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Articles Posted in Torts

A recent ruling by the U.S. District Court for the District of New Mexico dismissed the plaintiffs’ claims under the U.S. Constitution and the New Mexico Tort Claims Act as untimely.  In arriving at its conclusion that the claims were untimely, the court considered and rejected the plaintiffs’ arguments under the continuing violations doctrine.

The plaintiffs had sued the City of Espanola and employees after trying – for years – to get water and sewer services to their trailer that had been turned off turned back on.  Allegedly the prior owners of the trailer, who had been the plaintiffs’ landlords before the plaintiffs purchased the trailer, had not been forwarding money that the plaintiffs gave them for water and sewer services to the city.  The city’s records showed $1,760 owing on the account around December 2016.  A few weeks later, in February 2017, the plaintiffs discovered that the services had been discontinued.  Upon going to City Hall to investigate further, the plaintiffs were told the city had switched off municipal services due to the $1,760 unpaid account balance.

The plaintiffs tried to remedy the situation by explaining to city employees on multiple occasions that the overdue balance belonged to a deceased person who was a prior owner of the property.  In March 2017 they informed city officials in the Water Department that the denial of water services violated their rights.  Allegedly it took until March 2020 – over three years – to get services switched back on, and even then the bills for water came in increasing amounts and were addressed to the deceased.

Sometimes plaintiffs in New Mexico civil cases win their cases after proceeding to trial.  A recent ruling shows that a win can also be had by default when the defendant is non-responsive to service of process.

The plaintiffs in the case were migrant workers, who filed a complaint with the United States District Court for the District of New Mexico under the Migrant and Seasonal Agricultural Worker Protection Act.  Service of process was attempted on the defendant on behalf of the plaintiffs, but it was unsuccessful.  The plaintiffs successfully moved the court thereafter to allow for alternative service of process.  The summons was returned executed and the complaint was left with the defendant’s father at a residence owned by the defendant.

According to the court’s ruling, the defendant against whom default judgment was sought did not file an answer to the complaint by the due date, appear before the court or file any pleadings with the court.  A recovery could not be had from a co-defendant, who the court explained had received a discharge in a bankruptcy case, making it essential for the plaintiffs to recover from the defaulting defendant if the law allowed for a default judgment.

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A recent ruling by the U.S. District Court for the District of New Mexico reflects some of the challenges plaintiffs can encounter when naming a city and its mayor as defendants in a federal complaint seeking recourse for allegedly injurious conditions.

Last November a person filed a federal complaint against the City of Albuquerque and its Mayor, asserting claims for unlawful taking under the U.S. and New Mexico Constitutions and related claims for trespass and nuisance.  The plaintiff’s lawsuit arose from the city’s alleged catch and release of feral cats and kittens as part of a trap, neuter and release (“TNR”) program.  Under the TNR program, the plaintiff alleged, cats and kittens are trapped, sterilized, vaccinated and released.  The plaintiff alleged that, as a result, she and her neighbors and children are exposed to an extreme nuisance, disease, property damage and a reduction in property values, and that the problem is continuing because the TNR program is continuing.  The complaint attracted the attention of local news outlet KRQE, which ran a story reporting that, as of September 2019, 2,100 cats had been picked up of which 1,700 had been re-released.

The defendants responded to the complaint by filing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).  Under this rule a federal court is to review a complaint to assess whether its factual allegations state a claim for relief that is plausible on its face.

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The U.S. District Court for the District of New Mexico recently denied a dismissal motion filed on behalf of  defendants including the Santa Fe Public Schools. The plaintiffs had brought a lawsuit in state court based on alleged sexual abuse by their fourth grade teacher. The motion had sought dismissal of a complaint on the basis that the plaintiffs’ claims under federal and state law were time barred.

By the time the court adjudicated the motion to dismiss their claims the plaintiffs were over 24 years old.  The teacher and the school who has been sued removed the case to federal court, and sought dismissal of the claims based on alleged untimeliness.

The court first analyzed whether the applicable statute of limitations warranted dismissal of the plaintiffs’ federal claims.  The court explained that, with respect to the causes of action based on federal law, federal courts apply the statute of limitations and tolling laws of the relevant state.  In this case, New Mexico law provided a three year statute of limitations, and it was clear from the complaint that it was brought after the expiration of the three year period.  Accordingly, the court analyzed whether there was a basis to toll the statute of limitations with respect to the federal claims.  The court concluded that the plaintiffs’ alleged incapacity provided a basis for tolling the statute of limitations.  The plaintiffs had alleged that they had suffered from problems including post-traumatic stress, dissociation and drug addiction.  The court accepted that these allegations plausibly established incapacitation, for purposes of assessing the merits of the motion to dismiss.  The court also explained that whether the plaintiffs’ condition, in fact, incapacitated them was an issue that should be deferred until the parties brought summary judgment motions or tried the 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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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

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.

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.

A terrible New Mexico car accident occurred when a tire tread peeled off the right rear tire of a 1993 Ford E-350 Super Club Wagon traveling on U.S. Highway 54 in Guadalupe County, New Mexico.  The vehicle, which was en route from Mexico to Colorado, left the road and rolled over three times. Two of the occupants of the vehicle were ejected and died, another occupant was rendered quadriplegic and died from the injuries he sustained in the accident, and several other people who were in the car at the time of the accident also sustained injuries.A lawsuit was filed against the car manufacturer, the tire manufacturer, and the person who installed the tire on the vehicle in the names of some of the individuals involved in the accident, and through representatives with respect to the other people involved in the accident.  The plaintiffs were all Mexican nationals.  The defendants, also not residents of New Mexico, each moved to dismiss, asserting that there was not personal jurisdiction over the defendants.  The District Court of Santa Fe County, New Mexico conducted a hearing, following which it denied dismissal of the lawsuit.  The defendants then filed applications for interlocutory appeal, which were granted by the Court of Appeals of New Mexico.

On appeal, the Court analyzed whether the defendants had minimum contacts with New Mexico that supported the exercise of specific jurisdiction.  The Court applied the standards of a precedent in which the Court had held that New Mexico courts could properly exercise jurisdiction over a Chinese corporate defendant that manufactured bicycle parts after it placed the allegedly defective parts on the market with the intention that they be distributed and sold in the United States, including in New Mexico.

The Court looked at the defendants’ contacts with New Mexico, which were presented in the form of evidence submitted by the plaintiffs.  The contacts included extensive contacts by the car manufacturer defendant, including having dealerships in the state, engaging in marketing in the state, and maintaining a website allowing prospective customers to obtain a quote on a vehicle and search an inventory of vehicles in stock in the state.  Similarly, the evidence that the plaintiffs presented with respect to the tire manufacturer showed that this defendant has dealers in New Mexico, sends personnel to the state to assess the performance of its tires, and maintains a website targeting people who live in New Mexico.  The Court observed that the claims at issue did not need to be causally related to the defendants’ conduct in the forum state but instead needed only to “lie in the wake” of the defendants’ activities in the forum state.  The Court affirmed the ruling below, denying the defendants’ motion to dismiss.