Recently in New Mexico Laws Category

October 27, 2014

New Mexico Supreme Court Reverses the Court of Appeals and Allows Plaintiff's Vicarious-Liability Claim to Proceed to Trial

In a decision released in September, the New Mexico Supreme Court reversed a state Court of Appeals decision affirming the dismissal of a plaintiff's medical malpractice claim against a hospital resulting from the death of a patient. The plaintiff's lawsuit, filed on behalf of the deceased patient, claims that a radiologist employed by the defendant hospital failed to communicate the results of a radiology report to the patient's doctor, preventing the patient from being diagnosed with the colon cancer that later took his life.

woman-in-hospital-1051476-m.jpgThis appeal focuses on the plaintiff's claim against the hospital where he was treated. The radiologist who allegedly failed to send the report to the man's doctor was a contract employee of the defendant hospital, but he wasn't directly employed by them. The district court made the decision, which was affirmed by the court of appeals, that the plaintiff failed to properly allege that the hospital was vicariously liable for the negligence of the radiologist.

The court ruled that the plaintiff's complaint failed to put the hospital on notice that it was being sued for the mistakes made by the radiologist, and it was therefore dismissed.

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October 5, 2014

New Mexico Supreme Court Allows Unsafe Road Lawsuit against State to Proceed to Trial

Last year, the New Mexico Supreme Court reversed the dismissal of a case filed against the State of New Mexico by the families of two people killed in a December 9, 2004 head-on collision on New Mexico State Road 502 near Los Alamos.

road-to-krzywonoga-1-767715-m.jpgThe lawsuit alleges that the State was negligent in maintaining the road by failing to install a concrete barrier between the eastbound and westbound lanes of traffic on the two-mile stretch of SR 502 where the accident occurred. The plaintiffs claim that the State Department of Transportation knew of the unreasonable danger presented by the road, and they request that the State be ordered to pay damages to the families of the victims.

When the case was first heard in district court, the judge ruled that the State of New Mexico was immune from the lawsuit, and the case was dismissed. The plaintiffs appealed the ruling to the New Mexico Court of Appeals, but that Court agreed with the lower court's dismissal of the case, and the plaintiffs were forced to appeal to the New Mexico Supreme Court. The 2013 decision in Martinez vs. New Mexico Department of Transportation, 296 P.3d 468, demonstrated the Court's application of an exception to the doctrine of sovereign immunity, which protects the government and public employees from liability for negligence under certain circumstances.

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July 20, 2014

Bernalillo County Sheriff's Office Cracking Down on Illegal Weekend Drag Racing

Residents of Bernalillo County may have noticed an increase in the amount and frequency of illegal drag racing that has been occurring in northeast Albuquerque during the summer of 2014, and the Bernalillo County Sherriff's Office is starting to take action. According to a report by Albuquerque CBS partner KRQE, the Sheriff's office has began to stake out the popular drag racing spots during the peak times for racing, and arrested 10 people for drag racing last weekend alone.

pro-street-169731-m.jpgThe Dangers of Illegal Racing on Public Roads

Car racing is an inherently dangerous activity, and people who choose to race usually make a conscious choice to put themselves at risk when they decide to participate in a race. Unfortunately, there are often passengers or bystanders that have no choice but to suffer the tragic consequences of a driver's choice to race; a resident interviewed for the article knew a person who was recently killed as a result of speeding on Montgomery road, one of the most popular drag racing spots. In last week's stakeout, sheriff's officers arrested one racer who had children in the car with him, and he was charged with child abuse. It is clear that the drag-racing trend endangers more than just the drivers who choose to race.

Legal Liability for Injuries Sustained in a Race-Related Accident

If someone is injured or killed in a car accident that is caused or worsened by drag racing, holding the responsible parties accountable can be difficult. There may be multiple parties at fault, and all of the insurance companies involved will be trying to divert liability from themselves and their clients. Because the racing (and the speeding that goes along with it) is illegal, making a case against a driver who is racing and causes an accident resulting in injury or death may not be difficult in every case. If the injury victim was involved or complicit in the decision to race, the case can be more complicated though the drivers may still be held accountable. Because of the various factors affecting potential liability for damages, when someone is injured or killed in an accident related to drag racing it is important for a complete and thorough investigation to be done at the scene of the accident and afterwards. It is best for anyone affected by a race-related accident to consult with legal counsel as soon as possible after any injury occurs.

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July 13, 2014

New Mexico Enacts Statewide Ban on Texting While Driving

The New Mexico State Legislature has passed a law that now prohibits drivers from texting or checking emails on phones or tablets, even if they are stopped in traffic or at a stop light. According to an article by the Daily Times, the ban went into effect on July 1 of this year. Some New Mexico cities and counties had already enacted similar bans, but with this law, passed by the legislature and signed by Governor Susana Martinez, the ban is now statewide. Drivers that are caught in the act of texting or surfing the web on their phone while driving will be fined $25 for a first offense, and $50 for each subsequent offense. Drivers are still permitted to use GPS devices while driving, and texting is allowed in emergency situations.

mobile-in-hand-704926-m.jpgThe Dangers of Texting While Driving

Although the distraction caused by looking at and using a phone while behind the wheel seems obvious, many New Mexico drivers do not care to stop the practice. According to the article, it appears that cell phone use while driving has contributed to a noticeable increase in collisions in which vehicles are rear-ended. Texting while driving presents a danger that is comparable to drunk driving. According to a study noted in the article, the police receive "a lot" of complaints from concerned drivers that another driver is drunk, but when they pull over the suspected DUI, it turns out the driver was sober, and "messing with their phone."

The New Law's Effect on Accident Lawsuits

This new law will likely make it easier for plaintiffs in New Mexico accident lawsuits to prove that the defendant driver was at fault, if it can be shown that that driver was texting at or before the time of the accident. It is possible to access phone and internet records to determine if a defendant was online at the time the accident occurred. If a defendant driver admits, is witnessed, or can be shown to have been texting at the time of an accident, it is now easier for a plaintiff to make a case that the driver was negligent, and that such negligence was the cause of the accident and any damage or injuries.

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May 20, 2014

New Mexico Supreme Court Finds That Lack of Foreseeability Does Not Prevent a Premises Liability Claim from Going to Trial

The New Mexico Supreme Court recently handed down a decision that may significantly impact the ability of plaintiffs who are injured on another's property to have their claims heard by a jury. In the case of Rodriguez vs. Del Sol Shopping Center Associates LLC, NM 2014(Docket Nos. 33,896 , 33,949) the Court reversed a lower court's judgment that threw out the plaintiffs' suit and instead sent the case back down to go to trial.

slip-hazard-1429630-m.jpgThe Facts

In March of 2006, a woman who had previously been diagnosed with epilepsy had a seizure while driving her car in the parking lot of the defendant's shopping center. The woman lost control of her vehicle and crashed through the window of a medical clinic, killing three people and seriously injuring several others. The injured parties and families of the deceased filed a New Mexico premises liability lawsuit against the shopping center, alleging that they failed to properly protect the patrons from the danger of a vehicle driving through the windows and that the failure resulted in the injuries and deaths.

A New Mexico Premises Liability Lawsuit

To be successful in a New Mexico premises liability lawsuit, a plaintiff must first show that the defendant owed them a duty. Second, the plaintiff must demonstrate that the defendant breached that duty, and third, the plaintiff must show that the defendant's breach of that duty was the cause of an injury or damages. Generally, business owners owe their customers, or "invitees," what is called a duty of ordinary care under the circumstances. The breadth of this duty varies with the facts of each case.

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April 19, 2014

New Mexico Personal Injury Plaintiff has Suit Dismissed for Failure to Meet Witness Deadline

A plaintiff whose foot was allegedly broken by a repo-man will not be able to take her personal injury case to trial because her legal team did not designate an expert witness for trial before a scheduling deadline that was set by the Court. In the case of Duke v. Garcia, U.S. Dist. Ct. D. New Mexico, 2014 (Docket No. 11-CV-784-BRB/RHS), a New Mexico federal court granted the defendants' motions for summary judgment, ruling that the plaintiff's failure to designate an expert witness on the issue of medical causation before an April 17, 2013 deadline required that the case be thrown out. This will cost the plaintiff her opportunity for relief.

clock-13-45-1424094-m.jpgThe Incident

On April 15, 2011, the defendant repossession company was repossessing the plaintiff's car in Rio Rancho, New Mexico. The plaintiff alleged that an employee of the defendant pushed her during the repossession and broke her foot. According to the complaint, the injury prevented the plaintiff from serving in the military, caused her to endure medical expenses, pain and suffering, among other things. After suffering the injuries, the plaintiff sued the defendant in federal district court.

The Lawsuit

Making a New Mexico personal injury claim can be extremely complicated. The plaintiff must prove not only that she was injured, but also that the injury was caused by the defendant's wrongful act. To ensure that cases run smoothly, deadlines are set in the preliminary stages of the suit for the submission of witnesses and exhibits. In this case, the Court set an April 17, 2013 deadline for the plaintiff's disclosure of expert witnesses. For one reason or another, the plaintiff did not submit any expert witnesses that would testify on her behalf by that deadline.

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April 5, 2014

New Mexico Federal Court Rejects Defendant's Attempt to Disqualify Plaintiff's Witness in Slip-and-Fall Case

In a recently released ruling by the United States District Court for the District of New Mexico, the Court rejected a defendant's motion to prevent an expert witness from testifying for the plaintiff in a New Mexico personal injury lawsuit. In Coll v. BNSF Railway Company, the Court agreed with the arguments made by the plaintiff that the testimony of an expert in floor safety would be relevant in the slip-and-fall accident lawsuit that they had filed.

attention-521304-m.jpgThe Accident

On March 18, 2009, an employee of the Defendant Railroad Company slipped and fell down the steps of a locomotive and severely injured his elbow and shoulder. The employee was unable to continue working after the injury. By September of 2009, he had recovered and was able to return to work. When he requested compensation from the company, they offered him only $800 and he refused. The Plaintiff in this case was the appointed trustee of the injured employee, and pursued a personal injury claim against the Railroad Company.

The Lawsuit

As the case made its way toward trial, the Plaintiff proposed to present the testimony of an expert on floor safety. He would testify that the Railroad Company had not constructed or maintained the steps on the locomotive up to the relevant standard of care, and were therefore responsible for the employee's injuries. The Defendant argued that because the proposed expert testimony was from an expert on floor safety, and not train safety, that his testimony would not be relevant or helpful to the fact finder.

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March 5, 2014

"Dram Shop Laws" in New Mexico

Drunk driving accidents occur at a startling rate across New Mexico, injuring hundreds of New Mexicans each year. While the reasons behind drunk driving accidents vary, many times people over consume alcohol at clubs or bars and then get in their car and cause an accident. Awhile back, the State Legislature of New Mexico decided that it needed to hold these establishments liable for the over serving of their customers. These laws are called "Dram Shop laws," and they allow the victims of New Mexico drunk driving accidents to sue the establishment that over served the person who caused the accident.

wine-glasses-1245416-m.jpgNew Mexico's Dram Shop Laws: Madrid v. Brinker Restaurant Corporation

In a recent case in front of the Court of Appeals of New Mexico, the court had the opportunity to explain Dram Shop laws and how they apply in personal injury cases. In the case of Madrid v. Brinker Restaurant Corporation, Madrid was the passenger on a motorcycle that Sanchez was driving. At some point, the motorcycle got into an accident with a van, when the van failed to stop at a stop sign. The driver of the van, whose blood-alcohol content was above the legal limit, pleaded guilty to vehicular manslaughter and causing great bodily injury with a motor vehicle while driving under the influence was sentenced to six years in prison.

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February 27, 2014

New Mexico Appellate Court Opinion Discusses the Adoption of the Doctrine of Circuity in a Recent Negligence Case

The doctrine of circuity is a legal doctrine that some state and federal courts across the country have adopted to conserve valuable judicial resources. At its heart, the doctrine serves to prevent a plaintiff from seeking damages from a defendant with whom that plaintiff does not have a valid course of action. The recent case of Loper v. JMAR illustrates the principle well:

animals-grazing-1431466-m.jpgLoper, a dairy farmer, hired JMAR to build a new dairy. In turn, JMAR sub-contracted out all of the electrical work to Snyder. After the dairy was built and Loper began operations, he noticed that milk production was much lower than it should have been. Loper looked into several potential causes of the low milk production with no luck, until he hired a different electrician to examine the fences. According to Loper's expert, the way in which the dairy farm was wired resulted in stray electricity that adversely affected the herd's milk production. Loper filed a lawsuit against both JMAR and Snyder claiming negligent construction of the dairy.

As the lawsuit commenced, JMAR sent a letter to Snyder demanding indemnification from the lawsuit. Essentially this letter demanded that Snyder admit that the error was on his part, and that JMAR had nothing to do with the improper wiring of the fence. Soon thereafter, Loper settled out of court with Snyder, who was then dismissed from the suit.

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February 4, 2014

Distracted Driving Accident Claims the Lives of Two New Mexico Men

Last week, a tragic head on collision left two dead and one injured just outside Carlsbad, New Mexico. According to a report by the Carlsbad Current-Argus, the accident occurred on Eddy County Road 605 shortly after 6 a.m. Apparently, a Toyota Tundra was heading southbound on the highway and a Ford Focus was heading northbound. The accident occurred in the northbound lane, when the driver of the Tundra veered over the center line.

mobile-phone-in-hand-1307593-m.jpgBoth the driver and the passenger in the Ford Focus were pronounced dead at the scene of the crash. The driver of the Tundra was also taken to the hospital with undisclosed injuries.

According to the driver of the Tundra, he was getting over to pass a water truck when the accident occurred. However, police could not find a water truck at the scene and the driver's story could not otherwise be verified. Police determined that inattentive driving was a contributing factor to the accident and cited the driver for careless driving and for driving without a seatbelt. Police also determined that alcohol was not a factor in the fatal accident.

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January 23, 2014

New Mexico Man Dies in Iowa Accident Involving Slippery Roads

Earlier this week in Iowa, two men were killed in a rollover accident on Highway 30. According to a report by, one of the men was from Corrales, New Mexico and the other from Plant City, Florida. Apparently, shortly after 7 a.m. the driver of the vehicle lost control of the vehicle and it ended up in a ditch. Both men were pronounced dead at the scene. The cause of the accident is still under investigation; however, police believe that icy winter roads played a part.

icy-conditions-1-929304-m.jpgEven in New Mexico, Slippery Roads Can Be a Hazard

Snow-covered, icy roads are not what most people think of when they think about New Mexico. However, the truth is that parts of our beautiful state do see some significant winter weather for several months out of the year. During these times, it is critical that drivers reassess their driving strategies to account for the condition of the roads and their decreased ability to control their vehicles and come to a complete stop.

When roads are wet, slippery, icy, or snow-covered, the responsible driver will slow down to account for differences in the car's handling. This may mean to drive at a speed that is less than the posted speed limit. In fact, in New Mexico a driver can be cited for traveling the speed limit, if the conditions do not warrant such a speed.

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September 19, 2013

New Mexico Supreme Court Rules Medical Malpractice Caps Apply to Doctors' Professional Businesses

file0001110988167 morguefile username mensatic.jpgThe New Mexico Supreme Court has ruled in three separate cases that businesses formed by physicians are subject to the same medical malpractice caps as individual doctors. According to the high court, professional corporations and limited liability companies established for business or tax purposes meet the definition of a health care provider under the 1978 Medical Malpractice Act (MMA). The 15-page opinion of the court stated that deciding otherwise would thwart the law's purpose of ensuring that doctors and other medical providers in the state had access to malpractice insurance. Prior to the MMA's enactment, some private insurers reportedly began refusing to write medical malpractice policies in New Mexico.

In 2011, the New Mexico Legislature passed a measure that would have made clear such corporate entities were in fact subject to the provisions of the MMA. Governor Susana Martinez later vetoed the bill that would also have increased medical malpractice damages caps across the state.

In New Mexico, medical malpractice occurs whenever a doctor, nurse, hospital, or other health care provider fails to adhere to a reasonable standard of care and a patient is harmed. Medical negligence may also arise from a medical provider's failure to take a medically necessary or appropriate action in addition to an intentional or unintentional act. For example, malpractice may occur when a medical professional fails to offer a patient appropriate treatment, improperly diagnoses an illness, or unreasonably delays medical treatment.

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February 21, 2013

New Mexico Supreme Court Orders New Trial in Wrongful Death Case

1158482_road_blur%20sxchu%20username%20arinas74.jpgThe Supreme Court of New Mexico has reversed a lower court’s holding that the New Mexico Department of Transportation (DOT) is immune as a matter of law from being sued for negligently failing to remedy a purportedly dangerous road condition. In Martinez v. N.M. Dep’t of Transp., the family of a couple who was killed in a 2004 head-on traffic accident on NM 502 near Los Alamos filed a wrongful death lawsuit against the DOT claiming the agency committed negligence when it failed to construct a barrier between oncoming traffic near mile marker 9. In the 1980s, a concrete barrier was reportedly installed on other stretches of the roadway in order to keep similar accidents from occurring but one was not installed where the fatal collision occurred.

Prior to trial, the DOT filed a motion for summary judgment claiming the agency was not responsible for the crash pursuant to the New Mexico Tort Claims Act. According to the DOT, the decision to install a two-way turn lane instead of a barrier despite that there were reportedly no intersecting roads onto which traffic could turn was a design decision that provided the agency with immunity under the Act. At trial, the victims’ family was not permitted to introduce evidence regarding a number of other accidents that occurred at the same location or the numerous citizen complaints that were filed with the DOT regarding the allegedly unsafe roadway. After a jury returned a verdict in favor of the DOT, a New Mexico Court of Appeals affirmed the verdict. The victims’ family then appealed the case to the Supreme Court of New Mexico.

New Mexico’s high court stated that although the DOT was initially granted immunity related to barrier placement on NM 502, notice regarding a dangerous condition could trigger a maintenance issue that the agency may be held responsible for. The court continued by stating the safety of New Mexico motorists would be thwarted by providing the agency with perpetual design immunity. The court also said whether the DOT had sufficient notice of the allegedly dangerous road condition to trigger the maintenance exception to design immunity was a question for a jury. Finally, the Supreme Court of New Mexico reversed and remanded the case for a new trial.

Sadly, motorists and passengers are killed on highways and other roads located throughout New Mexico each day. Although traffic wrecks may be caused by impaired, careless, or simply distracted drivers, they may also result from hazardous or poorly maintained roadways. Car accident victims may be eligible to receive compensation for their medical bills, lost wages, pain, suffering, and any disability that resulted from the wreck. Additionally, those who lost a close relative in a New Mexico traffic crash may be able to collect damages for loss of support and funeral expenses. If your beloved family member was killed in an automobile collision, you should contact a qualified wrongful death attorney.

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October 27, 2011

How Will Federal Gun Policy Impact New Mexico's Medical Marijuana Policy

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.

February 12, 2011

Changes in New Mexico Uninsured/Underinsured Motorist Law

Critical developments in New Mexico uninsured motorist law could provide substantial assistance to people who have suffered serious personal injuries cause by uninsured or under-insured drivers. This could be true even for injured persons who have already settled their uninsured or under-insured motorists claim.

Uninsured motorist coverage is a type of insurance coverage which is purchased from your automobile insurance company. It protects you from damages which may be inflicted by an uninsured driver because your company will step-in and compensate you for all of the damages the uninsured motorist is legally liable for, at least up to the amount of coverage you purchased.

Under-insured motorist coverage is similar; it applies in situations where you have purchased more coverage to protect yourself than the amount of coverage carried by the person who hurt you. For example, let's say that a New Mexico drunk driver causes an accident in which you are injured. Even if he has liability insurance, he may only carry the required minimum coverage of $25,000.00. But if you were hospitalized for even a few days, your medical bills could exceed that amount. And there are, of course, other types of losses, such as lost wages, pain and suffering, etc. This is why it is a good idea to purchase sufficient uninsured motorist coverage. If you have purchased more than $25,000.00 of protection for yourself, you would be able to ask your insurance company to step in and cover the damages which exceed the amount of the at-fault driver's coverage—up to the amount of insurance you purchased for your own protection.

Many people do not even know if they have uninsured motorist coverage, although most do, or understand how it protects them.

The new development in New Mexico law have to do with rules governing how this protection must be offered and presented by insurance companies to their customers. Any person who has suffered serious damages which exceed the amount an at-fault driver's insurance coverage should contact a lawyer if the amount of their own uninsured motorist coverage is less than the amount of their own liability coverage. For example, if you have $100,000.00 in liability coverage, but only $25,000.00 in uninsured/underinsured coverage, you should contact an attorney if you were injured by either an uninsured motorist or by a driver who carried insufficient insurance to cover your damages.