Court Refuses to Consider Plaintiff’s Alleged Error on Appeal Because It Was Unpled Below

After a judge or jury enters a verdict in a New Mexico personal injury case, that verdict is final unless one of the parties files an appeal to a higher court. If an appeal is filed, the appellate court may only consider alleged legal errors. This means that an appellate court will not revisit factual findings of the judge or jury below, but it may consider issues related to the admission of evidence or other legal rulings made during the course of the trial.

Diving BoardAppellate courts will also only consider arguments that were made during the trial. For example, if a party fails to object to a ruling with which they disagree, that party will be prevented from raising the issue on appeal in most cases. In a recent case, the plaintiff’s premises liability claim was dismissed on appeal because the arguments he made on appeal were not raised below.

The Facts of the Case

The plaintiff was an investor looking to purchase a rental home. He contacted the defendant real estate agent and arranged to see one of the agent’s listings. The agent met the plaintiff at the home and showed the plaintiff around. The home had a pool in the back yard that had been emptied prior to the property being put up for sale.

The plaintiff wanted to see what was over the fence of the property, and to get a better view, he climbed atop the diving board. As he did so, the diving board broke, and the plaintiff fell into the empty pool. The plaintiff filed a premises liability lawsuit against the realtor, arguing that the realtor negligently maintained the property by failing to inspect and fix the broken diving board. However, the plaintiff presented no evidence at trial indicating that the realtor knew about the broken diving board, despite the realtor’s inspection of the property. As a result, the trial court dismissed the plaintiff’s case.

The plaintiff filed an appeal, arguing that the swimming pool – rather than the diving board – was a dangerous condition. The realtor argued that this was not raised below by the plaintiff and that the appellate court should not consider the argument on appeal.

The court agreed, noting that the plaintiff distinctly listed the dangerous condition as the diving board in his initial complaint and throughout the litigation below. The court explained that it would not be proper for it to consider the newly raised argument and dismissed the plaintiff’s appeal.

Have You Been Injured on Another Party’s Property?

If you or a loved one has recently been injured on another party’s property, you may be entitled to monetary compensation through a New Mexico premises liability lawsuit. It is very important to the success of your claim that you discuss your case with an experienced New Mexico personal injury attorney as soon as possible. In many cases, defenses can be anticipated and taken into account, increasing your chance of success. Call 505-889-FINE to schedule a free consultation with a dedicated New Mexico personal injury attorney from the Fine Law Firm. Here at the Fine Law Firm, we have represented thousands of clients in all types of personal injury matters, and we look forward to speaking with you about your case.

More Blog Posts:

New Mexico’s Dram Shop Liability Statute Can Help Victims of Drunk Driving Accidents Fully Recover for Their Injuries, New Mexico Personal Injury Lawyer Blog, August 9, 2017.

Court Finds Driver’s Act of Waving Plaintiff Forward to Make Left Turn Was Not the Cause of Subsequent Accident, New Mexico Personal Injury Lawyer Blog, August 25, 2017.