Articles Posted in Negligence

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.

The United States District Court for the District of New Mexico recently handed down an opinion dismissing claims by a New Mexico State Police trooper for failure to keep premises safe.  The Court interpreted New Mexico’s “firefighter’s rule” as also applying to claims brought by law enforcement officers.

The plaintiff had alleged as part of a complaint filed in state court that, during the course of executing a warrant, he was shot and critically wounded due to the failure of a property management company to keep its premises safe.  The plaintiff sought to hold the defendant liable for damages sustained after he was shot on the basis that the defendant was aware that the shooter was not an authorized resident, of his frequency on the premises, of his residency, and of his violent nature and criminal record.  According to the complaint, the defendant had previously removed the man from its property.

The defendant responded to the complaint by removing it to federal court and filing a motion to dismiss based on the “firefighter’s rule.”  The plaintiff opposed dismissal.  Pursuant to the standard for considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court was to accept the allegations in the complaint as true, view the allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor.  The Court was to then consider whether the plaintiff’s claims were facially plausible, meaning whether the facts pleaded in the complaint could allow the court to draw reasonable inferences that the defendant could be held liable for the misconduct alleged.  After reciting the standard for assessing motions to dismiss, the Court concluded that the complaint failed to allege facts sufficient to state a plausible claim for relief.

Recently, the Court of Appeals of the State of New Mexico upheld a jury’s verdict and the denial of a defense motion for a new trial or a remittitur of the damages awarded by the jury.  The appellate court declined to use mathematic ratios as the basis for reversing a jury award, and also affirmed the award to the plaintiffs of prejudgment interest.

The trial underlying the appellate ruling occurred following a tragic accident on the interstate highway between Las Cruces and Deming, New Mexico.  A FedEx combination tractor-trailer vehicle driven at a speed of 65 miles an hour struck a small pickup truck that was stopped or barely moving.  There were multiple fatalities.  The driver of the tractor-trailer was killed. The driver of the pickup truck was also killed together with her four year old daughter; that driver’s nineteen month old son was seriously injured.

The husband of the woman driving the pickup truck that was struck sued individually, and as personal representative for his daughter and next friend for his son.  He also asserted claims for personal injury and wrongful death.  The father of the woman driving the pickup truck sued, as her personal representative, for wrongful death.  Together with his wife he also asserted claims via intervention for loss of consortium resulting from the death of their daughter.  FedEx stipulated prior to trial that it would pay for damages attributable to FedEx and the other named defendants.  Following the trial, the jury awarded compensatory damages in excess of $165 million in favor of the plaintiffs.  The jury awarded no punitive damages.