Although a surprise witness is a common theme on TV and in movies, a surprise witness at a trial is rare. Generally, parties are required to disclose their witnesses before trial, and often courts do not allow surprise witnesses to testify. The idea is that prior to trial, all of the parties know generally what to expect so that they will not be prejudiced by a surprise.

Doctor's White CoatThe Identification of Witnesses Through Pre-Trial Discovery

The process of discovery is a pre-trial procedure in which the parties can obtain information from each other through different discovery tools. The goal of discovery is to uncover the evidence that will or could be used at trial. For that reason, during discovery, one party can require another party to identify the witnesses who have knowledge about the incident at issue, as well as the witnesses they plan to call at trial.

In New Mexico, a trial court has broad discretion to allow or bar witnesses whose identities were not revealed in pre-trial discovery. That is, if a party discloses the identity of a witness late, the trial court can decide whether to allow the late-disclosed witness to testify. This decision generally depends on the circumstances, and the court may choose to impose a less harsh sanction in some cases.

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In a recent case, one court considered whether a city could be held liable after a child was hit by a stray golf ball while he was on city-owned property. The golf course was owned by the city and managed by a private company. Next to the golf course, there were recreational areas, including a pedestrian walkway. The young plaintiff was struck in the head by a golf ball as his mother was pushing him in a stroller on the walkway.

GolferThe boy and the mother filed a claim against the city, alleging that the city failed to protect against a dangerous condition on public property by having a golf course next to a public walking area. According to the complaint, the boy was brought to the hospital and diagnosed with a brain injury. He allegedly suffered from cognitive delays, eye injuries, urinary dysfunction, significant pain, and emotional distress. The plaintiffs alleged that the city failed to protect against the known risk of golf balls hitting people outside the golf course by failing to put up adequate fences or other barriers and failing to adequately warn people of the risk.

The city filed a motion to dismiss the lawsuit, claiming it had immunity under the state’s laws. The trial court agreed and granted the city’s motion, finding it was entitled to immunity under a state statute. The law stated that a public entity is generally liable for an injury caused by a dangerous condition on its property; however, a public entity is not liable for an injury caused by the condition of a trail used for access to recreational areas that is not a public street or highway.

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Recently, a state supreme court released answers to the certified questions posed by a lower federal court in a car accident case. The question involved the applicability of a comparative negligence defense in a crashworthiness case brought by a man who was injured in a car accident.

Pickup TruckThe case stems from a 2012 accident in which an individual and his friend were driving in a 1987 Chevy pickup truck, owned by the friend. Evidence showed that the driver was under the influence of marijuana when he came to an intersection and failed to stop, ultimately ending up directly in the path of a Ford truck. The truck driver was unable to stop in time and hit the plaintiff’s car, which caused the Chevy to burst into flames. The driver died, and his friend suffered severe injuries.

The passenger in the Chevy filed a crashworthiness lawsuit against the car manufacturer, arguing that the pickup’s design caused the explosion. The defendant filed a motion for summary judgment, arguing that a comparative negligence analysis should be applied, and the plaintiff should be barred from recovery because the driver was impaired when the accident occurred.

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Earlier this month, an appellate court in California issued a written opinion in a personal injury case dealing with recreational use immunity as it applies to injuries occurring on government-owned land. Ultimately, the court determined that the defendant city was not entitled to immunity despite the fact that the plaintiff’s injuries occurred on government-owned land.

Golf SwingThe Facts of the Case

The plaintiff was the mother of a child who was struck by an errant golf ball while in a stroller. At the time of the accident, the mother was walking her son along a path owned and maintained by the city. The path abutted a golf course. After the accident, the mother filed a personal injury lawsuit against both the golf course as well as the city. The plaintiff’s claim against the city was based on the fact that the city knew that the golf course presented a hazard to people using the path but failed to do anything to remedy that danger.

In a pre-trial motion for summary judgment, the city claimed that it was immune from liability based on the state’s trail immunity statute. Essentially, the trail immunity statute prevents a government entity from being held liable when a person is injured on a trail that was open to the public for general recreational purposes. In this case, the city argued that the walkway constituted a “trail” under the statute, and immunity should be granted.

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Earlier this month, a state appellate court issued a written opinion in a motorcycle accident case, discussing the element of causation and the doctrine of intervening cause. Ultimately, the court determined that a third party’s actions acted as an intervening cause, severing the chain of causation set in motion by the defendant’s original allegedly negligent act. Thus, the court dismissed the plaintiff’s case, finding that he was unable to meet a required element.

MotorcycleThe Facts of the Case

The plaintiff was riding his motorcycle when he rounded a corner and saw a motor home stopped in his lane of traffic. Unable to safely stop in time to avoid the motor home, the plaintiff was injured when he lost control and skidded out.

As it turns out, the motor home was waiting in a traffic jam that had formed in the wake of another accident that had occurred about 90 minutes before. That accident was caused when an allegedly drunk motorcyclist entered into the turn too quickly, lost control of the bike, and drove off the road. That motorcyclist was pronounced dead on the scene. Highway patrol had responded and was in the process of clearing the scene when the plaintiff’s accident occurred.

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Last month, a state supreme court dismissed a summary judgment order granted by a lower court in a slip-and-fall case. The case stemmed from a 2013 accident in which a fast food patron was exiting the restaurant’s bathroom and fell, catching himself with his left hand. The patron immediately pushed himself up and was in a dazed and confused state. He later left the restaurant without ordering.

Fast FoodThe patron filed a lawsuit against the fast food restaurant, alleging that he sustained injuries due to their negligence in maintaining the premises. The defendant submitted video footage showing the patron slipping but not falling near the counter where customers order their food. The plaintiff explained that he did indeed slip near the counter, but he also fell just moments before that near the bathroom. After leaving the restaurant, the plaintiff began to experience severe pain. He returned to the restaurant and spoke to the manager, who he claimed acknowledged that she witnessed him fall.

The defendant countered by filing a motion for summary judgment. The restaurant argued that the video footage proved that the patron did not slip and fall in the restaurant. The restaurant claimed that, even if the patron did fall, the danger of a wet floor was open and obvious. The circuit court denied all of the motions brought by the patron and granted summary judgment in favor of the defendant.

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Recently, a state supreme court released an opinion in a lawsuit brought by two officers who were injured while they were in the process of helping an individual who had fallen asleep behind the wheel of a car. According to the court’s opinion, the two officers received a call about a traffic accident and were dispatched to the scene. The officers were speeding to the scene of the accident when the officer operating the police vehicle did not see a disabled pickup truck in the middle of the southbound lane. The police officers crashed into the disabled vehicle, resulting in serious injuries.

FiremenIt was later discovered that the individual in the disabled vehicle had a blood alcohol content of .103. Both officers applied for and received worker’s compensation benefits for the injuries they sustained as a result of the accident. The officers subsequently filed a negligence lawsuit against the pickup truck driver, claiming that the driver’s negligence caused them to suffer injuries and damages. The pickup truck driver claimed that the officers were partially at fault in causing the accident. He also argued that the firefighter’s rule barred all of the claims.

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When an individual is injured in a car accident, many people are under the impression that only the culpable driver may be sued, but that is not necessarily the case. Owners of vehicles should be aware that they may be a party to a lawsuit even if they were not the ones driving the car. In these situations, the car owner is vicariously liable for the acts of the individual driving their vehicle. Although the term “owner” seems clear, there are situations in which an owner may be the person who is holding themselves out as an owner because they care for or are in possession of the car. Basically, similar to many things in the law, “owner” is not necessarily a straightforward concept.

Desert HighwayThere are situations in which an owner may be liable when they do not actually cause the accident. Some of these instances include when an employer permits an employee to use a car for work or business purposes, or when an owner knows that the driver to whom they are lending the car is unlicensed, reckless, or incompetent, or finally if the owner knows that the vehicle is malfunctioning or defective but allows someone else to operate it. In the case that the owner lends the car to an unlicensed individual, the plaintiff must be able to establish that the owner knew that the individual was unlicensed, and they gave express permission to use their vehicle. In these cases, the plaintiff will likely be able to bring a lawsuit against the actual car owner.

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In a recent case, a Georgia court of appeals determined a defendant should be able to reopen a default judgment that was entered on behalf of the plaintiff because the plaintiff named the wrong party. The court ultimately held that, due to the plaintiff’s failure to name and serve the proper party at the outset, it was reasonable that the defendant failed to answer the complaint.

GavelAccording to the court’s opinion, a man fell at a Mexican restaurant in Marietta and died a few days later. A few weeks after the man’s death, his attorney sent a letter to the restaurant; however, it was sent to the wrong address. The letter was still delivered to the restaurant, and someone signed for the letter, but no one responded to the letter.

The man’s wife then filed a claim against the restaurant, again listing the incorrect address on the complaint. The restaurant’s owner was served with a summons and complaint, which named the incorrect restaurant as a defendant. However, the restaurant’s owner, who did own the restaurant at which the man died, was not associated with the restaurant that had been named in the complaint. Accordingly, the restaurant owner’s attorney responded, explaining that he was not associated with the named restaurant. The attorney for the restaurant where the accident occurred did not respond, since that restaurant was not named as a defendant.

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Recently, the Court of Appeals of Georgia reversed a lower court’s decision that had granted summary judgment to a grocery store in a slip-and-fall case. According to the court’s opinion, the plaintiff was shopping in the grocery store when she slipped in a puddle of liquid that was dripping from a package of meat. The plaintiff subsequently filed a personal injury lawsuit against the grocery store, alleging that they failed to maintain the premises, and that failure resulted in her injury.

Wet FloorThe grocery store moved for summary judgment, arguing that it did not have any actual knowledge of the hazardous condition. The store provided an inspection sheet that showed that the area was inspected about 40 minutes prior to the fall. Furthermore, the store provided the security tape, which showed the plaintiff walking around the area two times before falling. In its motion for summary judgment, the store argued that it appropriately inspected the area, and the plaintiff actually had better knowledge of the spill because she walked by it several times.

The trial court granted summary judgment in the grocery store’s favor. The plaintiff appealed and solely argued that the trial court erred in granting summary judgment because the defendant did not establish that it carried out a “reasonable” inspection on the day the fall occurred. The appellate court held that in order to overcome a summary judgment motion, a plaintiff must clearly show that the grocery store had constructive knowledge, which can be inferred from a lack of appropriate or reasonable inspection procedures. The court also explained that although there is no bright-line rule, grocery stores should have more frequent inspections. Ultimately, the court found that these sorts of cases turn on whether the store’s inspection procedure was reasonable, and this determination should be made by a jury. Thus, summary judgement was not appropriate.

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