New Mexico Personal Injury Lawyer Blog

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.

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.

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.

The recent shooting tragedy in Tucson, Arizona has sparked a national dialogue on how political discourse is conducted in the United States. Some thought that the murder of a federal judge and attempted assassination of a moderate Democratic congresswoman might be linked to some right-wing anti-government sentiment. Others pointed out that we should not jump to conclusions without really knowing anything of the motivations of the alleged shooter. Mr. Loughner, it now seems, was simply insane. He was anti-government to be sure, but his bizarre, disconnected ideas cannot be fairly attributed to, say, Sarah Palin's infamous cross-hairs.

Continue reading "Personal Injury Lessons: Acountability" »

On December 28, 2010, a mother was driving north on 1-25 with her daughter. The daughter, 13, was riding in the front seat. She was not using her seat belt.

This vehicle moved into the left lane, hitting another vehicle. The New Mexico car accident put the vehicle into a spin. The vehicle slammed into the guardrail. The daughter was ejected from the front seat. She died during surgery. The driver was hospitalized with serious injuries.

Not much earlier, on November 21, 2010, another mother was driving south on a Highway 217 with her 14 year old daughter.

Again, the daughter was riding in the front seat. She was not wearing a seatbelt. Two younger children were buckled up in the back seat.

When the driver attempted to pass another car, she lost control and the vehicle rolled. The daughter was ejected from the front seat. She died at the scene. The driver and the two young children sustained minor injuries.

The use of a seatbelt can make the difference between life and death on New Mexico highways. A parent who allows a child to ride unbuckled is endangering the child’s life. The parent is allowing the child to walk a tightrope without a net.

A parent who allows a child to ride unbuckled can face a lifetime guilt and regret. Depending on circumstances, the parent can also face criminal charges of child abuse resulting in death.

All New Mexico wrongful deaths are tragic. Sometimes wrongful death litigations can mitigate part of the loss. Sometimes, even in these situations where a family member may cause the accident, New Mexico law may allow for a recovery. However, no New Mexico personal injury lawyer, nor verdict can ever replace the promise and dream of a healthy, eager, vibrant teenager.

On August 20, 2009, a runaway Lexus crashed and burned. The four occupants of the vehicle were killed. Before the crash, a passenger made a frantic 911 call from the vehicle. The passenger told the 911 operator that the driver could not control the vehicle, the accelerator was stuck, and that the breaks were not working.

A wrongful death lawsuit was filed against Toyota, the manufacturer of the Lexus, and against the Lexus dealership, which installed an over-sized floor mat in the vehicle.

In September 2010, Toyota paid 10 million dollars to settle the wrongful death claims against it. The action for damages against the dealership continues.

The runaway Lexus was “loaner” from the local Lexus dealer. The dealer had installed a floor mat designed for a larger vehicle. Sheriff’s investigators concluded that the gas petal became stuck under the over-sized floor mat.

Another customer drove the “loaner” Lexus a few day earlier. He reported that the Lexus raced out of control and the gas pedal became stuck on the floor mat. He was able to regain control after he put the gear shift into neutral. He said he reported the problem to the Lexus dealer.

The attorney for the plaintiffs in the wrongful death lawsuit says that the plaintiffs regard the dealer as the party responsible for the deadly crash. The attorney said the plaintiffs will ask that the wrongful death damages assessed against the Lexus dealer be in an amount in excess of the 10 million dollars paid by Toyota.

New Mexico’s wrongful death law is similar to California's. If the deadly crash had happened in New Mexico and the wrongful death claims were filed in a New Mexico court, the outcome would be the same as in the California case. After the jury determines the total amount of the wrongful death damages, the jury would be asked to asses the percentage of the total damage that was due to the negligence of the Lexus dealer. The dealer would be liable for the share of the damages caused by it’s negligence.

The Insurance Institute for Highway Safety has given its top safety rating to 66 vehicles for the 2001 model year. Last year, it gave 27 vehicles its top rating.

Some safety equipment, intended to avoid or mitigate car and truck accidents, is now standard on 2011 models. Electronic stability control and side-curtain airbags are standard equipment on over 90 percent of 2011 cars and SUVs. These standard safety features more then double the vehicle receiving the top safety rating in 2011.

To the extent the safety features are standard equipment on 2011 models, New Mexico drivers are now driving safer vehicles. Safety has come a long way in the last 40 years. Current models are unlike the vehicle described by Ralph Nader in his classic; Unsafe at any speed. New Mexico drivers and passengers are now safer at all speeds. Hopefully such safety measures will result in a decrease of New Mexico car accident cases.

To what extent does the economy effect New Mexico personal injury claims? One theory is that injuries are related to economic activity—the more economic activity, the more injuries will occur. This is because economic growth produces construction, the use of roads, increased shopping, eating out, etc., which increases the numbers of accidents.

Personal Injury lawyers are in disagreement about the effects of an economic downturn. A large number of personal injury cases arise from automobile use, and past recessions have shown that American's driving habits are somewhat “inelastic,” meaning that people drive about the same amount, regardless of the overall economic situation. So, in economic hard times, people are on the road about the same amount as in good times.

Another factor complicating how to judge the relationship between economic growth and personal injury litigation is the lag between the injury, itself, and when lawyers become involved. After an injury, the first priority is undergoing medical treatment. Often, a New Mexico personal injury claimant will need to finish medical treatment before being able to evaluate his/her case. A period of negotiation may then follow, so that lawyers may not become involved for some time after the initial accident.

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.

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.

New Mexico hospitals are where you want to be when injured or sick, however, they are also capable not of helping heal you, but rather causing an infection. Many infections, are called a risk-of-the-procedure, meaning there may be no legal basis to pursue a case. However, some hospital infections are different an entirely preventable.

Considering such hospital infections are a top 10 cause of death in America, preventing future infections is a true development in medicine. By the same token, it means that infections should no longer be the risks they used to be and that hospital infections should no longer benefit for legal loopholes as they have in the past.

The New Mexico Health Department has recently joined a movement to track infections with a goal of minimizing patient risks. Simultaneously, a recent advisory committee is recommending New Mexico Hospitals be required to report infection rates. Local hospitals that have expressed a level of participation in the movement include: University of New Mexico Hospital in Albuquerque, as well as Lovelace in Albuquerque and Rio Rancho.

Prior beginning a career in New Mexico personal injury law, I spent some time handling criminal cases. While there is certainly an assortment of sad stories and gruesome crimes, perhaps none were as difficult to stomach as child abuse. When it comes to New Mexico child abuse cases, a recent story is perhaps more disturbing than most any other.

The incident occurred at Camelot of New Mexico when a staff member began kneeing an autistic child in the head repeatedly. The facility was built to care for and protect such special needs children, and what occurred reflects a gross disregard for the safety of patients.

Unfortunately, the story does not end there. Supposedly the mother of the victim released a statement indicating she was “happy” with her son's medical care. When questioned on her statement the mother indicated that somebody hired by Camelot made it seem as though she had prepared statement.

When asked to comment on this claim the director of the facility claimed that although she hired a public relations firm, she could not comment on whether the mother's claim was true.

Although the abuse of the autistic child is not necessarily the most violent, the fact that it occurred at a facility that is paid to protect children, and then perhaps tried to cover up wrongdoing is what makes this incident so troubling.

Our New Mexico personal injury lawyers, have seen hundreds upon thousands of cases. Nonetheless, every once in a while a personal injury case arises that results not only in shock, but a bit of a smile.

One such case involves a resent Florida resident who settled a $650,000 claim for a traumatic injury to his face that caused double vision and broke numerous bones. Clearly this is not funny. However, the humor exists when the cause of the injury comes to light.

Apparently, the plaintiff sustained his serious injury while a patron at a strip club. The broken bones did not occur from an overzealous bouncer, but rather a stripper who incorporated a kick move into the routine. The problem is that the kick move landed her metal healed shoe into the man's face.

Just makes you think...

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.

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.

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.

A freak semi truck accident recently claimed the life of a Bernalillo County Sheriff’s Deputy. The accident occurred when one vehicle apparently negligently pulled out of a gas station causing a semi truck to take evasive action. In doing so, the semi truck collided with the Bernalillo Sheriff Deputy’s unmarked car.

According to initial reports, the fatal car accident involving the deputy was caused by a German national in town for a local conference. This wrongful death accident not only claimed the valued life of a New Mexico law enforcement member, but was triggered by a simple lapse in attention.

One unique issue is whether, in an accident such as this, New Mexico law would apply to a wrongful death suit. As with any New Mexico wrongful death case there may be recovery available to the family of the victim, however, in this situation, the litigation may take a complex path through New Mexico law, truck accident law, and even German law.

For the time being, the New Mexico law enforcement community is left grieving the loss of one of its respected brothers.

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.

Defective cribs, and other children’s products are some of the most scary recalls. Sadly, the users of these products lack the level of caution and reason we expect from adults or even older children. One new recall of dangerous and defective cribs highlights the dangers of what can occur when these products are not designed or built well.

The consumer product safety commission recently announced that 40,000 cribs are being recalled do to sides that can drop causing serious injury and even death. Since 2000, dropped sides in cribs have caused 32 deaths and are suspected in even more. Although this is a small number considering the millions of cribs sold during this same period, anyone will agree that a single death caused by a defective crib is too many.

The recall affects Ethan Allen, Angel Line, and Victory Land brand cribs. Hopefully the use of these dangerous crib are coming to an end as the CPSC passed a measure to ban drop-side cribs this past July.

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.

Attorneys on both sides of new Toyota litigation arising from the injuries and deaths allegedly caused by defects in the design of the Toyota Prius have petitioned a single California district court to assume jurisdiction over hundreds of lawsuits pending across the nation. The system under which this consolidation would occur for cases such as Toyota Prius Litigation, called "Multidistrict Litigation" or MDL, helps conserve the resources of the judiciary and the parties involved in the lawsuit, by unifying the process by which all sides conduct trial preparation. After this trial preparation, or discovery, is completed, the case returns to the original jurisdiction for trial, if necessary. Thus, a person who was injured in a Prius in New Mexico would file his or her case in the District of New Mexico; it would then be transferred to whatever federal district was assigned the MDL and returned to New Mexico for trial. Because of the large number of plaintiffs who are affected, MDL most often occurs in product liability cases and environmental and toxic torts.

There really is no such thing as a crystal ball. However, the Albuquerque Police Department believes they may have found something pretty close when it comes to DWI’s. It is called an Operational Deployment Resource Allocator, and it is claimed to be able to determine the locations were there is the highest risk of someone driving drunk.

Use of this DWI technology in Albuquerque is supposed to be able to take into consideration date, time, holidays, and traffic patterns to output the highest risk of drunk driving incidents. If accurate, the tool will give authorities the upper hand on where to focus their efforts to stop DWI, as well as assist drivers in Albuquerque, or throughout New Mexico in avoiding intersections where there may be a car accident.

Given the nature of New Mexico drunk driving accidents, any technology, however futuristic, certainly can’t hurt.

When asked to compute the highest risk intersections in Albuquerque during the upcoming Labor Day weekend, the machine produced the following list of the intersections with the highest likelihood of a New Mexico drunk driving accident:

1 Wyoming Blvd NE & Constitution Ave NE
2 San Mateo Blvd NE & Pan American East Highway NE
3 Griegos Rd NW & 2nd St. NW
4 Pan American East Highway NE & Montgomery Blvd NE
5 Pennsylvania St NE & Montgomery Blvd NE
6 Irving Blvd NW & Coors Blvd NW
7 San Mateo Blvd NE & Montgomery Blvd NE
8 Louisiana Blvd NE & Central Ave E
9 Wyoming Blvd NE & Menaul Blvd NE 578 10 Osuna Rd NE & Jefferson St NE

Although cannot say that I’m fully convinced with the abilities of this technology, I have to admit I find myself at Wyoming and Constitution during the Labor Day weekend I will proceed with a heightened sense of caution to say the least.

New Mexico Drunk Driving is in the news again, but this time its not all bad. On the same hand, its not all good either. NPR recently reported on New Mexico’s affliction with drunk driving, and more specifically that it moved from leading the nation in drunk driving deaths in the 90’s, to its current ranking of 17th. The article noted that New Mexico’s fall from the 10 worst states for drunk driving deaths allowed for an extra $1.5 million dollars in federal money.

So far so good. New Mexico lowers its drunk driving rate, and gets a wad of cash in the process. However, the story on New Mexico drunk driving goes on to ask the burning question of “Why” the drop in drunk driving.

At first, the reduced drunk driving deaths in New Mexico is attributed to the ignition interlock system for which New Mexico was the first state to require the installation of after a DWI conviction. However, another Albuquerque DWI expert was interviewed as part of the study and recommends New Mexico not start patting itself on the back.

She claims that the decrease in New Mexico DWI rates is also, at least partially, attributed to a change in how the statistics are reported. It used to be that the DWI rate was based on DWI deaths per capita. This is how it was tabulated when New Mexico led the nation. The method later changed to calculated DWI deaths per miles per year traveled by each resident. Considering New Mexico is a spread out state, and many New Mexico drivers travel hundreds of miles a week, the statistics went down.

This would suggest that even though the national rating has changed, the problem is still as big as ever. Of course, as long as New Mexico moves lower and lower on the list, there is still reason to applaud. Although our New Mexico personal injury attorneys represent many drunk driving victims, this is one type of case that New Mexico has always seemed to have plenty of.

Within the thousands of car accidents, many of which are New Mexico truck accidents, that occur each year, occasionally there are some that are so unusual and bizarre that it is impossible not to take notice. Granted there is never a New Mexico truck accident that is planned or predictable, but most certainly it easier to envision any accident other than what occurred recently on the outskirts of Albuquerque.

Yep okayA freight train that was near Belen was passing through the New Mexico darkness as if it was any other night. Whatever part of a freight train can be considered calm and serene, was interrupted when a truck came flying down from the sky and landed on it. It is certainly enough that New Mexico railroad operators need to be aware of street crossings in high-traffic areas. However, there likely was no training that could prepare anyone for vehicles falling from the sky.

Although New Mexico authorities are still investigating the incident, it appears that a truck traveling on I-25 lost control while on an overpass and fell on top of a freight train. Early accounts suggest that nobody on the train was injured and that the driver of the truck survived the incident without serious injury.

From a New Mexico personal injury lawyer’s perspective, this accident has so many possible causes and theories that it resembles a bar exam question more than a real-life occurrence.

Albuquerque medical malpractice verdicts are hard to come by. Heck, New Mexico medical malpractice lawyers will tell anyone that these case are some of the most hardly fought for anywhere in New Mexico. It is because of this that a recent New Mexico Court of Appeals decision is rippling through the state.

A while ago there was a large multi-million dollar jury verdict that was awarded in a New Mexico nursing home abuse case. The decision set various records and sent a strong message to New Mexico nursing homes on how that had to treat their patients. The case was reversed on what some may consider a legal technicality, while other may recognize as a material issue. As a result of the appellate court's ruling, the massive verdict has disappeared like a David Copperfield assistant.

The claim was based on part on the trial court's ruling that the nursing facility, under a legal theory of agency, was responsible for the conduct of the nursing home staff. Rather than present this particular issue to a jury, the trial judge decided that it was essentially an issue of law rather than fact. Unfortunately, the New Mexico Court of Appeals thinks differently and has ruled that the jury should have been allowed to decide if the New Mexico nursing home was responsible for the conduct of every staff member. As a result of the decision, the multi-million dollar verdict is gone, and the case is back to where it was years ago.

New Mexico police pursuit accidents are not the most common type of accidents, but when they occur, often result in serious or even fatal injuries. Typically, the basis of these injury cases involve claims that local authorities did not properly handle a police pursuit and instead, jeopardized the safety of New Mexico public.

News arising out of Iowa seems to reflect good judgment by pursuing officers during a motorcycle chase. A motorcyclist first drew the attention of police by speeding at 90 mph through a construction zone. When officers attempted to pull the motorcyclist over, he increased his speed to a whopping 188 mph. The moron motorcyclist exhibited a sliver of intelligence when he slowed to 158 mph to pass other vehicles.

When the chase entered more populated areas, the police balanced apprehending the suspect and charging him with driving offenses, with the overall safety of the public. This balancing test resulted in the police falling back in following the suspect by air surveillance. When the motorcyclist pulled into a parking garage, the police surrounded the area and arrested him.

While no one can condone the motorcyclist’s driving, the police must be applauded for calling off the chase and preventing what would likely have been a horrific motorcycle accident. In the event that all police officers acted with such judgment and discretion, there would likely not be nearly as many New Mexico police pursuit accidents.

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.

In theory, jury trials are supposed to be heard before your “peers.” However, there have always been a few exceptions, jury pools tend to be based on driver’s license records or voter registration records. From there, there can be all sorts of exclusions. However, a recent bill being circulated in the state Senate allows those over 70 years old to submit a written statement to the court to get off of jury duty.

In theory, supporters of the bill suggests that it will prevent many seniors from having to find rides to the courthouse, or sit through uncomfortable and lengthy trials. They are also eager to point out that the bill does not prohibit seniors from serving on a jury, rather allows them leave to get out of jury duty.

State legislators voted in favor of the bill and it now heads to the House of Representatives for consideration. It will be interesting to see if those who can actually benefit from the bill are as eager to do so as the supporters of it.

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.

Anyone with children or an interest toward electronic devices is well aware of what the retail industry calls the "clamshell." It is the infuriating clear plastic packaging that takes substantial time, brute force, and sometimes spilled blood to open. Although I generally keep these packages as a nuisance, I was surprised to hear that they are the legitimate cause of injuries throughout the country.

According to the New York Times, 6000 Americans end up in the emergency room as a result of trying to open these packages. That is 6000 Americans who had to show up at school or work the next day and tell an embarrassing story of how they got their bandages. You may be asking why on earth is this posted in the New Mexico injury lawyer blog. Please understand that I have never heard of anyone pursuing legal action for such a case, and I believe that any such cases would face many difficulties.

However, what is comforting is that the retailers including Amazon.com and other toy manufacturers have heard their customers complaints and are attempting to return to the simple cardboard box to package their merchandise. From a New Mexico product liability lawyer's perspective, this story is a unique example of businesses taking it upon themselves to fix dangerous or unsafe products, or in this situation packaging.

By the same token, what is amazing about this story, is that manufacturers will bend their policies to prevent their customers from suffering aggravation and minor injuries. However, when it comes to serious harm that many products pose, manufactures and retailers are less likely to intervene. Many New Mexico product liability cases occur because a dangerous defect or condition is known, but not seen as important enough to resolve or fix. Either way, I'm just glad that there is hope that I won't spend future holidays and birthdays swearing over my workbench trying to pry open a toy horse.

Occasionally New Mexico personal injury law and humor cross paths. A recent case in which the plaintiff sued the City of Las Vegas highlights such an intersection. The lawsuit arose when the plaintiffs toilet backed up causing sewer water to gather on the bathroom floor. There was undisputed property damage that occurred in the City of Las Vegas accepted liability.
However, in addition to claiming damage to their house, one plaintiff claimed emotional distress. Although the plaintiff made clear that the emotional distress stemmed entirely from the damage to his floor and walls, I would assume that smelling sewer water on one's bathroom floor would invoke a great deal of emotional distress. Heck, a clogged toilet at the wrong time can cause fear and anxiety. Sewer water on a bathroom floor goes a step further.

Although a jury awarded the plaintiffs $10,000 for his emotional distress claim, the New Mexico Court of Appeals clarified long-standing law that requires physical injury, defamation, or intentional misconduct prior to allowing emotional distress as a damage.

In New Mexico, negligent infliction of emotional distress is generally limited to the emotional shock that occurs when witnessing a sudden traumatic event. Typically, such triggers include shootings, car accidents, or other serious physical injuries.

On the bright side, this case finally clarifies whether smelling sewer water on one's bathroom floor is a recoverable damage in and of itself.

A local Albuquerque television station recently did a report on the requirements necessary to obtain a New Mexico driver's license. Specifically, the report focused on the 25 question driving test in which it is necessary to correctly answer 18 questions to pass. From an Albuquerque personal injury lawyer's perspective, I watched the report wondering if more stringent testing requirements would decrease the number of accidents on Albuquerque streets. Honestly, I don't think it would make much of a difference.

In my experience meeting with victims of Albuquerque car accidents, very rarely can I say that an accident occurred because somebody did not properly tap their breaks or pull over for an approaching emergency vehicle. Instead, accidents occur most often from a lapse in attention, or a conscious decision to drive dangerously and erratically.

Currently, at least according to the news report, drivers must answer 18 of 25 questions correctly. This is essentially asking for a 72%, or C-, grade to pass a driver's test. Even if the necessary score were increased, I do not believe that it is going to prevent some people from speeding, running red lights, or not properly yielding to oncoming vehicles. Simply put, I believe that many Albuquerque car accidents occur because people choose to be risky and dangerous drivers, not that they simply do not understand driving rules.

Nonetheless, it is an interesting report by Shelton Dodson. If you want test yourself, you can try a sample New Mexico drivers license test.

Earlier the White House dog, Barney, bit a reporter who was reaching to pet it. Aside from its comic implications, it brings up a common New Mexico dog bite scenario. The "first dog's" attack would produce some amazing pretrial discovery issues.

Does Barney have a tendency toward violence?
Did Barney live in an abusive household?
Was Barney bred for his watchdog tendencies to protect the White House?
Has Barney previously attacked any world leaders or diplomats?

Unfortunately, as New Mexico dog bite attorneys, many of the injuries we see are far more serious than Barney's encounter. To make matters worse, a high percentage of the victims tend to be children with lasting injuries and scars.

Typically, the availability of homeowners insurance is one of the more important factors in evaluating the value and likelihood of success in Albuquerque dog bite cases. In addition, attention to detail must be focused on evaluating the foreseeability of the dog attacked and any comparative fault on behalf of the dog bite victim.

Obama will soon be president of the United States. He inherits a nation that is divided and wounded. But also one the he promises to make a better. Across the nation, we saw red fade into blue. New Mexico is now a blue state from border to border. The election results, which increased the democratic pull across America, also sound an alarm for the republican party that they need to regroup and refocus their principles.

Republican strategists have already begun recommending a new direction for their party, a return to fiscal conservatism. As a Albuquerque personal injury lawyer, I immediately wondered how any such refocusing will affect the popular talking point of "tort reform". If in fact the Republican Party is to separate itself from the religious right and reorganize itself under economic issues, it seems likely that they will attempt to piggyback tort reform as a needed change.

Although in exit polls, tort form is not popular enough of a topic that drives elections, it is a part of the common popular issues; access to health care and the economy. Under the Republican plan, both health care and the economy will be cured by implementing tort reform. Should the Republican Party abandon the divisive issues of gay marriage, abortion, and gun rights, this would seemingly allow more resources for an attack on tort reform.

Although the issues relating to tort reform have been well researched and statistical data shows that personal injury lawyers and accident attorneys are in no way ruining the economy or health care system, it is a topic that has persisted from election year to election-year. And even if tort reform is never accomplished, the brainwashing of jury pools has a far more beneficial effect for the insurance companies in the passage of any bill or measure.

If there is to be an increased attack on the legal system by the Republicans, Democrats, injury victims, and trial attorneys must prepare for what is to come. I would hope that New Mexico personal injury attorneys continue to discuss how their clients' cases are affected by politics, and that those in office waste no time in preparing for he newly engineered attack on injury and accident victims.

A recent New York Times article addressed the age old plaintiff lawyer's dilemma, "Should I settle or should I sue." Generally this predicament boils down to an analysis of what the insurance company is offering and whether the client is likely to fair better before a jury. The article reports on a study lead by a consulting group that poured over numerous cases in which plaintiffs turned down a defendant's final offer and went to trial.

Among the study's findings; defendants were found to have done worse than the plaintiff's final offer only 24% of the time. Plaintiffs made the wrong choice 61% of the time, meaning they recovered less than what the defendants had last offered.

While it is difficult to apply such general statistics to any specific case, the article does suggest what most any experienced personal injury attorney already knows, that the jury system is becoming more and more risky.

Separate from its statistical analysis, the article also points out that an attorney's role is more than simply preparing a case for trial. Rather, an experienced attorney should provide their clients with advice to make the best decision regarding the direction of their case. Although clients may not wish to hear their lawyer advise them on the weaknesses of their case, it is nonetheless necessary.

While it is always the client's decision whether to proceed to trial, the analysis is not much different than how one would reason at a casino. The risks of proceeding may be known, but the excitement of the moment often times encourages people to risk money in the hand for a chance at more. A personal injury attorney must be able to accurately advise their clients on how to proceed, and after a decision has been made, support them thoroughly. At times this may mean preparing for settlement, or preparing for trial.

A personal injury lawyer must never allow their own aspirations to interfere with their client's logical goals. Similarly, just as at the casino, there are certainly instances, and cases, in which a lawyer must be prepared to double down and do everything physically possible to convince a jury to do what is right.

Ask most New Mexico personal injury lawyers and they'll tell you how politicians, pandering for popular votes, target injury lawyers and threaten changes that help large corporations at the expense of injured New Mexicans. For the most part, New Mexico has dodged this national tort reform trend and fought to protect those injured by medical malpractice, slip and fall, andNew Mexicans injured by car accidents truck accidents or motorcycle accidents.
I was surprised to hear that Obama, heralded as the champion of the left, has supported in the past and continues to support forms of tort reform.
Sebastian Mallaby with the Washington Post recently wrote an article, that although referenced a, "grotesque tort system" had some nonetheless valuable reflections on the two presidential candidates. The article mentions that Obama voted in favor of the Class Action Fairness Act. Although the bill did not implement obscene limits is such cases, it did increase the Federal Court's jurisdiction, giving executive appointed judges more control over case originally in state court. Critics claim the bill makes limits access to the legal system and makes it easier to monitor and control.
The question is whether Obama voted for this bill because he believes in even broader tort reform, or this was an attempt to garner some bipartisan support. If it is the former, New Mexico may be seeing its tort reform defenses begin to weaken.