Earlier last month, one state’s supreme court issued a written opinion in a slip-and-fall case that required the court to determine whether the lower court properly applied the state’s recreational use statute. The case also presented the court with the opportunity to discuss one of the foundational rules of appellate procedure. Specifically, the court grounded its opinion in the rule stating that when a plaintiff’s evidence is presented for the first time on appeal, it cannot be considered because it was not presented at trial.
The plaintiff was the mother of a young boy who was injured while he was playing baseball in a park owned and operated by the defendant city. Evidently, the boy’s lower leg slid under home plate as he attempted to slide home. When he stood up after coming to a stop, he broke his leg in two places. The plaintiff filed a premises liability lawsuit against the city, claiming that the bases were not properly maintained and were a danger to those using the baseball diamond.
In a pre-trial motion for summary judgment, the city argued that it was immune from liability under the recreational use statute. Specifically, the city claimed that it allowed all citizens to use the park for no cost, and under the statute, it could not be held liable. The plaintiff objected to the application of the statute but offered no basis for the objection. Ultimately, the trial court granted the city’s motion and dismissed the case, finding that the city was immune under the recreational use statute.
The plaintiff appealed, presenting additional evidence suggesting that the city had been put on notice that the bases on that specific baseball diamond were in poor condition and needed to be replaced. However, the appellate court declined to consider the plaintiff’s evidence because it was not presented during the motion for summary judgment. The court explained that, as a general rule, an appellate court can only rule on issues of law that were raised below. Since the plaintiff failed to raise the issue of the city’s knowledge of the bases, the court considered it waived.
New Mexico’s Recreational Use Statute
New Mexico’s recreational use statute protects landowners who make their land available “for the purpose of hunting, fishing, trapping, camping, hiking, sightseeing or any other recreational use.” In order for immunity to apply, the landowner cannot charge a fee for the use of the land. If immunity does attach, the landowner will not assume responsibility for most injuries that occur on the property.
Have You Been Injured in a New Mexico Slip-and-Fall Accident?
If you or a loved one has recently been a victim of a slip-and-fall accident, you may be entitled to monetary compensation. The skilled personal injury and wrongful death attorneys at the Fine Law Firm have extensive experience representing clients injured in all types of slip-and-fall accidents, including injuries occurring on government and recreational land. Call 505-889-FINE to schedule your free consultation with an attorney today.
More Blog Posts:
State Supreme Court Rules in Favor of School in Slip-and-Fall Case, New Mexico Personal Injury Lawyer Blog, March 7, 2017.
State Appeals Court Finds Signed Arbitration Agreement Invalid and Reverses Lower Court’s Order, New Mexico Personal Injury Lawyer Blog, March 28, 2017.