Articles Posted in Personal Injury Verdicts

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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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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A Florida appellate court recently released an opinion in a case involving the potential wrongful death of a nursing home resident. The deceased individual was admitted to the nursing home in April 2013. On the day after her admittance, the woman’s daughter signed and accepted the position of “health care proxy” on behalf of her mother. Although this proxy was signed, the plaintiff’s mother never executed a durable power of attorney in her daughter’s favor.

ContractWithin the first week of the resident’s admittance, her daughter signed a voluntary arbitration agreement. This agreement outlined what a legal representative was, and the daughter signed in the space designated for a legal representative’s signature. Importantly, the agreement stated that the nursing home could not require a person to sign the agreement unless the person had legal access or physical control of the resident’s income and resources.

Unfortunately, at some point after her admission, the resident sustained injuries that resulted in her death. The plaintiff, the resident’s estate, then filed a lawsuit against the nursing home. The nursing home responded by filing a motion to dismiss, attempting to compel arbitration. The trial court found the arbitration agreement was valid and granted the defendant’s motions.

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The Supreme Court in the State of Rhode Island recently released an opinion in a lawsuit stemming from a two-vehicle crash that injured a school crossing guard. According to the court’s opinion, the plaintiff was standing at her post as a crossing guard when a car that had run a red light slammed into a pickup truck in the intersection. After being hit, the pickup swerved and careened out of control, eventually striking the plaintiff, causing her to be slammed into a wall. The plaintiff ended up suffering serious injuries.

Body DamageAs a result of her injuries, the plaintiff filed a lawsuit against both of the drivers, claiming that they were negligent. The pickup truck driver moved for summary judgment, arguing that the case against him should be dismissed because there was no evidence to indicate that he’d acted negligently on that day – as opposed to the driver of the other car, who’d run a red light. The lower court agreed with the defendant and found that the plaintiff’s assertion that the pickup truck driver was negligent was not supported by anything in the record. The plaintiff then appealed the decision to the Supreme Court of Rhode Island.

The Supreme Court held that just by getting behind the wheel and driving his car on a public road, the pickup truck driver owed a duty of care to others on the road. Further, because he entered the intersection while the light was green does not necessarily mean that his duty of care was fulfilled. As such, the Court held that summary judgment was inappropriately granted because there were genuine issues of material facts that needed to be resolved by the jury.

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Last month, the Supreme Court of the State of Wyoming issued a decision in a premises liability case stemming from a 2014 accident. According to the court’s opinion, a student and his friends left a middle school P.E. class and had to travel between buildings to get to their next class. The students noticed a patch of ice and began playing on it. The student bringing the lawsuit slid on the ice and fell, breaking a tooth, fracturing his nose, and lacerating his face.

Feet on the SnowAfter investigating the area, it became clear that the icy spot was not hidden, and it was not readily apparent that anyone had done anything to made the ice more slippery or dangerous. The school explained that it is their practice to remove snow and apply ice melt every day when ice or snow is present. Nothing indicated that they did not follow this practice on the day in question.

The district court granted summary judgment in favor of the school and found that there was no duty because the accumulation of the ice was obvious and natural. The student then appealed the lower court’s ruling, and the appellate court affirmed the lower court’s judgment. That court stated that the plaintiff could not establish a prima facie case of negligence. It found that the student clearly knew that the area was dangerous. Furthermore, the court found that the school district did not violate the duty it owed to the student by applying an ice melting agent to the ice. The court explained that while the application of the ice melting agent may have changed the natural state of the ice, it was not proven that the school increased the likelihood of harm by applying the agent.

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Earlier this year, a state appellate court issued a written opinion discussing the negligent entrustment theory of liability. The plaintiff in the case was a man who was injured when a drunk driver struck him while he was driving. The relevant claim was against the driver’s employer, which had allowed the driver to use a company vehicle. The court ultimately determined that the plaintiff’s case should be permitted to move ahead toward trial because there was sufficient evidence to put the employer on notice as to the driver’s history of DUI convictions.

Broom and MopsThe Facts of the Case

As mentioned above, the plaintiff was struck by a drunk driver. That driver had arranged to borrow a vehicle from his employer. The employer allowed the driver to borrow the vehicle, despite the fact that it was clearly prohibited by company policy. While the employee was borrowing the vehicle, he had a few drinks and was involved in a DUI accident with the plaintiff.

The plaintiff filed a personal injury case against the driver’s employer, arguing that the employer was negligent in allowing the defendant to use a company vehicle. In support of his claim, the plaintiff pointed to several drunk driving convictions that the employee had incurred prior to being hired. In its defense, the employer explained that the employee only told the employer about one of the DUI convictions in the interview. The employer ran a background check that went back three years, and nothing came back.

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One can easily imagine a world in which a defendant fearful of an upcoming lawsuit destroys internal company documents that the defendant knows may be harmful to its case. This fear of the destruction of evidence in anticipation of litigation gave rise to the doctrine of spoliation. Essentially, the doctrine of spoliation allows for a judge to impose sanctions on a party if they destroy or alter relevant evidence in anticipation of an upcoming case.

TireThere are several sanctions available to a court when it finds that a party has engaged in spoliation. Most commonly, the judge will prevent certain evidence from being admitted. Alternatively, the judge may provide the jury with an instruction regarding the missing evidence and how, if preserved, it would likely disfavor the party that was responsible for its destruction. Moreover, in some extreme circumstances, a court can enter judgment against the spoliating party.

Not all pre-trial destruction of evidence, however, will be considered a violation of the spoliation doctrine. As a recent case illustrates, sometimes a party destroys evidence without thinking about an upcoming case.

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Recently, the Supreme Court of Mississippi remanded a negligence case back to the trial court for a new trial after the court determined that the trial court allowed improper expert witness testimony and an improper closing argument. The case stemmed from a 2008 incident in which a woman who was in a nursing home fell and broke her hip following a surgical procedure to repair her fractured hip. Sadly, the woman ended up passing away several days after the fall.

Hospital BedsHer family brought a lawsuit against the nursing home, making several claims, including:

  • Failing to provide the appropriate number of staff for the residents;
  • Failing to provide a sufficient nursing plan;
  • Failing to take reasonable steps to prevent or eliminate dangers in the nursing home; and
  • Failing to seek a doctor’s guidance with regard to the specific needs of the woman.

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Recently, a California appellate court released its opinion regarding a medical malpractice lawsuit stemming from a 2012 accident. According to the court’s recitation of the facts, the plaintiff was a patient at the defendant hospital, and he was being transferred by an ambulance agency, another named defendant. During the transfer, the gurney tipped over, and the plaintiff fell to the ground, suffering several injuries, including fractures to his patella and clavicle.

AmbulanceAbout two years later, the man filed a lawsuit against the hospital and ambulance agency, alleging several causes of action, including premises liability, negligence, and personal injury. The statute of limitations for general negligence cases in the jurisdiction is two years, but it is only one year for medical malpractice cases. Both defendants filed summary judgment motions, claiming the case was one of medical malpractice and asking the court to dismiss the case. Several months later, the trial court granted the summary judgment motions.

After the court granted the defendants’ motions, the plaintiff then filed an appeal, asking a higher court to review the lower court’s decision to classify his case as a medical malpractice claim. However, the appellate court found that the transfer of the plaintiff on the gurney was “related to” his medical treatment, and therefore the claim should be considered one of medical malpractice. Thus, the one-year statute of limitations applies to both the case against the hospital as well as the case against the ambulance company.

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The United States Court of Appeals for the Fifth Circuit recently released an opinion affirming a lower court’s decision that summary judgment should be granted in favor of a defendant in a product liability lawsuit. The case stems from a tragic traffic accident that occurred when a passenger died when he was traveling as a passenger in the back of a vehicle.

Road SignAccording to the court’s written opinion, the vehicle crashed into another vehicle and began spinning, colliding with many nearby objects. Unfortunately, a yield sign was one of the objects that was hit, and the stationary base of the sign was forced underneath the vehicle and cut through the fuel tank. At that point, the fuel tank began to leak. The driver and front passenger were able to safely exit the vehicle; however, the three passengers in the back were not able to escape because the doors would not open. As the passengers were trying to escape, the car became engulfed in flames.

The family of the three passengers killed brought a product liability lawsuit against the car’s manufacturer. They claimed that the design of the car’s fuel tank was faulty and that the company should have taken reasonable steps to design and manufacture a gas tank that would not be prone to explosions after this type of accident. The plaintiffs attempted to produce expert testimony, but the defendants successfully moved to exclude the testimony. As a result, it was determined that the plaintiffs did not have sufficient evidence to raise a genuine issue of material fact.

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