Articles Posted in Relevant Personal Injury Case Law

New Mexico drunk driving accidents are too common, claiming upwards of 100 lives per year. To combat the threat drunk driving poses, lawmakers have enacted strict drunk driving laws that prevent drivers from getting behind the wheel when they have had too much to drink. Additionally, in some cases, New Mexico imposes liability on bars and restaurants that over-serve customers who go on to cause serious accidents through the state’s Dram Shop statute.

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Earlier this month, an appellate court in Florida issued a written opinion in a personal injury case involving an allegedly drunk driver who caused an accident after drinking several alcoholic drinks during a round of golf. The question the court had to answer was whether the golf course could be held liable for the plaintiff’s injuries, based on the state’s Dram Shop statute. While the New Mexico Dram Shop statute differs from Florida’s in several ways, the basic concepts are similar.

The Facts of the Case

The plaintiff’s wife was killed when she was struck by an allegedly drunk driver. The driver was on his way home after a round of golf at the defendant golf course. The plaintiff filed a personal injury lawsuit against the golf course, claiming that it should be held responsible for his wife’s death because employees of the golf course over-served the driver to the point of intoxication.

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Whenever a doctor performs a surgery or procedure, the doctor is supposed to explain all of the risks associated with the procedure to the patient. This entails explaining to the patient what exactly will be done during the procedure, what the expected outcome of the procedure is, and what the likelihood of encountering a complication is.

Operating RoomIf a doctor fails to properly inform a client about the risks of a procedure, and the patient is injured during the surgery, the patient may be able to file a New Mexico medical malpractice case seeking compensation for their injuries. This may be the case even if the doctor was not negligent in performing the surgery. A recent opinion issued by an Oklahoma appellate court held that in order to obtain truly informed consent, a doctor should also advise the patient of any non-doctor assistants who will be helping with the procedure.

The Facts of the Case

The plaintiff was a patient of the defendant doctor. At some point in the course of treating the plaintiff, the defendant doctor suggested the plaintiff undergo a specific surgery. The plaintiff agreed, and the defendant doctor had the plaintiff sign a general release waiver giving permission for the defendant and “whomever he/she (they) may designate as his/her assistants, to perform” the procedure. However, the space provided for the doctor to provide the names and credentials of any assistants who would be involved in the procedure was left blank.

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As if being involved in a car accident is not bad enough, sometimes New Mexico car accident victims encounter significant trouble when they try to seek compensation for their injuries. In many cases, these troubles are due to the involvement of insurance companies. While insurance companies are ultimately the source for most car accident victims’ compensation, these companies are operated on a for-profit motive and are financially incentivized to settle claims for as little as possible.

Car AccidentInsurance companies know that the post-accident recovery period is a difficult time for accident victims. In some cases, insurance companies take advantage of this vulnerability by offering to settle a claim for far less than the costs that the accident victim actually incurred. In other cases, insurance companies will deny claims altogether, requiring the victim to file a personal injury lawsuit. This is what happened in a recent case involving a car accident caused by an underinsured motorist.

The Facts of the Case

The plaintiff was the passenger in a car being driven by a friend. The two were heading to the grocery store. When they pulled into the parking lot, the plaintiff and her friend began talking in the car. Before they finished their conversation, they heard a loud bang. As the plaintiff looked over, she saw that two vehicles had gotten into an accident. She exited the vehicle and approached to provide assistance.

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New Mexico is a beautiful state with huge amounts of open land that can be used for recreational purposes, whether it be hiking, biking, swimming, fishing, or hunting. To encourage landowners, including local governments, to open up their land to the public, New Mexico lawmakers have passed a recreational-use statute that provides immunity from liability for some accidents that occur on a party’s land.

FireworksNot all landowners are immune from liability, however. After an accident occurs, the burden is on the landowner to prove that they are entitled to recreational-use immunity. In order to qualify, the landowner must establish that they did not receive any compensation from the person who was injured on their land. Even then, there are several exceptions that apply. A recent case illustrates how another state court handled a slip-and-fall plaintiff’s claim against a city for an injury that occurred in a public park.

The Facts of the Case

The plaintiff planned on watching the 4th of July firework display at a park that was owned and operated by the defendant city. The plaintiff arrived at the park in the morning, and upon exiting her car, she made her way past a set of vertical poles used to establish the bounds of the parking area. The plaintiff later explained that she didn’t pay much attention to the poles as she walked by them, and even if she had looked at them, they would not have caught her attention.

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In a recent case, a state supreme court recently considered whether a student could sue the school district after she fell from a zip line at her elementary school playground. A nine-year-old girl and her parents filed a tort claim against the school district after the girl fell while using a zip line at the playground, fracturing her wrist and forearm.

Zip-LineThe school claimed it was immune from liability under the state’s Governmental Immunity Act. Under the Act, public entities such as a school district are generally immune from lawsuits unless the claim falls under one of the exceptions. The parents argued that one exception did apply:  the recreation-area waiver. The waiver provides that a public entity can be held liable for injuries resulting from a dangerous condition of a public facility located in a park or recreation area maintained by a public entity.

The court first determined that the playground, which was part of the school, qualified as a public facility under the waiver. However, the court held that a piece of playground equipment that was not negligently constructed or maintained could not be a dangerous condition under the waiver.

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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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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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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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