Articles Posted in Personal Injury

In a recent appeal in a New Mexico personal injury case, the New Mexico Court of Appeals addressed whether a charter high school was entitled to the protections set forth in the New Mexico Tort Claims Act (TCA) and whether the negligence claim asserted against the school fell within a waiver of the TCA.

The facts of this case indicate that a student was assaulted and battered in the parking lot by another student who had been upset by an earlier interaction.  The victim suffered serious injuries that required surgery and painful rehabilitation.  Teachers investigated immediately after the incident and removed the aggressor from the general population at school.

The plaintiffs (including the guardian of the victim) brought a lawsuit against the high school and others.  The allegations against the school stated that the school owed the victim a duty to keep the premises safe and that they had failed to do so by failing to provide adequate security.  Additionally, the complaint alleged that the high school is a privately operated charter school, so it is not within the scope of the TCA.  The immunity afforded by the TCA, according to the complaint, was waived for the school’s negligence.

Accidents that take place in restaurants and other places of business may entitle victims to recover damages from the owner or property manager, according to New Mexico law.  Slip-and-fall cases are lawsuits that arise when individuals allege they have sustained injuries due to the negligence of the property owner in maintaining their premises.  As the defendant in this type of legal claim, a person who controls or possesses property owes a duty to exercise reasonable care in protecting all those invited onto their land.  A skilled New Mexico personal injury attorney can help set forth the elements of a premises liability claim, which provides a method for the victim to secure damages for their injuries and suffering.

wet floor

There are exceptions to the rule that a property owner is legally responsible for injuries caused by a failure to provide reasonable care, including when a hazard is “open and obvious.”  Plaintiff victims in premises liability lawsuits may face an affirmative defense if the defendant alleges that their fall was due to an “open and obvious” hazard.  This defense would protect a landowner if the danger that caused the slip-and-fall injuries should have been detected by the plaintiff.

In a recent case before a state supreme court, a plaintiff overcome this defense of the open and obvious doctrine.  There, the lower court had granted summary judgment to the defendant, a fast food restaurant, after a patron filed a lawsuit alleging their negligence caused him to slip and fall.  The plaintiff had claimed that he fell near the counter and also, moments before, near the restroom.  After leaving the restaurant, the plaintiff alleged he suffered severe back pain.

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Drunk driving, or driving while intoxicated, remains a major problem throughout New Mexico. The epidemic of drunk driving continues to cause serious car accidents and catastrophic, even fatal harm.  New Mexico car accident attorney Matthew Vance is familiar with the devastating consequences of collisions resulting from drivers who choose to operate their vehicle while under the influence of drugs or alcohol. A recently proposed bill in the New Mexico legislature seeks to address drivers who continue to drive under the influence of alcohol.

liquor store

While HB 271 did not reach the New Mexico House floor during the regularly scheduled session, it is a bill that will likely be considered again in the expected special legislative session this year.  HB 271 bars the sale of alcohol to repeat DWI (driving while intoxicated) offenders throughout the state.  Representative Jane E. Powdrell-Culbert (R-NM) intends to ban second-time DWI offenders from purchasing alcohol for a year, and third or subsequent offenders will be prevented from buying alcohol for life.

The intentions of HB 271 are to address New Mexico’s growing alcohol abuse problem.  The New Mexico Department of Health indicates that the state has the highest alcohol-related death rate in the United States. In fact, statistics indicate that New Mexico’s alcohol-related death rate is increasing, while it is decreasing nationally.

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A recent case before the New Mexico Supreme Court addressed whether the children of a fatally wounded parent could bring a lawsuit under state law, even though the parent’s estate had not brought a lawsuit for wrongful death.  The court determined that the children had the right to bring the lawsuit, since they were suing for personal injury or bodily injury damages, and the children were in a “sufficiently close relationship” to their father that it supported their claim.


After Albuquerque police officers responded to information regarding a suspected stolen vehicle, they found the decedent at the scene of the crime, inside a parked vehicle next to the suspected stolen vehicle.  After surrounding his vehicle, the officers approached the decedent’s car on foot, and he drove away.  An officer began shooting at the car and eventually shot and killed the decedent.

The decedent’s minor children brought a lawsuit against the defendants (the Albuquerque Police Department) for loss of consortium damages. They alleged that since the defendants caused the wrongful death of their father, they would grow without the support and love of their father.  The defendants filed a motion to dismiss, and the court granted the motion, finding that the law enforcement officers were entitled to immunity for the claim.  The court of appeals reversed the judgment.

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Hit and run collisions cause serious bodily harm, and the act of leaving the scene of an accident after causing a collision is considered a crime.  Drivers who hit an object, another driver, or a pedestrian but leave the scene without giving them assistance or providing information may be found in violation of the law.  Injured individuals can pursue a civil claim against the driver, if they are later located, and seek compensation for their injuries, emotional suffering, and property damage resulting from the accident.

collision damage

Recently, New Mexico legislators are seeking to address what some have called an increase of car accidents and reckless drivers. Addressing dangerous drivers is one purpose of a proposed law that makes hit and run offenses a more severe crime, leading to a potentially longer jail term.  According to the law today, those who knowingly leave the scene of an accident when someone is injured or dies may be charged with a third-degree felony.

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Personal injury lawsuits and negligence claims are a method to determine who is at fault for causing an accident and secure damages from all at-fault parties. By filing a legal claim against an at-fault party, accident victims can potentially recover money damages for their accident-related costs. According to New Mexico law, when one person or a group of people owe a duty of care to others and breach that duty, they may be liable for the resulting harm.  This is the essence of a negligence claim, which forms the legal basis for many personal injury cases following motor vehicle accidents.


The plaintiff in a lawsuit is the injured party and bears the burden of proving fault, or legal liability.  In some situations, multiple parties may be at fault.  Additionally, the plaintiff may have contributed to their own injuries. Comparative fault rules vary by state and include comparative fault, modified comparative fault, and contributory negligence doctrines.

New Mexico follows the doctrine of “pure” comparative negligence.  According to state statutes, a plaintiff may recover damages from a defendant who was at fault, minus the plaintiff’s percentage of fault. In a car accident, for example, if the plaintiff’s damages are $100,000, and the plaintiff is found to be 30% at fault, they will recover $70,000 of the damages.  The plaintiff would be responsible for $30,000.

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At issue in a recent appeal before a New Mexico District Court was whether the plaintiff had deliberately misled the court into suspecting she lied about her car accident injuries. In their analysis, the court discussed whethecrashr evidence submitted by a physician who had examined the plaintiff should be stricken from the record.  Additionally, the court assessed whether there remained a genuine issue of material fact or whether the plaintiff was entitled to summary judgment regarding a claim that the insurance company breached their duty by denying her the value of her claim.

The underlying accident in this case was a rear-end collision, which allegedly caused the plaintiff’s injuries to her neck and back.  She made a claim with her own insurance for medical payments after the accident.  Eventually, the plaintiff settled her third-party claim against the at-fault driver for $43,000.

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In a lawsuit brought on behalf of a 19-year-old who died from overdosing on physician-prescribed medications, the New Mexico Court of Appeals addressed whether the pharmacy was liable for negligence and negligence pr se.  At issue was the standard of care, specifically, the standard owed by a pharmacist when dispensing medications to patients.  While the lower court had granted the Pharmacy’s motion for summary judgment, the appellate court reversed.


The victim of the overdose had multiple drugs in her system, including Oxycodone, Oxymorphone, and Alprazolam.  She had apparently repeatedly requested high dosages of Schedule II opioids and taken them with Schedule IV benzodiazepines. Her prescriptions were allegedly intended to treat her pain and anxiety.

The plaintiff in this case, a personal representative of the deceased woman, brought a claim for malpractice, wrongful death, negligence, and other causes of action against the prescribing doctor. The complaint was amended to assert claims against the Pharmacy for negligence and negligence per se.  Negligence was alleged based on a breached duty of care to apply knowledge used by well-qualified pharmacists, and negligence per se was centered on the allegation that the Pharmacy departed from the standard of care of a reasonably trained pharmacist.

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Recently, the New Mexico Court of Appeals addressed whether an insurance company had breached its duty by refusing a request for legal representation in a personal injury lawsuit. That lawsuit, brought by a Public Service Company of New Mexico employee, alleged negligence, negligence per se, and premises liability following an inattack dogcident in which the employee was attacked by the defendant’s 150-lb Bullmastiff. The defendant in that case was a tenant, leasing a studio unit from the co-defendant, the property owner.

The property owner, who lived out of state, hired third parties to manage and maintain the premises in her absence. The property had a common yard, and the owner had asked the tenant living in the studio unit in back to care for the yard and make sure “things stayed alive.” This tenant owned the Bullmastiff dog and, at the time of the incident, had been in the common yard, watering the area.

The insurance company at issue in the lawsuit tendered its defense to the property owner, since she was the named insured on the policy. After the property owner was granted summary judgment in the case, the tenant requested that the insurance company tender her defense. It denied this request, stating she was not the named insured under the policy.

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After a fatal accident at work, the wife of the deceased worker pursued a claim for damages against the employer’s insurance company.  The issue before theforklift New Mexico Supreme Court was whether a worker injured in the course of employment by a co-worker could recover damages under the employer’s uninsured/underinsured motorist coverage.  The question was framed by what the court labeled as a “discontinuity” between the language of the New Mexico Workers’ Compensation Act (WCA) and the Uninsured Motorist statute.  In other words, the Court’s decision was intended to address inconsistencies in case law concerning the remedies and legislative intent provided by both statutes.

The facts of this case indicate that while at the workplace, an employee was fatally struck by a metal beam that fell off a forklift.  A coworker had left the forklift unattended to check that the beam was secure, and it slid off the forks and hit the employee.  On behalf of her deceased husband (the employee), the plaintiff in this case received workers’ compensation benefits as well as uninsured motorist benefits set forth under his car insurance policy.

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