Failure to maintain roads and highways in New Mexico is not uncommon. One need only drive around the State to know that. Too often, the failure to maintain roads and highways leads to automobile accidents. Whether or not there is claim against the state, county or municipality for failure to maintain a road will depend upon whether the defective condition was the product of defective design or defective maintenance.
No Claims for Defective Design of Roads
The victim of an automobile accident will not have a personal injury or wrongful death claim for defective design of a road, highway, intersection, bridge or anything else related to road design. Personal injury claims are strictly prohibited by statute for purely design or planning flaws under N.M. Stat. Ann. § 41-4-11.
The determination of whether an accident is caused by a design defect or a failure to properly maintain a road can be slightly more complicated than it might seem.
Design v. Maintenance of Roadways
A victim of an automobile accident caused by improper maintenance clearly has a right to file a personal injury lawsuit against the governmental entity or entities responsible for the maintenance. The New Mexico Supreme Court set forth a two part inquiry in 1991 (Romero, 112 N.M. 332) that still stands. The court must ask first what was the plan or design of the roadway? The court must then ask if the evidence presented by the plaintiff (victim in car accident) goes solely to design or planning. The second question is easier to address. If the evidence relates only to planning or design the case will be dismissed.
Returning to point number one, the governmental entity must show present into evidence the plan or design if it is to take this defense. It is not up to the plaintiff to speculate as to what the plan or design was. For instance, in Romero, the court noted that shoulder width could be a product of planning or design. However, a narrow shoulder could just as easily be the result of improper maintenance. Thus, the same narrow shoulder could constitute planning and design in one case, and poor maintenance in another. The outcome will depend on the evidence presented by both sides of the lawsuit.
Claims for Improper Maintenance
Improper maintenance of roadways clearly gives rise to personal injury claims when the improper maintenance causes or contributes to an accident. New Mexico courts have taken a broad view of maintenance. In fact, the New Mexico Supreme Court in 2013 (Martinez, 296 P.3d 468) stated that the New Mexico courts have defined maintenance “very broadly” over the years since Romero. The exclusions to the definition are very narrow as set forth by statute at N.M. Stat. Ann. § 41-4-3 which states simply that maintenance does not include:
“ (1) conduct involved in the issuance of a permit, driver’s license or other official authorization to use the roads or highways of the state in a particular manner; or
(2) an activity or event relating to a public building or public housing project that was not foreseeable;”
That is a very short list. What this means in practice is that if you are the victim of an automobile accident caused in part or entirely by a failure to maintain a roadway, then you will likely have a personal injury claim against whatever governmental entity or entities are responsible for its maintenance. This applies whether you are the driver or passenger of either vehicle.
New Mexico Tort Claims Act
Whenever suing a governmental entity of any kind in New Mexico, the New Mexico Tort Claims Act applies. It is important to keep this in mind because the Tort Claims Act has very short deadlines. The first deadline is the deadline for sending a Tort Claims Notice to the proper party. The notice deadline is only 90 days in cases of personal injury and 180 days in cases of wrongful death. There is also a shortened statute of limitations of only 2 years.
It is very important that neither of the deadlines is missed. Missing either will very likely bar your claims completely.
Seek the Help of an Experienced Attorney
Although it might seem straightforward enough, personal injury lawsuits for improper road maintenance are complex. There are many issues that must be addressed which requires the collection of a lot of evidence and often times a lot of legal research. For instance, it can be a challenge to determine what governmental entity is responsible for the road. Sending a tort claims notice to the wrong party will be a fatal error for your claims. And this is just the first issue to be addressed. There will be many more and the governmental entity is likely to fight you every step of the way. In short, it is inadvisable to attempt to pursue such a claim without an attorney.
If you have been involved in an automobile accident caused by a failure to maintain the road on which you were traveling, Collins & Collins, P.C. can help. Give us a call at 505.242.5958 or contact us through our online contact form.