New Mexico Injury Lawyer Blog
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In past blog posts, we have covered what must be shown by the injured plaintiff in a personal injury action.  Often, the elements of a personal injury action are summarized as duty, breach, causation, and damages.  A duty is usually created by statute or case law, where a standard of care or behavior is expected and owed by the at-fault party to the injured person.  1341162_75498681If the at-fault party fails to uphold that duty, and an injury resulted because of the failure, the at-fault party can be held responsible for the damages that were incurred because of the injury.  While these are the cornerstones of a personal injury suit, many other factors must be considered to ensure the success of a civil action.

A recent New Mexico Court of Appeals personal injury case illustrated how the location of the injury and the location of the parties involved affected whether a suit can be filed in New Mexico state court.  Following an injury in a hotel’s exercise facility, a woman filed suit for the damages arising out of her injury.  While the injured woman in Trei v. AMTX Hotel Corporation was a New Mexico resident, the accident occurred in a Holiday Inn hotel in Texas.  The parent company of the franchised hotel was a New York corporation.  The corporation participated in discovery, or exchange of evidentiary information, but maintained that it could not be sued in New Mexico for lack of personal jurisdiction.  The trial court dismissed for lack of personal jurisdiction, and the woman appealed.  Continue reading →

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New Mexico offers a lot of outdoor recreational activities for its residents and tourists.  These activities, like skiing, bungee jumping, and horse-back riding, all have inherent dangers as a part of the activity.  Because of these inherent risks, owners of activity companies often require participants to sign “waivers of liability” or “assumption of the risk” forms where the participant acknowledges he or she is aware of these risks and is choosing to participate anyway.  467704_74836208These forms are designed to shield the activity operator from liability in a civil suit. 

New Mexico has enacted a law specific to the skiing industry, N.M. Stat. Ann. §§ 24-15-1, known as the “Ski Safety Act.” This places responsibility on the operators to maintain the lifts and tramways, but responsibility for skiing safety lies on the individual.  The operators must also carry insurance, maintain a ski patrol, and post or announce appropriate warnings and notices.  If a skier contributed to his or her own injury, the operator can only be held liable if there was negligent operation, maintenance, or repair.

It can sometimes be difficult to tell whether an injury occurred as a result of operational negligence or the fault of the skier.  In Wood v. Angel Fire Ski Corporation, a woman riding the chair lift hopped off the lift and became stuck with her crossed skis, remaining in the path of oncoming chairs and skiers.  According to the woman’s complaint, the lift operator observed her situation but didn’t stop the lift, only shouting for her to move out of the way.  As the woman fell forward to get out of the way, she severely injured her knee.  The woman had to have three knee operations and extensive physical therapy as a result of this injury. Continue reading →

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When you entrust your loved one to a New Mexico licensed care facility for elder care or other long-term medical assistance, you expect the staff and medical providers to operate with the highest level of care when treating your family member.  New Mexico requires staff at these facilities to conduct a full assessment of the patient’s health and enact a plan that meets the level of care that is needed.  521961_35613754If the staff or providers fail to maintain the necessary care mandated by law, and an injury or death results from this negligence, the facility can be held responsible for the damages that result from the injuries or death.

In prior blog posts, we have written about the elements of a civil action:  duty, breach, causation, and damages.  A recent 10th Circuit case, Holley v. Evangelical Lutheran Good Samaritan Society, focused on the causation element.  The deceased was a patient at a long-term care facility in New Mexico following a catastrophic hang-gliding accident where he suffered severe head and neck injuries.  The patient was a quadriplegic and unable to to move outside of blinking and smiling.  Occasionally, his body was subject to involuntary movements when he coughed, seized, or had muscle spasms.  His condition required his headboard be raised at a 45-degree angle when he was in bed, and that he be placed on his back or right side.  Continue reading →

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Cancer is a devastating diagnosis to all who receive it.  However, early diagnosis can aid in treatment and recovery.  Limited access to care and a type of cancer that is difficult to detect may lead to its discovery at a later stage, but what a patient does not and should not expect is a misdiagnosis at the hands of medical professionals. 466101_20161383A decision issued on September 18, 2014 by the New Mexico Supreme Court reversed a summary judgment in favor of the hospital and remanded the case back to the trial court to determine if doctors had breached standards of care in failing to tell a patient about his potential cancer diagnosis in time to save his life.  Diego Zamora, as Personal Representative of the Estate of William “Mack” Vaughan v. St. Vincent Hospital, —P.3d—2014, 2014 WL 4638900 (Case No.  33,770). 

In August of 2002, Mr. Vaughan had arrived at the emergency room of St. Vincent Hospital with abdominal pain.  He was seen by the ER doctor and a general surgeon, who called in a contract radiologist to perform an abdominal scan on the patient.  The radiologist concluded that the patient probably had a diverticular abscess, but as a secondary diagnosis, the patient might have cancer.  It is unknown whether the radiologist told the other physicians about the possibility of cancer.  The general surgeon relayed the information about the diverticular abscess to the patient and recommended he stay for observation, but the patient declined and was discharged from the emergency room.

 

 

 

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Screen Shot 2014-08-29 at 2.31.26 PMThe New Mexico Wrongful Death Act allows monetary recovery for a death that occurs as a result of someone’s negligence.  The statute provides that parties seeking recovery can pursue an action if legal recourse would have been available for personal injury.  Only certain family members  can recover damages as beneficiaries in a wrongful death lawsuit, such as a spouse, minor child, or parent.  Filing suit is generally handled by a personal representative, often a relative, and any counsel they employ. 

The recent state court of appeals case in New Mexico, Spoon v. Mata, addresses a denied petition for a woman (Petitioner) seeking to be a co-personal representative in a wrongful death action.  The gentleman who died had a wife and a child.  The wife filed a wrongful death action and did not name the child as an heir, awaiting paternity to be established.  Once paternity was established, the petitioner moved to intervene in the action and assert claims on behalf of the child for a loss of consortium claim and the wrongful death action. Petitioner claimed that there were conflicting interests, making a separate co-representative necessary. Petitioner’s request was denied by the district court, which reasoned that there wasn’t any evidence the child’s interests were not adequately represented.

By the briefing of the appellate case, the mother and her counsel appeared to have conceded that Petitioner should be able to intervene in the loss of consortium claim.  The Court of Appeals agreed and included that change in its Order to Remand.  The Court of Appeals, however, did not agree that Petitioner needed to be a co-representative in the wrongful death action.  The court stated that a statutory beneficiary, like the child, is owed a duty by the personal representative and the personal representative’s attorney to act with reasonable care regarding his or her interests.  After assessing the evidence and arguments submitted, the appellate court reasoned that there was nothing present to warrant the removal of the mother as personal representative, any conflict was merely potential and not actual, and there were other legal avenues to ensure a good result for the child, like the appointment of a guardian ad litem.  The Court determined that the Wrongful Death Act was structured to avoid each individual beneficiary pursuing his or her own claim.  The opinion ended with the appellate court stressing the importance of the child’s claims being thoroughly considered by the personal representative and the personal representative’s attorney.

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In the summer months, you may come across construction on state highways and county roads that typically require you to avoid items on the road, drive at reduced speeds, and increase awareness on the road.  Even with safety precautions in place, these New Mexico road construction sites can be conducive to an auto accident.  Like other automobile accidents, another driver may be responsible for your injuries, but the state of New Mexico may be liable as well, depending on what caused the accident.

break-682825-mIn a recent decision, the New Mexico Court of Appeals allowed the estate of a woman killed in a fatal car accident to proceed with their law suit against the Dept. of Transportation (DOT).  In Lujan v. New Mexico Dept. of Transportation, the driver was killed after her car flipped several time due to semi-truck tire debris left on an exit ramp.  Her estate alleged that the DOT failed to clean off the debris in a timely manner, which led to the driver’s death.  In the original suit, the trial court dismissed the claim against the DOT at the summary judgment stage, after it was established the DOT had no constructive knowledge of the tire debris.  The Court of Appeals disagreed with the lower court’s determination, and held that fact-finders could conclude that the DOT failed to uphold its duty to regularly inspect and maintain safe highways.

In personal injury cases, it is necessary to show that the at-fault party owed a duty to the party that was injured.  In Lujan, the general duty of the DOT to provide safe roads to the public was not questioned; instead, they inquired about whether knowledge of the debris was necessary for the duty to remain in place.  The Court of Appeals acknowledged that much of New Mexico case law surrounding the DOT’s duty to the public centered on fact-specific inquiries to determine whether a duty was owed to the injured or deceased party.  The Court pointed to the state Supreme Court’s recent definitive turn away from fact-specific inquiries to answer whether a duty was or was not present in Rodriguez v. Del Sol Shopping Ctr. Assocs. Continue reading →

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The New Mexico Supreme Court issued a decision this month that reviewed the changes made to the UM/UIM coverage requirements and assessed whether they applied to claims and contracts that pre-date the law.  In Montaño v. Allstate Indemnity Co., the Supreme Court changed the law to protect the rights of the insured.   Now, if an insurance company wants to limit its liability, the carrier must provide the insured an opportunity to reject the coverage in writing after reviewing the entire policy.  Another case, Jordan v. Allstate Ins. Co., which held that UM/UIM coverage rejection must be provided in writing to the insured, arrived soon after the holding in Montaño, and in that case the court declined to limit the application of the ruling to future cases.

1370556_32170671The plaintiff in the recently released decision, Whelan v. State Farm Insurance Co., was the owner of a car involved in an accident with his father in 2002 that eventually led to his death in 2004.  The owner of the car and insurance policy did not have UM/UIM coverage, but he was insured under a $50,000 liability policy.  Since he did not have UM/UIM coverage, he was only able to recover the amount carried by the at-fault driver, which was $25,000 worth of insurance.  After the ruling made in Jordan in 2010, the driver demanded $25,000 to equalize the UM/UIM total of $50,000.  The insurance company declined to extend and back date the coverage, citing a limitations provision in the policy that barred recovery unless civil ligation commenced within six years after the date of the accident.

The insured man filed for a declaratory judgment against the insurance company to follow the holdings of Jordan and Montaño. The district court agreed with the insured man and determined that UM/UIM coverage must be equalized to the limits of the policy’s liability coverage, and that policies that previously rejected UM/UIM coverage can be retroactively invalidated, pursuant to the New Mexico Supreme Court holdings.  The district court also held that the language in the policy limiting the ability to make UM/UIM claims within six years was also unreasonable and unenforceable. Continue reading →

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When you’ve been injured in a New Mexico car accident, one easily thinks of the other driver as the liable party.  However sometimes car accidents are caused by a defective car or car component.  Manufacturers may be held accountable under the legal theory of strict liability if the product causes harm due to an unreasonable risk of injury from its condition or use.  The risk of harm becomes unacceptable under the law, if a reasonable person with full knowledge of risk finds it unacceptable.  Strict liability applies to all manufacturers of all products, including children’s toys, power tools, or devices used for medical procedures.  

A New Mexico Supreme Court case, Sabrano v. Savage Arms, Inc., recently focused on whether or not a gun manufacturer can be held liable for the injuries and ultimate death of a woman who was killed by a man using a rifle that was manufactured and paired with a lock.  The perpetrator used a key not designated for unlocking to unlock the lock and use the rifle.  The gun manufacturer moved to dismiss at the trial court level, alleging that it was immune from the strict liability suit under the Protection of Lawful Commerce in Arms Act (PLCAA).  The PLCAA provides gun manufacturers a shield from suit when the harm is solely caused by the criminal or unlawful use of firearm products by others when the product is functioned as designed as intended.  (See 15 U.S.C., Sec. 7901 (b)(1)). 

1434765_94848220The deceased’s estate avoided dismissal at the trial court by pointing to the fact it was the lock, an accessory made by a gun manufacturer, that malfunctioned – not the rifle itself.  The estate argued that this detail removed the shield of the PLCAA.  The Supreme Court, assessing the language and intent of the statute, disagreed.  The Court ultimately determined that because the death ultimately resulted from the action of a third party using the rifle for criminal and unlawful use, the PLCAA remained intact for the gun manufacturer.  While the Court found that an exception did not exist for the gun accessory, the Court did allow the claim against the lock distributor to stand.  The Court also found that the PLCAA’s exception for breach of contract or warranty did not apply to the lock. Continue reading →

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A recent Federal Court of Appeals case discusses whether or not a New Mexico family truly rejected additional Uninsured/Underinsured (UM/UIM) coverage as dictated by New Mexico law.  The man was seriously injured in a car accident and incurred more than $200,000 in medical bills.  The injured man held a policy through GEICO, which covered bodily-injury coverage of $50,000 per person and $100,000 per occurrence. The other driver was underinsured and didn’t have enough out of his policy to make up the difference, so the injured man looked to make an UM/UIM claim.

251732_4297The initial policy issued in 2009 also provided UM/UIM bodily coverage limits of $25,000 per person and $50,000 per occurrence on each vehicle. Later, GEICO sent out forms to the family titled a “new business packet” that included the policy, endorsement declarations, and UM/UIM option form.  Two pages were provided with check boxes on each page.  The first box was next to a paragraph that showed the policy holders agreed that they understood the policy and the election of UM/UIM coverage, and it was followed by a second paragraph rejecting the UM/UIM bodily injury coverage.  The box on this page was checked.  The second box was next to a paragraph with an explicit acceptance of UM/UIM coverage, followed by several options of varying amounts of coverage.  This was left unchecked, and the whole form was signed and returned to the insurance company.  The company acknowledged the change by sending back an acknowledgment along with a refund of the amount paid for that coverage.

Less than three months later, the husband was injured in the car accident.  When they sought coverage under the UM/UIM policy, the insurance company denied the claim and pointed to the rejection.  The family filed suit, and the insurance company argued that the rejection was valid under the New Mexico law, which requires written rejection of the explicitly written policy option.  The victim countered that the option form did not meet the legal standards because they were not presented with a discussion or explanation of the stacked coverage.  The 10th Circuit Court agreed with the insurance company and found that the signed form complied with New Mexico law and was consistent with other recent state Supreme Court decisions. Continue reading →

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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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