New Mexico Injury Attorney Blog

Proof of causation is essential for liability in a personal injury claim. The Tenth Circuit Court of Appeals recently set forth the "but for" analysis undertaken in New Mexico personal injury cases in Wilcox v. Homestake Mining. The Court made it clear that a plaintiff must show that "but for" the negligence of the defendant, the plaintiff would not have suffered injuries. In Wilcox, a toxic tort case, the Court found that the plaintiffs had failed to make this showing. The ruling suggested rather harsh treatment of plaintiffs in New Mexico personal injury cases when it comes to causation since the plaintiffs were unable to show that their illnesses, including cancer in some of the plaintiffs, would not have occurred but for the toxic exposure.

The ruling in Wilcox is interesting when viewed in light of a recent New Mexico Court of Appeals case, Provencio v. Wenrich. Provencio involved a failed and admitted negligently performed sterilization procedure. The plaintiff sued the doctor for medical malpractice for the wrongful birth of a child. Notably, New Mexico law allows a parent to recover in damages the costs of raising a child following a negligent and failed sterilization procedure. Perhaps, the most remarkable aspect of the case is that the doctor informed the plaintiff that the sterilization procedure had failed and the plaintiff chose not to have the procedure corrected. Instead, the plaintiff chose to use condoms for birth control purposes and became pregnant as a result.

The defendant moved for judgment as a matter of law at the close of plaintiff's case at trial for failure of plaintiff to prove that defendant failed to warn the plaintiff of the failed procedure. The district court granted the defense motion dismissing the case. The New Mexico court of appeals reversed stating that proof of failure to warn by the doctor was not an essential element of the plaintiff's claim.

Essentially, the defendant argued that plaintiff's knowledge of the failed procedure and her failure to take appropriate remedial action constituted an independent intervening cause of the wrongful birth. The court followed the 1999 New Mexico Supreme Court case of Torres v. El Paso Electric in holding that independent intervening causation is no longer followed in New Mexico. Instead, the law in New Mexico is based upon comparative fault and comparative fault is always left to the jury.

Thus, the case will be sent back to the district court for retrial. The jury will be left to decide the issue of comparative fault and may very well decide in favor of defendant. However, the court rightfully turned this decision back over to the jury. The ruling is seemingly difficult to reconcile with the Wilcox case. In Wilcox, the court ruled that the plaintiffs had failed to adequately illustrate the causal connection between the toxic exposure and the resulting illnesses. In Provencio, there was no lack of evidence.

In fact, even following Wilcox with a "but for" analysis in Provencio would lead back to the jury. It is left to the jury to weigh the "but for" of the doctor's negligence against the "but for" of the plaintiff's comparative negligence. The main difference in the two cases is that the Tenth Circuit in Wilcox took the issue from the jury while the New Mexico Court of Appeals in Provencio left the determination where it rightfully belongs.

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

Slip and fall accidents are fairly common. Those injured in a slip and fall accident often have unrealistic expectations of financial recovery and often assume that there is liability simply by virtue of the accident. In doing so, they may fail to recognize their shared responsibility for the accident and the injuries. Premises liability is not absolute. New Mexico follows principles of comparative negligence which may and often does greatly diminish or destroy a slip and fall claim.

In New Mexico, every person has a duty to exercise reasonable care to protect themselves from harm. This includes protecting themselves from slip and fall accidents on the premises of another, whether on business or personal property. As a result, individuals are imputed knowledge of obvious dangers and failure to avoid those dangers may be considered the sole or partial cause of the slip and fall accident.

This issue comes up frequently in cases of ice and snow. Falling on fresh ice or snow is a far different matter than falling on ice that is unexpected and not apparent to the eye. For example, falling in a parking lot on ice immediately following a snow storm will likely be found to be the sole responsibility of the injured person due to the assumption of risk in knowingly walking on ice and snow. In addition, property owners will not be held responsible for those conditions that they cannot control. On the other hand, if a person falls several days after a snow storm and the property owner had time to remove the ice and snow and should have known of the danger, then it is far less likely that the injured person would be attributed comparative negligence. In other words, the liability and fault would fall strictly on the property owner.

These principles carry across a wide array of slip and fall accidents. Comparative negligence and the duty of reasonable care will often completely destroy a slip and fall claim. When someone has suffered serious injuries, this is a difficult conversation to have with the injured person. Unfortunately, all accidents are not compensable in personal injury litigation. Sometimes accidents just happen and there is no liability or fault on which to bring a claim.

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

The New Mexico Court of Appeals addressed for the first time in under New Mexico law whether modifications to a product by the user provides a complete defense to a product liability claim. The court in Chairez v. James Hamilton Construction Co. held that it did not and that a seller could be held strictly liable under product liability law for injuries caused by the product when the modifications to the product were foreseeable.

The case involved the modification of a rock crushing machine. The user, the deceased plaintiff's employer, had removed a metal plate covering a flywheel to facilitate removing debris and obstructions in the machine that occurred during operation. The metal plate was a safety feature designed to prevent users from being caught in the flywheel and crushed by the machine. This is in fact what happened to the deceased plaintiff. In addition, the deceased had been removing a jam while the machine was operational despite clear warnings in the user's manual against such behavior.

The plaintiff was prevented from bringing a claim against the clearly negligent employer due to the exclusive worker's compensation remedy under New Mexico law. The plaintiff did bring an action against the defendant manufacturer under a product liability theory. The defendant argued that the modifications to the machine provided a complete defense to the product liability claim. The defendant filed a motion for summary judgment on this ground. The district court granted the defendant's motion and dismissed the claims.

A number of states do indeed hold that alteration or modification of a product by an end user does provide a complete defense. However, as noted by the Court in Chairez, "Most states will not absolve a manufacturer or seller from liability as the result of an alteration or modification that was reasonably foreseeable." The court stated that New Mexico would follow the majority position.

The defendant had further argued that the modification was not foreseeable as a matter of law The court again disagreed holding that the issue of the foreseeability of the modification was an issue that should be left to the jury. The New Mexico Court of Appeals therefore reversed the district court's grant of summary judgment. The court was careful to add that it was by no means suggesting that the modification was foreseeable. Instead, the court reiterated that this was a question of fact best determined by a jury.

Likewise, the issue of the comparative negligence of the employer would need to be addressed by the jury. Assuming the jury did award damages to the plaintiff, the total amount of the award would then be reduced by the percentage of fault attributed to the employer. Unfortunately, the deceased plaintiff would be out of luck for this portion of the damage award due to the exclusive workers compensation remedy against the employer.

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

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.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

New Mexico is a comparative negligence state. As a result, it is possible for someone involved in an auto accident to recover damages even if he or she is partially responsible for the accident.

This is in stark contrast to those states that follow contributory negligence rules. Contributory negligence doctrine precludes a driver from recovering anything for his or her injuries for even minor negligence. The contributory negligence model has very harsh and unfair results since minor negligence is present in almost every accident. Contributory negligence doctrine also encourages insurance companies to fight liability even where their driver is clearly responsible for the accident. There is a big payoff for a finding of contributory negligence since it excludes recovery where any contributory negligence is found.

Fortunately, New Mexico follows the much fairer comparative negligence model. Under comparative negligence, the injured party must still prove liability or fault on the part of the other driver. However, some minor negligence will not completely preclude recovery. Instead, the law will apportion fault to the parties. Any damages will be reduced by the percentage of fault attributable to the injured party.

For example, if the injured party proves $10,000 damages and it is show that he or she is 50% responsible for the accident, then the total recovery will be reduced by 50% to $5000. This doesn't seem like much but in cases involving extraordinary damages, the recovery can be quite large even after the reduction for comparative fault. For instance, if the case involves permanent injuries or even death, the damages can be very large so that even with a 50% reduction in damages, the settlement or judgment can be substantial.

A wrongful death action can result in damages well in excess of a million dollars. Depending on the circumstances, the damages can rise to the millions. Under a contributory negligence model, the injured party or the estate would be prevented from recovering any damages at all if there was the presence of any contributory negligence. Under the comparative fault model, the injured party or the estate would recover reduced but still significant damages.

www.CollinsAttorneys.com