New Mexico Injury Attorney Blog

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

Customer or invitee slip and fall accidents are a common occurrence for businesses of all types. Sometimes, they are unavoidable. On occasion, customers/invitees simply fall at no fault of the business owner. There are also occasions where customers fall strictly due to their own negligence.

If the accident was unavoidable by the business owner, then typically the business will not be held liable for the damages resulting from the accident. There are many times when the actions of both the business and the customer/invitee combine to cause the accident. The question of liability is more complicated in these cases.

Many business owners believe that if the customer/invitee is aware of the hazards and is injured anyway, then the business will escape liability for any and all personal injuries suffered by the customer. This is not the case in New Mexico.

There are states that apply contributory negligence principles to personal injury lawsuits. Under contributory negligence, if the customer (or injured party in any other personal injury matter) is even a little at fault, then his or her claims are barred completely. Contributory negligence rules have extremely harsh consequences for injured persons since it could be argued that there is some small level of fault on the injured party in almost every personal injury case.

Recognizing the harshness of contributory negligence, New Mexico follows the more equitable comparative negligence rule. Under this rule, fault is apportioned between the parties. The apportionment will result in a pro rata reduction in liability for the business owner. In other words, if the business owner is only 50% at fault, then the business owner is liable for only 50% of the damages.

Comparative negligence goes further than the 50/50 split. Even if the business owner is only 10% responsible, then the business will be held responsible for its portion of the fault. In cases of serious personal injury or wrongful death, 10% can amount to significant liability.

The principles of comparative negligence are most striking in cases such as construction or repair. For instance, it is well established that even though a customer/invitee is well aware of the hazards of construction, remodeling or repairs such as debris left around the construction site, the business is not totally relieved of liability for the customer/invitee's injuries if the business was also negligent. Just as in any other personal injury case, the liability will be apportioned according to the negligence of each party.

A business owner is well advised to avoid any negligence and to keep the business premises free of possible hazards. Even hazards that should be obvious to the public, if negligently created or allowed, may result in liability in case of an accident.

Collins & Collins, P.C.
Albuquerque Attorneys

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 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

Construction accidents can be devastating. They are generally far more serious than other workplace injuries. Often times, unlike run of the mill workplace accidents, construction accidents result in permanent injuries and even death.

Workers compensation laws, including those in New Mexico, presumably drafted to protect workers instead generally place a grossly inadequate cap on the amount and types of damages that can be recovered for a workplace accident. The statutes are really for the protection of the employer, not for the employee. Workers compensation statutes protect the employer from any claims of negligence though the cause of workplace accidents is often the result of unsafe work environments, inadequate training, unsafe and unqualified co-workers, dangerous and poorly maintained equipment and a hosts of other preventable causes. In essence, the employer is shielded from any liability for the worker's injuries and damages except in the most extreme cases of recklessness.

In order for an injured worker to recover for what in a construction accident could be catastrophic injuries or death, the worker must identify a third party beyond the employer that is responsible for the accident.

In a recent case in Texas, the attorney did just that. The case is very interesting for a number of reasons not the least of which was the $11 million jury verdict in favor of the deceased construction worker. Perhaps, more interesting from a legal perspective, was the plaintiff attorney's ability to tie liability to the employer's parent company escaping the limitations of the worker's compensation statutes.

Because the deceased plaintiff's estate was barred from suing his employer, the attorney ingeniously argued that the defendant's (Gulf Marine Fabricators) parent company (Gulf Island Fabrication) was responsible for the plaintiff's death. The attorney did admit to the jury that there was some fault lying with the employer, but argued that the parent company carried the bulk of liability for the crane accident which resulted in the plaintiff being crushed to death. The jury assigned only 15 percent liability to the employer. The remaining 85% liability accounted for the $11 million wrongful death jury verdict.

The plaintiff's attorney was able to show that the parent company and not the employer controlled the crane operations. The parent company controlled every aspect of the crane operations from hiring and firing to daily operations. Oddly, but by necessity, the defense attempted to place all the blame on the employer, a related company, to gain the protective shield of the workers compensations statutes.

The fact that a defense attorney would attempt to place blame on a company related to his own client clearly illustrates the reality that workers compensation statutes should really be called employer protection statutes. These statutes have sad and tragic consequences for workers and their families. Neither the worker nor his or her family will recover anything close to actual damages in cases of serious injuries or wrongful death. It takes little imagination to envision the economic harm, let alone the pain and suffering, that occurs when a worker is permanently injured or killed.

Unfortunately, the workers compensation statutes are here to stay. As such, if you or a loved one are injured or killed on the job, it is important that all possible causes of the accident be determined. It may very well be that the workers compensation statutes can be avoided by identifying third party liability for the accident. Or as the ingenious lawyer in this case was able to do, tie the liability to a related corporate entity not protected by the worker compensation statutes.

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