FAQ: Can you sue for false reporting of child abuse?

Answer: Yes you can sue for bad faith or malicious reports of child abuse but it will not be easy and there are critical deadlines that must not be missed.

Qualified Immunity for Reporting of Child Abuse

Bringing a lawsuit for deliberately false reporting of child abuse is not easy. The person that makes the report is presumed to be acting in good faith. A finding of good faith will defeat a lawsuit for bad faith or malicious reporting of child abuse. Immunity is not available for persons making bad faith or malicious allegations of child abuse.

Possible Claims for False Reports of Child Abuse

There are a number of possible legal claims for such deliberately false reports of child abuse. Although there are several possible claims that might be made, not all of them have the same chance of recovering for the harm they caused. The issue as in almost all personal injury type cases, including something like this, is the availability of insurance. The way the claims are framed can determine the availability of insurance. The two that we will focus on here are defamation and intentional infliction of emotional distress. For one there is insurance and for the other there is a good chance there is not.

Defamation of Character

The best way to approach a lawsuit for bad faith or malicious reporting of child abuse is through a defamation lawsuit. Many people know the term slander but not defamation. Slander falls under defamation under New Mexico law. As such slanderous false allegations of child abuse would be brought as defamation, not slander, in a lawsuit.

However you slice it, New Mexico most definitely recognizes civil claims/lawsuits for defamation. There are a number of criteria for filing a defamation claim which will be addressed below, the most obvious of which is that the report was made in bad faith or with malice.

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress (IIED) is also a possible claim for deliberately false reporting of child abuse. IIED can carry extraorindary mental anguish and can result in big jury verdicts if it the case goes to trial. However, the “intentional” part of the equation here can cause problems for recovery for the harm done. In short, there are cases that have found that there is no insurance for intentional acts which would include “intentional infliction of emotional distress”.

Defamation is Covered by Homeowners Insurance

Interestingly and somewhat surprisingly, homeowners insurance policies have been found time and time again to cover cases of defamation even though the actions are arguably, and insurance companies do argue, intentional. This means that if the person or persons making the bad faith/malicious allegations has homeowners insurance, then assuming that you can prove the necessary elements of defamation set forth below, there will be insurance coverage. Thus the best and safest claim to bring for false allegations against you for child abuse is defamation.

Basic Requirements of Defamation for False Reporting of Child Abuse

There are numerous requirements for a defamation claim. It boils down to:

Because there is a presumption of good faith, the hurdle is even higher for reporting of child abuse. At a minimum, this requires that there be no finding by a court, criminal or civil, that the accused person did commit child abuse. Because there is a good faith presumption that the person making the allegations thought there was child abuse, a court finding of any kind would support the presumption and make pursuing a defamation claim extremely difficult if possible at all.

  1. the statements must be false,
  2. the person making statements knew they were false, and
  3. the reputation of the person against whom the false allegations were made has been harmed.

In the case of bad faith or malicious reporting of child abuse, the difficult part is proving the defendant (the person making the false allegations of child abuse) knew the allegations to be false. This is not necessarily an easy hurdle to get over.

Contact Collins & Collins, P.C. for a Free Review of Your Case

If you have been falsely accused of child abuse and

  1. there has been no finding of abuse by a court,
  2. you have evidence that the allegations were made in bad faith or with malice, and
  3. the defendant has homeowners insurance,

you should contact an experienced attorney right away. There is a 3 year statute of limitations on personal injury claims including defamation against private parties such as an ex spouse. The statute of limitations is only 2 years on claims against governmental agencies like Children Youth and Families or their staff. In addition, there is a 90 day Tort Claims Notice requirement that if missed will bar your claims against CYFD. It is important not to delay.

Collins & Collins, P.C. can be contacted at 505.242.5958 or using the online form. We will be happy to review your case to help determine if you do have legal claims against the person or persons making deliberately false reports of child abuse against you.

FAQ: What is driver’s duty to pedestrians?

A driver in New Mexico has a duty to keep a proper lookout for dangers and hazards. This means a driver must pay attention to the road, other vehicles, dangerous road conditions and specifically pedestrians . The basic standard is a standard of ordinary care which in the case of pedestrians is higher than the typical standard of care.

Ordinary Care is Required

The driver must keep a proper lookout so that he or she can maintain control of the vehicle to avoid hazards of which he or she should be aware. The driver is not required to detect all dangers and hazards. There is no requirement that the driver notice every possible hazard but must note hazards that are in plain site or otherwise should be apparent under the circumstances.

This will be a question of fact dependent upon the circumstances of each individual accident.

Duty to Lookout for Pedestrians

Many of the cases addressing proper driver lookout deal with auto/pedestrian accidents. There is more than a mere duty to look around. The driver must be vigilant. In other words, if there is pedestrian present, the driver has a duty to detect the pedestrian and avoid hitting him or her.

When a automobile hits a pedestrian, it will almost always be the fault of the driver. However, it might not be entirely the fault of the driver.

Comparative Negligence

In some cases, the pedestrian may share the fault under New Mexico’s doctrine of comparative negligence. For instance if the pedestrian runs into traffic, then the pedestrian is going to share much of the fault. Comparative negligence is judged on a scale from 1-100%. It could be 0% or 100% the fault of either the driver or the pedestrian and everything in between.

Again, it will be specific to the accident and the conduct of the pedestrian and the driver.

Damages Under Comparative Negligence

The insurance company for the driver will inevitably claim that the pedestrian was at fault. This is as they say just how they roll. The challenge to the attorneys for the pedestrian is to show that the driver alone was responsible. However, this is not always possible as in the example above where a pedestrian runs into the road giving the driver no time to respond or avoid hitting the pedestrian.

In these cases, one might think it is a simple issue of math, multiply the total damages (i.e. injuries and costs to the pedestrian) times the percent of the drivers fault and this gives the amount of damages for which the driver is responsible.

Settlement of Auto/Pedestrian Accident Claims

It is in theory a simple question of math. It is definitely a question of math once it the jury has decided on the total damages and the comparative fault between the driver and pedestrian. But most cases do not get to the jury. Instead they are settled prior to a jury trial. On the other hand, some do go to trial and it is important that the pedestrian’s attorney prepare as if the case will go to trial.

This means that the attorneys for the pedestrian must investigate and understand the facts. Just as importantly, the attorney must present those facts to the insurance adjuster in a persuasive manner. There will always be a lot of resistance on the part of the adjuster to fully value the claim and its driver’s responsibility for the accident.

The settlement negotiations can take a long time. Frequently, it becomes clear that the adjuster has no intention of dealing fairly with the pedestrian. In those cases, a lawsuit must be filed. This does not end settlement negotiations. Rather, it is now an attorney for the insurance company rather than the adjuster that is doing the negotiating. This can be good or bad depending on the attorney. Either way, these cases will generally settle before the case goes to trial. It is just a lot of work to get there.

Contact an Attorney Experienced in Auto/Pedestrian Accidents

It is important that you seek experience legal representation. It is also important that you get an attorney that will put in the work necessary to obtain a fair settlement of your claims. Collins & Collins, P.C. may be contacted online or by phone at 505.242.5958. There are no costs or fees to you unless we are able to obtain a settlement or verdict in your favor.

(505) 242-5958