New Mexico Injury Attorney Blog

A settlement of $20 million was reached in March 2009 in the a lawsuit against Burger King for the devastating brain injuries suffered by a 12 year old boy in a 2005 fall from a play structure inside a Burger King facility.

The boy was playing with his 5 year old sister on the play equipment when he fell hitting his head on the tile floor. There was no protective matting below the structure to protect against such injuries. The play structure had monkey bars and a fireman's pole clearing presenting risks of children falling from the structure.

The jury found that the restaurant should have provided some kind of protective covering on the floor rather than the hard tile on which the child fell. In addition, there were no warning signs around the equipment as present in other such facilities. Finally, there had been at least one other fall at the facility showing that the accident and injuries were foreseeable and preventable.

The 12 year old boy suffered severe traumatic brain injury. The injuries are permanent. The child will require a life-time of medical and rehabilitative services. The jury obviously took these permanent injuries and future medical expenses into account in the enormous $20 million verdict.

It is well established under the law of premises liability and negligence that playgrounds must be made safe for children. Parents trust the safety of play equipment every day. The duty to maintain a safe play environment as well as liability and fault for any injuries suffered by the failure to keep this duty lie with the provider of the equipment. This includes restaurants, retail establishments, public playgrounds, and other facilities that offer the use of play equipment to children. In addition to liability for failure to maintain a safe environment for play equipment as was established in this case, manufacturers of play equipment are held to a very high standard of care under products liability law.

If your child is seriously injured in a playground accident, liability for damages may be spread across a number of different parties. It is important to identify all of these the parties from the beginning to avoid possible unexpected apportionment of liability at trial after the statute of limitations has long passed. In case of apportionment of liability to other parties, full recovery for all damages may not be possible if those other parties were not named in the lawsuit.

Related Reading:
Possible Premises Liability Even In Cases of Obvious Hazards
Reexamined Duty of Care in New Mexico Personal Injury Lawsuits
Sorting Out Responsibility in a New Mexico Premises Liability Claim

Collins & Collins, P.C.
Attorneys at Law

Following a $16 million verdict, Ford Motor Company settles with a woman left paralyzed in an auto accident. The settlement came as the jury considered additional punitive damages against the manufacturer for design defects in the rear seat latch on its Explorer model.

The $16 million verdict came despite the fact that the cause of the accident was the driver of another vehicle that struck the Ford Explorer in which Lynn Wheeler was a passenger in the back seat. Ms. Wheeler was sitting in the center of the back seat between her two grandchildren as the family was en route to church on Christmas Day in 2005. Upon collision with the other vehicle, the rear seat latch failed folding on Ms. Wheeler and slamming her forward into the front console.

Ms. Wheeler suffered spinal cord damage and permanent paralysis from the neck down. The Georgia jury awarded a total of $17.7 million in damages. The jury found apportioned the liability and fault between the driver of the other vehicle that caused the accident holding him liable for $1.2 million for his negligence and Ford liable for the remainder on the products liability claim.

The jury was considering additional punitive damages against Ford at the time of the settlement. The punitive damages could have enormous. Punitive damages typically are based in part on the revenue of the defendant. Punitive damages function to deter future conduct. In this case, it appears based upon the evidence presented by the plaintiff's attorney, that Ford had known about the dangers of the lap only seatbelts for more than 30 years based upon extensive crash testing and research. The knowledge was well documented in Ford's own safety documentation and internal memos.

Despite the obvious dangers presented by the defective design, Ford failed to correct the problem continuing to install the lap belts rather than the safer shoulder belts. As a result of Ford's knowledge of the dangers of its defective design and its deliberate failure to correct the problem, it is likely that the jury would have awarded significant punitive damages. Due to the settlement, Ford will avoid a possibly enormous punitive damages award.

Product liability cases such as these are extremely important for the public safety. Consumers trust their safety and the safety of their families to manufacturers such as Ford. Without product liability suits such as this one, manufacturers would have little incentive to design and manufacture safer products. Indeed, as in this case, the motivation flows in the exact opposite direction as manufacturers would ignore their own safety research and findings in an effort to keep production costs down. It is important that the costs savings associated with cutting costs be weighed heavily against the costs of these suits in the event of their deliberate indifference to the safety of their consumers. Unfortunately, profit alone drives manufacturers such as Ford and the threat of lawsuits if nothing else will hopefully drive them toward more responsible design decisions.

Related Reading:
Uninsured/Underinsured Coverage: An Insurer's Duty to Passengers in New Mexico - The Sequel
Uninsured/Underinsured Coverage: An Insurer's Duty to Passengers in New Mexico
Tort Reform Ignores Bad Corporate Behavior: Case in Point, Toyota!

Collins & Collins, P.C.
Attorneys at Law

It seems that juries across the country are equally appalled by nursing home abuse and neglect as they are in Albuquerque. An Albuquerque jury recently dinged ResCare, Inc. and ResCare New Mexico for $54 million for nursing home neglect and abuse. Notably, the punitive damages awarded against ResCare approached $50 million.

The ResCare case involved the rape of a severely disabled man by a staff member. The recent case out of Brooklyn involved severe neglect that led to extremely serious bedsores all over the injured patient's body. In addition, after only 9 months in the facility, John Danzy's weight had dropped right at 90 pounds to 147 pounds. Despite transfer to another facility, Mr. Danzy later died as a result of the infections.

It took the jury 2 days of deliberation to reach a verdict of $19 million in total damages against the facility in favor of Mr. Danzy's estate. Much like the ResCare verdict, the bulk of the damages were punitive in nature. The jury awarded $15 million in punitive damages for the facility's cover up of its neglect. The plaintiff was able to establish through expert testimony that the facility had gone back and doctored the file in an attempt to cover up the onset, duration, and aggravation of the bed sores as a result of ongoing medical neglect.

The plaintiff's attorneys believed as did the jury that the nursing home had gone back and altered the records once it was apparent they were facing a lawsuit. The jury sent a message to the nursing home industry, and the medical profession as a whole, that attempted evasion of responsibility for medical or nursing home neglect will not be tolerated. This same message was sent in the ResCare case where the defendant denied responsibility to the bitter end. The case of Mr. Danzy was even more appalling where not only was responsibility denied, the facility actively concealed its medical neglect through the alteration of medical records.

It is interesting that the New Mexico verdict was almost 4 times the New York verdict. It is a good sign for New Mexico nursing home plaintiffs with serious claims of nursing home abuse and neglect. This is particularly so in light of New Mexico's appellate courts reluctance to overturn punitive damage awards, as illustrated in Jolley v. Energen. The court there stated that the punitive damages award would not be overturned unless it was so unrelated to the plaintiff's injuries as to "plainly suggest passion and prejudice over reason and justice." This gives the plaintiff a lot of bargaining room when it comes time for negotiating the settlement during the inevitable appeals that follow such awards in New Mexico.

Related Reading:
Financial Abuse and Exploitation in Nursing Homes
Malnutrition and Dehydration in Nursing Homes
Nursing Homes' Patient Records Often Neglected and Occasionally Deliberately Falsified

Collins & Collins, P.C.
Attorneys at Law

The American Tort Reform Association named the New Mexico appellate courts #5 on their list of judicial hellholes. Among the reasons for the listing was the refusal to adopt the baseball rule in a lawsuit against the Albuquerque Isotopes ballpark when a spectator was badly injured by a baseball.

The report neglects to address the real problem in the case and the basis for liability. The individual that was injured was a 4 year old child injured in a picnic area set up in the outfield of the park. Many picnic tables are located in the area. None of the tables are covered or protected from incoming balls. There is no netting, and there were no warning signs. Worse yet, the game had not started. Batting practice began without any warning to the spectators. The family had no idea that they or their 4 year old son Emilio was at risk. There was no reason for them to anticipate the risks of the fractured skull that their 4 year old suffered as a result of the negligence of the ballpark.

Moreover the New Mexico Court of Appeals simply reversed the trial court's summary judgment in favor of the ballpark. The court basically said that there were facts weighing against the protection of the "baseball rule" in this case. The ballpark can still argue the baseball rule and assumption of risk at trial. They simply do not win by default by application of the "baseball rule."

The baseball rule states that fans assume the risk of foul balls. Many are injured every year as balls are fired into the crowds. However, these incidents typically occur during games not in warm up when fans are unaware of the activity. They also typically occur down the foul baselines where fouls are usually hit. They do not typically occur in a picnic area before the game begins.

Does the baseball rule really make sense at all? Rather than the leagues and teams bearing the costs of a little safety netting down the lines and in the outfield, the fans must bear the costs of being plugged in the head by a ball traveling over hundred miles per hour. And they assume this risk while drinking beer as fast the concession stands can pour it down them. Perhaps, these parks should stop serving beer. That would cut into profits as would the safety netting.

Aside from the fact that there are children present who are not legally competent to assume these risks any more than they should assume the risk of their parents drinking and driving, the parents with whom they came can hardly be expected to stay alert the entire game themselves. Again, they have been drinking. If they haven't been drinking, they most certainly have been eating. If they are on some kind of bizarre ballpark diet that prohibits food and drink, they most likely are socializing. This is the point isn't? Or do the fans all really come to the park for the love, joy and intrigue of watching minor league baseball.

The fact is there are many distractions. The game is often the least of the distractions particularly in Albuquerque. The parents are more excited about the beer and food than the game. The kids are more excited about Homer Simpson making an appearance in the 7th. Clearly, somebody is going to get hit. Even if they were paying attention the entire game, they might just not be agile enough to dodge a laser coming at their chest. People getting hit by balls is no surprise. The real surprise is that more people are not killed at these events. Even more surprising is the existence of a "baseball rule" that would say that you are on your own once you enter a baseball stadium, "enter this stadium at your own risks." Strange indeed.

I am glad that there are men that value the safety of children, families, parents, and even beer-drinkers over the preservation of a archaic and nonsensical rule, no matter how cool it sounds when it is called the "baseball rule." I for one applaud the court. Hopefully, if the case or another case like it makes it way back to the Court of Appeals, the judges throw the "baseball rule" out completely. It seems to me that 4 year olds like Emilio are far more deserving of protection than corporations like Albuquerque that own baseball teams and stadiums.

Related Reading:
Premises Liability for Injuries on Adjacent Public Sidewalks
Possible Premises Liability Even In Cases of Obvious Hazards
Sorting Out Responsibility in a New Mexico Premises Liability Claim

Collins & Collins, P.C.
Attorneys at Law

Underinsured coverage is often the only coverage available in auto accidents occurring in New Mexico. New Mexico and Albuquerque drivers are notoriously uninsured or underinsured. New Mexico has the highest rate of uninsured motorists in the country.

With 29% of New Mexico drivers uninsured, and many more underinsured, there is good chance if you have an accident, the other driver will have no insurance. It is a very good idea to have as much underinsured coverage as you can afford. Unfortunately, even when you have acquired significant levels of underinsured coverage, your own carrier may dispute the insurance policy limits on your coverage.

This is what happened in Bird v. State Farm. David Bird had four vehicles under his policy. He purchased a new Subaru which fell under the 30 day coverage provision for newly acquired vehicles. The Subaru was to replace a Jeep on the policy. However, David still had the Jeep which was to remain on the policy for the 30 day grace period, after which separate insurance would need to be purchased if the vehicle had not been sold.

During the 30 day grace period, David was killed in an auto accident caused by an uninsured motorist. State Farm promptly settled for the $400,000 on the four vehicles but refused the additional $100,000 on the Jeep though it was still covered under the policy. The estate of David Bird was awarded $100,000 on summary judgment.

State Farm appealed arguing that no additional premiums were paid on the Jeep and therefore it was not covered despite the 30 day grace period. The New Mexico Court of Appeals affirmed the summary judgment award on the grounds that the policy provisions were ambiguous. In light of the ambiguity, the court determined that the insured's reasonable expectation of coverage based upon the 30 day grace period dictated the finding of additional coverage on the Jeep.

The law in New Mexico is very protective of the rights of insured motorists. The public policy dictates that motorist be afforded coverage in the event of an accident with an uninsured or underinsured motorist, a very common event in New Mexico. This same policy is the basis for requiring that underinsured coverage be explicitly rejected in writing by the insured. Moreover, the signed rejection must be attached to the policy itself to be effective.

In short, the law in New Mexico does all it can to protect motorists against the harm of uninsured and underinsured motorists. It is up to every driver to acquire that protection through underinsured/uninsured motorist coverage.

Related Reading:
New Mexico Supreme Court Expands Scope of Law on Rejection of UM/UIM Coverage
New Mexico Laws on Rejection of Uninsured/Underinsured Motorist Coverage are Retroactive
Underinsured Motorists Insurance Coverage: Consent to Settle Requirement

Collins & Collins, P.C.
Attorneys at Law

A jury awarded a family $7.4 million for the brain damage that their child suffered as a result of an untreated infection at birth. The child, Paris Campen, suffered brain damage when the neonatal intensive care unit at Cedars-Sinai Medical Center failed to properly treat the newborn's infection.

As a result of the medical malpractice of the medical staff in failing to treat the birth related infection, the child developed meningitis which caused the child permanent brain damage. The child will have a permanent shunt in her brain to prevent excess fluid and further brain damage. In addition, she will undergo a lifetime of behavioral and physical therapy.

The child's mother, an emergency room doctor at UCLA Medical Center, had raised the issue of infection with the doctors at Cedars Sinai. They ignored her. This kind of arrogance is often at the root of medical malpractice and medical negligence. Doctors often ignore their staff members and nurses, who many times due to close contact with the patient are more knowledgeable of the patient's needs than the doctor. The arrogance in this case is even more remarkable in the doctors' refusal to listen to the child's own mother who happened also to be a doctor.

Meningitis in newborns is extremely serious. In addition, this type of birth injury is not so uncommon that it should not be checked if even remotely possible. Immediate diagnosis and treatment is essential to prevent, hearing loss, learning disabilities, and in this case brain damage. Failure to properly diagnose and treat meningitis in newborns is a significant departure from the standard of care expected in the medical profession.

Though this case occurred in California, these same issues arise in Albuquerque and throughout the state of New Mexico. Medical malpractice lawsuits in New Mexico are challenging to say the least. Doctors are given every benefit of the doubt under the law. In the case of public facilities, there are other layers of protection include Tort Claims Notice Requirements and Tort Claims limits. Moreover, doctors are highly respected throughout society so that juries are reluctant to find fault with physicians. The same type of arrogance that drives doctors to ignore their staff, nurses, mothers and fellow doctors also results many times of an absolute denial of responsibility even in clear cases of negligence. Couple all this with all the nonsense regarding tort reform, and the constant barrage of misinformation regarding the strain that these types of cases place on the medical profession, and medical malpractice claims of any kind face an uphill battle.

However, in cases like this where a child is permanently harmed through the gross negligence of a medical staff explained only by the refusal of the doctors to acknowledge the concerns of a mother and fellow medical professional, the jury obviously felt the doctors' care fell so far below the medical industry standard care that a strong message had to be sent.

A verdict, even a $7.4 million verdict will never fully compensate a child and a family burdened with a lifetime of suffering. However, these verdicts serve society in forcing a medical profession buttressed by the support of tort reformers and opportunistic politicians to behave responsibly. The medical profession must recognize that with its great privilege comes great responsibility, perhaps at least in this case, the greatest responsibility of all which is to protect defenseless newborns and their families from preventable harm.

Related Reading:
Medical Malpractice for Birth Injuries Bring More Large Verdicts
High Burden of Proof in New Mexico Birth Injury Lawsuits
Preterm Births: A Growing Health and Economic Crisis

Collins & Collins, P.C.
Attorneys at Law

The family of a worker killed in a construction accident in Texas reached a settlement with the contractor and subcontractors in a wrongful death lawsuit for the seemingly low amount of $440,000.00. The low number probably suggests issues of comparative fault on the part of the deceased worker and his employer.

Luis Lara was a 23 year old construction worker. He was working on a construction job site in Mesquite, Texas, just outside of Dallas, where workers were lifted to upper floors of the job site with a forklift. As he was being lifting in a box by the forklift, the box tipped from the forklift sending him falling 2 stories to the ground where he hit a metal beam. He was pronounced dead at the scene.

The family sued both the contractor and the subcontractors for Mr. Lara's wrongful death. It was alleged that the contractor CME Builders and the subcontractors, Frontier Framing and Associated Truss & Lumber, used the forklift in a negligent manner contrary to the equipment's instructions as well as construction industry safety regulations. Past negligence and OSHA citations by Frontier Framing bolstered the claims of negligence against the defendants.

The defendants argued comparative negligence on the part of Mr. Lara which probably played a role in the relatively low wrongful death award of only $440,000.00. The injuries and damages to Mr. Lara and his family probably far exceeded this amount. Mr. Lara's estate was entitled to recover for the wrongful death itself. The loss of life alone suggests a much higher settlement or jury verdict absent issues of comparative negligence.

In addition, because Mr. Lara was only 23 years old, and had his full work life ahead of him, the lost future earnings could far exceed the amount awarded. In the case of such a young worker killed on the job, the lost earnings over the remaining work life of Mr. Lara would likely exceed the million dollar mark unless he was a low paid laborer with little future earnings potential.

Lost earnings are typically calculated by expert economists that project the worker's remaining life-long earnings based upon his current age, position, past work history, educational level, industry wages and potential earnings along with other considerations to arrive at the estimate of lost future earnings. These numbers can be enormous in the case of young workers, particularly those in high paying fields such as construction.

The relatively low settlement amount suggests that Mr. Lara's earnings were not on the high end of the construction idustry. In addition, the settlement amount suggests a significant level of comparative fault on the part of Mr. Lara. Finally, there were likely other comparative fault issues that arose as a result of worker compensation limits if Mr. Lara's employer was found even partially at fault for his wrongful death due to strict limits on employer liability under workers compensation statutes.

Related Reading:
Proper Equipment Maintenance Critical To Safe Work Environment in the Oil and Gas Industry
Third Party Liability in Construction Accident Avoids Limits of Workers Compensation Laws
Comparative Negligence Decided by Jury in New Mexico Personal Injury Cases

Collins & Collins, P.C.
Attorneys at Law