Articles Posted in Personal Injury

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The United States District Court for the District of New Mexico has handed down a ruling denying a motion to dismiss a New Mexico personal injury complaint alleging claims under the Federal Tort Claims Act.  The court rejected the defendant’s contention that a waiver signed by the plaintiff should result in the dismissal of her claims.

The plaintiff in this case was a civilian who was injured at a U.S. Air Force Base.  According to the court’s ruling, she had gone there with a group of her coworkers to participate in team building exercises.  One of these exercises involved rappelling down a tower. The plaintiff and her coworkers were each handed a waiver of liability form, with the Sergeant handing them out explaining that the waivers were documents “relieving the Air Force from responsibility for injuries and that the participants had to understand they were taking a risk by rappelling.”

The plaintiff did not recall a discussion of specific risks, including, for example, falling or the safety line not working.  She signed the waiver, took some training after explaining she had no experience, and ascended to the top of the rappelling tower.  She fell and was thereafter moved and assessed.  One of her coworkers then took her to the hospital in an ambulance.

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A state court in Albuquerque has ruled that the New Mexico legislature exceeded its constitutional authority in enacting the New Mexico Medical Malpractice Act to the extent that the Act restricts the right of plaintiffs to receive an unaltered jury verdict.

The New Mexico Medical Malpractice Act does not limit recoveries for punitive damages, medical care, and related benefits, but it does provide a limit of $600,000 for recoveries arising from an injury or death to a patient occurring as a result of medical malpractice.  The Act has other restrictions applicable in trials of medical malpractice cases in New Mexico, including providing that in jury cases, jurors are not to be given any instruction concerning the Act’s cap on recoverable damages.  The Act’s stated purpose is to make professional liability insurance available to health care providers in New Mexico.

The court’s ruling with respect to the constitutionality of the Act’s imposition of a cap on damages arose in the context of a personal injury case brought in state court after a woman from Placitas had been hospitalized for several months as a result of injuries that she suffered during a gynecological procedure.  Absent the imposition of a cap on the amount she is able to recover through the litigation by the New Mexico Medical Malpractice Act, the plaintiff could be awarded $2.6 million in damages.

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Courts can rule for or against parties as a matter of law by granting motions for summary judgment.  If a motion for summary judgment is granted, absent a reversal on appeal, the issues it decides will not be presented to the trier of fact, which in New Mexico personal injury cases is often a jury.

In a recent ruling, the United States District Court denied for the most part a motion for summary judgment brought by a driver of a semi-tractor trailer and his employer, the defendants in a personal injury lawsuit.  The court granted the defendants’ summary judgment motion with respect to the plaintiff’s punitive damages claim, and it denied summary judgment with respect to the plaintiff’s New Mexico state law claims, including negligence, negligence per se, and negligent training and supervision.

The underlying accident occurred on Interstate I-40 at around 3:00 in the morning, after the individual defendant had taken over driving responsibilities from his brother.

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Prosecuting a case pro se, in other words on one’s own behalf, can be difficult for a litigant.  A pro se plaintiff suing Hershey for an injury he alleged occurred when he bit into a chocolate product that contained a metal item recently sought a stay for a second time.  A successful motion to stay would have resulted in the suspension of his lawsuit, without prejudice to his rights.  The first time the plaintiff had sought to stay the case, Hershey did not oppose, and the judge issued a stay of proceedings until January 16, 2018, based on the plaintiff’s representation he needed a stay to aid his ailing father.  On January 16, 2018, the plaintiff filed a second stay motion, seeking a stay until July 2019.  The motion was based on medical, financial, and juridical reasons, and the defendant opposed.  After considering the situation, the court denied the second stay motion.

The plaintiff had sued the defendant in state court in Santa Fe County, alleging liability on tort theories including personal injury, product liability, and defective products.  The defendant responded to the lawsuit, which was filed on November 3, 2016, by removing it to federal court via a motion filed on September 27, 2017.  A few weeks later, the plaintiff sought and achieved a stay.  His subsequent stay motion was denied for several reasons.

First, the court articulated the standard it was using, explaining that the party seeking a stay must justify the request by clear and convincing evidence that outweighed the potential harm to the party against which the stay was to be operative.  The court concluded that the plaintiff could not show, under this standard, that staying the case until July 2019 outweighed the potential harm to the defendant.

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The 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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The 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.

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In 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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The 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%

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The 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.

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New 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.

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