New Mexico Personal Injury Lawyer Blog

Following a New Mexico police misconduct Judge Theresa Baca awarded $4.25 million to the family of a man fatally wounded by an Albuquerque Police Department officer in 2009 and criticized the department’s training methods as “designed to result in unreasonable use of deadly force.”

Andrew Lopez was nineteen years old and unarmed when he was shot and killed by an APD officer on February 8, 2009. The Lopez family, who was represented by the Albuquerque personal injury attorneys, Fine Law Firm, received no offers of settlement before trial.

The Albuquerque Police Department had contended that Andrew Lopez had an automobile ashtray in his possession and that the APD officer who fired the fatal shot believed that the ashtray was a gun. In addition, at least one Albuquerque Police Department officer contended that Andrew Lopez was in the process of “committing suicide by cop.”

It the hope of the Lopez family and the Fine Law Firm that the verdict will result in better training of Albuquerque Police Department officers and a policy of being more careful before using deadly force.

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.

One of the greatest challenges for an Albuquerque injury attorney is the task of placing a monetary value, or commodifying, serious injury or death. In wrongful death cases, for example, we represent families for whom no amount of money could even approximate making them whole. Nevertheless, even in these catastrophic cases, it is our professional duty to pursue the prospect of a monetary settlement. It is difficult for our clients to avoid feeling that commodifying their loss is commodifying their loved one's life.

In an article entitled "Commodification in Law," Philosophy Professor Nick Smith discusses the moral and ethical questions raised by the valuation of injury in the legal system. Much of his article is devoted to the theoretical impact of legal commodification on social and political systems, but he identifies two issues that apply directly to plaintiffs in wrongful death cases.

1. According to Professor Smith, commodification tends to reduce or oversimplify human life by "translating concrete particulars into abstract classifications." The danger here is that the character and nuance of someone who dies wrongfully--the very aspects of a life that make it so precious--wash away in the effort to convert the loss of that life into a dollar amount.

2. On a related note, Professor Smith suggests that the reduction of the loss of a life to a dollar amount diminishes the spiritual meaning we attribute to that life. "It seems as if our very sense of wonder dulls," Smith writes, "when we view the world through economic lenses." Professor Smith goes on to observe that:

"Just as the natural sciences chip away at our self-understanding as beings somehow spiritually distinct from the rest of the material in the universe and we begin to look like merely another physical system, commodification drains metaphysical meaning from our lives, bodies, thoughts, and loves."

Thus, there is a danger that even when a family obtains a favorable monetary result after a New Mexico wrongful death case, the result feels like an erosion to the memory of the loved one, a secondary loss. Here are some suggestions for avoiding that feeling:

-Recognize the limitations of a wrongful death case. It is not an attempt to make you whole, or to place a value on the life that was lost. If you view your case with either of these goals in mind, you will surely be disappointed. A wrongful death case is simply an effort to obtain some monetary compensation for the loss--it should not define the legacy of your loved one.

-Choose a lawyer with a genuine curiousity about you, your family, and your lost loved one, one who will celebrate and be motivated by his or her memory.

-Choose an attorney who will work with you on setting and achieving non-monetary goals that may include, for example, educating the public and/or institutional reform.

-Communicate with your personal injury lawyer about any discomfort you feel with the impact of commodification, and the legal process as whole, on the memory of your loved one.

In September, the federal government sent letters to gun dealers nationwide informing them that medical marijuana card holders in states that have legalized the use of medical marijuana fell within the category of "unlawful drug users"/"addicts", to whom it was illegal to sell a gun. Outrage ensued, and what appears to be the first lawsuit challenging the federal policy was filed law week by a woman whose local gun dealer refused to sell to her because he knew her to be a medical marijuana user. The medical marijuana community has taken solace in the fact that, unless a gun dealer has personal knowledge that an individual is a medical marijuana cardholder, the only apparent way to be identified as such is through self-disclosure. At present, there do not appear to be any mechanisms or requirements for a gun dealer to determine whether the name of a would-be purchaser appears on a list of state medical marijuana card-holders. Thus, if a gun license applicant does not check the "unlawful drug user/addict" box on the gun license application, he or she may be able to purchase the gun notwithstanding his or her use of medical marijuana.

One big question that remains unanswered, however, is how, if at all, the federal government will choose to prosecute the possession of a gun by a medical marijuana cardholder or producer. The unlawful possession of a firearm is one of the more aggressively prosecuted federal offenses, particularly when that possession arises in connection with controlled substances. And while the federal disruption of medical marijuana programs has thus far been sporadic, the federal government seems less likely to exercise similar restraint in prosecuting unlawful possession of a firearm. New Mexico's medical marijuana program, which attempts to disperse licensed marijuana cultivation among non-profit producers and users alike, appears to be especially exposed to the chilling effect of the federal medical marijuana/gun policy since federal penalties for possessing a gun while distributing controlled substances are exponentially higher than those for the simple illegal possession of a gun. It seems likely that we will soon see a high profile federal prosecution of a medical marijuana user and/or producer who was found in possession of a firearm.

An early morning, June 22, 2011, New Mexico accident near Las Cruces has claimed the life of 3 individuals.  The New Mexico wrongful death accident occurred on Interstate 10.  While authorities are still investigating and trying to recreate the horrifying accident, initial reports suggest the FedEx driver collided with a pickup truck from behind. The New Mexico accident claimed the life of two individuals inside the passenger truck as well as the FedEx driver.

New Mexico accidents such as these are complex for many reasons. First, any New Mexico wrongful death or accident lawyer knows that fatal accidents must be handled with more care and attention. Often time the impact they leave on family members is profound and far reaching.  Second, accidents in which the responsible driver is working pose numerous other issues that must be addressed methodically and thoroughly.

In the event the FedEx driver is found to be responsible, the family of the victims will have various possible cases against not just the driver, but also the employer, FedEx.  In such situations, each case must be preserved and pursued to bring the highest level of justice to those suffering a loss.

Finally, survivors of fatal car accidents have various claims that they can bring.  This may include New Mexico bystander claims, or loss of consortium claims.

While injury lawyers know that no matter what, there are some losses that can never be fully compensated, and well planned case and successful result can help ease life’s pressures for those who are left coping with loss.

A drunk driver caused a New Mexico car accident on Interstate 25.  A child died.  The child’s mother filed dramshop claims for wrongful death and personal injuries against three liquor establishments.  She also filed wrongful death and personal injury claims against three drug companies.  Drug company employees had treated the drunk driver to eight hours of free drinks. 

In the early evening of April 29, 2005. a mother was driving southbound on Interstate 25 in Albuquerque with her three young children.  An SUV was speeding southbound at a speed in excess of ninety miles per hour.  The SUV collided with the rear of the mother’s vehicle.  Her seven year old child suffered fatal injuries.  The mother and two other children suffered serious injuries. 

The SUV driver was arrested after leaving the scene of the accident.  A test for alcohol showed that she had a blood-alcohol concentration of .21.  That was more than two and a half times greater than the DWI level of .08.  The driver was later convicted of aggravated DWI, leaving the scene, and fatal child abuse.  On appeal, the Court of Appeals reversed the conviction for fatal child abuse.  The court noted that the driver could have been prosecuted for vehicular homicide.

The driver had spent the afternoon drinking alcohol in a restaurant and two bars in the Northeast Heights.  Pharmaceutical company employees had invited the employees of an Albuquerque doctor’s office to lunch.  The lunch included alcohol.  After lunch, the hosts and the driver spent the rest of the afternoon drinking in two bars in Uptown.  When the driver left the second bar, she was “thoroughly intoxicated.” 

The mother made claims for wrongful death and personal injuries against the restaurant and the two bars where the driver had spent the afternoon drinking.  The mother also made claims against the pharmaceutical companies and their employees who had sponsored the lunch and the drinking.  The trial court dismissed the claims against the pharmaceutical companies and their employees under the Liquor Liability Act.  The trial court held that the companies and the employees were not liable as “social hosts” under the Act. 

The mother appealed the dismissals to the New Mexico Supreme Court.  The Supreme Court held that the drug companies and their employees had been properly sued as “social hosts” under the Liquor Liability Act.  The mother’s claims for wrongful death and New Mexico personal injury damages against the drug companies, the drug company employees, and the three liquor establishments will now be adjudicated in the trial court.

On April 9, 2011, a Toyota Lexus hit the right side of a Ford Tempo in the intersection of Airport Road and Paseo del Sol in Santa Fe.  The driver of the Lexus told police that she was escaping gunshots fired from a pursuing Ford Mustang.  The Mustang fled the scene of the accident.  

The Tempo was occupied by four people.  The driver and his two children were hospitalized.  The front seat passenger was the seventy-nine year old great-grandmother of the children.  She suffered fatal injuries.  The occupants of the Lexus were not injured.  The driver of the Mustang was later arrested.  He is facing multiple charges, including murder.  

A New Mexico personal injury lawyer could bring claims for wrongful death and bodily injuries against the drivers of the Lexus and the Mustang.  Depending on the facts, the driver of the Lexus could be found to be free of negligence.  The most culpable parties are the driver of the Mustang and the person who fired the gunshots from the Mustang.

If the driver of the Mustang and the shooter had automobile liability insurance, the insurance would not cover the damages caused in the collision.  Liability insurance policies exclude coverage for damages willfully caused by criminal conduct.  

If the driver of the Tempo had “uninsured motorist” insurance, the New Mexico car accident lawyer would make a claim for wrongful death and bodily injury damages against the insurance company under the “uninsured motorist” coverage.  Under New Mexico law, the driver of the Mustang and the shooter are “uninsured motorists.”

Under the “uninsured motorist” coverage, the insurance company is required to pay all damages for which the “uninsured motorists” are legally liable.  The exclusion for criminal conduct does not apply to the “uninsured motorist” coverage.  The insurance company would pay the damages for which the criminals are responsible.

On March 24, 2011, at 7:30 p.m., a car with five occupants was speeding down an Albuquerque on-ramp to southbound Interstate 25.  When the car reached the end of the ramp, the driver lost control.

The car veered across the southbound lanes.  A southbound van clipped the rear of the car.  The car went into a spin.  Two passengers were ejected, one landing in the northbound lanes.  Both died at the scene.  Two other passengers sustained minor injuries.  The three occupants in the van were not seriously injured. 

The police noted that excessive speed and influence of alcohol were factors in the accident.  The driver of the car had been convicted of DWI in 2008.  The driver was treated at the hospital for a possible head injury.  A test of her blood revealed a blood-alcohol concentration of .23. 

A New Mexico car accident lawyer could file claims for wrongful death damages against the driver of the car from which the decedents were ejected.  If the driver’s liability insurance is not adequate to cover the wrongful death compensation claims, the accident attorney would look to other sources of recovery.

If the decedents were “insureds” under their own auto policies, there could be a recovery under the “underinsured” provisions of the policies.  There is also the possibility that a decedent was an “insured” under an auto policy owned by a household member.

The results of the blood test indicate that the driver was highly intoxicated at the time of the accident.  A New Mexico car accident lawyer would investigate the possibility of New Mexico wrongful death claims under New Mexico’s dramshop law.  If the driver was served alcohol when she was impaired, dramshop liability could apply. 

If a bar or a retail store supplied the driver with alcohol when she was intoxicated, the alcohol provider could be liable for its proportionate share of wrongful death damages.  Under New Mexico law, liability can be imposed if the intoxication was a substantial cause of the fatal accident.

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.

On February 17, 2011, shortly before midnight, a woman was speeding east on Interstate 40. She was going the wrong-way in the westbound lanes.

When she approached Rio Grande Boulevard, she collided with a westbound vehicle. The male driver died at the scene. The woman was hospitalized in critical condition.

It is not yet known why the woman was eastbound in the westbound lanes of Interstate 40. A blood test showed that her blood-alcohol concentration was .09. Under New Mexico law, .08 is proof of impairment.

A New Mexico personal injury lawyer could make a claim for wrongful death damages against the wrong-way driver. If the driver’s insurance is not adequate to satisfy the wrongful death claim, the decedent’s insurance company could be liable for the amount of damages not covered by liability insurance. The decedent’s insurance company could be liable under the “underinsured motorist” provision of the decedent’s insurance policy.

The limits of “underinsured motorist” coverage would be equal to the total of liability limits on all of the vehicles insured by the decedent. Insurers must provide “underinsured motorist” coverage equal to liability coverage. Unless the insured explicitly declines to buy the “underinsured” coverage, New Mexico law requires the insurance company to provide the coverage.

In many cases, the defendant’s liability insurance is not sufficient to satisfy the wrongful death claim. The New Mexico car accident lawyer would then seek full compensation for all wrongful death damages from the “underinsured motorist” insurance available to the decedent’s family.

Having spent the evening drinking, a customer left an Albuquerque bar after midnight on March 27, 2011. When he attempted to drive, he hit five pedestrians. Two were hospitalized, one in critical condition. Three suffered minor injuries.

When the police arrived, the driver was given a breath alcohol test. It showed a blood-alcohol concentration at a level more than twice the level at which driving is illegal.

A New Mexico personal injury lawyer could make claims for bodily injury damages against the drunk driver. The New Mexico car accident lawyer would also make claims for damages against the operator of the bar.

Under New Mexico dramshop laws, the bar operator can be held liable for the injuries and damages caused by an intoxicated patron. If bar employees served alcohol to the drunk driver when they should have known that he was intoxicated, the operator can be held liable for damages. If the intoxication is a substantial cause of the bodily injuries, the bar operator can be held liable for its proportionate share of the damages.

The driver’s impairment was readily apparent. When police attempted to administer field sobriety tests, the driver was unable to maintain his balance. The police stopped the tests because they feared that the driver would suffer serious injury if he fell.

On December 14, 2010, an intoxicated driver caused a wrong-way collision on Interstate 25 resulting in a New Mexico wrongful death accident. The New Mexico drunk driver was driving south in the northbound lanes of the Interstate. At approximately 2:30 a.m., she collided with a northbound vehicle. The intoxicated driver died at the scene. Her passenger and the driver of the other vehicle were seriously injured.

A postmortem toxicology test revealed a blood-alcohol concentration of .26. This is more than three times the definition of impairment: .08.

The negligent driver had spent the evening in a bar in Santa Fe. When she left the bar, the bouncer saw that she was “thoroughly intoxicated.” The bouncer offered to call a cab. After the offer was refused, the bouncer called 911. He told the operator that a drunk patron was going to drive from the bar.

It is illegal for a bar employee to serve alcohol to an intoxicated patron. Under New Mexico dram shop law, the operator of a bar can be held liable for the injuries and damages caused by the intoxicated patron.

The fact that the bar employee tried to keep the drunk driver from driving and that he called 911 would not excuse the bar’s wrongdoing or exempt the bar from liability.

A New Mexico personal injury lawyer would present evidence that the bar employees served alcohol to a customer they should have known was intoxicated. The New Mexico car accident lawyer would show that providing alcohol to such a customer was a substantial cause of the wrong-way collision. The bar should be held liable for its proportionate share of the damages suffered by the injured survivors of the wrong-way collision.