personal injury and wrongful death claims to have their day in court.  Arbitration agreements can cut off the right of access.  In a ruling in favor of a New Mexico skilled nursing facility, a federal district court recently upheld an arbitration agreement following the filing of a state court lawsuit for wrongful death against the facility.

The litigation commenced after a woman who was a resident at an Albuquerque, New Mexico facility from March 4 to March 8, 2016 died from complications of untreated diabetes.  Allegedly, the woman had designated another woman as her attorney in fact on May 24, 2014 and on March 5, 2016 the woman who had been designated signed a resident admission agreement on behalf of the woman resident in the facility that included an arbitration agreement.  After the resident died, a personal representative of her estate and her brother filed a New Mexico state court complaint seeking damages for her wrongful death.  The facility where the deceased had been resident filed a separate lawsuit in New Mexico federal court to compel arbitration of all matters related to the care and treatment that the resident had received at the facility.

The court’s analysis was very friendly to the facility, citing for example U.S. Supreme Court language from another case that the Federal Arbitration Act (FAA) articulates a strong national policy in favor of arbitration and establishes that any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.  The court explained that, under the FAA, arbitration agreements are on equal footing with other contracts, and that the court was to determine whether the parties agreed to arbitrate the dispute at issue.

The U.S. District Court for the District of New Mexico recently ruled against a plaintiff in a New Mexico wrongful death suit that was based on a successive entrustment theory of liability.  The ruling came in the context of resolving a motion for summary judgment brought by one of the defendants, a company that had an independent contractor agreement with one of the individual defendants pursuant to which she was operating a truck to transport cargo.  Allegedly in violation of the agreement, the driver picked up her father as a passenger, who went on to drive the truck and cause an accident resulting in the death of her employee who was asleep in the truck’s bunk bed when her father lost control of the truck.

The mother of the deceased employee, as personal representative of his estate, sued her son’s employer, the employer’s father, and the company that had leased her son’s employer the truck.  She sued in New Mexico state court and then the lessor of the truck removed the case to federal court.  The lessor brought a summary judgment motion.  Resolution was to be based on New Mexico law because the underlying truck accident occurred in New Mexico.

The lessor defendant argued to the federal district court that the driver of the truck at the time of the accident was not its employee under the Federal Motor Carrier Safety Regulations; that it was not negligent in its own right for its training of its independent contractor who had entrusted the truck to her father, and that it should not be held liable for the successive entrustment of the truck by its independent contractor to her father.  The court accepted these arguments reasoning that the driver at the time of the accident was not an employee and there was no evidence that the alleged lack of training by the lessor of the authorized driver of the vehicle contributed to the entrustment of the vehicle. Reviewing New Mexico state law, the court also concluded that New Mexico does not recognize a cause of action for negligent entrustment based on multiple, successive entrustments.

A New Mexico federal Magistrate Judge recently recommended denial of a construction company’s motion to dismiss or stay a suit by the construction company’s insurer.  The insurance company had sued in New Mexico federal court seeking a declaration that it was not obligated to cover a lawsuit against the construction company in New Mexico state court for personal injuries and property damage.

The state court lawsuit was based on the construction company using the services of an insulation and fireproofing contractor to install Icynene SPF in a custom built home.  After the Icynene SPF was installed and homeowners moved in, the homeowners complained that the product was causing noxious and harmful fumes, gases and odors to fill the house.  The homeowners submitted a demand letter to the construction company, and its insurance company retained counsel to represent the construction company.  The homeowners then sued the Icynene SPF manufacturer, the insulation and fireproofing contractor that had installed it and the construction company in the Thirteenth Judicial District of New Mexico.

A few months later the construction company’s insurer filed a complaint in federal court pursuant to the Declaratory Judgment Act.  The insurance company sought a declaration that the allegations in the complaint brought in state court by the homeowners against the construction company were not covered by the construction company’s insurance policy.  The homeowners answered the complaint and the construction company moved to dismiss or, in the alternative, to stay proceedings.

A recent New Mexico federal court order (Arispe v. Allsup’s Convenience Stores, Inc.) instructed the parties before the court to engage in a settlement conference on December 14, 2018 at the federal courthouse in Roswell, New Mexico, and included multiple requirements.  The order specifies what the parties are to do in a manner likely to either cause a settlement of the case or bring the case much closer to trial-readiness.  This is helpful from the plaintiff perspective because defendants often employ delay tactics that can be very frustrating. If you have questions about legal matters of this nature, contact a New Mexico personal injury attorney.

The order was entered on October 30, 2018, thereby giving the parties a month and a half to prepare for the settlement conference.

Among the requirements of the order, which was entered by a New Mexico federal magistrate judge is that the parties or a designated representative of the parties other than counsel, having full authority to resolve the lawsuit, must attend the settlement conference.  Counsel trying the case were also required to attend.  The plaintiff was ordered to serve on the defendant by November 27, a brief summary of the evidence and principles allowing it to establish liability, a brief explanation of why damages or other relief would be warranted and an itemization of damages, and a settlement demand.  The defendant was ordered to serve on the plaintiff, by December 4, any points in the plaintiff’s letter with which the defendant agreed, any points in the plaintiff’s letter with which the defendant disagreed, with references to evidence and supporting legal principles, and a counteroffer.  The parties’ letters were to be limited to a maximum length of five pages, and counsel was ordered to ensure that each party read the other side’s letter prior to the settlement conference.