New Mexico Injury Attorney Blog

New Mexico is home to many Indian Casinos. They are very popular. Like any other business, particularly casinos, there are countless ways for patrons to be injured. When a personal injury occurs at or near an Indian Casino, the first and most important question is whether or not there is sovereign immunity protecting the tribe or pueblo form suit in New Mexico State courts.

For the most part, tribes and pueblos enjoy sovereign immunity against any kind of legal action. This includes everything from personal injury claims to contract disputes. Sovereign immunity means that suits against the tribes or pueblos must be brought in tribal court. This poses a very significant and often overwhelming challenge to plaintiffs.

In case of Indian Casinos or gaming, there is qualified immunity. Under the Indian Gaming Compact, the tribes and pueblos waive immunity for suits by visitors or patrons for personal injuries suffered in relation to the gaming enterprise.

Often times, when personal injuries occur at or near a gaming facility, the tribe or pueblo will attempt to argue that the accident and consequent injuries and damages were unrelated to the gaming enterprise. Many times, the connection is clear such as when a casino patron is injured while gambling at the casino, or while entering or exiting the casino prior to or following gambling activities. However, there is most definitely some gray area.

The New Mexico courts have generally shown great deference to the sovereign immunity claims of the State's many tribes and pueblos. The New Mexico Court of Appeals significantly curtailed tribal immunity in the case of Mendoza v. Tamaya Enterprises. This case involved a wrongful death suit against Tamaya by the guests of the Indian resort killed in a drunken driving accident following a wedding reception. There was no indication that the guests were there for gaming purposes but the New Mexico Court of Appeals found that there was no immunity for the tribe allowing the wrongful death suit to proceed in state court. The case is now on appeal to the New Mexico Supreme Court.

The case will have significant implication for guests and patrons of Indian resorts centered around Indian gaming, which is New Mexico is generally the case. As it stands, guests of the many truck stops, gas stations and restaurants adjacent to Indian Casinos face very difficult immunity issues in case of personal injury. Clearly, it is in the tribes' interest to extend the reach of immunity to all activities that do not actually occur inside the gaming facility itself.

Indian casino based resorts play host to countless visitors, many of which are there for events other than gaming. The position of the tribes and pueblos would leave little or no recourse for guests injured at weddings, parties, fundraisers, conventions, hotels, and bars on Indian casino grounds. This is clearly in the financial interests of these hugely profitable casino based resorts. Unfortunately, the interests of the visiting public are directly opposed to tribal immunity which will often bar recovery for claims no matter how great the negligence of the tribal enterprise and no matter how great the injuries

Collins & Collins, P.C.
Albuquerque Attorneys

In auto accidents cases, one might expect that the driving record of the negligent driver would be fully admissible at trial to help show that the person was at fault for the subject accident. Unfortunately, this is not always the case.

For instance, pre-accident driving records are not admissible to show the driver was negligent in the current accident. However, it may be admissible for other purposes such as a negligent entrustment claim. A negligent entrustment claim most often arises where an employer allows an employee with a bad driving record to drive a company vehicle. The company may then be held liable for any injuries or other damages caused by the employee under a negligent entrustment theory.

Post-accident driving records, no matter how bad, are often inadmissible at trial. Neither past driving behavior nor future driving behavior can be used to show the person was negligent in the current auto accident. Neither may future driving be used to prove a habit of bad driving under New Mexico law. Finally, unlike past driving behavior, future driving is not admissible on a negligent entrustment claim.

In order to show negligent entrustment, the company must have known of the employee's negligent driving habits. The company may be held to knowledge of the employee's prior driving behavior. This is the case even if the company does not have direct knowledge but could have discovered the driving history through background checks.

On the other hand, an employer cannot be imputed knowledge of bad driving habits based upon future driving behavior. Thus, without more, the employer will not be held liable under theories of negligent entrustment for the employee's actions in causing an auto accident. The employer may very well be liable on a number of other grounds, but not by way of negligent entrustment.

In short, though one might expect the driving behavior of a negligent driver to be most relevant evidence to prove fault, there are fairly strict limits on when and for what purpose driving behavior is admissible at trial in a car accident case. The injured person may simply have to rely on other evidence of fault than the driving history or driving habits of the other driver.

Collins & Collins, P.C.
Albuquerque Attorneys

An important issue that arises in determining the value of a personal injury claim is the existence of a pre-existing condition. This is especially important in claims involving soft tissue such as whiplash or low back strain and sprain.

An injury such as a broken leg can easily be attributed to an acute event, such as an automobile accident or a slip and fall accident. But with a soft tissue injury, it is more difficult to pinpoint the date the problem began. If the injured person has had neck or back issues in the past, the question of causation between the accident and the injury is more tenuous because many of same problems may have existed prior to the accident. Problems with causation will likewise create problems with liability since there can be no liability without causation.

The problem and challenge of pre-existing medical conditions may not be as great when there has not been treatment for the neck or back pain for several years before the accident. However, many people who have experienced a soft-tissue injury in the past, even after the pain complaints end, continue to have some issues with the problem area as the person often has some degenerative changes that make it more likely for the same injury to re-occur.

In cases of degenerative changes in the neck or back, even though an injured person is not experiencing problems for a pre-existing condition at the time of the accident, the condition is still present and is therefore not "caused" by the accident. Instead, those existing injuries may be aggravated by the accident. This does not mean there is no liability and no recovery for damages. It simply means there will be a reduction in the recovery.

Generally, the injured plaintiff will not receive full compensation for damages related to the current claim if were prior injuries for which the insurance company is not liable. Often, an insurance company will accept liability for the aggravation of the pre-existing condition for a certain period of time, but will not agree that the accident at issue is the sole source of the current complaints.

Rather than accept full responsibility for the current injuries, the insurance company will seek to apportion responsibility for the current injuries in relation to the prior injuries. The term "apportionment" means that the insurance company will only claim a portion of the responsibility for the injuries sustained in the accident. Consequently, if a pre-existing condition is evident, your medical bills and your personal injury claim may only be paid only in the percentage calculated through apportionment.

Collins & Collins, P.C.
Albuquerque Attorneys

Spoliation of evidence, or more commonly understood destruction of evidence, can result in the dismissal of a homeowner's claims against a negligent builder, subcontractor, architect, engineer or other party responsible for a new home's defects. The obvious question is how would spoliation of evidence occur?

The answer is that it could occur quite innocently. Whenever a homeowner takes it upon him or herself to repair problems, there is the possibility that evidence will be destroyed. Perhaps more accurately, it is possible that the negligent defendant will assert a defense of spoliation of evidence purely as a tactical matter. In fact, this defense is preached by the construction defense bar knowing full well that many homeowners will take action to repair or fix their most valuable asset rather than standing idle waiting for the contractor the fix the problem.

Many times, homeowners meet with delay after delay in addressing their problems with contractors or builders. Their grievances are routinely ignored. And why not, if the homeowner finally and predictably takes action on the problem, the contractor now has one more line of defense against a construction defect lawsuit.

To avoid the possibility or suggestion of spoliation of evidence claims, the homeowner should contact the builder or contractor immediately in writing with a detailed description of each and every defect. The injured homeowner must give the defendant notice of any intended repairs. Finally, the plaintiff must give the contractor, builder or other defendant the opportunity to inspect the defects themselves prior to any such repairs by the homeowner.

Once notice of repairs and opportunity to inspect is provided, the homeowner should document both the original defects and the repairs very carefully. As one might expect, the contractor or builder is likely to have a very different view of what happened partly due to their own self-interested documentation of the problems and the fixes. It is safe to say that these problems and repairs can never be over documented, but they most certainly can be under documented.

Once again, failure to provide notice and opportunity and to carefully document the defects and the subsequent repairs will undoubtedly lead to the spoliation of evidence defense. Careful attention and documentation should cut off this defense. Failure to provide notice and opportunity to inspect can and does lead to a dismissal of the claims.

Collins & Collins, P.C.
Albuquerque Attorneys

It is a common story - you purchase and move in to your dream home only to notice cracks in retaining walls, interior walls, stucco and even flooring after a few months. Some of these cracks are innocuous hairline cracks that happen in nearly every home as the result of natural settling and seasonal changes. Others are much more ominous and can signify serious construction defects, structural defects, soils issues, architectural and design flaws.

How does a homeowner tell when it is time to be concerned? Well, for one thing, you should look at the size of the cracks to see whether they are a hair's width or larger. If they are as wide as a quarter or wider, that could be something to worry about. Check to see whether there is heaving - are both sides of the crack level with each other or is one side noticeably higher? If the sides of the crack are not aligned, that could indicate a structural problem.

If there cracks in the stucco, there are a number visible signs that would raise concerns. The size of the crack and crumbling in the stucco are perhaps the most obvious signs of stucco defects. However, other indications of potentially serious problems are discoloration and dampness in the stucco. Numerous cracks, water infiltration, mold or structural weakness should all be addressed immediately to avoid worsening damage to the home.

You should contact your builder or builder's warranty representative immediately when you notice cracks or other issues with your home. Cracks and other damage should be carefully documented. For instance, you should photograph them and even note the size of the crack. Consider marking the crack to indicate where it stops and starts along with the date. If the crack grows quickly, this could indicate a serious problem. The same routine holds true for documenting problems other than cracks as well.

You should not attempt to repair these issues on your own. You should notify your contractor or builder. If your builder does not respond, legal help may be needed to obtain the necessary repairs and to assist you in obtaining compensation for any other damages you incur.

Collins & Collins, P.C.
Albuquerque Attorneys

New homeowners are often provided with a written warranty on their home. These warranties are usually part of the home purchase contract and differ from builder to builder.

New home warranties often provide for a relatively short warrantyperiod of one or two years. However, construction defects are often not apparent until well after the expiration of the warranty period. When homeowners complain about problem with their homes after this period expires, builders often turn a cold shoulder, citing the warranty language. Many homeowners accept this response under the misperception that their only recourse against their builder is lost after the warranty period expires.

There may be some builders that innocently claim protection under the warranty. Of course, this would be a very inexperienced or poorly informed builder with whom it was ill-advised for the homeowner to do business in the first place. More often, the builder is fully aware that the warranty does not preclude claims for serious construction defects. Instead, the builder is simply attempting to escape liability for the defects and responsibility for the costs of repair.

These limited new home warranties do not provide a homeowner's only recourse for construction defects. First, they may or may not cover all structural components of a home. Some warranties are limited to such issues as appliances, heating and air, minor mechanical issues and the like. Regardless, the one year warranty does not protect a builder from claims for construction defects based on negligence or misrepresentation or even from certain other contract claims. Homeowners may still have viable claims for damages for problems such as water leakage, foundation issues, improper soil preparation, architectural or engineering defects, stucco or drywall defects or any other significant defect in construction, engineering or design.

Instead, the homeowner is limited only by the relevant statute of limitations. The statute of limitations for claims based on a contract are 6 years and the statute of limitations for negligence claims is 3 years. In addition, New Mexico has a 10 year statute of repose relating to claims that are not discovered for several years after substantial completion of the home's construction.

Due to the latent nature of construction defects, it is important to take seriously any indication of construction problems. A seemingly minor construction problem may well indicate far more serious construction defects. In addition, minor problems may suggest a sloppy or negligent builder. For instance, a rainwater leak may indicate other more serious problems with the stucco, drywall, roofing or foundation. It may also hint at other construction, architectural, engineering and design issues. After all, a sloppy or negligent builder is typically sloppy through and through.

Address the signs of construction defects early. Ignoring the problem is certainly not in the homeowner's best interests. Delay in addressing signs of construction defects will raise failure to mitigate damages issues. Worse still, failure to address the problems within the statute of limitations period will bar the claims completely.

Collins & Collins, P.C.
Albuquerque Attorneys

Construction defects come in all shapes and sizes. Some are obviously very serious. Others may appear less serious. Then there are those seemingly minor issues that point to much more serious issues. It is important for a homeowner or other property owner to know early which variety of construction defect they have on their hands.

An early investigation of the issues is typically in order. The builder should of course be contacted and you should check your purchase documents for any written warranties. Your contract may prescribe steps that you must take to pursue a warranty claim.

A good builder will take all warranty claims seriously. However, sometimes builders either do not understand the seriousness of the problem or attempt to avoid their responsibilities. Sometimes the inability of the builder to fully recognize the issues is innocent. On other occasions, the refusal to recognize the problem is a deliberate ploy to escape liability for the construction defects.

Unfortunately for the property owner, a delay in addressing the problem can result in ever worsening problems with the property. This in turn can devalue the property or render the property completely unmarketable. Delay in addressing the problems may be in the builder's interest but it is most certainly not beneficial to the property owner.

It is important to investigate and address construction issues as soon as possible after you discover them. This will protect against worsening structural, foundational, water intrusion issues and other construction related problems. It will also protect the homeowner's or property owner's right to recover damages if litigation is necessary.

Prior to contacting an attorney or other investigative resource, the homeowner or property owner should photograph and inventory the visible construction defects. These would include cracking, sagging, changes in flooring or wall shape, drainage issues, and indications of water intrusion and mold. When taking photographs, you can use a ruler, coin or other common item to show the scale of the condition you are trying to capture.

A careful assessment of the visible issues will help more accurately assess the scope and source of the problem. It will also assist an attorney in the evaluation of possible liability and responsibility for the defects. A careful evaluation will determine the existence of possible claims against the responsible parties.

Collins & Collins, P.C.
Albuquerque Attorneys

Sadly, many marriages end in divorce. Depending on the study, it is estimated that 40 to 50 percent of marriages will end in divorce. It is not uncommon that these marriages end poorly. There are often lingering hard feelings and emotional scars left by the marriage and the divorce itself. Those are bad. And then there are those that end with STD's.

There is typically spousal immunity for personal injury lawsuits by one spouse against another. This means that one spouse cannot generally sue the other spouse for personal injuries suffered as a result of wrongful conduct by the other spouse. This immunity is quite broad with historic policy considerations meant to protect the privacy and sanctity of marriage by keeping such disputes out of court. In fact, these policies are the basis for no-fault divorce that exists in most states, including New Mexico.

However, there is a growing willingness of courts around the country to recognize a cause of action by one spouse against the other for the transmission of sexually transmitted diseases. In fact, there have been some very large damages awards in personal injury lawsuits between spouses for the transmission of STD's.

New Mexico has not addressed the issue at the appellate level. There are a number of challenges to such a suit. Foremost among these challenges, as with all personal injury suits, are the insurance coverage issues which could be numerous.

Another issue that will likely arise is whether the STD was negligently or knowingly transmitted. Traditionally, New Mexico courts have drawn a distinction between intentional and negligent torts in determining spousal immunity. Spouses were protected from suit on negligence claims. Immunity was far more likely to be waived in case of intentional torts. Whether the act was negligent or intentional also has insurance implications since most insurance policies do not provide coverage for intentional acts.

It is estimated that up to 60 million or 1 in 5 Americans have some variety of sexually transmitted disease. Some of these can be physically devastating, others deadly. The privacy and sanctity of marriage have historically been highly guarded by the courts. This was said to justify spousal tort immunity. Unfortunately, there is no such immunity against STD's.

There appears to be a willingness of courts in other states to discard the pretexts of marital sanctity in these cases. It remains to be seen if New Mexico will follow suit at the appellate level.

The antiquated policies surrounding spousal immunity no doubt did not contemplate 60 million carriers of STD's or the risk of these being brought into the marriage. There is no reason to deny an innocent spouse recovery for injuries and damages resulting from STD's. After all, once an STD is introduced into the marital relationship, what is there left for the court to protect?

Collins & Collins, P.C.
Albuquerque Attorneys