Earlier this month, a state appellate court issued a written opinion that presents an important issue for many New Mexico car accident victims. This case discusses in which circumstance the government can be held liable when a government employee is involved in an automobile accident. Specifically, the case required the court to determine if a sheriff deputy could be held liable for an accident occurring during a high-speed chase.

Police CarThe Facts of the Case

The case stemmed from a lawsuit commenced by two individuals who were injured in a collision that occurred while police were in pursuit of a man fleeing from a routine traffic stop. According to the court’s opinion, a county deputy was monitoring traffic when he noticed a driver with an out-of-state license plate straddling two lanes and attempted to pull the car over.

As the deputy began to pursue the car, the driver increased his speed and began to veer in and out of traffic very quickly. The county deputy continued to pursue the driver and notified an adjacent county police station about the aggressive driver. The sheriff’s department in the other county began pursuit, and the original county officers had to stop due to a tire blow-out.

Continue reading

Expert witness testimony comes into play in a significant number of New Mexico car accident cases. Understanding the rules regarding expert witnesses is important for all potential personal injury plaintiffs. Recently, one state’s supreme court reversed a lower court’s judgment that granted a plaintiff summary judgment in a car accident case. The lawsuit stemmed from a 2014 accident in which an individual rear-ended the plaintiff.

CourtroomAfter being hit, the plaintiff received medical care and was diagnosed with right shoulder strain and whiplash. The plaintiff continued treatment for the psychological and physiological issues she suffered following the accident. Subsequently, she began receiving advance payments from the other driver’s insurance company. At some point, the insurance company asked to have an independent medical examiner review the plaintiff’s medical records to determine whether her ongoing issues were actually a result of the accident. The plaintiff refused to comply with providing documentation, but the medical examiners nonetheless concluded that there was no actual physiological damage and that most of her continued pain was psychological.

Despite this finding, the plaintiff filed a motion for summary judgment, arguing that there was no genuine issue of material fact to dispute that her ongoing damages were a result of the accident. In response, the insurance company argued that the opinions of the two independent medical examiners resulted in a question of material fact. The case was appealed all the way to the state’s supreme court, which concluded that after comparing the plaintiff’s affidavits with the independent medical examiners’, it was clear that there was a disputed issue of material fact. As a result, it was not clear whether the plaintiff’s ongoing expenses were actually related to the accident. Thus, the court remanded the case back to the lower court for further proceedings.

Continue reading

In a recent opinion, a state supreme court reversed a district court’s decision granting summary judgment to a doctor involved in a medical malpractice lawsuit. The lawsuit stems from an incident in which a woman twisted her knee while at work. The procedural rules discussed in the case may be relevant to some New Mexico medical malpractice cases as well.

Knee X-RayIn 2007, the plaintiff went to an orthopedic surgeon, who performed a resection. At some point during the surgery, the doctor discovered that there was an additional tear, but he did not repair it. Approximately two months later, the doctor performed another surgery and drilled a hole through the bone. The doctor continued to monitor the woman and noted that she was doing “extremely well,” except one note that indicated some pain.

The patient filed a medical malpractice lawsuit and testified that she experienced an excruciating pain near the surgical site. However, she said she was not aware if it was related to the hole that was drilled because she had two different surgeries. The patient received a second opinion about the origin of her pain from a doctor who reviewed the records and stated that there may have been a problem with the first surgery. The patient also testified that this was the first time she realized that the first doctor could have botched the surgery.

Continue reading

One state’s supreme court recently released an opinion regarding the appeal of a verdict in favor of an injured middle school student. It discusses some legal concepts that may be relevant to people filing New Mexico personal injury lawsuits. In 2004, an 11-year-old student was playing floor hockey as part of his physical education class when he was accidentally struck in the eye by another student. The student had to undergo a series of eye surgeries and attend several follow-up appointments.

Apple for TeacherSeveral years later, the student, now an adult, filed a lawsuit against the school district, claiming negligence, negligent infliction of emotional distress, negligent supervision, and negligence per se. The school district asked the court to dismiss the lawsuit, arguing that the student’s claim should be barred under the assumption of risk doctrine, and the plaintiff’s claim was not supported by the evidence. The school also argued that it did not have a duty to provide safety equipment and that being hit with a hockey stick is an inherent risk associated with this type of game. Additionally, the school district argued that it should be immune from liability under its discretionary function immunity.

The lower court ended up finding in favor of the student and awarded him compensation for past medical bills, future medical expenses, and past pain and suffering. The school district appealed on the basis of the implied assumption of risk doctrine and the discretionary function immunity doctrine, and it argued that the student did not establish negligence.

Continue reading

In a recent opinion, the New Mexico Supreme Court addressed the nuances of the New Mexico Medical Malpractice Act (MMA). The opinion stems from a plaintiff’s lawsuit against an OB/GYN who allegedly failed to diagnose a large malignant mass on the plaintiff’s left ovary.

HourglassThe Facts of the Case

In 2006, the plaintiff was experiencing pain near her pelvic region and sought treatment from the defendant hospital in New Mexico. The plaintiff consulted with a doctor who was affiliated with the hospital. The doctor reviewed the hospital’s report, and, without scheduling a biopsy, he diagnosed the plaintiff with endometriosis. Neither the doctor nor the plaintiff followed up with the other after this initial meeting.

The plaintiff continued to suffer with the pelvic pain for about two more years when she finally consulted with another doctor in Wyoming. At this time, the plaintiff became aware that the defendant doctor did not inform her of a mass on her ovary. Unfortunately, additional tests showed the presence of ovarian cancer, which required a hysterectomy.

Continue reading

In a case that may be of interest to New Mexico premises liability plaintiffs, state’s supreme court recently granted summary judgment to a carnival company after a teenager was fatally injured crossing a road adjacent to the carnival grounds. According to the court’s opinion, the young girl and her friends were searching for somewhere to wash their hands after eating cotton candy. The carnival had portable toilets that had hand sanitizer gel, but there were no facilities that had running water.

CrosswalkThe group of girls decided to go across the street to a fast-food restaurant, which presumably had running water. The pedestrian-crossing signal at the intersection was not working, so the girls decided to cross without a walk signal. Sadly, as they were crossing, the young girl was fatally hit by a passing car.

The young girl’s estate brought a lawsuit against the carnival, alleging that they were responsible for her death due to their wanton and reckless behavior. The lower court dismissed the case in favor of the defendant, finding that they did not violate any duty of care owed to the young girl. The plaintiff then appealed, and the Supreme Court agreed with the lower court.

Continue reading

New Mexico is widely known for its picturesque terrain and awe-inspiring views. With its unique landscape, it is no wonder that many people enjoy New Mexico’s scenery on horseback. Although many people have experience riding horses, there are, of course, many who do not possess the skill and expertise to properly maneuver these animals. As a result, New Mexico lawmakers with the help of the New Mexico Horse Council (NMHC) enacted the Equine Liability Act.

HorseThe Act explains that individuals who observe or participate in horse activities should expect that certain injuries may occur. They found that people should be aware that these injuries are considered inherent to participating in these sorts of activities. The legislature has reasoned that participation in equine activities has a significant amount of economic and social benefits, so they want to encourage people to continue to engage in these activities. However, individuals who do participate should understand the risks associated with the activities, as well as the fact that they may be precluded from recovery if they are injured.

Under the Act, horses, ponies, mules, donkeys, and hinnies are all considered equine. Furthermore, activities include but are not limited to shows, competitions, rodeos, teaching activities, rides, trips, and racing. Moreover, the legislature explains that individuals should understand that these animals may have the propensity to buck, stumble, trample, and be generally unpredictable. Because of this inherent propensity, there is a limitation on liability for those persons who are injured during these activities. This means that no corporation or person can be liable for the death or injury of a rider who was engaged in these activities unless the named defendant was negligent.

Continue reading

In New Mexico medical malpractice cases, the plaintiff must be able to establish certain elements before the case will be permitted to proceed toward trial. If a plaintiff does not present sufficient evidence of medical negligence, the case will likely be dismissed in a pre-trial defense motion for summary judgment.

Rubber StampOne of the most important issues that a plaintiff must establish in a New Mexico personal injury lawsuit is that the care provided by the defendant fell below the generally accepted standard of care for similarly situated providers. This requirement reflects the understanding that the law does not expect doctors to be perfect or that the care they provide will always have the desired effects. However, at the same time, the law does allow victims of inadequate care to recover compensation for their injuries.

In New Mexico, in order to establish that a defendant medical provider’s care fell below the generally accepted level, an expert witness will almost always be needed. Unlike other states, New Mexico does not require plaintiffs to obtain an expert affidavit prior to filing their case. However, the plaintiff will almost certainly need an expert to establish what the generally accepted level of care is, and to help show the jury that the defendant’s conduct fell below that level. This is because New Mexico jurors are regular citizens, most of whom do not have the advanced medical or scientific knowledge necessary to resolve many of the issues raised in New Mexico medical malpractice cases.

Continue reading

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.

Sand DunesAssumption of Risk in New Mexico Personal Injury Cases

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.

Continue reading

Under New Mexico law, landowners have a duty to keep their property safe for the people whom they invite onto the property. In almost all situations, a landowner has at least some duty to protect visitors from harm. The level of the duty owed to the visitor depends largely on the reason why the visitor is on the landowner’s property. For example, trespassers are owed very little care, whereas business invitees are owed a much higher duty of care. A violation of this duty of care may lead to a New Mexico premises liability case.

Rope SwingAnother category of visitor is the “recreationalist,” who is on another party’s land to engage in some form of recreation, whether it be hunting, fishing, boating, swimming, or skiing. In these situations, the landowner may be protected under a recreational use statute. Recreational use statutes provide immunity to landowners who allow the public to use their property for recreational uses at no cost. When the statute applies, someone who is injured while on the landowner’s property may be prevented from holding the landowner responsible. A recent case illustrates how courts interpret recreational use statutes.

The Facts of the Case

The plaintiff’s son was playing on a lake with some friends. The children were taking turns swinging from a rope swing into the lake. As one child was swinging in the lake, the others would try to slap his feet before he hit the water. When the plaintiff’s son tried to swipe at his friend’s feet, the two children collided, and the plaintiff’s son suffered serious injuries as a result.

Continue reading