New Mexico Injury Attorney Blog

A recent case from the New Mexico Court of Appeals is good reading for both merchants and shoppers with the coming holiday shopping season. The case of Holguin v. Sally Beauty Supply illustrates some basic "do's and don'ts" of holiday shopping.

The case stemmed from the use of one of the "eco-friendly" bags that have become so popular these days. Ms. Holguin was shopping at Sally Beauty Supply with her eco-friendly bag. While doing so, she put merchandize in the bag and headed to the counter to ask some questions. Before she could get there, the assistant manager stopped her, accused her of shoplifting, and detained her until the police arrived. Upon refusal to sign a "no trespass" statement and admit guilt, Ms. Holguin was arrested.

It is not clear from the record, but apparently the criminal shoplifting charges were never filed or the charges were dismissed resulting in a personal injury lawsuit against Sally Beauty Supply for "false imprisonment, false accusation of shoplifting, and false and malicious abuse of prosecution."

The district court judge dismissed the action on the grounds that merchants have a qualified privilege to detain a shopper when they believe the shopper willfully concealed merchandise under NMSA §30-16-23 and therefore were immune from suit.

The New Mexico Court of Appeals framed the issues as follows:

"(1) whether a customer who places merchandise into a reusable, personal canvas shopping bag, without more, has "willfully concealed" merchandise; and (2) whether a statutory presumption of intent applicable to a criminal prosecution for shoplifting also applies to the merchant's conditional privilege."

Unlike the district court, the Court of Appeals answered in the negative to both these questions resulting in a reversal of the district court's grant of summary judgment. The case was then appealed to the New Mexico Supreme Court where certiorari was denied making this case the law for now.

The statute in question, NMSA § 30-16-23 states that if merchant has:

"probable cause for believing that a person has willfully taken possession of any merchandise with the intention of converting it without paying for it, or has willfully concealed merchandise... the merchant may...take the person into custody ...Such taking into custody or detention shall not subject...merchant to any criminal or civil liability."

The Court engaged in a lengthy discussion on the meaning of the terms probable cause, intent to convert (steal), and willfully conceal. The Court stated plainly that the burden is on the merchant to show probable cause at the time of the customer was detained.

The Court recognized that in self-serve stores as most stores are today, there are countless situations where merchandise might be concealed without the intent to steal. As such, simple concealment is not enough. The burden is also on the merchant to show the person concealed the merchandise with the intent to steal it.

The Court acknowledged that under the criminal law of shoplifting, there is a presumption of intent to steal once the merchandise is concealed. However, this is a mere presumption and it is left for the jury to decide. In any event the Court ruled that the statutory presumption of intent under the criminal shoplifting statute did not apply to a merchant's qualified privilege and immunity under NMSA §30-16-23.

The Court stated that whether the merchant has met the burden of proving probable cause is determined by the totality of the circumstances. In this particular case, the totality of the circumstances did not suggest that requisite intent to support summary judgment. The court basically said that this issue should be decided by a jury and not by the court on summary judgment.

In light of the prevalence of eco-friendly shopping bags, which presumably are for shopping, there are likely to be a number of such encounters during the holiday season. Both merchants and shoppers should proceed with due care in light of this decision. After all, there are significant risks for both.

Collins & Collins, P.C.
Albuquerque Attorneys

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

A New York jury awarded $18.5 million to a man wrongfully convicted and incarcerated for 12 years. Alan Newton was convicted in 1985 of rape, robbery and assault and was served 21 years prior to exoneration as a result of the work of the Innocence Project.

Newton was convicted based upon identification by the victim. The victim, who was abducted from a convenience store, raped and had her face sliced by a box-cutter, identified Newton from an array of over 200 pictures. She identified him despite the fact that she had never gotten a clear look at him due to darkness.

Newton was convicted despite a strong alibi that he was with his fiancé, her children, and other relatives at a movie at the time of the incident. Newton requested a copy of the rape kit in order to conduct DNA testing. The rape kit was misplaced by NYPD. As such, he was unable to present DNA evidence of his innocence.

Newton repeatedly sought post-conviction relief to obtain the rape kit for DNA testing. The Court repeatedly denied the request stating simply that the rape kit was unavailable, having been misplaced.

Through the efforts of the Innocence Project, the rape kit was finally located in 2005. DNA testing proved that Newton was innocent of the crimes for which he had been convicted.

Upon release, Newton filed a §1983 Civil Rights action against the City of New York. Following years of litigation, a jury awarded Newton $18.5 million for the wrongful conviction and imprisonment.

Newton was hopeful that the case would help others who had been wrongfully convicted. Hopefully, it will also help to avoid future such wrongful convictions. Countless individuals are wrongfully convicted each year throughout the nation. It is hard to imagine a more harrowing experience for anyone.

The Innocence Project is working hard to free those wrongfully convicted while promoting policies and procedures to avoid future wrongful convictions. Once the innocent individuals are exonerated, it is left to the work of trial attorneys, courts and juries to right the wrongs of a flawed criminal justice system.

Read the whole story at NY1

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

The recent New Mexico Supreme Court case of Durham v. Guest addressed the claim of malicious abuse of process. The case is remarkable for a number of reasons. In particular, the court ruled that arbitration proceedings constitute judicial processes though it is unnecessary to initiate judicial proceedings for the claim of malicious abuse of process.

The plaintiffs, Jamie and Travis Durham, sued attorney Suzanne Guest for malicious abuse of process for the illegitimate use of subpoenas in an Underinsured/Uninsured Motorist arbitration proceeding. Guest represented the Durham's insurance company, Allstate. The Durhams alleged that the subpoenas were issued in an effort to invade their privacy, ruin their reputations, cause the loss of employment and to inflict upon them emotional distress. They alleged this malicious behavior was the result of the Durham's failure to accept Allstate's offer of settlement. The Durhams also sued Allstate for bad faith insurance practices but the court's ruling addressed only the malicious abuse of process claims.

Defendant Guest answered that malicious abuse of process requires the initiation of judicial proceedings and arbitration did not constitute judicial proceedings. The district court agreed dismissing the Durhams' claims. The Supreme Court disagreed overruling both the district court and the appellate court on both these counts stating that arbitration is indeed a judicial process but that no judicial process is required for the claim of malicious abuse of process.

The court in so ruling restated the essential elements of malicious abuse of process as follows: "(1) the initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim; (3) a primary motive by the defendant in misusing the process to accomplish an illegitimate end; and (4) damages."

The case is important for a number of reasons. First, it seems to open up possible claims against insurance companies both in litigation and arbitration for the illegitimate use of subpoenas and perhaps other discovery. Secondly, malicious abuse of process may occur in arbitration proceedings which are commonly used in consumer rights cases such as debt collections and credit card disputes where arbitration is dictated by contract. This should give consumers a pretty good weapon to protect themselves against abuse during these proceedings. Finally, the elements reach a broad spectrum of possible cases. One that comes immediately to mind is a topic that we have been addressing in the past weeks which is the filing of false domestic violence charges.

Durham v. Guest seems to be perfectly situated to address cases of baseless and malicious filing of domestic violence actions. Though prosecutors are generally protected by judicial immunity and spouses enjoy limited protection against suits by their spouses, there is no such protection for boyfriends, girlfriends, ex spouses, or other non-spousal relations that file false claims of domestic violence, whether the false charges are brought civilly or criminally.

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