When individuals are injured or killed in an accident that was the fault of another party or parties, there are many hurdles that they or their families must overcome before they can be compensated for the injuries they endured. When there is only one culpable party involved, the case may be more straightforward, but often there are multiple parties that may be held liable. This may be because they were directly or proximately responsible.

Carnival SceneNew Mexico law follows the theory of contribution in these joint and several liability actions. These at-fault parties have the right to contribution, which allows them to only be responsible to the victim for the part that they actually played in the accident. In these cases, the victim will only be entitled to damages relative to the amount of fault for which the specific tortfeasor was responsible. They will need to collect separately from each responsible party. Under New Mexico law, if the plaintiff is found to have partly caused their own injuries, they will not be barred from recovery, but instead their recovery will be lessened relative to their percentage of fault.

As is the norm across jurisdictions, there are some very specific exceptions to the rule discussed above. First, this does not apply to intentional tortfeasors, vicariously liable defendants, some product liability cases, and even some cases involving inherently dangerous activities. It is important that individuals involved in these types of cases contact an experienced and dedicated attorney to help them understand their rights.

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The Supreme Court of Hawaii recently released an opinion addressing a physician’s duty to disclose information to a patient. The opinion stemmed from a 2008 incident when the plaintiff suffered a lower back injury at work and sought treatment from his primary care doctor. The plaintiff was given conservative treatment, and when that did not work, he was referred to a specialist. The plaintiff then signed a consent form to an operation on his lumbar disc, and the surgery was performed.

Medical DoctorThe language on the consent form indicated that he was informed of the significant risks and that the doctor did not promise a result or cure. There were additional forms that did not provide a place for the patient’s signature. Following the surgery, the plaintiff began suffering more pain and discomfort. He then consulted with another doctor, who stated that the surgery “should have been at a different level” and that his subsequent additional pain was because of the surgery.

The plaintiff filed a complaint against the doctor, alleging medical negligence and failure to obtain informed consent. The defendants moved for summary judgment, claiming that the case should be decided in their favor because the plaintiff did not have medical expert testimony as to the materiality of the risk. The Supreme Court vacated the lower court’s judgment and found that the common law factors did not apply, the defendant was not entitled to judgment as a matter of law, and the lower court erred in their decision.

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With the prevalence of ride sharing and privately operated car services, discussions regarding the rights and liabilities of those injured by or as passengers in these vehicles have begun to make headlines. Although taxi cabs have been around for decades, the increased availability of private driving services has resulted in many legal questions. A recent national newspaper article reported on these concerns from the perspective of the drivers.

Taxi LaneGenerally, these private car services are app-based and driven by individuals not employed by any company. These drivers operate their own vehicles and are supposed to be insured. At this point, these drivers are not considered “commercial drivers,” and as a result their insurance policies do not address the complicated issues that may arise when they injure someone in a car accident.

In most cases, when a passenger is injured in a car accident, there are several ways they may try to recover damages for the injuries they suffered. For example, an accident victim may bring a negligence lawsuit in civil court, or they may try to collect from the driver’s insurance company or even their own insurance company. In New Mexico, if the parties have low coverage limits, the injured party may be able to collect enough by bringing claims against both their own and the other party’s insurance company.

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The Supreme Court in Wisconsin recently released an opinion in a negligence case brought by a plaintiff who was injured when she was waiting in line to ride on a hot air balloon. Apparently, the plaintiff had been waiting in line for about half an hour when one of the hot air balloons began to move toward the people waiting in line. Evidently, the balloon was untethered and struck the plaintiff, knocking her over.

hot-air-balloons-439331_960_720The plaintiff brought a negligence lawsuit against the balloon operator. Evidence concerning the operator’s lack of experience was submitted to court, and the balloon operator admitted that if he had known about the weather, the balloon would have been tethered. However, despite the evidence, the defendants moved for summary judgment and asked the court to dismiss the case.

The defendants argued that the company was protected by the state’s recreational immunity statute and that the plaintiff signed a waiver freeing the company from liability. The lower courts all agreed with the defendants. However, when the case reached the state’s supreme court, the decision was reversed. The court found that the company was not entitled to protection because they were an “occupier,” not an “owner” of the land. Furthermore, the court explained the statute didn’t apply because the hot air balloon should not be considered “property” under the statute. Finally, the court found that the waiver of liability signed by the plaintiff was invalid because it went against public policy.

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The Maine Supreme Judicial Court recently released its opinion in a case involving a personal injury lawsuit against a city. According to the facts outlined in the court’s opinion, the plaintiff was visiting the city hall when he tripped and fell down several steps. He ended up slamming into the concrete floor and then proceeded to crash into glass doors. City employees contacted emergency personnel, while other employees performed rudimentary first aid. The plaintiff alleged that one of the employees at the Clerk’s office asked him to sign some insurance paperwork in order to be transported to the hospital, but the city disputed this fact.

time-273857_960_720A few months after the fall, the plaintiff spoke with someone at City Hall and told them he had the intention to file a claim against the city. Approximately 197 days following the fall, the plaintiff’s attorney sent a letter of a claim against the city, and the plaintiff then went on to file the complaint with the superior court. The city moved for summary judgment and claimed that the plaintiff did not comply with the state’s Tort Claims Act because he did not submit a written notice within the 180-day timeline. The plaintiff argued that he substantially complied because the City knew he was injured on their property, and he verbally told them he would bring suit. Ultimately, the Supreme Court of Maine found that the plaintiff did not comply with the statute by providing verbal notice. Written notice was required.

The Importance of Complying with Negligence Statutes of Limitations in New Mexico

As the above case illuminates, it is extremely important that individuals comply with the various statutes of limitations that apply in New Mexico personal injury cases. No matter how strong a plaintiff’s case is, if those procedural requirements are not met, it is likely that the case will be dismissed.

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The Supreme Court of North Dakota recently released its opinion in a case in which a woman alleged she sustained injuries after attending a fireworks display. Evidently, the woman attended a fireworks display at a fairgrounds that was free of charge to the public. The woman was looking for a place to observe the fireworks show, but she stepped onto a floor board in the grandstand and fell to the ground. Apparently, the floorboards were rotted, so when her weight was placed on the boards, they were compromised and split.

ferris-wheel-1007910_960_720The woman went on to sue the fairgrounds, claiming that they were negligent in maintaining the grandstand. Both parties stipulated to what had occurred, but the defendant moved to dismiss the claim, stating that no genuine issues of material fact existed. The lower courts agreed with the defendant and found that the defendant was protected by the recreational use immunity statute of the state. The plaintiff argued that the statute was not applied correctly. However, the court found that was not the case. The plaintiff specifically argued that the fairgrounds still had a duty to supervise. The court determined that the supervision requirement does not override the recreational use immunity, and thus they affirmed the lower court’s finding.

Implications of New Mexico’s Recreational Use Statute 

Almost every state has a recreational use statute that is designed to educate the public on the responsibilities of public and private land and the implications if one is injured on that land. Most states immunize landowners if they permit the public to enter their premises for recreational activities. However, the states can vary drastically in regard to what land is protected and what is considered recreation.

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Over the past 18 months, auto manufacturers have announced numerous recalls, reaching into the millions of vehicles. These recalls have involved a number of issues, ranging from faulty ignition switches to airbags that sporadically deploy without warning. In a recent case brought by a couple who sustained minor injuries in a Saturn Sky, the jury found that although the vehicle was “unreasonably dangerous” because it contained a faulty ignition switch, that was not the cause of the accident, and GM should not be held liable as a result. However, the judge overseeing the trial warned followers not to read too deeply into the jury’s verdict, since it may not be an accurate prediction of how other cases may turn out.

keys-473462_960_720Dangerous Components Make for Dangerous Vehicles

Auto manufacturers have a duty to their customers to make safe vehicles. Of course, despite the best efforts of a manufacturer, a defective part may be included in a vehicle, making it dangerous to drive. Most of the time, when this occurs, a manufacturer will issue a voluntary recall in order to fix all the potentially dangerous vehicles. However, a recall may be issued too late to help all drivers. In these cases, injured motorists may be able to seek compensation for their injuries through a product liability case against the auto manufacturer.

Ignition Switch Claims

Over the past few years, drivers of various GM vehicles have reported problems with the ignition switches installed on the company’s vehicles. When the ignition switch is defective, it can slip out of place and cause the driver to lose control of the vehicle. In some cases, drivers have also reported that the vehicle becomes difficult to stop once the switch slips. The defective switches have resulted in hundreds of serious accidents, some fatal.

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Earlier last month, the Supreme Court of Utah issued a written opinion regarding whether a four-year-old child could be held liable for his own negligent actions. In the case, Nielsen v. Bell, the court ultimately concluded that a four-year-old child cannot, as a matter of law, be found negligent for his own actions. Only children above the age of five are capable of negligence under the state’s law.

kindergarden-569198_960_720Neilsen v. Bell:  The Facts of the Case

Neilsen was babysitting the Bell’s four-year-old son. At some point during the parents’ absence, the young boy picked up a plastic toy dolphin and threw it at Neilsen’s face. The toy struck her in the eye, and she ultimately lost all vision in that eye. Neilsen filed a lawsuit against the Bells, alleging two theories. First, she claimed that the Bells themselves were liable under the theory of negligent supervision. Second, she claimed that their son was individually liable to her under the theory of negligence.

The court hearing the case dismissed the negligent supervision claim, finding that there was insufficient evidence to submit the claim to a jury. However, the court did allow the case to proceed against the young boy on the theory of negligence. The Bells filed an immediate appeal to a higher court to review the decision.

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Earlier this month, an appellate court in Oregon issued a written opinion in a premises liability case filed against a city employee, holding that the employee was not entitled to immunity under that state’s “recreational use” statute. In the case, Johnson v. Gibson, the court determined that the employee was not properly considered an “owner” of the land, and therefore he was not entitled to the immunity afforded to landowners who allow the public to use their land for recreational purposes.

central-park-1389420The Facts of the Case

The plaintiff, Johnson, was injured when she stepped into a hole while jogging in a public park. The hole had been dug by the defendant, Gibson, in the course of his employment as the city employee charged with maintaining the park. Gibson dug the hole to fix a sprinkler that had previously malfunctioned. Johnson filed a lawsuit against Gibson, as well as his supervisor, Stilton, arguing that their collective negligence in leaving the hole unattended resulted in her tripping and getting injured.

The case was filed in a federal trial court. However, since the accident occurred in Oregon, the federal court was required to apply Oregon law. So the federal court paused the case and asked the Oregon court for advice on interpreting the Oregon recreational use statute that was at issue in the case.

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Pedestrian accidents have the potential to be some of the most dangerous types of accidents, given the complete lack of protection a pedestrian has from an oncoming vehicle. While pedestrian accidents account for about 10% of the total number of auto accidents nationwide each year, they represent 15% of the total number of auto-accident-related fatalities. Thus, on average, a pedestrian accident results in more serious injuries than an accident with just motor vehicles involved.

crosswalk-1532024Pedestrian accident cases present a number of potential legal issues that may come up in a trial between the injured pedestrian and the motorist who struck them. One of the most common issues is whether the pedestrian was at fault in the accident. This situation may arise if a pedestrian is hit while crossing the street where no crosswalk is present.

New Mexico is a “pure comparative negligence” state, meaning that a plaintiff will still be entitled to recover damages for their injuries even if they are partly at fault. This applies no matter what percentage of fault the judge or jury assigns to the plaintiff. However, the plaintiff’s recovery amount will be reduced by their percentage of fault.

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