New Mexico Injury Attorney Blog

There are many reasons to wear a seatbelt other than the laws requiring it. The top ten reasons for proper seatbelt use are apparent from the following statistics from a study at James Mason University:

1. One in five drivers are involved in an auto accident each year.


2. Auto accidents are the leading cause of death for those under the age of 45.


3. Close to 35,000 people die each year in auto accidents, half of whom would have been saved by the use of seatbelts.


4. For every one percent increase in the use of seatbelts, 172 lives are saved.


5. Seatbelts reduce auto accident fatalities by 60-70 percent.


6. A person is 25 times more likely to die when thrown from a vehicle.


7. Children are often killed by being crushed by unrestrained adults.


8. The most common injuries to children in car accidents are head injuries resulting in brain damage, traumatic brain injury, epilepsy or death.


9. Over 80% of child fatalities in auto accidents would have been prevented by the proper use of seatbelts or car seats. Unfortunately, less than ten percent of children are properly restrained.


10. Seatbelts may provide the greatest and only protection against DWI drivers. This is very important in New Mexico which historically has among the worst DWI problems in the country.

A seatbelt may very well save your life in the case of a car accident. If that is not enough, it may save your child. Just as importantly, it could minimize physical injuries. In New Mexico where drivers are chronically uninsured or underinsured, minimization of physical injuries may very well save you and your family from financial disaster. There many more good reasons for wearing a seatbelt and none that would suggest otherwise.

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

In the case of Ovecka v. Burlington Northern Santa Fe Railway Company, the New Mexico Court of Appeals addressed the issue of vicarious employer liability in the context of a wrongful death suffered in a DWI auto accident involving an employee of Burlington Northern. The central issue in the case was whether the drunken employee's actions could be imputed to Burlington Northern.

The employee, Kenneth Long, had a long history of DWI and alcoholism. His job duties carried him around a wide area of New Mexico. Due to the remote locations of the job sites, Burlington Northern employees were often provided lodging near job locations. Kenneth Long often took advantage of the lodging. He utilized his own vehicle in commuting to and from location. After work one day in Rio Puerco, Mr. Long headed to Grants where lodging was provided by the company. However, Mr. Long did not check in. Instead, he picked up a 12 pack of beer and headed to Gallup to visit estranged family members. Mr. Long became extremely intoxicated and headed back toward Grants. At 9:00 PM, well after leaving work that afternoon, he crossed the highway median colliding head-on and killing Angela Ovecka.

Ms. Ovecka's parents brought the suit on behalf of Angela alleging Burlington Northern's vicarious liability under respondeat superior for Mr. Long's actions. They further alleged negligent hiring and supervision. Burlington Northern moved for summary judgment which was granted by the district court and affirmed on appeal by the New Mexico Court of Appeals.

The court set forth well established principles of respondeat superior. In short, the court found that Mr. Long was not acting within the course and scope of employment at the time of the accident. The court stated that an "an employee enroute to, or returning from, his place of employment, using his own vehicle is not within the scope of his employment absent additional circumstances evidencing control by the employer at the time of the negligent act or omission of the employee." Under the facts, the court found that Mr. Long was returning home, well after business hours, and there was no other evidence suggesting control over Mr. Long at the time of the accident.

The court also refused the plaintiff's arguments regarding negligent hiring and supervision. The court stated that negligent hiring and supervision claims require both foreseeability of harm and a duty on the part of the employer. The court determined basically that an accident such as this was not a foreseeable harm arising from the hiring of Mr. Long. In the absence of foreseeability, there could be no duty to prevent the harm.

Naturally, Mr. Long was driving an uninsured vehicle at the time of the accident. The case did not address whether or not Ms. Ovecka carried uninsured/underinsured motorist coverage. In the absence of such coverage, Ms. Ovecka's tragic death likely would have gone completely uncompensated.

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

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.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

Dram shop lawsuit in results in $1 million damages verdict against a bar that served the intoxicated driver that struck and killed a bicyclist while returning home from the bar. The driver, Melissa Arrington, had been drinking at Berky's bar prior to the accident. At the time of the accident, Ms. Arrington was driving while intoxicated with a breath alcohol level of .15, almost twice the legal limit.

The parents of Paul L'Euyer brought the suit under the wrongful death statute on behalf of their son. The suit was filed in Tucson against both Berky's Bar and Melissa Arrington. The suit against Berky's was brought under the state's dram shop laws that are common in many states, including New Mexico. Dram shop laws hold bars, taverns, and restaurants liable for serving intoxicated persons who later injure innocent parties.

The lawsuit also named Melissa Arrington individually. Ms. Arrington was later convicted and sentenced to 10.5 years for vehicular homicide. Despite her undisputed liability, her insurance company was able to settle on her behalf for only $25,000.

The case raises several important points. First, bars and restaurants are liable for negligently serving alcohol to intoxicated persons who are later involved in accidents or even intentional torts. The damages against bars and restaurants can be substantial as was the case in the case of Berky's who has since closed its doors.

The case also illustrates the issue of underinsured motorists. Ms. Arrington, who is now in prison, carried only $25,000 in liability coverage, the statutory minimum insurance liability policy limits in most states, including New Mexico. If not for the insurance of Berky's, Mr. L'Euyer's parents would likely have recovered only $25,000 for their son's death. Sadly, a lawsuit simply would not have been feasible in light of Ms. Arrington's minimal insurance coverage.

Though the news accounts do not address whether Mr. L'Euyer carried uninsured and underinsured insurance coverage, had Berky's not been in the chain of negligence, Mr. L'Euyer's total recovery would have been only $25,000. Over 1 in 6 motorists nationally are uninsured. Greater percentages are grossly underinsured. The rates are even higher in New Mexico which leads the nation in uninsured motorist at 29%.

The fact is if you are involved in an car or automobile accident in New Mexico, the other driver will likely be uninsured or underinsured leaving you and your family to bear the costs of the accident, injuries, and the loss of income on your own.

www.CollinsAttorneys.com