New Mexico Injury Attorney Blog

A New Mexico news story has been getting a lot of press of late. A man convicted in 2010 of vehicular homicide for a DWI fatality has now filed suit against the bars and restaurants that served him. The man has also filed suit against his drinking buddy on the night of the fatal DWI accident.

As evidenced by all the press the story is getting, this obviously does not sit well with the public and will likely lead to a chorus of protests. Cases like this are easy fodder for tort reform advocates who argue that there is rampant frivolous lawsuit abuse. However, it is a little early to draw any such conclusions from the filing of this case.

In fact, there are a number of precedents set by both the New Mexico civil and criminal courts that lend some credence to the suit. Let's start with the suit against the buddy. Then we can move on to the claims against the bars and restaurants that served the man.

Passenger Criminal Liability for DWI Accidents

It was established in the 2009 New Mexico Court of Appeals case of State v. Marquez that a passenger could be charged with vehicular homicide. That case was pretty remarkable on the facts. The two friends had gone on quite a bender being cut off at several bars whereupon they took their show to the roads purchasing alcohol at several retail outlets along the way. Tragically, in the end, 2 people were killed and 5 injured in a devastating DWI auto accident. With this precedent in place, why would there not be civil liability as well? After all, the standard for civil liability is much less stringent than for a criminal conviction.

Certainly, the person killed would have a claim potentially against those that served the man as well as his buddy. It is not a stretch to get to civil liability for the consequences to the driver no matter how repugnant this may on a gut level. The facts remain to be seen about the buddy's role in the accident and the drinking that led up to it. Once this is heard, and it should be heard, it may well be that the drinking buddy bears responsibility to both the innocent victims and his drunk driving friend.

Dram Shop Liability for the Bars & Restaurants

Civil liability for a drinking buddy to a DWI friend has as far as I can tell yet to go before the higher courts of New Mexico. The liability for the bars and restaurants to the DWI driver/patron has been addressed by the New Mexico Supreme Court in the 2011 case of Mendoza v. Tamaya.

That case involved a suit by estates of two patrons of a resort who were killed in a DWI accident following a wedding reception. The Court in that case clearly established that the estates of the deceased patrons, including the driver, could sue for negligent over-service of alcohol. Therefore, it is clear that the DWI offender could sue for his own physical injuries and wrongful death under a dram shop patron claim.

If that is the case, why should the same patron be prevented from filing suit for other damages for that same negligent over-service of alcohol, namely 42 years in prison in the case at hand? The fact is that there is appears to be no good legal basis for that position.

Liability is Possible Though Perhaps Not in This Particular Case

The facts in State v. Marquez and Mendoza v. Tamaya both involved exceptional facts. Perhaps, the facts of the most recently publicized case will not meet those same standards. Perhaps this is not the case that will establish liability for the DWI driver's own damages under the patron dram shop claim or a DWI buddy claim. But it does not take a great deal of imagination to envision a situation where such liability on both counts would be perfectly in order.

In light of the countless tragic DWI accidents, the outcome of this case could prove to be one more useful tool for fighting DWI in New Mexico. This is one possibility that does not seem to have been addressed yet by the press.

Related Reading:
Drunk Driving Auto Accidents: Scope of Passenger Liability in New Mexico
New Mexico Supreme Court Limits Tribal Sovereign Immunity in Casino Dram Shop Cases

Collins & Collins, P.C.
Albuquerque Attorneys

The holiday season is upon us. With it comes celebration. Much of the celebration involves alcohol. As the holiday season approaches, we will be doing a few articles on liquor liability, often referred to as dram shop rules.

To begin, anyone that will be hosting a party should be aware of the possible liability associated with intoxicated guests. This liability can come in many forms from mishaps in the home to DWI auto accidents to good old fashioned holiday brawls to name just a few.

The liability of the homeowner is clear in these cases where the guests are over-served. This can stem from the atmosphere set by the party host in serving shots, serving up beer pong tables (or other drinking games), and of course the annual holiday drinking contest.

However, liability may arise from lesser offenses. For instance, an already intoxicated guest should not continue to be served. This can put the host in a bit of pickle in some cases where the guest takes offense leading to the aforementioned brawl. At the same time, throwing the guest out risks putting a drunken driver on the road leading to the aforementioned DWI auto accident.

Keep in mind too that under New Mexico law, both the over-served guest and any innocent victims the guest may harm may have a claim against the host. There are a number of fairly recent New Mexico cases that establish clear liability for a host that recklessly over-serves his or her guests.

So what should a host do to avoid liability for holiday parties gone awry? First, and most obviously, try to keep the party from going awry to begin with. This can be done by setting a responsible tone for the party. Clearly, the beer pong table is inviting disaster.

Related to this precaution, if you simply cannot host a party without a beer pong table, take the keys from your guests at the beginning of the party. Of course, this will not avoid the fisticuffs that on occasion accompanies beer pong. But it will avoid a DWI accident.

Next, keep an eye on your guests. It is often pretty obvious who has overindulged. Sometimes it is not so you will need to be on your toes. And avoid setting the stage for obvious overdrinking. Once again this relates to shots, beer pong, quarters and other drinking games.

Most importantly, do not allow your guests to drive home drunk. Make sure they have a designated driver. This means a sober driver, not a driver than is less drunk. If there is no designated driver, take their keys if you can.

Giving them a little coffee to sober them up is not good enough. That simply gives them an edge to their intoxication. As such, if you are going to have a drunken fest, be prepared for overnight guests.

Finally, if you intend to host a party with alcohol, you might want to check up on your homeowner's insurance. Even if you take all possible precautions, and even if you act completely responsibly, accidents happen. And even if in the end, you are found completely innocent of wrongdoing, a lawsuit could be financially crippling due to attorney fees. Homeowner's insurance coverage should protect you from this. However, it will not protect you from liability for reckless conduct.

In short, if you are going to have a holiday party, be responsible. To do otherwise, could be extremely costly to you and your family!

Related Reading:
Change In Evidence Requirements For Dram Shop Claims
Dram Shop Liability: Shifting Burden of Proof
Over-Served Intoxicated Patrons May Bring Their Own New Mexico Dram Shop Claims for Injuries

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico Dram Shop laws were enacted to assign liability to persons or establishments who serve alcohol to a visibly intoxicated person. If the intoxicated individual later causes personal injury or property damage because of their intoxication--say by driving drunk--the establishment can be found liable for serving them alcohol. Under the New Mexico Dram Shop Liability Act, plaintiffs have to prove that the establishment served alcohol to a patron when it was "reasonably apparent" to the establishment that the patron was intoxicated.

Proving a dram shop claim can be difficult. In the past, defendant establishments have tried to avoid liability in many ways. Some defendants have claimed that if the specific server could not be identified so that there was no way to prove that it was reasonably apparent to that server that the patron was intoxicated. In other cases, there is no direct evidence to prove that it was "reasonably apparent" that the patron was intoxicated because there were no independent witnesses and establishment employees will not testify that they knew the patron was intoxicated.

In Gutierrez v. Meteor Monument, the New Mexico Supreme Court recently made it significantly easier to bring a dram shop claim against an establishment. Gutierrez held that identification of the particular server is not essential to a dram shop case and circumstantial evidence alone is sufficient to prove that it was "reasonably apparent" that a patron was intoxicated at the time he or she was served alcohol.

The underlying suit in Gutierrez dealt with a patron who consumed several beers and malt liquor before he crashed his car into a motorcycle an hour later, ultimately resulting in the motorcycle rider's death. The rider's estate and family successfully sued the patron and Meteor, the establishment where he had been drinking prior to the crash. The defendant establishment appealed and the New Mexico Court of Appeals reversed the dram shop verdict against it, holding that since there was no evidence of the specific employee who served the patron, there was no evidence to support the finding that the patron's intoxication was "reasonably apparent" to that server.

The New Mexico Supreme Court disagreed. The Court held that the "reasonably apparent" standard for dram shop liability is an objective standard that does not depend on the personal, individual perception of any specific server. On the contrary, the "reasonably apparent" standard applies to any server who should have known that the customer was intoxicated because the intoxication would have been "visible, evident, and easily observed." The Court continued by explaining that if the "reasonably apparent" standard were a subjective one, there would be very few successful dram shop claims because employees and establishments would be able to avoid liability by testifying that they did not think that the patron was intoxicated.

Next, the Court went on to discuss circumstantial evidence acceptable under this objective standard to prove apparent intoxication at the time of service. While testimony of other witnesses present at the time is widely accepted as circumstantial evidence to prove apparent intoxication, in many cases, this testimony doesn't exist. Many establishments argue that this should be the only circumstantial evidence admissible. The Court in Gutierrez, however, listed several other sources of evidence including the patron's own testimony as to how many drinks he or she consumed, how long the patron was present at the establishment, the observations of police officers at the accident scene, and the results of Breathalyzer tests. In Gutierrez, the court discussed the fact that the patron was known to be an alcoholic by the defendant's employees, that he was a regular customer of the defendant, and that he was usually visibly intoxicated by early afternoon. The Court also discussed the observations of police officers at the time of the accident, one hour after Defendant served the patron his last drink, as well as the results of a subsequent sobriety test and blood alcohol level tests.

This decision by the New Mexico Supreme Court is likely to have an impact on personal injury and wrongful death claims based on dram shop laws. By making it clear that the identity of a particular server is not necessary for a successful claim, and by expanding the allowable circumstantial evidence to prove apparent intoxication, the Court has made it easier for personal injury victims to bring a dram shop claim against a negligent establishment.

If you or loved one has been injured or harmed by a drunk driver, and that driver was highly intoxicated, the first question should be how is it that the driver reached that state of intoxication? An experienced personal injury attorney will be able to assist in answering that question which may very well lead to a dram shop claim.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, and other states for that matter, Indian tribes and pueblos retain sovereign immunity. This generally means that suits against tribes and pueblos, including personal injury and wrongful death claims, must be brought in tribal court. However, under the Indian Gaming Compact, tribes have given up sovereign immunity for suits involving personal injury and property damage caused by enterprises authorized under the Compact. This means that Indian casino patrons can bring personal injury suits in state court.

New Mexico state courts have traditionally been largely deferential when it came to sovereign immunity claims. Generally, guests of restaurants and gas stations adjacent to casinos had difficulty keeping their suits in state district court due to claims of sovereign immunity. In its recent ruling in Mendoza v. Tamaya Enterprises, however, the New Mexico Supreme Court has considerably restricted sovereign immunity as it relates to gaming establishments and liquor laws.

The suit in Mendoza v. Tamaya Enterprises alleged that the Tamaya Resort was liable for the wrongful death of two intoxicated guests killed after leaving a wedding reception. The Defendant Resort claimed that New Mexico state courts did not have jurisdiction over the case because the Plaintiffs were not in the resort to gamble, and therefore its actions were governed instead by the Pueblo Liquor Ordinance. Under the Ordinance, tribal courts claim exclusive jurisdiction.

The New Mexico Supreme Court disagreed, consistent with the New Mexico Court of Appeals earlier ruling, and has allowed the suit to proceed in state court. Even though there was no evidence that the deceased were in the resort for gaming purposes, the Court held that state courts have jurisdiction over their wrongful death claims. With this holding, the Court cleared up a long-standing gray area, and made it clear that regardless of whether the injury or property damage had any connection to gaming, state courts have jurisdiction if the injury or damage was caused by the actions of a gaming establishment authorized under the Indian Gaming Compact.

Finding that state courts did have jurisdiction over the case, the Court proceeded to discuss what kind of a suit can be brought in state court under the circumstances. The Court found that the Plaintiffs had a common law dram shop third party and patron claim against the resort. New Mexico dram shop laws place liability on a person or establishment who serves alcohol to an individual who they knew or should have known was intoxicated.

The Court went on to define common law third party dram shop claims, common law patron claims, and the standards to prove each claim in state courts. In New Mexico, a common law third party dram shop claim is present when a defendant serves alcohol to an individual who is visibly intoxicated and that individual later injures a third party. Citing important policy considerations, the New Mexico Supreme Court also recognized a common law patron claim, where the intoxicated patron himself can bring a personal injury and wrongful death suit against the establishment that over-served him or her.


In order to harmonize this case with previous rulings and existent laws, the Court clarified the elements and standards for both types of claims. In a third party dram shop claim, the third party must prove that the person or business was negligent and that this negligence caused the third party's damages or injuries. In a patron claim, the patron must prove that the server or business "acted in gross negligence and in reckless disregard" of the patron's safety and that these actions caused the damages and injury. In other words, patrons must show a higher level of culpability by the defendant.

This recent ruling has significantly cleared up several uncertainties in cases involving Indian casinos and has increased the legal options for guests injured in these places. This does not necessarily mean that all cases involving Indian casinos can be brought in state court. However, at the very least hopefully it will prompt establishments to be more vigilant in protecting all of their guests.

Dram shop cases can be complex and challenging. This is doubly so when dealing with an Indian Casinos. An experienced personal injury attorney will be able to lead you through this difficult and sometimes frustrating process of bringing claims against an Indian Casino.

Collins & Collins, P.C.
Albuquerque Attorneys

Most everyone has experienced drunken Santa at a holiday party. It makes for funny stories about the drunken uncle Santa who fell in the punch bowl, passed out in the yard, made some un-Santa like advances toward some of the guests and so on.

It is not as funny when Santa on his sleigh-ride home hurts himself or innocent drivers and their families. And though entertaining, and possibly even worthy of YouTube, it could get very expensive when Santa in a polar rage challenges all comers to a brawl.

The laws in New Mexico are pretty clear regarding liability for setting drunken guests loose on the roads. This applies to Santa as well as any other guests. Here are few things to consider before lining up the tequila shots at your holiday party.

New Mexico's dram shop and social host laws will hold the hosts liable for accidents and personal injuries arising out of the overindulgence of guests at a party. The host is liable to any innocent victims injured by the drunken guest. These injuries are most often associated with DWI accidents. It would also include drunken brawls as noted above along with any other accidents caused by the drunken guest.

The host can also be liable for injuries to the guest himself. This could occur in all manner of situations. It would include a guest sent packing who is clearly intoxicated who is injured or killed in a DWI accident. It might also include the guests who flips his chair due to excessive merriment and suffers a skull fracture. Or maybe, it is the guests who flirts with the wrong guest's wife and takes a beating out in the yard. And then again, there is Santa who proves ill equipped to take on the crowd.

There are too many variations on this theme to count them all. Suffice it to say that over-serving your guests with alcohol is risky business. And unless you know your guests and are paying attention, any alcohol brings some risks.

Holiday parties will have alcohol. And people will drink. This is perhaps unavoidable. However, there is no need or excuse for encouraging guests to overindulge. In addition, there are just some friends and family that you know cannot control themselves around free booze. Keep an eye on them. Better yet, don't invite them. If you must, take their keys early, keep them under control and plan for an overnight guest.

So pay attention, know your guests, put your drunken guests in lockdown, update your homeowner's insurance and be careful to whom you give the Santa suit. Drunken Santa and his elves might be entertaining or even downright hilarious in their holiday antics, but this is one ghost of Christmas that you do not want to visit in the future.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Liquor Liability Act creates different standards of care for dram shop liability depending upon the relationship between the plaintiff and the defendant.

The highest standard of care is imposed in cases of suits by third parties for injuries caused by a drunken patron. In these cases, the plaintiff must simply show negligence on the part of the liquor serving establishment or licensee. A negligence standard means that the plaintiff must only show that it "reasonably apparent" that the person being served was intoxicated.

The standard is higher when a patron himself sues the licensee. In this case, the patron must prove gross negligence and reckless disregard on the part of the server of alcohol. This is a much higher standard requiring that the plaintiff show that the server was grossly negligent and recklessly disregarded the safety of the intoxicated patron.

The standard changes again for gratuitous providers of alcohol such as social hosts. This would include private parties and cases where the one person buys alcohol for another at a bar or restaurant. In this case, the plaintiff must show that the host provided the alcohol "recklessly in disregard of the rights of others, including the social guest." This provision sets a pretty high burden of proof and was intended to provide some measure of protection for social hosts against suits by injured third parties.

IT is important to note that the social hosts provisions in the Liquor Liability Act are not limited to private settings. The extension of liability beyond the private setting was made explicit in Delfino v. Griffo.

It is noteworthy also that though the standard of proof is heightened for certain relationships such as a social host, DWI is treated quite harshly in New Mexico by law enforcement, the Courts and perhaps most importantly for dram shop liability, by juries. One would be hard pressed to find a juror that is unaware of the countless DWI tragedies that occur each year on New Mexico roads. In fact, there is a good chance that there will be some in the jury pool that have had personal experience with DWI tragedy.

This does not bode well for the defendants in these cases as the legal definitions of negligence, gross negligence, reckless are all in the eyes of the beholder. And few jurors these days will be sympathetic to DWI drivers or anyone that put them on the road in a drunken state.

It all sounds pretty straightforward in theory. However, as with all personal injury cases, dram shop suits can become quite complicated and difficult in a hurry. In almost all of these cases, the plaintiff will be dealing with an insurance company. Many of these companies are fair and rational and will attempt to come to a fair resolution of the claims.

Some insurance companies on the other are philosophically and financially opposed to a fair resolution no matter what the circumstances. In either case, it is important to seek the guidance of an experienced personal injury attorney. After all, even the reasonable adjuster is looking after the financial interests of the insurance company and this interest is in direct opposition to the interests of an injured plaintiff.

Collins & Collins, P.C.
Albuquerque Attorneys

With graduation season fast approaching, would be graduation party hosts should keep in mind all the costs of being the "cool parents." In addition to exposure to very serious felony charges for service of alcohol to minors, there is potentially devastating liability for personal injuries and damages associated with DWI related auto accidents.

New Mexico's Liquor Liability Act, often referred to as dram shop laws, imposes a duty and corresponding liability on all social hosts. This includes parents who host a graduation party. In fact, the Act was perhaps geared most to this kind of negligent behavior.

The Liquor Liability Act established varying levels of duties and liability for different situations. At the high end of the spectrum are restaurants and bars who over serve patrons. For these situations, an injured person need only show negligence.

There is a lessor standard for social hosts. In these actions, because the alcohol was not served for financial gain, it must be shown that the social host was "reckless." This is a much higher burden of proof than simple negligence. The standard is long established and most recently set forth in Delfino v. Griffo wherein it was stated, "For a suit against a gratuitous provider, or social host, the plaintiff must show that the host provided alcoholic beverages "recklessly in disregard of the rights of others, including the social guest."

Though a showing of recklessness is a fairly significant hurdle, serving alcohol to minors will most definitely meet that hurdle. The liability runs not only to innocent third parties, but to the minor as well.

In the case of a DWI auto accident, the injuries and damages can be catastrophic including the possible wrongful death of innocent third parties, passengers, and the minor him or herself. The liability for the social host likewise can be catastrophic. It is hardly worth the fleeting moments where the drunken child and his or her teen friends believe the parent to be cool.

Collins & Collins, P.C.
Albuquerque Attorneys

Businesses often wine and dine clients and potential clients for business development and marketing. The wining part of the equation will on occasion lead to some pretty disastrous consequences. The recent New Mexico Supreme Court case of Delfino v. Griffo addressed the responsibility for these consequences under the state's liquor liability laws (otherwise known as dram shop laws).

New Mexico's dram shop liability laws have been long established. Under the dram shop provisions of the Liquor Liability Act, restaurants, bars, hotels and the like have routinely been held responsible for injuries and other damages resulting from over serving patrons whuch often come in the form of DWI auto accidents. The Act also addresses social hosts such as individuals serving alcohol in their homes. The Delfino case stretched the definition of "social host" to include businesses that entertain clients or associates with alcohol.

Delfino involved several pharmaceutical representatives who wined and dined Alicia Gonzales, a female employee of doctor's office, for 8 hours jumping from one bar and restaurant to the next as the Ms. Gonzales became more and more intoxicated. In the end, they gave her a pat on the back, put her in her car and sent her off to collide with a family resulting in the wrongful death of a seven year old boy and badly injuring the other occupants in the car.

The defendant pharmaceutical companies and their employees all claimed and successfully argued at the district court level that the definition of "social host" applied only to the service of alcohol in private settings. The district court agreed that "social host" could not apply to alcohol served in a liquor establishment. Effectively, the district court would have limited liability to the bars and servers of alcohol despite the true source and purpose of the alcohol.

The New Mexico Supreme Court disagreed following the law in numerous other states that hold liable not only the server of alcohol but also the person or in this case the company representatives who purchase the alcohol. The Court stated "We conclude that the Liquor Liability Act permits a cause of action against a social host who recklessly provides alcohol to a guest when the alcohol is consumed in a licensed establishment."

The Court agreed with the plaintiff's argument that these settings give "special control over their target business related guest..." In other words, the whole point of the exercise is to get the person intoxicated which in this case was quite successful. Ms. Gonzales got in her car over twice the legal limit of alcohol and 14 minutes later killed a young child.

The Delfino case is remarkable as much for the ruling that holds businesses and corporations responsible for long established and dangerous marketing practices as for the fact that each and every one of the three corporate pharmaceutical companies and their employees attempted and were first successful at evading completely their responsibility for the tragedy caused by those practices.

This evasion of responsibility for harms to the innocent is repeated time and time again by corporations each and every day, and as often as not, they are successful. And for holding them responsible, New Mexico has been labeled a judicial hellhole by the U.S. Chamber of Commerce and the American Tort Reform Association. That should tell you all you need to know about corporate responsibility.

Collins & Collins, P.C.
Albuquerque Attorneys

In drunken driving auto accidents, liability for the injuries and damages to innocent drivers and/or pedestrians may be spread across several different parties. Some liability is pretty clear under the dram shop liability laws and standard theories of negligence. Other possible avenues for compensation have been made more evident in recent criminal case developments.

Under common law negligence, the drunken driver is obviously liable for injuries and damages caused in a DWI car accident. In fact, the drunken driver may be held liable for punitive damages above and beyond compensatory damages.

Under dram shop laws in New Mexico, it is also clear that the bar or other provider of alcohol may be held liable for injuries and damages suffered as a result of an auto accident involving a drunken patron or guest. Dram shop liability may be imposed on a variety of providers of alcohol including bars, restaurants, retail liquor establishments, social hosts, and even airlines.

These bases for liability have been long and well established in New Mexico. One less common and less clear basis of liability that has arisen recently in criminal DWI vehicular homicide cases is passenger liability. In the case of State v. Marquez, a passenger was convicted of vehicular homicide along with the driver of the vehicle. The facts of the case were rather extraordinary with clearly reckless and dangerous behavior on the part of both the driver and the passenger.

Not every case will involve the level of recklessness and comparative negligence on the part of the passenger as involved in State v. Marquez. However, the question of possible passenger liability under comparative and contributory negligence theories should be addressed in every DWI auto accident. Not all passengers will be held responsible for the acts of a drunken driver.

There are those cases where the passenger may be held partially or even equally liable. After all, it may very well be the passenger that put the driver behind the wheel knowing full well of the dangers to innocent drivers and pedestrians. Liability of passengers for DWI car accidents will be determined on a case by case basis so injured parties should be aware of and explore these possible claims.

Collins & Collins, P.C.
Albuquerque Attorneys

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

Dram shop liability has been pretty clearly established in New Mexico for quite some time. Under the dram shop laws, a bar or restaurant may be held liable for the over-service of alcohol to a patron who later causes injuries and other damages suffered by innocent third parties.

Often the over-intoxicated patron also suffers injuries and even wrongful death. The injuries to both the innocent third party as well as the over-served patron most frequently occur in car accidents. The question that most often comes up is whether the over-served patron has a claim against the bar or restaurant for its negligent over-service of alcohol.

In the past, and in many states still, the over-served patron would have no claim against the bar or restaurant. Many states follow contributory negligence law in these types of cases. Under contributory negligence, any amount of fault on the part of the injured party will bar a personal injury claim against even a vastly more negligent defendant.

New Mexico on the other hand follows comparative negligence doctrine. Under comparative negligence, an injured party may still bring a claim despite his or her own negligence. However, any recovery for injuries and damages will be reduced proportionately to his or her own negligence or fault.

Even under comparative negligence standards, New Mexico courts were reluctant to allow claims by persons injured as a result of their own intoxication. However, that changed under the2010 New Mexico Court of Appeals ruling in Mendoza v. Tamaya.

Under Mendoza v. Tamaya, no longer is an intoxicated person barred from making claims under dram shop theories of negligence. Instead, the court ruled that the principles of comparative negligence should be applied here as in all other cases of negligence and harm.

The court basically stated that the law prohibiting an intoxicated person from bringing a claim were outdated in light of New Mexico's adoption of comparative negligence. The court did not buy into the defense's tired old argument that the plaintiff would be allowed to prosper his own negligent intoxication. The argument was particularly unpersuasive in that case as in many such cases where the person allegedly prospering from his own negligence was in fact killed in the accident.

Collins & Collins, P.C.
Albuquerque Attorneys

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

The Albuquerque Journal had an interesting article last week regarding the refusal of some stores to sell alcohol to drivers with interlock licenses. This seems to be an obvious tool for the reduction of DWI/DUI related auto accidents. Though there are a few vendors that have adopted the policy, most have not. The question arises why more do not adopt the policy of refusing the sale of alcohol to DWI/DUI offenders on interlock drivers licenses.

Drivers arrested for DWI/DUI face automatic license revocation by New Mexico Motor Vehicles Division. In addition, the courts impose a separate and independent license revocation following a criminal conviction for DWI/DUI. Drivers with revoked licenses due to DWI/DUI arrests or convictions must obtain a special interlock license and install an ignition interlock device on their vehicle. Driving in violation of these terms carries up to one year in jail.

The owner of Albuquerque's Jubilation Wine & Spirits was quoted in the Albuquerque Journal article as saying that he is refusing the sale of alcohol to those with interlock licenses to do his part in helping to keep drunk drivers off the road. This is certainly admirable on his part and it is unfortunate that more store owners do not take the same position. There is no law that prohibits the sale of alcohol to drivers with interlock licenses. Does the store have a duty to keep drunk drivers off the road despite the lack of law to that effect? It seems that they may under simple dram shop liability theories.

As part of every DWI/DUI charge, there are conditions of release that prohibit drinking and driving. This seems to go without saying. There is also the condition that the defendant consume no alcohol at all while the case is pending. Likewise, upon conviction, the same prohibition against the consumption of alcohol applies throughout probation.

DWI/DUI drivers cannot legally use alcohol so they certainly have no business purchasing it. There is no good reason to allow the sale of alcohol to drivers with interlock licenses. The sale of alcohol to a person known to have a problem with drinking and driving, who clearly as a term of his conditions of release or probation is prohibited by court order from using alcohol, creates a plain threat to the safety of the driving public.

Jubilation is on the right track. Others who fail to follow the lead may do so at their peril. Dram shop liability laws provide a very good model for holding irresponsible store owners liable for damages and harm caused as a result of serving up alcohol to those known to be a threat to the public. A bar cannot sell alcohol to someone that is already intoxicated because this poses a threat to public safety. Does the same rationale not apply to selling alcohol to DWI/DUI offenders currently under driving restrictions due to the danger they pose to the public?

There are two approaches to attacking DWI/DUI. First and most obviously, the drunken drivers must be held accountable. Secondly, the source of the alcohol can be addressed. The State has not seen fit to prohibit the sale of alcohol to DWI/DUI offenders. It seems only a matter of time before personal injury lawsuits are filed against alcohol vendors for these irresponsible and indefensible practices that will inevitably at some point lead to tragedy. Perhaps these lawsuits will help to reduce the number of DWI/DUI drivers on New Mexico roads.

Related Reading:
Reach of New Mexico Dram Shop Laws Extends to Business Wining & Dining
Dram Shop Liability Issues Not Always Apparent
Dram Shop Liability: Shifting Burden of Proof

Collins & Collins, P.C.
Albuquerque Attorneys

There have been a couple of recent decisions involving very large damage awards against bars for the drunken actions of their patrons. The cases fall under dram shop and premises liability laws that protect the visitors, patrons and customers of such drinking establishments. These case involved obvious dram shop and premises liability. Other cases of negligent or reckless service of alcohol may not be as obvious. This is particularly so in auto accident cases.

The Tennessee case of Maddy v. Ruby Tuesday Inc. involved a jury award of $10 million. A poorly trained 21 year old bartender had served a patron 19 beers over a three hour period. The drunken patron ended the evening by smashing a beer mug in the face of another patron, severing the victim's carotid artery. The bartender testified that she did not recall seeing any corporate training videos prohibiting the service of any customer more than three drinks in an hour.

A Texas appellate court upheld a $1.48 million verdict for damages related to a barroom brawl at the Del Lago Golf Resort & Conference Center. Much like the Tennessee case, the employees of the bar were clearly untrained or undertrained. The brawl involved a wedding party and a Sigma Chi fraternity reunion party. The problem for the defendant was that witnesses testified that the brawl had begun brewing hours before the actual fight broke out. Rather than address the problem, the bar's staff continued the heavy flow of liquor and then at the end of the evening herded both parties into the parking lot where the melee erupted.

Certainly, a bar cannot always be held responsible for the drunken behavior of its patrons. However, in cases like these where the bar actually creates the danger through the over-service of alcohol while ignoring possible dangers to other patrons, the bar will be held responsible for the damages resulting from the negligent behavior of its staff.

In fact, dram shop laws in most states, including New Mexico, require that bartenders and staff be trained to both detect and avoid the over-service of alcohol. The dangers of severe intoxication are well known, from the drunken bar brawls in these cases to the horrible DWI/DUI auto accidents that regularly result from the negligent service of alcohol at bars, restaurants and nightclubs.

The severe injuries and deaths that occur as a result of negligent bartenders and waitresses are too numerous to count. In these cases, the negligence of the bars in question are obvious. However, in cases involving auto accidents, the injured persons or their surviving family members fail to or are unable to trace the accident back to these negligent or reckless practices. In late night auto accidents, the possibility of such negligence should be explored. Due to chronic level of underinsured drivers in New Mexico, the bar that began the train of events that led to the accident may be the only possible source of financial recovery for the injured or deceased person's damages.

Related Reading:
Change In Evidence Requirements For Dram Shop Claims
Dram Shop Liability: Shifting Burden of Proof
New Mexico Dram Shop Liability Extended to Protect Intoxicated Patrons

Collins & Collins, P.C.
Albuquerque Attorneys

Auto accidents are among the leading causes of death of teenagers and young adults (ages 15-24) in New Mexico. Youth, drinking and driving is a lethal mix with often lethal consequences. The DWI/DUI laws and underage drinking laws in New Mexico are very strict to avoid the tragedy of youthful DWI/DUI accidents.

There are strict laws against underage drinking including felony charges for providing alcohol to underage drinkers. These penalties can be particularly harsh for service of alcohol to minors. However, despite these laws, minors often manage to obtain alcohol as a result of negligent or reckless bartenders, hosts, clerks or cashiers. Unfortunately, this negligence or recklessness can result in catastrophic injury and sometimes wrongful death.

Fortunately, New Mexico law holds these individuals and entities accountable for the damages caused by their negligence under dram shop laws, social hosts laws, and criminal laws designed to protect individuals from such behavior.

A recent case in California illustrates the law, the possible harm, and the potential recovery for injuries arising out of dram shop or negligent social host situations. The case of Apodaca v. Bradley involved two 20 year olds, Joshua Apodaca and Sean Patrick Bradley, who were served alcohol at a Sonoma County winery during a wedding reception, and then again at convenience store following the reception. The two were served alcohol at the wedding reception despite failing to present identification. Even more remarkably, they were later sold alcohol by a convenience store again with no identification which they then consumed in the store's parking lot.

Bradley who was driving crashed his car into a rock wall as the two travelled home. Apodaca suffered closed head traumatic brain injuries. Apodaca's brain injuries led to severe and permanent cognitive and motor deficits.

Unlike New Mexico, apparently California does not have formal dram shop laws. Instead, the lawsuit was brought under specially enacted laws to address teenage DWI/DUI. The result was a $3.1 million settlement. The winery contributed policy limits of $3 million under its insurance policy. The parents of Bradley contributed their policy limits of $100,000. Bradley himself contributed $5000.

The $3.1 million can never fully compensate Apodaca for all of the damages associated with his severe traumatic brain injury. Apodaca will likely suffer a lifetime of pain and suffering, loss of enjoyment of life, and permanent mental and physical limitations. The loss of income and earnings over his lifetime associated with his injuries are hard to calculate due to his youth. Rest assured, however, even a moderate income over his working life would approach the value of the settlement.

Instead, the bulk of the settlement proceeds will go toward a lifetime of medical care and expense for Apodaca. There will likely be little left to address his remaining damages. Unfortunately, this is often the reality of auto accidents, where there is inadequate insurance to compensate injured persons. In New Mexico, a $3.1 million settlement in an auto accident is extremely rare due to the high level of uninsured/underinsured motorists in the State. Though the settlement cannot possibly compensate Apodaca for his injuries, it is far better than the outcome in most DWI/DUI accidents where there simply is no insurance or financially responsible party to compensate the accident victim other than his or her own uninsured/underinsured motorist coverage.

Related Reading:
Dram Shop Liability: Shifting Burden of Proof
Change In Evidence Requirements For Dram Shop Claims
The Potential Costs of "Cool" Parenting are High During High School Graduation Season

Collins & Collins, P.C.
Albuquerque Attorneys