Recently, a court issued an opinion in a recreational use injury case that may be applicable in New Mexico personal injury cases. In that case, the Supreme Court of Georgia ruled that summary judgment should be granted to a city-owned stadium after a six-year-old girl was injured after falling through the bleachers.

StadiumFacts of the Case

In 2012, two parents were attending a youth football game with their six-year-old daughter. The parents purchased two tickets for themselves, but the young girl was able to attend for free because children under the age of six were not required to pay an admission fee.

When the girl was walking to the concession stands, she slipped and fell through the bleachers and sustained serious injuries. The family brought a personal injury lawsuit against the city, but the city moved for summary judgment. The city argued that the state’s recreational use statute protected it from liability because the injured party did not pay a fee to attend. At trial, the family argued that the exception should not be applied because the parents were charged an admission fee. The lower court agreed, denying the city’s motion for summary judgment. The city appealed.

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Recently, a state court issued an opinion in a personal injury lawsuit filed by a tenant against her landlord, stemming from an incident in which the plaintiff was injured on the landlord’s property. The case presents an important issue that often arises in New Mexico premises liability cases. Specifically, it addressed what must be shown by a tenant to recover damages for injuries sustained on a property rented from a defendant landlord.

Wooden StepsThe Facts of the Case

In 2012, the plaintiff fell on the steps of a property she was leasing from the defendant landlord and suffered a torn ligament as a result. The plaintiff filed a negligence lawsuit against the defendant landlord, asserting that the landlord was negligent in failing to maintain the property and notify the tenant of the defect in the steps.

The landlord responded that the plaintiff was contributorily negligent and that her recovery should be barred or reduced due to her own actions having a role in causing her injuries. The plaintiff presented evidence showing that prior to the beginning of her lease, a housing code inspector notified the landlord that the step was a violation of local code, and they told the landlord that the home could not be leased until it was fixed.

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The United States Court of Appeals for the Tenth Circuit recently held that an injured woman’s lawsuit against a ski resort was properly dismissed because she signed an exculpatory waiver of liability. While the accident did not happen in New Mexico, plaintiffs bringing New Mexico personal injury cases may still find the principles relevant.

Ski LiftThe Facts of the Case

The lawsuit stemmed from a 2015 accident in which a woman and her family took a ski lesson at the defendant resort. In order to participate in the lesson, the plaintiff and her family were required to sign a liability waiver. Essentially, the release enumerated a list of exculpatory waivers to liability – including that the participant acknowledges and assumes all risks and dangers that may result in injury or death that are inherent to the activity. After signing this release and receiving some instruction, the woman boarded a ski lift but was unable to unload because her boot became wedged between the lift and the snow. She was able to stand up but could not disengage, and unfortunately, she was pushed forward and fractured her femur as she fell.

Procedural Background

The woman filed a lawsuit against the ski resort for the injuries she sustained. She argued that she was injured due to the inadequate instruction from her teacher and the chairlift operator’s negligence in not stopping the lift. She based her lawsuit on negligence, negligence per se, negligent supervision and training, respondeat superior, and negligent hiring.

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In many New Mexico personal injury cases, there are complex legal issues that the average juror may not understand – which is why New Mexico plaintiffs and defendants must on occasion provide expert testimony. Generally, an expert witness is someone who is qualified through their education, training, experience, or practical skills.

LaptopExpert witnesses are often required in certain personal injury cases in New Mexico, and the judge or jury can rely heavily on the testimony that they present. There are many kinds of expert witnesses, including physicians, psychologists, forensic pathologists, scientists, and even handwriting experts. Unlike other witnesses, experts are allowed to provide their opinion based on their knowledge. In some cases, experts are called to testify during a trial, whereas other experts are used during pre-trial proceedings to familiarize a party with a certain field or issue. These experts may review things such as medical records, accident reports, witness testimony, and scientific or other technical data.

The decision of whether to allow an expert to testify rests with the judge, who acts as the “gatekeeper” of the evidence that a jury is permitted to consider. Thus, New Mexico personal injury attorneys usually make the initial determination regarding whether an expert witness is needed and what specialized training they should have. In most cases, an expert will be utilized when the case is complicated, or the facts require the judge or jury to reach a conclusion based on a complex subject matter. For example, in a car accident case, an accident reconstructionist would be an appropriate expert. Similarly, in a product liability case, an engineer may be useful. Experts can often make or break an accident victim’s case, and as a result, it is important that plaintiffs utilize an attorney’s expertise in determining which kind of expert to retain.

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Recently, a state court issued an opinion stemming from a 2011 medical malpractice lawsuit. The court reversed the defendant’s motion for summary judgment. The case was appealed all the way to the state’s supreme court to determine whether the trial court properly granted summary judgment and dismissed the case with prejudice in favor of the defendant. The case originated from the delivery of the plaintiff’s baby, after which the plaintiff’s baby was born with serious injuries. The case is important for New Mexico personal injury victims because it illustrates the standards courts use when evaluating New Mexico motions for summary judgment.

SurgeryThe Facts of the Case

Shortly after the traumatic birth of her child, the plaintiff brought a lawsuit against the doctors and the hospital, arguing that the medical treatment provided by the defendants was below the accepted standard of care. In accordance with state law, the defendants filed an answer to the complaint, denying the allegations and demanding an affidavit of merit (AOM).

The plaintiff did not respond to the defendants’ motion, and the defendants filed a motion for summary judgment in response. The plaintiff opposed the defendants’ motion, filing the requested AOM. The plaintiff argued that it was his attorney’s misunderstanding that resulted in the untimely filing.

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Earlier this month, a state appellate court issued a written opinion in a car accident case that illustrates an important point that routinely comes up in New Mexico personal injury cases. The case involved the issue of a jury’s verdict in favor of a plaintiff who claimed she suffered lost wages as a result of an accident. The court, however, rejected the plaintiff’s claim, finding that the evidence presented was speculative and failed to establish that the loss in wages was reasonably certain.

Car AccidentThe Facts of the Case

The plaintiff was involved in a car accident with the defendant. As a result of the accident, the plaintiff suffered serious injuries and filed a personal injury claim against the defendant. The defendant admitted that the accident was his fault, but he claimed that the accident was not the cause of the plaintiff’s injuries. Thus, the case proceeded to trial on the issue of damages only.

At trial, the plaintiff made two claims. First, she argued that she was entitled to future medical expenses. In support of this claim, she had an expert witness testify that she would need palliative care, which was estimated to cost between $525,000 and $850,000. The expert also opined that, while not absolutely necessary, it was recommended that the plaintiff get cervical surgery to improve her quality of life. If successful, the plaintiff would not need future surgeries; however, if it were unsuccessful, the plaintiff would likely then need a subsequent lumbar surgery. The cervical surgery was estimated to cost between $90,000 and $120,000, and the lumbar surgery between $60,000 and $90,000.

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Earlier this month, a state appellate court issued a written opinion that presents an important issue for many New Mexico car accident victims. This case discusses in which circumstance the government can be held liable when a government employee is involved in an automobile accident. Specifically, the case required the court to determine if a sheriff deputy could be held liable for an accident occurring during a high-speed chase.

Police CarThe Facts of the Case

The case stemmed from a lawsuit commenced by two individuals who were injured in a collision that occurred while police were in pursuit of a man fleeing from a routine traffic stop. According to the court’s opinion, a county deputy was monitoring traffic when he noticed a driver with an out-of-state license plate straddling two lanes and attempted to pull the car over.

As the deputy began to pursue the car, the driver increased his speed and began to veer in and out of traffic very quickly. The county deputy continued to pursue the driver and notified an adjacent county police station about the aggressive driver. The sheriff’s department in the other county began pursuit, and the original county officers had to stop due to a tire blow-out.

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Expert witness testimony comes into play in a significant number of New Mexico car accident cases. Understanding the rules regarding expert witnesses is important for all potential personal injury plaintiffs. Recently, one state’s supreme court reversed a lower court’s judgment that granted a plaintiff summary judgment in a car accident case. The lawsuit stemmed from a 2014 accident in which an individual rear-ended the plaintiff.

CourtroomAfter being hit, the plaintiff received medical care and was diagnosed with right shoulder strain and whiplash. The plaintiff continued treatment for the psychological and physiological issues she suffered following the accident. Subsequently, she began receiving advance payments from the other driver’s insurance company. At some point, the insurance company asked to have an independent medical examiner review the plaintiff’s medical records to determine whether her ongoing issues were actually a result of the accident. The plaintiff refused to comply with providing documentation, but the medical examiners nonetheless concluded that there was no actual physiological damage and that most of her continued pain was psychological.

Despite this finding, the plaintiff filed a motion for summary judgment, arguing that there was no genuine issue of material fact to dispute that her ongoing damages were a result of the accident. In response, the insurance company argued that the opinions of the two independent medical examiners resulted in a question of material fact. The case was appealed all the way to the state’s supreme court, which concluded that after comparing the plaintiff’s affidavits with the independent medical examiners’, it was clear that there was a disputed issue of material fact. As a result, it was not clear whether the plaintiff’s ongoing expenses were actually related to the accident. Thus, the court remanded the case back to the lower court for further proceedings.

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In a recent opinion, a state supreme court reversed a district court’s decision granting summary judgment to a doctor involved in a medical malpractice lawsuit. The lawsuit stems from an incident in which a woman twisted her knee while at work. The procedural rules discussed in the case may be relevant to some New Mexico medical malpractice cases as well.

Knee X-RayIn 2007, the plaintiff went to an orthopedic surgeon, who performed a resection. At some point during the surgery, the doctor discovered that there was an additional tear, but he did not repair it. Approximately two months later, the doctor performed another surgery and drilled a hole through the bone. The doctor continued to monitor the woman and noted that she was doing “extremely well,” except one note that indicated some pain.

The patient filed a medical malpractice lawsuit and testified that she experienced an excruciating pain near the surgical site. However, she said she was not aware if it was related to the hole that was drilled because she had two different surgeries. The patient received a second opinion about the origin of her pain from a doctor who reviewed the records and stated that there may have been a problem with the first surgery. The patient also testified that this was the first time she realized that the first doctor could have botched the surgery.

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One state’s supreme court recently released an opinion regarding the appeal of a verdict in favor of an injured middle school student. It discusses some legal concepts that may be relevant to people filing New Mexico personal injury lawsuits. In 2004, an 11-year-old student was playing floor hockey as part of his physical education class when he was accidentally struck in the eye by another student. The student had to undergo a series of eye surgeries and attend several follow-up appointments.

Apple for TeacherSeveral years later, the student, now an adult, filed a lawsuit against the school district, claiming negligence, negligent infliction of emotional distress, negligent supervision, and negligence per se. The school district asked the court to dismiss the lawsuit, arguing that the student’s claim should be barred under the assumption of risk doctrine, and the plaintiff’s claim was not supported by the evidence. The school also argued that it did not have a duty to provide safety equipment and that being hit with a hockey stick is an inherent risk associated with this type of game. Additionally, the school district argued that it should be immune from liability under its discretionary function immunity.

The lower court ended up finding in favor of the student and awarded him compensation for past medical bills, future medical expenses, and past pain and suffering. The school district appealed on the basis of the implied assumption of risk doctrine and the discretionary function immunity doctrine, and it argued that the student did not establish negligence.

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