New Mexico Injury Lawyer Blog
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New Mexico catastrophic accidents are events that no driver or pedestrian expects.  Accidents involving large semi-trucks or tractor-trailers often involve life-threatening injuries for all parties affected by the accident.  Recent attention has been given to a fatal accident involving a well-known comedian, particularly after it was revealed the driver admitted to being awake for over 24 hours.  In 2011 alone, there were 88,000 victims of large-truck crashes with 3,700 killed in that year.  The National Highway and Traffic Safety Administration reports that fatalities increased in 2012 by four percent to 3,921.  By far, these accidents affected occupants of other vehicles far more than the people in the trucks.

291281_4378Truckers are currently under a 14-hour restriction for time on the road.  Recent efforts by the trucking industry have been made to lift that restriction so drivers don’t feel compelled to push through the 14 hours rather than take a nap, since the nap during the 14 hours doesn’t extend the time allotted by regulation for driving a commercial vehicle.   Other truck driver regulations include a mandated 30-minute break after the first eight hours, a limit of 70 hours on total driving time for an eight-day period, and a mandated 34-hour break once a week.  The trucking industry has pushed back against the regulations, but the Federal Motor Carrier Safety Administration has placed the blame on trucking companies’ over-stringent expectation placed upon the drivers to deliver goods by a specific time.

In addition to driver behavior, regulations also guide how trucks are constructed, maintained, and used to transport hazardous materials.  When a truck accident occurs in New Mexico, an experienced attorney can help thoroughly investigate what party is responsible.  Drivers must enter their activities in a log book that tracks their hours of service in a 24-hour period to avoid overly fatigued drivers.  Unsafe driving, whether exhausted or not, is still an unfortunate reality inherent to the profession due to the incentive to make or beat deadlines.   Post-accident documentation reveals that drivers self-medicate to stay awake through use of illegal drugs or abused prescription medication. Immediate investigation can help determine whether the driver or the company failed in their duty to maintain safe practices.  Like airplanes, commercial trucks have black boxes that record the drive and can help determine the specific occurrences involving the truck. Continue reading →

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Accident and injury can happen anywhere in New Mexico, but if a slip and fall or work injury occurs on government property or from the error of a government employee, the path to recovering damages presents different obstacles.  Hiring knowledgeable New Mexico personal injury attorneys is the best way to navigate these legal obstacles.  Sovereign immunity is a legal doctrine that emerged to protect government entities from liability so that government authorities would not be constantly bombarded by lawsuits and can readily move forward with civic matters.  In New Mexico, sovereign immunity is codified in the Tort Claims Act.  The Act, created in 1975, formally legislated sovereign immunity but allows suit against the government in certain, specifically defined instances.

533138_45768535For a suit to move forward against a New Mexico government entity, the action must be 1) based in one of the defined exceptions to the statutory immunity in the Tort Claims Act, and 2) committed by a public employee acting within the scope of his or her governmental duty.  Case precedent and statute defines the duty and responsibility of the employee.  In a recently published decision, Tellez v. City of Belen, the Federal Court of Appeals assessed whether or not the district court erred in its exclusion of facts included in affidavits for the deceased’s estate.  The appellate question rested on the defendant claiming sovereign immunity, which shifts the burden to the plaintiff to show the at-fault party violated a clearly established constitutional right.

The initial facts of the case involved an officer called to the scene of a fight between brothers.  One brother stabbed the other, and police were called.  The brother who committed the stabbing allegedly had a rifle which he refused to lower, and the officer shot and killed him.  The father filed suit under 42 U.S.C. section 1983 on behalf of his estate, claiming the officer used excessive force in violation of the Fourth Amendment.  The officer asserted qualified immunity, and the district court granted the summary judgment motion to dismiss the claim.  The court determined the officer did not violate the constitutional rights of the deceased, and the Court of Appeals agreed with the lower court’s assessment.  To combat the motion for summary judgment, the deceased’s estate provided affidavits of the deceased’s brother and a neighbor, who both claimed the deceased never had a weapon.  The lower court rejected these statements, measuring them against other eyewitness statements and video of the deceased with a weapon.  The Court of Appeals opinion supported the district court’s action of excluding the statements, pointing to the Supreme Court decision in Scott v. Harris, 550 U.S. 372 (2007), that established a court should not adopt a version of facts that is blatantly contradicted by the record.  The Court of Appeals also determined that, given the totality of the circumstances, the officer’s use of force was not excessive. Continue reading →

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A recent New Mexico Supreme Court case firmly established that foreseeability should not be considered when determining whether or not a duty exists.  The appellate decision arose out of a tragic, large-scale accident in Santa Fe where a truck crashed into a shopping center, killing three people and injuring several others.  The estates of the deceased filed suit against the shopping center, claiming the shopping center was also negligent and contributed to the accident.  The deceased’s estate claimed the shopping center failed to do several things, including posting signs, installing speed bumps, erecting barriers, or using traffic control devices.

In New Mexico personal injury law, an at-fault party can be held liable to an injured person only if the at-fault party owed a duty under state or federal law to the injured.  Drivers have an obligation to drive safely and follow the rules of the road, and businesses must provide safe premises to their patrons.  When the failure to uphold the duty causes an accident, the person or entity causing the injury can be held responsible in a civil court for the negligence.  Often in personal injury case law, the term “foreseeable” is used.  To determine liability, one or both parties presents the question to a jury of whether or not an accident or injury should have been reasonably expected, or foreseeable, by the owner or operator of the business or vehicle.  In Rodriguez, et al v. Del Sol Shopping Center, et al., the Supreme Court strongly established that foreseeability should not be considered in a policy argument because it can change greatly with the slight changes of facts in individual scenarios.  In this case, the Supreme Court points out that foreseeability is appropriate to analyze whether there was a breach of duty as a matter of law, but it should not be used to determine the duty’s existence.

1207877_17659484If danger or risk can be expected by a business owner or particular party, the responsibility to  guard against the danger or risk increases along with the amount of inherent risk.  The Supreme Court discussed case law precedent that maintains the risk or danger does not have to be specific but can be general.  The Supreme Court wrote in the decision that the shopping center owed the deceased patrons an ordinary duty of care under the circumstances, including the duty to prevent harm from a third party.  Limitations and exemptions to the duty of ordinary care form part of policy considerations, but it is up to the owner or operator to establish those limitations and exemptions.  Ultimately, the Supreme Court determined it was appropriate for the Court of Appeals to leave the question of foreseeability to the jury and focused much of the decision on the legal clarification of foreseeability, duty, and when duty should be limited. Continue reading →

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A New Mexico man was the victim of a fatal motorcycle crash at the end of April on Highway 31 outside of Carlsbad.  The motorcyclist crossed the center lane and struck a vehicle head-on that was driving in the opposite direction.  The man sustained a catastrophic injury in the form of severe head trauma, and was not wearing a helmet.  The motorcyclist was pronounced dead at the Carlsbad Medical Center.  While alcohol was not suspected, the ultimate cause of the accident remains unknown.

1191472_55648235Because of its inherent vulnerabilities, motorcycle accidents can cause the most severe type of injuries, also known as catastrophic injuries.  Catastrophic injuries include brain injury, spine or spinal cord injury, or any other type of permanent impairment or condition that causes loss of use of a body part or system.  These injuries require lifelong care and substantially impact the injured’s ability to earn income.  Recovering damages from a negligent motorist or manufacturer can be essential to regaining financial stability, and the New Mexico motorcycle accident attorneys at Parnall Law have the experience you need to aggressively pursue a personal injury or wrongful death claim.

New Mexico does not require adults 18 and over to wear a motorcycle helmet, but the motorcyclist’s choices prior to the accident, like not wearing a helmet, could be considered by the at-fault party as contributions to the accident and injury or death.  In any personal injury accident, the injured must show the at-fault party failed in their duty to others on the road to drive safely, and that this failure caused the accident that led to the injury.  The injured must show the amount of damages sustained by the injury, but the injury may be reduced if the injured is also found to be negligent.  New Mexico is a comparative law state that allows a fact finder to reduce the amount of damages awarded by the amount of the injured’s negligence.  For example, even if the injured is found to be 52% at fault, he or she can recover 48% of the damages available. Even though shared responsibility does not bar recovery, it is important to have experienced counsel to demonstrate how the other party bears a greater share of the fault, so your reward can be maximized. Continue reading →

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In February, the Federal 10th Circuit Court of Appeals upheld a decision to impose fines against a 67-bed nursing home in New Mexico.  The nursing home was issued the fines by the Centers for Medicare and Medicaid Services (CMS), and upheld by an administrative law judge and the Departmental Appeals Board (DAB).  The fines are formally known as Civil Monetary Penalties, or CMPs, which are issued for non compliance.  The 10th Circuit case, Sunshine Haven Nursing Operations v. U.S. Dept. of Health and Human Services, et al., provides assurance to the public that neglect and abuse in nursing homes are duly accounted for with appropriate punishment.

850688_33794153Nursing home abuse and neglect unfortunately occurs with increasing regularity in New Mexico and across the United States.  Nursing homes uphold a great responsibility to take care of the state’s elderly and the loved ones of New Mexico’s citizens.  While this responsibility is often a thankless task, each nursing home is still obliged to follow the state and federal regulations in place.  These safety laws and regulations require nursing homes to provide safe environment for their residents, and that residents receive the amount of care that is needed.  When a nursing home fails to uphold their duty to provide a safe environment and medical care as prescribed by statute and regulation, and the failure results in injury, the nursing home can be held liable under civil law.

The experienced New Mexico nursing home negligence attorneys at Parnall Law have the knowledge and understanding you need to fully litigate your or your family member’s case with the aggressive representation you deserve.  If you have been injured, call today at 505-268-6500, or contact our office online to arrange a free consultation. Continue reading →

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The New Mexico Court of Appeals recently issued an opinion in Richter v. Presbyterian Healthcare Services, et al., which addressed several trial court rulings both in favor of the deceased’s estate and in favor of the defendants.  The deceased died from heart arrhythmia caused by an undiagnosed condition called pheochromocytoma.  Following the death, the parties discovered lab results from tests ordered four years prior that would have revealed the condition that led to her death on the operating table.  The deceased’s estate filed against the two separate labs, the hospital, and the treating physicians treating the patient at the time of her death.  The estate alleged that the labs and the hospital were negligent in the delayed transmission of the lab results and medical negligence on the part of the treating physicians.

876606_68013844The original treating physicians requested lab testing to see if she might have pheochromocytoma.  The first lab was responsible for processing the sample and returning the sample to the hospital to the treating physicians.  Because the first lab did not perform the particular type of testing requested by the doctor, the first lab sent the sample to a second lab.  The second lab’s results showed extremely high levels of catecholamine, which were indicative of life threatening illnesses and neuroendocrine tumors.  These were diagnostic of pheochromocytoma, the condition that led to the patient’s death.  The tests from the 2nd lab were conducted over the weekend, but the first lab did not obtain the results till early Monday morning.  Records indicate the results were delivered to the hospital in the late morning, but there was no confirmation whether they were delivered that day or the next day.  The patient was discharged Monday afternoon, and accompanying paperwork indicated the lab results were still pending.

The deceased estate’s suit originally argued that the suit against the labs could move forward under an “ordinary negligence” theory rather than medical malpractice.  In New Mexico, the injured or deceased’s estate must establish their claim through expert testimony for any medical malpractice action.  The trial court and Court of Appeals both agreed that the failure to timely deliver the results did not require the use of special knowledge and skill, and negligence could be determined by common knowledge by an ordinary person.  Likewise, the Court also found that the hospital’s obligation to keep medical charts in good order did not require the testimony of a medical expert using his or her specialized knowledge.  The Court of Appeals upheld the trial court’s decision to apply the standard of ordinary negligence to the labs and the hospital in the deceased estate’s case.  The Court of Appeals also reversed the summary judgment in favor of the lab, citing that there was enough evidence to support a finding of negligence that the lab failed to deliver the results to all the physicians who should have received them. Continue reading →

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New Mexico became the forty-second state to ban texting by all drivers.  Governor Martinez recently signed a bill into law that prohibits all drivers from texting while driving.  Previously, New Mexico enacted law that prevented teens from texting while driving if they had a learner’s or provisional license.  The new law makes it illegal to send or read emails and text messages, or perform internet searches on hand-held devices and phones.  Punishment includes a $25.00 fine for the initial violation and $50.00 for any subsequent violations.  The law provides the exception of contacting medical or emergency services.

The National Highway Traffic Safety Administration (NHTSA) estimated that 421,000 people were injured in a motor vehicle crash in 2012 due to distraction.  3328 people were in fatal accidents.  While fatal accident decreased from 3360 in 2011, general injuries jumped from 387,000 in 2011.  Distracted driving includes adjusting a radio, CD player, or MP3 player; using a navigation system; watching a video; talking to other passengers in the car; performing personal grooming; eating and drinking; using a cell phone or smart phone; and texting.  According to the NHTSA, the largest group to be involved in a distracted-driving accident are teenage drivers, who made up 11% of the fatal crashes.  Cell phone use was the greatest type of distraction for drivers between 15 and 19 years old.

1131636_79596033New Mexico requires all drivers to drive safely on the road.  In a civil action, if another driver fails in their duty to drive safely and the failure leads to an accident involving one or more vehicles, they can be held liable for the damages they caused.  This damage can include, but is not limited to, property damage, medical bills, and lost wages. The recent passage of the law to ban texting while driving codifies the expanded definition of what safe driving must look like in the state of New Mexico.  If texting or even general cell phone use by the accident-causing driver is involved, proof of such use can show the at-fault driver was negligent and this negligence caused the accident and the injuries stemming from the accident.  Eye witness statements and subpoenaed cell phone records can help reveal whether or not the driver was distracted, and it is important to have an experienced New Mexico Distracted Driving Attorney to assist you in this crucial investigation following the accident. Continue reading →

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New Mexico law makers recently assessed the current laws and agencies related to reporting child abuse after a nine year old boy was allegedly kicked to death by his mother.  This death came after at least three prior investigations by law enforcement and social workers.  The proposed solutions ranged from addressing the high number of caseloads, frequent turnover, collaboration between agency social workers and law enforcement, and increasing the public’s responsibility for reporting abuse.

sad-girl-on-steps-790902-mThe president of a non-profit group opined that the breakdown is not in the laws governing child abuse and reporting, but the implementation of that system.  The non-profit president pointed to inadequate funding and limited resources, asserting the lack of those things reduces the ability of social workers and law enforcement to properly protect children.  An attorney went past this sentiment and claimed that general incompetency is present, rather than an overextended agency.  The article cites the statistic that New Mexico has one of the worst rates of child abuse deaths, with 80 deaths between 2008 and 2012.

Child abuse is a heart-wrenching circumstance that affects loved ones, friends, and members of the public who have formed a relationship with the abused through teaching or providing services to the family.  The abuser should be held accountable, but others may bear responsibility as well for the child’s injuries or death.  New Mexico law requires professionals and regular citizens to report suspected abuse, but it also places a duty upon law enforcement agents and social workers to keep children safe.  Holding any agent of the state accountable is a very tricky process and sovereign immunity must be considered. Continue reading →

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The 10th Circuit Court of Appeals, which includes New Mexico, Colorado, Oklahoma, Kansas, Utah, and Wyoming, issued an opinion last month which addressed a woman’s case against the Transportation District.   The Transportation District owned the buses that the injured woman alleged to have caused her harm.  The injured woman stated in one court document that she was struck by a bus once and fell on the bus the other two times.  The injured woman brought a case against the public transportation agency, claiming that the company refused to pay her medical care, even though they paid for others’ medical care.  She sued for discrimination under three federal anti-discrimination statutes, asserting that the Transportation District refused to pay for her treatment because of her race.

Public TransportationThe woman included in her amended complaint the names of nineteen individuals that received payments for medical care for injuries, but only specifically discussed three individuals’ differing races and circumstances surrounding their injuries.  The 10th Circuit Court of Appeals agreed with the lower court’s ruling to dismiss the suit, stating that the woman failed to show that the other injured people of another race named in her suit were injured in the same way and pursued the same course of action.  The Court also stated that she did not connect her discrimination to the performance of a contract for the use of public transportation, and pointed out that the alleged acts were tortious and not ones based out of contract.

The woman pursued a different avenue of legal relief for her personal injuries sustained by her collision and falls with the buses.  Whether it is an injury sustained from a bus collision or a standard consumer sedan, the laws of New Mexico require all drivers of the road to drive safely for fellow motorists, bike riders, and pedestrians.  When a fellow driver fails in their obligation to follow the rules of the road, and this failure causes injury to you or a loved one, that person can be held liable for their negligence for expenses like lost wages, medical bills, and future medical expenses.  New Mexico is a fault-based state, where the at-fault party is responsible for the injuries, both personal and property, that are caused.  However, any damages that are awarded can be reduced if the injured party was also negligent.  If the pedestrian also failed to use reasonable care and that contributed to the injury, then they can only recover the percentage of damages the at-fault party caused.

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1-40 was closed for several hours in both directions after a fatal accident involving a semi-truck.  The semi-truck crossed the median and collided with another truck, killing all three people inside the vehicle.  Authorities ruled out alcohol, but at the time this article was published, the cause of the crash was not determined.  The driver had extensive injuries along with his passengers and both were treated at the University of New Mexico Hospital.

1228351_92655525General auto accidents can cause a range of injuries from minor scrapes to life-long paralysis or death.  Due to the dominating size of semi-trucks, accidents involving semi-trucks and standard consumer vehicles can be devastating in the scope of injuries sustained by all involved.  Stringent federal regulations are in place for the driver, the vehicle, and the trucking companies who own and send out vehicles.  Vehicles who transport hazardous materials have additional special guidelines on how the materials should be handled and stored.  These guidelines are all found on the Federal Motor Carrier Safety Administration (FMCSA) website.  The FMCSA emphasizes that “safety is good business” and lists sobering statistics of the 5,212 fatalities and 91,993 injuries from large truck crashes in 2005.  The site also provides factors hat lend to the crashes that are preventable including speeding, use of controlled substances, driver fatigue, failure to use safety belts, and high turnover of drivers within the company.

All drivers in New Mexico, regardless of the type or size of vehicle, are obligated to fellow drivers to follow the law and drive safely.  Drivers and trucking companies are liable for damages to those that are injured or to the family members who are killed when they fail to follow the FMCSA regulations described above or any other New Mexico law regarding transportation on the roadways.  When accidents happen the trucking company’s insurance carrier often investigates quickly to determine what happened, and work to minimize cost and liability for the trucking company.  An experienced auto accident attorney is essential following a semi-truck accident to provide a thorough investigation for the injured or deceased’s family.  Often, trucks are based in other states outside of New Mexico, and a skilled attorney will know what to consider when filing the personal injury action by looking at the location the accident, the residence of the injured, and the place of operation or formation of the trucking company.

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