Recently in Government Liability Category

September 15, 2015

Court Reverses Summary Judgment Order in Favor of City After Pedestrians Injured in Crosswalk

A California Superior Court reversed a lower court's decision in Castro vs. City of Thousand Oaks, in which the plaintiffs brought a suit against a city after they were hit in a crosswalk. According to the court's written opinion, a woman, her two children, and two other children in her care were waiting at a crosswalk. The woman pressed the button that was supposed to alert drivers that a pedestrian was walking. After pressing the button, the woman saw a car stop, so she proceeded to cross while pushing a baby stroller with the other children in tow. As she was crossing, she was hit by a van, one of the defendants in the lawsuit, but not the defendant at issue in this opinion.

crosswalk-1532024.jpgEvidently, the driver of the van did not see the pedestrian crossing warning or the pedestrians. All of the pedestrians were hit and flew into the air and suffered serious injuries. The family brought a lawsuit, claiming that the city designed the crosswalk in a manner that made the plaintiffs believe that pressing the pedestrian crossing would allow them to safely cross. After the suit was brought against the City, it argued for summary judgment and attempted to show that they were protected from the suit by the theory of design immunity under the concept of sovereign immunity.

The higher court found the theory of design immunity is designed to prevent a jury from considering the same factors that the government agency approving the design already considered in determining the viability and safety of the project. In this case, however, the court found that the city never presented the design for safety approval, and as a result a jury should be able to determine whether there was a risk to the pedestrians.

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July 21, 2015

New Mexico Police Implement New Technology to Cut Back on Distracted Driving

The police department in Farmington, New Mexico will be the first department in the State of New Mexico to implement a new technology that will prevent officers from using their on-board laptop while behind the wheel. According to one local New Mexico news source, the department is considering a plan where the on-board computer will be disabled at 20 miles per hour and shuts down completely at 25 miles per hour.

police-car-1515955.jpgAccording to the article, vehicle crashes account for roughly 40% of all police officer fatalities, and they have been the single largest cause of death for police officers since the mid-1990s. A spokeswoman for the police department told reporters that the department is taking a "proactive approach," and "instead of waiting for something to happen, a tragic accident, we would rather implement it now."

This technology has been in use in the private sector for a number of years, but this is the first police department in New Mexico to use it to regulate police officers' driving habits.

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September 19, 2014

Parents of Five-Year-Old Burned By Chemicals on School Toilet File Negligence Lawsuit

The parents of a five-year-old boy who allegedly suffered severe burns after he sat on a toilet seat at his elementary school filed a negligence lawsuit against the school earlier this summer. The family is seeking compensation for the damages that were caused by the chemicals. According to a statement from the boy's mother, she was "horrified to discover that her son had a strip of raw flesh and a burn-like injury with blisters on the back of his thigh" after he returned from school the day of the incident.

toilet-1006471-m.jpgAccording to the lawsuit, another teacher at the school complained about being burned from the toilet seats, although the school has denied the parents access to any reports related to the incident. The boy's parents have stated that their son was forced to miss two weeks of school after the incident, and they felt compelled to transfer him to a different school out of fear for his safety. This lawsuit is in its early stages, so it is impossible to know if the family will be awarded damages for the boy's injury, but so far the school district is denying any wrongdoing.

How Sovereign Immunity Can Play into a Lawsuit

Since the school involved in the incident was a public school, the lawsuit must first prove that the school is not immune to the claim under the doctrine of sovereign immunity. Sovereign immunity is a long-standing legal doctrine that gives the government and government agencies immunity from a variety of lawsuits against them, including many negligence and personal injury claims. There are, however, many exceptions to the sovereign immunity doctrine that allow private citizens to sue a government entity for certain damages.

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December 12, 2013

Lawsuit Claims Bernalillo County Corrections Officer Used Excessive Force in Violation of Inmate's Constitutional Rights

file000126690561 morguefile username rollingroscoe.jpgThe American Civil Liberties Union of New Mexico has filed a federal lawsuit on behalf of a woman who claims a Bernalillo County corrections officer used excessive force on her during a 2011 strip search. According to the complaint filed in Tapia v. Zapater, Marlene Tapia was arrested and taken to the Metropolitan Detention Center for an alleged probation violation. Upon Tapia's arrival, she was strip searched and a baggie was purportedly discovered protruding from her genitalia. Rather than consulting a doctor, one of the corrections employees, Blanca Zapater, allegedly used pepper spray on Tapia's bare genitals twice. During the encounter, another corrections officer, Sargeant Angela Sena, reportedly told Zapater to stop more than once and finally took the mace from her hand.

Tapia claims she suffered swelling, burning, and pain in her genital area for weeks after the incident. In her complaint, she accuses Zapater of engaging in malicious, wanton disregard for her rights as well as her physical well-being. Tapia stated she fully complied with all officer requests and did nothing to merit the use of a chemical agent on her person. Detention Center policy states mace may not be used on an inmate unless he or she poses a safety threat to staff or other prisoners. Although Zapater was apparently disciplined for the pepper spray incident, she is still currently employed at the facility.

In her lawsuit, Tapia claims Zapater violated her Eighth and Fourteenth Amendment Constitutional rights as well as sections of the New Mexico Tort Claims Act. She seeks damages for her suffering and personal injuries, attorneys' fees, and punitive damages to deter similar cruel and unusual behavior in the future.

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November 6, 2011

Family Receives $950,000 in Officer Involved Shooting

On December 4, 209 Rodrick Jones was shot in the back by an APD officer who was subsequently fired by APD as a result of his conduct involving the shooting.

Police shooting attorneys representing the family, Joe Fine and Brad Goodwin, pointed out that APD’s suggestion that Rodrick Jones was involved in a robbery was not supported by the fact that his fingerprints were not at the residence; there was an absence of stolen property in his possession; and Mr. Jones was in possession of any burglary tools. Rodrick Jones was a forty-two year old father of seven, a former US Air Force Security Officer and a security guard at Kirtland Air Force Base.

The $950,000.00 settlement is, to the family, recognition that APD made a serious mistake and that APD will attempt to improve its practices and procedures regarding the use of deadly force.

May 6, 2011

Is Santa Fe Responsible for Bus Driver's Conduct?

Local news is reporting a Santa Fe bus driver is behind bars following reports that he molested, or at least inappriately touched, his young passengers.  The story began to unravel when one especially shrewd passenger managed to record the Santa Fe bus driver's horrendous conduct on her camera phone.  After the recording was shared with Santa Fe authorities, the bus driver was called in for questioning. 

According you reports, the bus driver quickly confessed to having contact with not only the student who recorded his assault, but also other victims including an 8-year-old. Admittedly, no possible financial recovery could reverse the impact that the bus driver had on each of his victims however, the question nonetheless remains, who could be held responsible for the driver's conduct. Typically, such matters are goverened by New Mexico personal injury theories of agency. Agency liability claims are premised on the theory that an employer can be responsible for the actions or conduct of an employee. Although all New Mexico injury cases must be evaluated separately, common themes that arise are whether or not the employee: was in the course and scope of his employment, was acting under the direction of any supervisor, had a pattern of behavior or record that suggested such conduct was likely to occur, or even if the employee appeared to be an agent of the employer.


Although the bus drivers currently incarcerated and facing significant criminal charges, this does not preclude victims from pursuing civil lawsuits that seek money damages. Although the story is still developing, it is clear that the girl who managed to record the attack not only saved herself future encounters, but also saved countless others a similar fate.

February 16, 2011

Clovis Cop - Wrongful Death & Bodily Injury

On November 17, 2010, a Clovis police officer was driving his police vehicle during his lunch break. He was eastbound on Grand Street. He was traveling
56 mph in a 35 mph zone.

The officer failed to stop at a stop sign at the intersection of Grand and Sycamore. He collided with a pickup truck in the intersection. The driver of the pickup was hospitalized with multiple fractures. The passenger was fatally injured.

On January 21, 2011, the police officer was indicted by a Curry County grand jury. The grand jury found that the police officer had been driving recklessly. He was indicted for two felonies: homicide by vehicle and great bodily harm by vehicle.

The police officer denies that he was using his cell phone at the time of the collision. The cell phone records have not yet been released.

The speed of the police vehicle, before and at the time of the collision, was captured on a recording device in the vehicle. The recording was triggered by the deployment of the airbags. The vehicle was accelerating at the time of impact. One second before impact, the speed was 56 mph. It is evident from the speed of the police vehicle that the police officer did not stop at the stop sign at the intersection of Grand and Sycamore.

Under New Mexico law, the City of Clovis is liable for damages caused by the negligence of the police officer. A New Mexico personal injury lawyer could file suit against the city for wrongful death damages caused by the negligence of the police officer. The city is also liable for the bodily injury damages suffered by the driver of the pickup. Under the New Mexico tort claims act law, the liability of the City of Clovis is capped at $750,000.00, plus medical expenses.

December 24, 2010

New Mexico Drunk Drivers: Predicting the Unpredictable

At 1:30 am on December 14, Kylene Homes left a bar in Santa Fe with a friend. The bouncer saw that Homes was intoxicated. He offered to call a cab. She refused. An hour later, Homes was driving, at a high rate speed, south in the northbound lanes of I-25, just south of Santa Fe. Homes collided with a northbound ambulance. Homes died. Her passenger and the ambulance driver were seriously injured.

The Santa Fe car crash reminded us of the deaths caused by Dana Pabst three years earlier. On November 21, 2007, Pabst was southbound in the northbound lanes of 1-25. Pabst collided with a northbound vehicle that was occupied by 6 family members. The collision killed five of the family and the wrong-way driver, Dana Pabest.

The Homes and Pabst wrong-way crashes recall a notorious Christmas eve tragedy. On December 24, 1992 Gordon House was eastbound in the westbound lanes of 1-40. House collided with a car occupied by five family members. The mother and the three daughters were killed. The father was seriously injured.

Before each New Mexico wrongful death accident, Pabst and House had made u-turns in the median of the interstate. It has not yet been determined how Homes became southbound in the northbound lanes. All three drivers were highly intoxicated. It would appear that the drivers became disoriented and thought that they were driving in the right lane of a regular highway.

While it is impossible to remove blame from these New Mexico drunk drivers, it has also become clear the drunk driving, and specifically drunk drivers making u-turns in this area is all to foreseeable. Perhaps it is time for the State to do more to prevent u-turns in the median and to alert wrong-way drivers they are on a “one-way” road.

December 20, 2010

Clovis Police: Speed Caused Accident

The horrific Clovis New Mexico car accident involving the wrongful death of an innocent passenger and the careless driving of a Clovis police officer made headlines again. This time, a report of the events leading up to the New Mexico wrongful death accident was released. According to reports, New Mexico investigators have been able to determine that the Clovis police officer was traveling at 58 mph four seconds before the accident, and one second before impact, slowed to 53 mph only to accelerate to 56 mph immediately before impact. All of this occurred on a road with a speed limit of 35 mph.

It seems as the the police officer is unable to claim he was responding to an emergency or even engaged in a hot pursuit, instead he was on his lunch break. As a result of his actions, he caused an accident that fatally insured the passenger of a pickup truck he collided with.

December 8, 2010

Raton Pedestrian Injured in Parade

A recent holiday parade in Raton, New Mexico brought anything but joy when it was released that a man injured during the festivities passed away from his injuries. Police have indicated that the 78 year old man was hit by an SUV driven by a 17 year old female. Although no charges have been filed to date, police a continuing to investigate the New Mexico wrongful death accident.

Such an accident injury is too similar to another accident case previously discussed in which a Rio Rancho motorcycle rally resulted in numerous New Mexico motorcycle accidents and injuries. Such organized events are resulting in more and more injuries throughout New Mexico. While driver error may play a part in these accidents and injuries, it is also important to make sure that the injuries could not have been prevented with a better organized traffic plan or safety measure.

Common examples of such safety measure that protect participants and such rallies or parades includes a revised traffic plan, extra law enforcement, and pedestrian crowd. Although it is not possible to determine if such factors, or lack thereof contributed to these injuries, it is nonetheless an alarming trend.

November 28, 2010

Albuquerque Employee Sexual Assault - When is the Employer Responsible

Recently an Albuquerque city employee was charged with sexual assault against a neighbor. According to the story, the city worker, while under the influence of alcohol and drugs, attempted to rape his neighbor. While this garbage employee is making headlines, this is certainly not the first time an employee has caused a New Mexico personal injury or New Mexico accident.

From a New Mexico personal injury lawyer's perspective, this sexual assault story raises the issue or respondeat superior or vicarious liability. This is when somebody, such as an employer, can be held accountable for the conduct of someone else, such as an employee. Often times for such New Mexico injury and accident cases, the question comes does to whether the employee was working under the scope and corse of his or her employment, or whether it was forceable such a person such a incident could occur. For example, the new story on this incident suggests that the driver had to submit to regular drug tests. In the event he failed any such tests and nothing was done, then the City of Albuquerque could be responsible for allowing such an individual to remain on the streets.

In addition to helping hold employers responsible for sloppy employee management, hiring, training, and retention, New Mexico personal injury claims against an employer often allow the injury victim to recover substantially more than claims limited to the employee.

November 19, 2010

Clovis Police Officer Causes Fatal Accident

A recent Clovis, New Mexico car accident, in addition to being a tragic story, highlights New Mexico government liability law, specifically, New Mexico's Tort Claims Notice requirements.

The fatal New Mexico accident occurred when a Clovis police officer ran a stop sign near Grand and Sycamore and struck another vehicle. The driver of the other vehicle was taken to University of New Mexico hospital and is listed in critical condition. Sadly the passenger died as a result of the injuries.

Under New Mexico law, each accident victim is entitled to pursue a New Mexico wrongful death claim. However, under the letter of the law, there is immediate action taken. Depending on the severity of her injuries, the accident survivor may have only three or six months to place the government on notice that there may be a potential claim. With respect to the deceased accident victim, her family and loved ones may only have six months.

These limits arise from the New Mexico Tort Claims Act that requires near immediate notice to the correct branches of the government. Although some New Mexico wrongful death lawyers have been successful in challenging these requirements, there nonetheless remains various legal requirement that must be followed while New Mexico accident victims must also cope with their injuries.

November 9, 2010

Wrongfully Prisoned Lawsuit

Currently the based-on-a-true-story movie Conviction is circulating in theaters. Elsewhere, it is becoming abundantly clear to many that the wrongfully-accused and wrongfully-convicted stories continue to emerge all over the place. ABC News' Steve Weinberg, recently ran a story about Joshua Kezer. Kezner's story begins in 1992 following a Missouri murder. After a delayed investigation, Kezner was charged, tried, and convicted of the crime and jailed nearly 16 years.

Without any physical evidence the conviction hinged on a handful of prison inmates claiming to have heard Kezer confess. Following a shift of political landscape and a new sheriff, the case was reopened and evidence discovered in the police file that cleared Kezer. After his release from prison, Kezer filed a civil suit against the law enforcement officers that put him behind bars. Prohibited from filing civil suit against the prosecutor, Kezer and his lawyers pursued a case against the law enforcement agents who withheld evidence in federal court under a well known government liability statute, 1983.

Qualified immunity cases, or 1983 lawsuits, enable the wrongfully charged and prosecuted to seek compensation when law enforcement exceed constitutional limitations or act in bad faith.

Although the final settlement of the case is confidential, it is likely in the millions.

October 26, 2010

New Mexico Jail Abuse - Sexual Conduct is Always Misconduct

New Mexico jail sexual abuse is at the forefront recently with reporting that an MDC guard was discovered to have had a "sexual relationship" with an inmate. There is no such thing as a guard having a "sexual relationship" with an inmate. Under the laws of the country and this State, that is rape. There is no such thing as consensual sex between a guard and an inmate, period. As legislatures have universally agreed, a guard having a "sexual relationship" with an inmate is one the most abhorrent abuses of power in the long history of mankind. There are, however, procedural hurdles that powerful private prison lobbies have succeeded in placing between prison rape victims and the judicial system. If this has happened to you, or someone who looks to you for advice, contact an experienced prison abuse law firm.

January 13, 2010

Inappropriate Teacher Conduct

Recent news outlets are reporting an incident that violates every parents' sense of safety. According the the news story, a 34 year old APS teacher has been arrested for inappropriate sexual conduct with a student. Depending on when the relationship began, this could also be known as statutory rape. In the event the allegations are true and the Albuquerque teacher faces criminal punishment, there is still no way to reverse the damage done to the child and family involved.

The situation poses a unique question under New Mexico injury law. Specifically, "When can the school be held accountable for the conduct of a teacher or employee." As is often the situation, the answer is complex and depends on a constellation of factors. These factors include, but are not limited to: where the relationship occurred, when it occurred, and whether there are sufficient connections to the man's role as a teacher. Depending on the answers to these questions, New Mexico law may allow for a financial recovery against the school or APS for what may amount to statutory rape.