Earlier this month, an appellate court in California issued a written opinion in a personal injury case that may be of interest to New Mexico personal injury plaintiffs. The case illustrates how a defendant may attempt to argue that a plaintiff assumed the risk of injury, potentially defeating the plaintiff’s claim.
In some jurisdictions, a defendant may be able to completely preclude a plaintiff from recovering compensation for their injuries by successfully arguing that the plaintiff assumed the risk of harm in the situation. For example, if an athlete is injured while playing football, it is likely that a court would find that the athlete assumed the risk of injury if he were to file a personal injury lawsuit against the league because it is common knowledge that playing football can result in certain types of sports injuries.
In New Mexico, the assumption of the risk doctrine does not act to completely bar a plaintiff’s lawsuit but instead is factored into the comparative negligence analysis. Under comparative negligence, a plaintiff can recover for their injuries even if they are somewhat at fault for the accident that caused their injuries. However, the plaintiff’s total award amount will be reduced by their own percentage of fault. Therefore, in New Mexico, a jury will be able to consider whether a plaintiff assumed the risk of injury, but it will not preclude the plaintiff’s ability to recover for their injuries, unless the plaintiff is found to be completely at fault.