New Mexico Injury Attorney Blog

The Trayvon Martin case has placed the spotlight on Florida's "stand your ground" law and has given rise to heated debates about whether these kinds of laws encourage vigilantism and allow guilty individuals to get away with murder.

Stand your ground laws essentially state that a person who reasonably believes themselves to be threatened with death or serious bodily injury may use force to defend him or herself, even if there is an available and viable way to retreat. In states that do not have stand your ground laws, an individual who is attacked has the duty to retreat and can only use deadly force when retreat is not possible.

More than half of U.S. states have some type of stand your ground law. New Mexico is among them. The particular elements and requirements of stand your ground laws differ from state to state.

The New Mexico stand your ground law differs somewhat from the Florida law currently at issue. According to the New Mexico stand your ground law, "A person who is threatened with an attack need not retreat. In the exercise of his right of self defense, he may stand his ground and defend himself." While a person in Florida must have a right to be at the location where the altercation takes place, in New Mexico a person merely needs to be "threatened with attack."

However, this does not mean that there are not very significant risks associated with exercising the right to stand one's ground. In addition to possible very serious criminal charges, a person found to have acted wrongly would be looking at significant personal liability for personal injury and wrongful death claims.

For a defendant to avail himself of the stand your ground provision as part of a self-defense argument in New Mexico, a court typically considers whether the defendant was acting in self-defense in the first place. In New Mexico, a defendant who kills another in self-defense while standing his or her ground must show that he or she (1) was placed in reasonable fear of immediate death or great bodily harm, (2) used a reasonable amount of force to avoid the threat, and (3) did not instigate the encounter.

Under New Mexico law, the defendant's perception of the threat must have been reasonable. Armed pursuit of an individual through a dark neighborhood does not show reasonable fear or perception of threat. On the contrary, armed pursuit may show absence of fear. Additionally in New Mexico, a person using self-defense may not use more force than is reasonably necessary to evade the threat. For example, shooting an unarmed individual during a fistfight will generally be considered using more force than is reasonably necessary. Likewise, beating someone to a pulp following an initial threat would probably raise possible problems as well.

A defendant who, as alleged in the Florida case, voluntarily pursues, confronts, or in any way instigates the altercation may not then claim they were acting in self-defense or standing their ground. Similarly, a defendant will not be permitted to use a self- defense/ stand your ground defense if the other person tried to de-escalate or defuse the situation and the defendant failed to relent.

In short, the right to stand one's ground is not a blanket defense to criminal charges. And such behavior may fare even worse in civil court in a personal injury lawsuit where the burdens of proof are far less than the high criminal burden of beyond a reasonable doubt.

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

Thousands of Americans contract sexually transmitted disease every year. It seems that many view them simply as the cost of doing business. Most victims of STD's do little or nothing to seek any kind of justice or compensation for what can result in death in some cases and in many more a lifetime of suffering, medical treatment and medical costs.

There are others that take a more proactive approach like the recent California case of Behr v. Redmond. The female plaintiff in that case won a verdict of $$6,753,600 which included $2.75 million in punitive damages.

The case was appealed disputing the jury's high award of damages. and the compensatory damage award of $4,003,600 was found to be excessive due to the lack of relationship between the award for future medical damages and the actual future medical damages established at trial. However, the punitive damage award was upheld in its entirety.

Behr's complaint alleged battery, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, fraud by concealment, and fraud by misrepresentation. Essentially, Behr alleged that Redmond had sex with her knowing that he had herpes. Interestingly, Redmond did after several months into the relationship admit having herpes and the two continued to have sex. However, it was established that Redmond assured Behr that she could not catch the disease while it was dormant. These latter assurances served the basis for the fraudulent misrepresenations claims.

The caveat emptor (buyer beware) approach to the victim of STD's is in the distant past. Sex torts are now treated much like any other tort with principles of negligence, recklessness, fraud, battery and so on. Likewise they are equally compensable.

Some courts have even taken on a paternalistic posture recognizing the severe risks to society of STD's particularly in light of the AIDS epidemic. It seems that juries are like-minded in their disdain for irresponsible, reckless and dangerous sexual practices that endanger the health and safety of unknowing victims. This is made evident by some very large verdicts coming down in these cases, much like the one in Behr v. Redmond.

Collins & Collins, P.C.
Albuquerque Attorneys

Though New Mexico is a no-fault divorce state, there is nothing stopping one spouse from suing the other spouse for intentional torts. In fact, the general rule in New Mexico is that a spouse may sue another spouse for intentional torts even when they occurred during the marriage.

No-fault divorce protects the parties and the courts from hearing all the lurid details that led to the divorce. However, there are acts that will lead to personal injury claims above and beyond the typical assertions of wrongdoing and blame that fall within the scope of no-fault divorce.

The New Mexico Court of Appeals addressed the issue of spousal tort liability for intentional torts in Papatheofanis v. Allen. In that case, the husband was awarded $257,500 in compensatory damages and punitive damages for the wife's intentional torts of fraud, breach of fiduciary duty, malicious abuse of process, and defamation.

The torts committed by Allen are not particularly uncommon in divorce proceedings. Most notable and promising for those spouses that have suffered at the hands of a malicious and dishonest spouse were the malicious abuse of process and defamation claims. It is not clear what percentage of the jury verdict was related to these claims but these were in my opinion the most reprehensible and the most symptomatic of high conflict divorce and child custody disputes.

Allen filed false domestic abuse allegations stating that he had battered Allen's mother. She also reported Papatheofanis to his employer falsely accusing him of embezzlement and fraud. Fortunately, Papatheofanis was able to disprove both allegations and was cleared of all charges. This is often much easier said than done particularly when dealing with a spouse that is willing to commit perjury.

Sadly, such false allegations are not uncommon in high conflict divorce. False reports of domestic violence for gains in child custody are perhaps the most common. However, there are those that will not stop there making false allegations of sexual abuse of the children for advantage in the custody fight and sometimes just purely out of malice.

As in this case, defamation can have potentially devastating employment consequences since a conviction for fraud, embezzlement or other crimes of dishonesty will act as a bar to many jobs. A finding of domestic violence has terrible and permanent consequences for the alleged offender from lifetimes bars on gun ownership to loss of employment opportunities, and for New Mexico often most damaging, loss of security clearances.

A finding of sexual abuse is absolutely catastrophic with lifetime sex offender registration and mandatory minimum prison sentences for most offenses. These cases, often regardless of the factual basis, are prosecuted very aggressively. The innocent accused is put in a literal life and death struggle with a very heavy and difficult burden to overcome. It is hard to imagine a more malicious and devastating act than false allegations of sexual abuse.

There are far too many that engage in this kind of outrageous conduct. It is good to see that the New Mexico Courts have given the wrongfully accused a remedy, including punitive damages. Hopefully, cases such as Papatheofanis v. Allen act as a deterrent to what seems to be a growingly popular tactical approach to divorce and child custody disputes.

Collins & Collins, P.C.
Albuquerque Attorneys

People are often injured for the intentional torts of others. The most common intentional tort is battery where one person intentionally injures another. We often get calls on these cases. The most immediate question is can the injured person sue for personal injury.

The answer to that question is yes. Perhaps the more critical question is should the person sue? This is the question an experienced personal injury attorney will first ask. The answer will depend on a variety of circumstances, the most important of which is whether or not there is any possibility of recovering money through a lawsuit.

More often than not those individuals prone to commit battery on others are not as prone to carry insurance. And even if they did, most insurance policies will exclude intentional battery that results in injuries. Likewise, there is a high probability that the person will have no assets or financial resources against which to enforce a judgment.

As such, you may have a very good lawsuit on the basis of liability and damages but have little or no chance of recovery through a personal injury lawsuit. In other words, you may be able to clearly prove that you suffered serious injuries and that the other person caused your injuries but there is no money at the end of the "successful litigation." This is what personal injury lawyers refer to as a "judgment proof" defendant.

Unfortunately, though sympathetic to those intentionally injured by others, most lawyers are highly reluctant to sue on principle. As such, the lawyer will be looking for possible sources of recovery.

Depending on the circumstances, there may be a possible recovery from employers on the basis of respondeat superior, negligent hiring, or negligent training. There may also be premises liability actions against property owners or managers for failure to protect tenants or visitors.

There may be other possible means or recovery as well depending on the circumstances. Each case must be carefully evaluated at the outset of the case. Otherwise, the litigation process can be long, expensive and in the end extremely frustrating when the plaintiff is awarded a judgment that cannot be collected.

Collins & Collins, P.C.
Albuquerque Attorneys