New Mexico Personal Injury Lawyer Blog

The 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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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.

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.

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.

Are New Mexico class action cases soon to be banned. That is the questions the Supreme Court will answer next week as they decide the future of not just New Mexico class action cases, but all class action matters across the entire nation.

The case going before the Court involves AT&T and the essential question they must decide is whether companies can prohibit class action lawsuits with language embedded in there contracts. If successful, large business will likely all add such language preventing any court from allowing a consumer to take on a massive corporation.

The decision, whichever way it goes, is going to be one of the more monumental cases to address the so called “tort reform” movement.

News of a recent Albuquerque car accident on Golf Course Rd raises the question of whether New Mexico law allows for a recovery in single vehicle accidents.

Just as the name sounds, single vehicle accidents are those in which only one vehicle is damaged. Under New Mexico law, passengers involved in single vehicle accidents will almost always have a case to pursue. In some situations the driver may also have a claim. This arrises in situations where the accident was caused, or contributed to by: an unknown vehicle, a dangerous condition of road, or a defective vehicle.

Very often these claims go un-pursued when the injury victims mistakenly believe there is nothing that can be done. To the contrary, single vehicle accidents, just like all Albuquerque car accidents, may allow for the injured victims to recover.

For example, in the recent Albuquerque car accident on Golf Course Rd, initial media reports suggest that the vehicle made contact with a guardrail. Regardless of what caused the vehicle to lose control, if it is found that the guard rail was maintained defectively, there may be a viable claim for those injured to pursue.

Various jails have been on the news lately for being home to various sexual assaults and rapes. Similarly, a news story recently surfaced that college professors in Florida kept an off campus apartment specifically to bring young co-eds to. With all this sexual assault news, the questions arises, when can a victim recover money damages for a sexual assault or rape?

At the Fine Law Firm, our New Mexico sexual assault attorneys have handled numerous cases in which our clients were the victims of violent sexual attacks as well as inappropriate sexual relationships. In many of these New Mexico sexual assault cases, the questions is not so much whether the plaintiff can win, but rather whether the plaintiff can recover.

This is because unless the attacker has substantial assets, it is necessary to she that he or she performed inappropriate acts while acting in another capacity. Typically, this means sexual relationships between teacher and student, jail guard and inmate, police officer and suspect, etc... This means that in addition to numerous other factors, one primary issue is whether the wrongdoer has the ability to be financially responsible for the harm caused.

New Mexico jail sexual abuse is at the forefront recently with KOB.com 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.

New Mexico premises liability, or New Mexico slip and fall cases, whatever name they go by, they generally involve injury of a customer or guest that the property owner is responsible for. Most often these cases involve dangerous conditions or hazardous obstacles that cause injury. Generally, in these cases, it is necessary for the plaintiff to prove that the owner failed to keep the property reasonably safe for use by the visitor.

The New Mexico Supreme Court recently applied premises liability law to America’s pastime, a trip to the ballpark. The case arose when a young child was seated in a picnic area and was struck by a ball during batting practice. Although errant foul balls are commonplace in American ballparks, the plaintiff argued that the stadium should be held responsible for constructing an unprotected picnic area where people sit facing away from the field.

Initially, the District Court judge stated that what is affectionately known as the “baseball rule” applies requiring in limited duty of only screening out the areas immediately behind home plate. Accordingly, the case was dismissed.

On appeal, the New Mexico Supreme Court held that a baseball stadium is not allowed to simply protect the fans behind home plate to satisfy its legal obligation to spectators. At the same time, the Supreme Court did not say that the conduct by the baseball stadium was in fact negligence. Rather the court said that New Mexico’s typical approach to premises liability cases should apply to injuries at the ballpark. This means that the duty owed by this stadium is that of ordinary care to keep the premises reasonably safe for the visitor regardless of whether or not a dangerous condition his obvious. More importantly, the Supreme Court opinion means that this is an issue worthy of discussion before a jury.

As a baseball fan, I’m admittedly mixed. Alarmists will suggest that now all stadiums will be enclosed in glass, and that it is another example of plaintiff’s avoiding personal responsibility. By the same token, it seems reasonable to allow a jury to decide if it is negligent to hold parties where backs are turned to batting practice bombs flying over walls.

Wither way, the Supreme Court decision places additional value on premises liability analysis and law, and if anything limits property owners’ ability to avoid taking resonable action to protect visitors.

Obviously, the most important settlement consideration to the plaintiff in a personal injury case is his/her net recovery. Therefore, the plaintiff's attorney must understand the role of the various parties who make a claim against the settlement proceeds. The plaintiff's net recovery is enhanced by proper handling of these claims. In addition, the plaintiff must be aware of the potential consequences of not handling these claims correctly.
Subrogation arises between an insurer and its insured, allowing the insurer to recover payments against the person who caused the loss. Subrogation “allows an insurer who has fully compensated the insured to step into the shoes of the insured and collect what it has paid from the wrongdoer.” Amica Mut. Ins. Co. of Ariz. v. Maloney, 120 N.M. 523, 527, 903 P.2d 834, 838 (1995). Subrogation arises “by operation of law.” Safeco Ins. Co. of America v. U.S. Fid. & Guar. Co., 101 N.M. 148, 149, 679 P.2d 816, 817 (1995). Subrogation also arises in the suretyship context. See NM State Highway & Transp. Dep’t v. Gulf Ins. Co., 2000-NMCA-007, ¶11, 128 N.M. 634, 996 P.2d 424.

New Mexico has applied subrogation principles only in disputes involving insurers. Gulf Insurance Co. v. Cottone, 2006-NMCA-150, ¶11, 140 N.M. 728, 148 P.3d 814. Cottone arose from a chain reaction auto accident. A person injured in the accident sued (only) a driver, insured by Gulf Insurance Co. Gulf then sought reimbursement from others allegedly at fault for the accident. Gulf argued it became subrogated to the claims of the injured party when it settled with her. The court rejected this attempt to expand the concept of subrogation, which traditionally has been limited to insurance companies that had paid their own insureds. The reasons for this rejection were (1) the doctrine of comparative fault meant that Gulf had only paid damages by which its insured was responsible and, therefore, had no claim against the other parties, (2) New Mexico does not allow an assignment of personal injury claims, and (3) the release signed by the injured party did not release anyone other than Gulf’s insured.
An insurance company providing uninsured or underinsured motorist coverage is entitled to reimbursement out of the proceeds of any recovery which might be obtained from the person(s) responsible for the accident (the “tortfeasors”). See NMAC, Dept. of Insurance Regulations, §12.3.17.9.2. The company also has a subrogation right, and may sue the uninsured tortfeasor to recover any amounts it may have paid. Id, §12.3.17.9.4. The insured must cooperate in any subrogation suit brought by the carrier, and the carrier could compel joinder of an uncooperative insured to serve as an “involuntary plaintiff.” §12.3.17.9.11.
Special considerations apply in workers compensation cases. If the employer paid the premiums for the uninsured motorist coverage, reimbursement is handled normally. See Section 52-5-17C. (As a practical matter, most employers have figured out that they can opt not to have uninsured motorist coverage to cover their employees.) On the other hand, if the worker pays the premiums of the uninsured motorist coverage, the employee is not required to reimburse the workers’ compensation carrier. Id. Moreover, this subsection does not entitle the UM carrier to a credit or offset for the amount of workers’ compensation benefit paid to the worker. Mountain States Mut. Cas. Co. v. Vigil, 1996-NMCA-062, 121 N.M. 812, 918 P.2d 728.

New Mexico drunk driving accidents are problems. Heck, New Mexico DWI itself is a problem. When somebody is charged and convicted with DWI, we get bothered and hope that it wont happen again. When somebody gets a second DWI there is more anger that it happened again. When a New Mexico drunk driver picks up his or her third, fourth, or fifth DWI it becomes clear that he or she is basically beyond rehabilitation and the frustration focuses on the system that allows the ongoing problems.

Well, its hard to describe what to think when a New Mexico driver picks up his 22 DWI arrests. That is exactly what happened to Delano Vigil. During his last escapade he was arrested and subsequently blew .39 blood alcohol level. Thats right, .39. It seems that Delano is trying to set two New Mexico records: the most drunk driving arrests, and the highest blood alcohol level.

Prior to his last arrest Delano had been charged 5 times in New Mexico and another 16 elsewhere. However, it appears that he wont be going anywhere for a while. Delano must now answer to warrants in San Miguel County, Bernalillo County, and Sandoval County. All warrants seem to stem from drunk driving related offenses.

As of right now, Delano is a poster buy for change in New Mexico drunk driving laws. Honestly though, as a lawyer who sues New Mexico drunk drivers, I’m not convinced that any law will keep prevent a 23rd, 24th, or 25th arrest so long has he has any access to a car. Hopefully I’m wrong.

A New Mexico drunk driver has been arrested in connection with the wrongful death accident of an Espanola man. According to reports, the drunk driver was traveling 60 mph down a residential street with a posted speed limit of 25 mph. Also in the car with the New Mexico drunk driver were two female passengers.

After the Espanola accident the drunk driver admitted to drinking vodka and more specifically, to buying it from a liquor store. If this is not enough, the drunk driver was only 18 years old, well under the required 21 years old to purchase alcohol in New Mexico.

In situations such as this, the estate of the deceased Espanola man may be able to pursue a claim not just against the drunk driver’s insurance, but also a dram shop case against the liquor store that sold alcohol to an underage customer. While authorities are still investigating the accident, they have not yet released the name of the liquor store.

New Mexico cases against liquor establishments, also called New Mexico dram shop cases, are intended to keep those who sell alcohol responsible. It is important for these New Mexico establishments not to place their goal of making money about keeping the community safe. When these liquor stores act responsibly, they run the risk of becoming liable for damages caused as a result of their own negligence.

The New Mexico Court of Appeals is receiving national attention for its recent decision regarding the “baseball rule.” The baseball rule is known to exempt professional teams from liability when bats or balls go flying into the stands. This limit on liability exists so long as the stadium has the area and immediately behind home plate fenced off.

The case arose when a New Mexico child was struck in the head by a homerun ball at Isotopes Park in Albuquerque. The parents contended that the baseball team was partially responsible for the child's serious injury and the Court of Appeals was recently tasked with deciding the matter.

I have to admit, I am somewhat mixed on the decision. As a New Mexico plaintiff’s attorney, I am all for helping New Mexico injury victims. However, as a baseball fan, I enjoy the ability to have an unobstructed view of the action and the possibility of catching a ball here or there. I can’t help but wonder if part of the New Mexico Court’s decision has to do with the fact that the injury occurred at a picnic area adjacent to the outfield wall.

Arguably, it would be more prudent to place seats that are not positioned toward the field of play in areas that are not prone to have balls falling from the air. Of note, the case is going to be appealed to the New Mexico Supreme Court where it will be determined if the “baseball rule” will be good law in New Mexico.

Gallup, New Mexico is targeting distracted drivers in hopes of curbing accidents. While it has become common for municipalities to ban cell phone use while driving. Gallup city officials are taking it one step further by targeting not only drivers on cell phones, but also those who apply makeup, eat, or anything else that distracts from driving.

Aware that such a new law would take substantial resources to enforce, the approach that seems to make to have the most support is to enforce the law only of the behavior leads to a car accident. I think this law will do little to discourage distracted driving, and instead just add another ticket to distracted drivers. The idea is applaudable, but the execution seems to prove difficult.

A Kentucky jury recently awarded $2.5 million to the victim of a hate crime beating. The victim, mistakenly believe to be an immigrant was beaten by the Ku Klux Klan. The attack left the boy, now 19, with constant nightmares and nerve damage. Although the attackers also went through the criminal system, the civil trial created a unique opportunity that was the focus of the plaintiff lawyer's goal. To obtain a high enough verdict to bankrupt the organization.

It is amazing that an organization so wrapped in violence and hatred can be brought down by the civil legal system. It is similar to Al Capone being apprehended not in the course of a heinous robbery or crime, but rather for not paying taxes on time.

The ability to connect the organizations and assets to the conduct of its numbers is similar to recognize liability principles that will hold an employer responsible for the negligent conduct of an employee. By personal injury lawyers, this is known as "respondeat superior."

Applying this unique employer/employee theory of liability against organized crime opens the door to other applications. In the right circumstances there may be possible cases against gang violence or other hate crimes.