New Mexico Injury Attorney Blog

Slip and fall accidents are fairly common. Those injured in a slip and fall accident often have unrealistic expectations of financial recovery and often assume that there is liability simply by virtue of the accident. In doing so, they may fail to recognize their shared responsibility for the accident and the injuries. Premises liability is not absolute. New Mexico follows principles of comparative negligence which may and often does greatly diminish or destroy a slip and fall claim.

In New Mexico, every person has a duty to exercise reasonable care to protect themselves from harm. This includes protecting themselves from slip and fall accidents on the premises of another, whether on business or personal property. As a result, individuals are imputed knowledge of obvious dangers and failure to avoid those dangers may be considered the sole or partial cause of the slip and fall accident.

This issue comes up frequently in cases of ice and snow. Falling on fresh ice or snow is a far different matter than falling on ice that is unexpected and not apparent to the eye. For example, falling in a parking lot on ice immediately following a snow storm will likely be found to be the sole responsibility of the injured person due to the assumption of risk in knowingly walking on ice and snow. In addition, property owners will not be held responsible for those conditions that they cannot control. On the other hand, if a person falls several days after a snow storm and the property owner had time to remove the ice and snow and should have known of the danger, then it is far less likely that the injured person would be attributed comparative negligence. In other words, the liability and fault would fall strictly on the property owner.

These principles carry across a wide array of slip and fall accidents. Comparative negligence and the duty of reasonable care will often completely destroy a slip and fall claim. When someone has suffered serious injuries, this is a difficult conversation to have with the injured person. Unfortunately, all accidents are not compensable in personal injury litigation. Sometimes accidents just happen and there is no liability or fault on which to bring a claim.

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

It is fairly common that those that have been injured in accidents, particularly auto accidents and slip and fall accidents , are receiving Medicare benefits at the time of the accident, or as a result of the accident. What many do not realize is that Medicare has a lien against any personal injury recovery for damages awards or settlements received as a result of the injuries.

It is difficult at times to explain to injured persons the law or the logic behind the liens. In a nutshell, Medicare has the right to recover all Medicare benefits expended to treat the person's injuries. In addition, Medicare can insist on a set aside of personal injury funds for future treatment of those injuries. These liens can be very large in cases of serious personal injuries. On occasion, the size of these liens can render the personal injury recovery process, particularly in complex litigation, futile and a waste of the injured party's time and energy. After all, litigation is extremely stressful and costly. In these cases, the injured person must decide whether he or she wants to work that hard simply to repay Medicare.

The decision to move forward with the personal injury recovery process, and perhaps litigation, is made even more difficult by the fact that recovery itself, and the failure to properly address Medicare liens can result in significant liability, penalties and even forfeiture of future Medicare rights.

Here are the basic ground rules:

• Medicare must be reimbursed within 60 days of the settlement or judgment. This means that the issues must be addressed well in advance of final settlement or judgment to avoid inadvertent violation of the law.
• The defendant, generally the other party's insurance company, must report a possible recovery to Medicare. The defendant is liable to Medicare if the injured party fails to properly address Medicare liens. Consequently, many defendants will make Medicare one of the payees.
• The injured party's attorney is responsible for the full amount of the lien in the event that the injured party does not pay. This means that your attorney will not distribute any funds, yours or theirs, before addressing Medicare.
• The penalties for failure to properly account for Medicare liens are severe. The defendant can be fined $1000 day for failure to notify Medicare of the possible recovery. The injured party and both attorneys, may be all held individually liable for up to double the full amount of Medicare lien.

This all sounds pretty bad. And it gets worse. Medicare is completely non-responsive to attorneys on either side in their attempt to determine the amount of the liens. It can take months to get any response at all from Medicare. The process of negotiating the liens takes even longer. This makes these cases particularly stressful and time-consuming for injured persons. Often, the only thing holding up settlement is the Medicare lien. There are times when the Medicare lien will prevent a settlement. Worse yet, in many of these cases, costly litigation is simply not warranted. The end result is that in some cases the injured party gets nothing, Medicare gets nothing, and the defendant who caused the harm completely escapes accountability. That's Medicare protecting your tax dollars.

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

Premises liability claims often come in the form of slip and fall cases. These cases typically involve claims for damages against the property owner for injuries suffered while on the subject property. However, there are occasions when a claim may be brought for injuries suffered on adjacent property.

A common example of such a claim involves injuries that occur on sidewalks adjacent to the property in question. For example, a property owner would be liable for drainage of water from its property on to a city sidewalk if that water were to cause an accident. In New Mexico, this is not an uncommon set of circumstances. Often, property owners have sprinklers or other sources of water that drain onto sidewalks or streets causing ice hazards to pedestrian and vehicles alike. There are other occasions where stores, restaurants, or other businesses have water or other liquids that escape from their property on to pedestrian walkways. In these cases, and other cases where a dangerous condition is caused on an adjacent property by the activities of a property owner, the property owner is fully liable for any harm caused by his or her negligence.

The most common situation is codified in New Mexico Uniform Jury Instruction § UJI 13-1316 specifically addresses public sidewalks: "The [owner] [occupant] of property abutting a public sidewalk is under a duty to exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the sidewalk."

If you are injured in such a situation, you or someone on your behalf should immediately collect as much evidence as possible. This would include getting the names, addresses and phone numbers of any witnesses. Even more important, you should get pictures of the accident site as soon after the accident as possible so that you can document the condition of the property at the time of the accident. This would include identifying and documenting the source of the water. As you might imagine, this task is made much more difficult in cases involving ice when pictures are taken later when the ice has already melted.

Failure to document the negligence and liability of the property owner at the time of the accident can make pursuit of these cases substantially more difficult and sometimes impossible due to the lack of evidence to establish the property owner's liability. In addition, public sidewalks may also raise Tort Claims issues against the local government. These claims require that a Tort Claims Notice be sent within 90 days of the accident. Failure to do so will bar the claim.

Due to the many possible complications associated with these types of cases, it is typically advisable to contact a New Mexico Injury Attorney as soon as possible after the accident.

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

The recent New Mexico Court of Appeals case of Romero v. Giant Stop-n-Go of New Mexico addresses the duty of care owed by a business to protect its customers from harm under the law of premises liability.

The case arose out of a multiple homicide that occurred in a Mustang convenience store in Taos, New Mexico. The murders resulted from a bad drug deal that had occurred earlier in the evening. The perpetrator of the murders spotted the three victims in a vehicle in the store parking lot. He charged toward the car emptying the clips of two handguns into the car killing the three occupants.

A wrongful death lawsuit was filed on a premises liability theory alleging that the store owed a duty of care to protect its customers from the criminal acts of third parties while on the premises. The court began by stating that "As a general rule, a person does not have a duty to protect another from harm caused by the criminal acts of third persons" in the absence of a special relationship. The court did indicate that a special relationship does exist between a store and its customers.

However, in addition to the special relationship, the criminal acts must be foreseeable and therefore preventable. The court stated that foreseeability is a measure of "what one might objectively and reasonably expect, not merely what might conceivably occur." The court refused to find that a targeted homicidal attack was foreseeable. The court did not find that prior criminal acts on the premises were in any way suggestive of foreseeability of such an heinous act.

In essence the court reached the only logical conclusion that it could. A business cannot be expected to install every possible measure to protect against every possible harm. Clearly, a drug deal related triple homicide that occurred spontaneously in the parking lot is not something that any business could reasonably predict. As such, there is no way to protect against it. To rule otherwise would place an impossible burden on business owners.

On the other hand, the court did restate the burden of businesses to protect customers from foreseeable harm. There are many instances in which criminal against patrons are clearly foreseeable. In these cases, business owners would be held to a higher standard of care. In case they neglect this duty, and a customer is injured, there would likely be a premises liability claim and the business owner would be held liable for all damages resulting from its negligence.

Each case must be viewed individually. Review of the facts of any particular case by a qualified New Mexico attorney is essential for a determination of the rights and responsibilities of both the business and any victim suffering harm in a situation such as this.

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

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.

www.CollinsAttorneys.com

A settlement of $20 million was reached in March 2009 in the a lawsuit against Burger King for the devastating brain injuries suffered by a 12 year old boy in a 2005 fall from a play structure inside a Burger King facility.

The boy was playing with his 5 year old sister on the play equipment when he fell hitting his head on the tile floor. There was no protective matting below the structure to protect against such injuries. The play structure had monkey bars and a fireman's pole clearing presenting risks of children falling from the structure.

The jury found that the restaurant should have provided some kind of protective covering on the floor rather than the hard tile on which the child fell. In addition, there were no warning signs around the equipment as present in other such facilities. Finally, there had been at least one other fall at the facility showing that the accident and injuries were foreseeable and preventable.

The 12 year old boy suffered severe traumatic brain injury. The injuries are permanent. The child will require a life-time of medical and rehabilitative services. The jury obviously took these permanent injuries and future medical expenses into account in the enormous $20 million verdict.

It is well established under the law of premises liability and negligence that playgrounds must be made safe for children. Parents trust the safety of play equipment every day. The duty to maintain a safe play environment as well as liability and fault for any injuries suffered by the failure to keep this duty lie with the provider of the equipment. This includes restaurants, retail establishments, public playgrounds, and other facilities that offer the use of play equipment to children. In addition to liability for failure to maintain a safe environment for play equipment as was established in this case, manufacturers of play equipment are held to a very high standard of care under products liability law.

If your child is seriously injured in a playground accident, liability for damages may be spread across a number of different parties. It is important to identify all of these the parties from the beginning to avoid possible unexpected apportionment of liability at trial after the statute of limitations has long passed. In case of apportionment of liability to other parties, full recovery for all damages may not be possible if those other parties were not named in the lawsuit.

www.CollinsAttorneys.com