New Mexico Injury Attorney Blog

There has been a lot of interesting news of late on the BP Gulf Disaster. As you recall, BP came out with its public relations machine vowing to make things right just after the accident. I wonder how that's working out?

In the spirit of responsibility, the parties, the oil industry and their tort reform allies have fought tooth and nail to cap the liability of all responsible parties, not just BP. Currently, there is a $75 million cap on BP's liability. BP has set aside $20 billion presumably to cover all damages. However, BP has not yet clearly waived the $75 million cap on its liablity. Rest assured, BP will not part willingly with the $20 billion. The verdict is out on BP's ultimate outlay. However, it is pretty clear that $20 billion is insufficient to cover the actual damages to the Gulf, its residents, its businesses, and let's not forget the 11 dead workers and their families.

Transocean has been much bolder in its position seeking to keep its liability to a mere $25 million. This is remarkable in light of recent news of Transocean's safety issues at several of its other gulf wells. It is astonishing in light of the recent news that Transocean plans to cut benefits to its workers injured on the well to $25/day. Keep in mind these employees were earning $10,000 to $15,000 per month prior to the explosion. In the spirit of making everything right, Transocean has recovered over $400 million in insurance proceeds for the loss of its platform recording a gain of $267 million on the rig's policy.

Transocean benevolence is unassailable. After all, Transocean's says it so when president and CEO, Steven L. Newman, states that its "first commitment has always been and will continue to be the safety and well-being of our people." This would certainly explain the generous $25/day to its employees. It might in a roundabout way explain why they refuse to acknowledge injuries to its workers. Transocean will admit that only 17 were injured despite the fact that there are currently 60 worker lawsuits and that 9 Transocean employees counted among the 11 workers killed in the explosion. After all, if they were not injured then it really is best for them to get on with their lives and $25/day should do the trick!

Making a cameo appearance, and perhaps a leading role in the coming episodes, is Halliburton. from the beginning, Halliburton denied any responsbility for the rig explosion. The company has done everything, successfully it might be added, to distance itself from BP and the disaster. A new report from the presidential commission investigating the disaster has found that Halliburton knew that the cement mixture to seal the well was unstable. Despite the obvious dangers of a blowout to both the workers on the rig and to the environment, Halliburton used the mixture anyway. The result, 11 dead, many more very seriously injured, the Gulf laid to waste, and thousands along the Gulf financially ruined.

What can we expect in the future from BP, Transocean, Halliburton, the oil industry and advocates of Tort Reform? To answer that, we need only go to the Tort Reform playbook: Fight for liability limits. Fight every conceivable safety regulation. Fight even a temporary moratorium on deepwater wells to protect against future disasters. Fight for every last nickel to deprive the dead and injured workers of just compensation. Do not forget to vilify the victims with the British press laying the groundwork by referring to the victims of the BP Gulf disaster as "Spillionaires." And most importantly, attack the trial lawyers who would dare seek fair compensation for the victims.

All in all, it appears everything is going as planned.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The recent New Mexico Court of Appeals case of May v. DCP Midstream illustrates as clearly as anything the lack of worker's remedies for work injuries caused by their employer's negligence. The case shows the absolute disdain for worker safety embodied by the Worker's Compensation Act which is purportedly for the protection of workers.

In a nutshell, the Court granted the defendant summary judgment on May's personal injury claims because the evidence failed to meet the extraordinary requirements established by Delgado v. Phelps Dodge. The case is remarkable in its blunt statement of a worker's right to compensation for the negligence of his or her employer.

The case involved a gas pipeline that was altered for special maintenance procedures. Despite warnings from employees regarding danger to workers, the company failed to return the pipeline to its normal operational condition. The failure to return the pipeline to its normal condition created significant safety hazards to workers. The defendant admitted that the altered condition of the pipeline created an unnecessary and dangerous condition to employees. The defendant also admitted that it knew of the danger and should have returned the pipeline to its normal operational condition.

Mr. May was indeed badly injured while working on the pipeline. He filed suit for personal injuries caused by the gross negligence of his employer. The defendant moved for summary judgment on the basis of the Worker's Compensation exclusivity provisions under the Act which limit a worker's recovery to worker's compensation coverage. The remedies under the Worker's Compensation Act are generally grossly inadequate in cases of serious personal injuries. Specifically, no punitive damages are allowed no matter how egregious the employer's conduct.

Remarkably, the Court stated "there is little doubt that Defendants were negligent, perhaps even grossly negligent." However, gross negligence is not enough under New Mexico law. Under Delgado, the employer must have forced an employee "to perform a task in a specific dangerous circumstance in which the employer should have been clearly aware of a substantial likelihood of injury or death." Thus, the Court despite the evidence showing that the employer knew of the danger and failed to correct it despite the ease with which it could be done and the warnings from employees, found that employer was safe from liability beyond the Worker's Compensation Act.

The degree to which the Courts will go to protect employer's against liability for their grossly negligent conduct is captured by the following language from the Court:

"An employer's disregard for safety requirements designed to help prevent injury and death on the job does not mean that an employer "specifically and willfully caused the employee to enter harm's way, facing virtually certain serious injury or death, as contemplated under Delgado."

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed the issue of uninsured/underinsured motorists insurance once again in Gulbransen v. Progressive Halcyon Insurance. The case is unique in that it addressed uninsured/underinsured (UM/UIM) coverage for property damage. Past cases on the matter have limited the discussion to personal injuries.

There is no shortage of case law on the issue UM/UIM coverage and the requirements for waiver of such coverage. The bottom line under the law is in order for an insured driver to waive UM/UIM coverage, the insurance company must obtain a written rejection of the UM/UIM coverage. In the absence of a written rejection, the auto insurance policy will be found to carry UM/UIM coverage equal to the liability policy limits.

Though the Court in Gulbransen dealt with property damage coverage, the outcome is much the same. In the absence of a written rejection of UM/UIM property damage coverage, the UM/UIM coverage will be imputed to be the same as the liability coverage.

The Court references the strong public policy in the provision of UM/UIM coverage. The Court cites Arias v. Phoenix Indemnity stating that it is statutorily mandated that UM/UIM coverage be offered. The Court rejected Progressive's argument that this requirement was meant only to cover bodily injuries. In response, the Court stated that there was an underlying legislative intent to protect drivers from uninsured and underinsured motorists. This goal is particularly important in New Mexico which has the nation's highest percentage of uninsured motorists.

Interestingly, the Court noted that there were a number of cases up on cert to the New Mexico Supreme Court addressing the issue of UM/UIM waivers of coverage. The Court noted that they were relying on those cases (Romero, Chen and Jordan) until such time that they are reversed. This qualifying statement may or may not bode well for insured drivers in the future.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

FISA, the Foreign Intelligence Surveillance Act of 1978, was originally passed to allow surveillance of communications between foreign powers, foreign intelligence agencies, and their agents. Since 911, FISA has been greatly expanded through various amendments including the Patriot Act. The expansion of FISA allows virtually unfettered governmental monitoring of online and telephone communications of American citizens.

In order to facilitate the monitoring of telephone communications, Congress passed the FISA Amendments Act (FAA) of 2008 which granted the National Security Agency (NSA) virtually unlimited authority to spy on Americans. In addition to legalizing warrantless surveillance (no need for reasonable suspicion of wrongdoing), the legislation provided for what the ACLU terms "dragnet" surveillance of international phone calls and email, again without a warrant and without any suspicion of illegal activity.

To accommodate the new surveillance powers, Congress then passed the Communications Assistance to Law Enforcement Act (CALEA) which requires phone companies to make their networks "wiretap-ready."

Many Americans accept this as a reasonable response to 911 and the threat of terrorism. Perhaps, heightened surveillance authority is justified in the post 911 world. For both those that like to see the world in black and white, it applies to good guys and bad guys equally. It applies to those that oppose the intrusions on privacy as well as to those that fully embrace it.

Most Americans spend a fair amount of time online. There are 500 million Facebook members. There are hundreds of millions of online purchases each year. There are hundreds of billions of emails sent and received by law abiding citizens. Unfortunately, the protections that the government seeks to invoke and many Americans whole heartedly embrace may expose all these law abiding citizens to breaches of privacy. These breaches may be seemingly mundane such as the recent issue with Facebook. Others may be catastrophic to both innocent consumers and to the economy as a whole.

It takes little imagination to see how this might happen. The government is now seeking to force all online platforms to make their software open to government surveillance. Basically, the government will require a "backdoor" to allow free and easy access for governmental use. Many would ask, "So what?" Fortunately, these folks do not need me or anyone else to answer that question. A simple Google search on internet privacy breaches will result in millions of results. Search again for online credit card security breaches and find millions more. Mull around for a while and ask yourself if you want a backdoor built into all your "private" online communications and purchases.

Unfortunately, the most gifted computer programmers do not always work in government. Nor do they always have benign purposes. Even those that do not mind the NSA poking around in their online activity might think twice about the 19 year old hacker prodigy doing the same. It all makes one miss the postman.

To follow the FISA Amendments, take a look at the ACLU challenges to the laws. A visit here might open your eyes to the problems with the FISA Amendments while also shedding some light on the value of the ACLU's work, which is widely misunderstood and regretfully much maligned.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Dramatic increases in auto accidents involving cell phone usage have precipitated the call for tougher state and local ordinances. Nationally, in 2008 there were approximately 1.4 million crashes involving drivers talking on cell phones. Many of these involved serious personal injuries to the drivers on both ends of the exchange.

In February of 2007, Albuquerque enacted a hands-free cell phone ordinance for drivers operating a motor vehicle. This ordinance makes it illegal to drive and operate a hand-held cell phone. Albuquerque drivers can still use a hand-free device, which the city feels is a safer option.

Many drivers have moved to hands-free cell phone usage in response to such laws. Auto manufacturers have accommodated the switch to hands-free. According to a study by National Safety Council, hands-free cell phone usage unfortunately appears to be just as risky as using hand-held devices. Statistics show that a driver who uses either type of cell phone is four times more likely to be involved in a motor vehicle collision. Cell phone conversations in general increase cognitive distraction and create what has been called "inattention blindness".

Inattention blindness occurs when a driver is looking at but not actually perceiving objects in their field of vision. There are estimates that indicate a driver using a cell phone misses approximately 50 percent of the information within their surroundings. The current hands-free ordinance may give a false impression that this type of device provides more safety.

While a hands-free cell phone does eliminate the need for a driver to take their eyes off the road and remove their hands from the steering wheel, it does not prevent the driver from taking their mind off the road. In addition, a driver is less likely to recognize that they are cognitively distracted and to account for the risks.

Drivers tend to rely on the myth that they are "multitasking", accomplishing more than one task at a time. Multitasking has been found to be a myth. Instead, there is sequential tasking. The human brain actually handles tasks sequentially, switching between tasks rapidly enough to give the illusion of doing several things at once.

Talking and driving are two very cognitively complex activities, and the switching between these tasks can create inattention blindness. This means that crucial information needed to maintain safety may fall out of view and is not processed by the brain. Both driver reaction and response times are diminished when this occurs.

Obviously, the safest option is to avoid cell phone usage of any kind while driving. However, in our productivity-driven society, this may not be realistic. Studies have shown that educating drivers of the risks has done little to alleviate the problem. Consequently, the most effective prevention strategies have included legislative policies and strict law enforcement.

Albuquerque has attempted to respond to the need to protect drivers from cognitive distraction with its current hand-free cell phone ordinance; however it is likely that the city will reexamine this policy in light of the new statistics. Future strategies may be needed, which might include technological advances that actually prevent a driver from receiving or making calls in a moving motor vehicle.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The rights of workers in personal injury cases are extremely limited in New Mexico. Workers are typically limited to recovery through worker's compensation for work related injuries. It is amazing how far the courts will go to find the injuries to be work related to invoke workers' compensation exclusivity as indicated in seminal 1997 case of Espinosa v. Albuquerque Publishing.

In the Espinosa case, Larry Espinosa was struck by a vehicle driven by a fellow employee. All good so far as "work related" goes. However, Mr. Espinosa was not at work. He was walking to work. The incident occurred 30 minutes before his shift began and 2 miles from his place of employment.

The Court went to great lengths to classify the case as work related so as to invoke the exclusivity provisions of the Workers' Compensation Act. In short, the Court found that the injury was work related thereby barring Mr. Espinosa from a personal injury claim. Instead, he was limited to the meager recovery allowed under the Workers' Compensation Act.

For exclusivity of remedies under the Act, it must be shown that the injury arose "in the course of his employment." The Court was able to twist the facts to fit within the Act through a broad interpretation of the so-called "going-and-coming rule." Essentially, since Mr. Espinosa was en route to work and the accident was the result of the negligence of a fellow employee, he was barred from any recovery for his injuries outside the Act.

Under the Workers' Compensation Act, workers have few rights and even fewer remedies when they are injured on the job. Workers' Compensation Exclusivity is extremely hard to overcome. This case as good as any illustrates just how far the Courts will go to protect employers from personal injury liability for their negligence and the negligence of their workers. This is of course done at the expense of injured workers all under the pretense of protecting workers.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

"Cyber bullying", "cyber stalking", "online predators"; these are only a few additions to the English language that advances in computer technologies have created. Unfortunately, these are not just words, but real issues that children could face when participating in online activities.

One of the most popular online activities accessed by children today is social networking, also known as "virtual communities". Social networking services allow users to create personal profiles that can include photographs, in an attempt to share information and stay connected with others. It is estimated that approximately 72% of teens have a profile on a social networking website, and of these profiles, nearly half can be viewed by anyone.

Access to a child's personal profile can create a host of dangers, including threats by cyber bullies and online predators. However, there are remedies for reducing a child's exposure to these dangers. One such tool is an online monitoring service. This service searches through public online activity and generates reports that parents can use to detect dangers. These services are also an effective tool in creating an awareness of what types of information can be publicly viewed.

Online monitoring services pay particular attention to social networking sites and identify where a child has an account. Then they look for "red flags" or key words that the child has written to others or received from others. These could be words like "suicide" or "sex". Keyword flags could point out possible cyber bullying situations or even risky relational activity. The monitoring service can then attempt to locate individuals who are engaging in inappropriate contact, so that further action can be taken to eliminate it.

These services can also monitor the contacts or "friends" a child has accepted through their social networking site, and notify parents of anything suspicious. Depending on the service, names can be run through various databases that register sex-offenders or other criminal activity.

Threats to reputation may be one danger that both parents and children may not be aware of. Information posted on social networking sites has the potential to remain on the internet indefinitely. What might have been a childish indiscretion or prank may come back to create questions surrounding a person's character later in life. Consequently, this information could be harmful for future educational and employment opportunities. Once alerted to potentially damaging information, parents can teach their children about the responsibility of protecting their reputation.

Ultimately, parents need to have some awareness of their child's online activity and be able to communicate the apparent dangers. However, it is not always possible to monitor everything a child sees or does online. Online monitoring services cannot replace parental vigilance but they may offer a good option for filling in the gaps.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Eleventh Circuit Court of Appeals has shed some light on a growing and extremely confusing topic, Medicare lien reimbursement in personal injury actions.

The underlying cause of action in Bradley v. Sebelius was a wrongful death action initiated as a result of nursing home negligence. The estate for the deceased was able to settle the claims with the nursing home at insurance policy limits of $52,500. As is often the case with underinsured tortfeasors, the $52,500 policy limits were grossly inadequate to cover the damages associated with the wrongful death.

This did not stop Medicare from asserting a lien for the $38,875.08 in medical benefits paid by Medicare prior to death. Medicare refused to negotiate the lien forcing the estate to take the matter to probate court for an allocation of the settlement funds. Medicare then refused to participate in the probate proceedings standing by its $38,875.08 lien. Based upon principles of equity, the probate court allocated only $787.50 for recovery of medical expense. The amount reflected a pro rata reduction in the lien in proportion to the insurance policy limits to the full value of the wrongful death losses.

Naturally, despite refusing to participate in the proceedings, Medicare refused to accept the allocation insisting on full recovery. Medicare appealed to federal district court obtaining a favorable decision. The Eleventh Circuit Court of Appeals reversed holding Medicare to the probate court decision.

The Court addressed a number of issues. First, the Court addressed the fact that the wrongful death cause of action belonged to the estate, not the deceased. The Court suggested that the surviving children had independent claims for loss of consortium and companionship beyond the claims of the deceased. In essence, the Court suggested that these losses alone exceeded the insurance policy limits leaving nothing for Medicare to attach.

Perhaps more importantly, the Court addressed a growing problem presented by Medicare's approach to lien recovery. Medicare basically refused to participate in the process refusing to negotiate its lien and forcing the estate to probate. It further refused to participate in the probate proceeding. All the while, Medicare stood firm on its lien despite the fact that the total available policy limits and the settlement theron were grossly insufficient to compensate all parties to the claims. Medicare did this through interpretations of its policy manuals.

The Court would not stand for these tactics. First, the court stated that agency policy statements, manuals, and enforcement guidelines are not entitled to the force of law. Next, the Court addressed the obvious breach of public policy in allowing Medicare's tactics. The Court pointed out that the attorney for the estate acted in a sensible and cost effective manner settling the claims at policy limits. The Court recognized Medicare's position would either force cases into litigation or allow tortfeasors such as the negligent nursing home to completely escape liability. In essence, the Court recognized that most attorneys and plaintiffs would be better served simply walking away completely in low policy limit cases where Medicare was involved. The Court put it succinctly stating "Forcing counsel to file a lawsuit would incur additional costs, further diminishing the already paltry sum available for settlement. This flies in the face of judicial and public policy."

This case provides some relief for attorneys and injured persons. It should force Medicare to at least respond to attorneys and plaintiffs in lien negotiation. The consensus to present has been that Medicare simply refuses to participate all the while leaving the possibility of outstanding liens and enormous penalties hanging over both the injured person and the attorney.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Bullying has long been a problem in schools. The problem has been getting a lot of attention recently with some troubling new twists to an age old problem.

There was Tyler Clementi's suicide on September 22 following his roommate's live streaming of some very private moments on to the internet. The behavior of the roommate was atrocious and inexplicable. The suicide of a promising college student is shocking to say the least.

The case follows on the bullying related suicide of Phoebe Prince , a 15 year old high school student. There are countless other bullying related tragedies like these.

Perhaps, none is more shocking than the most recent suicide of a 10 year old girl. It is believed that her suicide was bullying related. The thought of a 10 year old committing suicide would be incomprehensible as a result of bullying if not for the fact that this was not the first such incident. In April of 2009, an eleven year old boy committed suicide as a result of bullying.

The bullying can range from psychological and emotional abuse to outright physical violence. The result is often the same. In response to the problem, 45 states have passed legislation addressing school bullying.

Much of the legislation is preventive in nature addressing education and awareness. Often, the legislation lacks any remedial measures for the victims of school bullying. However, as the culprits in the Phoebe Prince and Tyler Clementi cases have found, there are serious possible criminal consequences to the behavior. Criminal liability for the bullies does not address the culpability of the schools that often ignore or foster the bullying behavior.

The schools do have a responsibility for monitoring and preventing bullying behavior as many school systems have found through some sizable personal injury lawsuits. Schools, administrators, teachers and coaches cannot turn a blind eye to bullying. They have a duty to protect the students in their care.

This duty has never been more clearly breached than the case of the Las Vegas, New Mexico football program where numerous underclassmen were raped with broom handles as part of a sick and apparently tradition bound hazing ritual in the program. The students that committed the atrocities have since been convicted and sentenced to various terms of probation and jail.

The school, the district, the teachers and coaches that stood idly by as the crimes were committed will soon understand the depth of their responsibility. Unfortunately, this epiphany will come only as a result of the personal injury lawsuit filed against these folks.

Perhaps, these individuals and the school district do not read the press about the horrible consequences of school bullying. You can bet they will be reading the legal pleadings filed against them. It can only be hoped that other school officials across the country will do likewise. Clearly, many schools have failed to recognize and respond to the harm to their students. Hopefully, schools and school districts will take note of the huge costs of such negligence.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Studies have shown that the vast majority of medical errors go unreported. This is the case despite laws requiring the reporting of medical errors. The laws are intended to improve patient care while reducing the huge number of medical errors that occur each and every day in hospitals throughout the country.

The laws were drafted with the intent of identifying and reducing medical errors through reporting requirements on doctors, nurses and staff. By identifying the medical errors, remedial action to avoid future similar errors is possible.

Unfortunately, there appears to be a disconnect in the medical community. A study from the U.S. Department of Health and Human Services suggest that 93 percent of serious medical errors go undetected. The report is generous in its explanation for reporting failures. In fact, it seems near impossible that 93 percent of serious medical errors would go undetected in the absence of professional incompetence on an astronomical scale. Instead, the errors go unreported.

There is little enforcement of the reporting requirements even in the 27 states that require it. There is little oversight and little funding to enforce the reporting requirements. In addition, it is apparently rather easy to redefine an error to escape reporting requirements. As reported by the Seattle Post-Intelligencer, this appears to have been the case of Gary William Clezie. Mr. Clezie went in for a simple arthroscopic shoulder surgery. A medication error during surgery led to Mr. Clezie's death. Rather than report the medication error, Yakima Regional Medical & Cardiac Center dodged the reporting requirement because Mr. Clezie died not within 24 hours of surgery but 2 days later. The 24 hour threshold apparently took the error outside the reporting requirements.

Most are sympathetic to the difficult jobs that doctors and nurses do. In fact, most are willing to accept the reasonable and known risks of surgery and medical care generally. This is made evident by the piles of disclaimers and disclosures the hospitals now require prior to undergoing surgery. However, are these risks really known, acceptable, and voluntarily accepted by a patient and the patient's family when it appears that the great majority of medical errors are concealed from the public?

Despite the well accepted fact of rampant medical errors in hospitals and other medical facilities, and the fact that reporting laws are routinely ignored when 93% of medical errors go unreported, there remains those that seek to end the rights of injured patients to compensation for medical negligence.

These groups argue that there is a medical malpractice crisis despite the fact that it is estimated that only 1.3% of medical negligence claims ever reach a successful verdict. They argue this despite the fact that up to 98,000 patients die each year as a result of medical error. They argue this despite the fact that the number of medical malpractice lawsuits has declined tremendously over the last 10 years. They argue this despite the harm that medical errors do to the patients and their families. They argue this to shift the burdens of these errors to the patient, the family and ultimately to the taxpayers.

Most of all, they argue this to protect the profits of insurance companies. And as these groups scramble to protect the insurance industry, patients like Mr. Clezie continue to die as a result of simple and avoidable medical error. After all, when only 1.3% of medical malpractice claims end in a successful verdict, a simple insurance industry profit analysis would dictate hiding rather than correcting the mistakes.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

There are 500 million users on Facebook. The level of candor of many users is pretty amazing. It's as if they are having a private and intimate conversation. With the World!

It is clear that much of this information taken in the wrong light could prove embarrassing and legally damaging. Yet many continue to share and share and share. Maybe, a Miranda/Dragnet style warning before each send command would help, "anything you post can and will be used against you in a court of law."

Despite what appears to be a commonly held belief, there is no Facebook-User privilege. Anything you post, no matter what your privacy settings, is considered private under the 4th Amendment and immune to search & seizure. Even if you have no friends and the most stringent security settings, which would raise the question as to why you are posting at all, it is still a post to a public forum.

What does this mean? It means exactly what Joe Friday told you it meant, your posts "can and will be used against you in a court of law."

It is not just nosy, jealous, angry or malicious ex spouses that might use it against you; it is insurance companies, employers, and worst of all prosecutors that will be sifting through your posts. That romp through Club Med captured on video will surely not help your personal injury claims of pain and suffering. Neither will even playful flashing of gang signs with your buddies look too good in court.

Oh yeah, and the courts will assist these folks in their digging through your most intimately shared moments. A number of courts, and the number is growing, have held that Facebook, Myspace,YouTube and other social networking sites are discoverable. Though the term sounds inspiring, "discoverable" is not really a good thing. What it means is that in a lawsuit, divorce or criminal prosecution, the other side can seek access to your social media pages. It is not just what's on there now, but your history as well.

Nervous yet? You should be. Because even fleeing to Canada will not help you now. They have the same laws and court rulings making social media fully discoverable in legal proceedings. Those videos and party pics posted by your adoring friends will surely be enjoyed by jurors and judges in your next legal proceeding. You may be less amused.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

It is has long been the case that injured third parties may bring a dram shop action for the negligent service of alcohol to an intoxicated patron. Typically, these cases arise where the intoxicated patron takes to the road injuring innocent third parties in auto accidents.

In the case of Mendoza v. Tamaya Enterprises, New Mexico Court of Appeals broadened the protection of the dram shop laws to the intoxicated patron. The Court also made clear that an Indian casino or resort waived its sovereign immunity under the Indian Gaming Compact for the negligent service of alcohol on its premises.

The case involved a single vehicle car accident where two of the occupants were killed. The accident occurred following a wedding reception at the Tamaya resort where the deceased were served alcohol despite their obvious intoxication.

New Mexico law plainly prohibits the service of alcohol to intoxicated persons. It has long been held in New Mexico and elsewhere that third parties injured as a result of the negligent service of alcohol may bring a personal injury action against the server. However, in the past, the intoxicated person has been prevented from bringing a similar action. It was reasoned that a person should not be allowed to benefit from his or her own wrongful acts.

The Court in Mendoza disagreed with the prior position which predated New Mexico's adoption of the doctrine of comparative negligence. The Court reasoned that an intoxicated person should not be completely barred from recovery for negligent service. Instead, principles of comparative negligence should be applied in the apportionment of fault. The court stated that comparative negligence "supplanted the all-or-nothing bar of contributory negligence and doctrines, such as complicity, assumption of risk, and other defenses rooted in the claimant's negligence..."

In addition to the extension of dram shop protections to intoxicated patrons, the Court rejected the defendant casino's argument that the claims should be heard in tribal court. The Court determined that the claims and the wrongful behavior leading to them were plainly contemplated in the Indian Gaming Compact's waiver of tribal immunity. As a result, Indian casinos and resorts will be held to the same dram shop standards as all other restaurants, bars and liquor establishments.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com