The negligent sale of consumer goods would fall under the legal doctrine of negligent entrustment. Personal injury and wrongful death claims based upon negligent entrustment typically involve automobile accidents. The issue of whether negligent entrustment of consumer goods (chattel) has been less thoroughly addressed by the courts. However, it is clear that the seller of consumer goods may be found liable for the negligent sale of consumer goods under negligent entrustment. The issue is the scope of that liability which based upon a recent case appears to be very broad.

Consumer Goods = Chattel

To begin, chattel property pretty much covers everything that is sold that is not real property (land and objects such as homes and buildings attached to the land). such as land and homes. Chattel property includes goods and merchandise that are not attached to land. In other words, chattel includes all consumer goods that are not attached to property. This would include the aforementioned automobiles along with equipment, tools, household items and even something like gasoline.

Negligent entrustment of gasoline to an intoxicated customer that later drove head-on into another vehicle killing the other driver was the subject of a relatively recent 2018 case from the Federal District Court in New Mexico. Giant Four Corners, 294 F.Supp.3d 1207.

Negligent Entrustment Applies to Sales of Chattel

As mentioned the law including New Mexico law on the negligent entrustment of automobiles. The Court in Giant was therefore compelled to rely on cases from other states and jurisdictions. The Court found that the bulk of the law in those other states takes a broad view of negligent entrustment of chattel. Relying on these other cases, the Court held that negligent entrustment did apply to the sale of gasoline to a clearly intoxicated customer.

The issue was raised on the Plaintiff’s Motion for Summary Judgment. The Court embraced negligent entrustment as a basis for the gas station’s liability. However, there remained the issue of whether the sales clerk knew or should have known the customer was intoxicated. The Court therefore denied the Motion for Summary Judgment leaving it up a jury to determine whether the gas station attendant knew or should have known that the customer was intoxicated.

Implications of Liability for Negligent Entrustment of Chattel

As mentioned, chattel covers a lot of ground. It would cover most everything that can be sold. The fact is that many products can be dangerous in the wrong hands. This would include drugs, both prescription and over the counter. It would include household cleaning supplies. It would include a vast array of equipment and tools. It would also include guns if the ruling is applied honestly when the issue comes up.

The only issue remaining, like the Giant case, will be whether the seller of the chattel knew or should have known of the dangerous propensities of the customer/purchaser. And like Giant, this will depend on the evidence and the jury.

Seek Legal Guidance

A case involving negligent entrustment will be complicated on both law and facts. As can be seen above, it will be important to gather evidence to show who sold the products to the negligent user of the chattel. From there, it will be necessary to determine whether the seller knew or should have known that the user posed a danger to others in the use of the product.

Collection of the evidence necessary to prove a case of negligent entrustment of chattel will require the assistance of an experienced personal injury attorney. If you or a loved one has suffered injuries as a result of possible negligent entrustment or sell of consumer goods, Collins & Collins, P.C. will be happy to review the facts of your case free of charge to determine whether you have legal claims against the seller. You can reach us at 505.242.5958 or using the online form on this page.

Negligence in an auto accident may be based on the violation of ordinary care. Ordinary care has a bit of a circular definition which the care that an ordinary driver would use in similar circumstances and conditions. Ordinary care is always an issue in negligence cases whether auto related or other types of cases as this is the standard of care that must be met to avoid a finding of negligence and consequent liability for any harm caused as a result of the negligence. However, this article is about negligence per se.

Negligence Per Se

Negligence per se in auto accident cases in New Mexico arises when a negligent driver has violated a law, statute or regulation whose purpose is the protection of those using the roads and highways of New Mexico. There are many such laws, statutes and regulations related to the operation of a motor vehicle. The violation of these will often overlap with plain negligence or breach of ordinary care. After all, it could be argued that the ordinary driver would not violate a statute or regulation related to driving. This is clearly not the case as many if not most drivers routinely violate traffic and other driving laws such a speeding, failure to yield, driver inattention and so on. Be that as it may, the fact that everyone does it does not mean it does not arise to negligence per se.

The bottom line is that if the driver violates a statute or regulation and causes an accident, it is negligence per se and that driver is in the absence of comparative negligence fully responsible and liable for any harm that ensues to others as a result of the accident.

Driving Laws, Regulations and Statutes are Numerous and Varied

There are many regulations and statutes that deal with the operation of motor vehicles that include not just cars but trucks, buses, delivery vehicle and any other type of motor vehicle traveling on the nation’s roads and highways. The regulations and statutes will cover all of modes of vehicular transportation. For instance, the traffic laws apply to all types of motor vehicles. Other laws and regulations will be specific to the type of vehicle. For instance, trucks have very strict regulations and statutes governing both trucks and drivers beyond basic traffic laws.

Important to Know Laws and Regulations Governing Vehicle that Caused the Accident

A negligence per se finding is very valuable in a motor vehicle accident. What it means is that the violation of the statute or regulation alone is sufficient for a finding of negligence. Nothing further is required although significantly more is typically present.

As such, it is important in an auto accident case to understand the laws, statutes and regulations governing the vehicle and the driver that caused the accident. When viewing the facts of an auto accident with the applicable laws, statutes and regulations in mind, negligence per se will often stand out clearly. This makes resolving your auto accident claims must easier and typically with much less resistance on the part of the insurance company.

Of course, this is not always the case as there are many insurance companies that do conduct themselves with fairness and good faith in the settlement of claims. For those situations, the negligence per se finding is perhaps even more important since the jury will eventually learn of negligence per se through the trial and ultimately the jury instructions.

Contact an Experienced Auto Accident Attorney

Some auto accidents are more complex and difficult than others. Some can move fairly smoothly and quickly through the claims and settlement process. It is important to have an attorney that know the difference and can move your case in the most efficient manner possible. However, it is equally important that the attorney be prepared for the worst, meaning the insurance company will choose not to behave in a responsible manner. This means having an attorney that always has an eye toward a jury trial in the event that one becomes necessary.

Collins & Collins, P.C. has been assisting victims of auto accidents of all varieties across New Mexico since 2001. We can be reached online or by phone at 505.242.5958.

There are many times consumers are asked to sign a release of liability before using a product or service. These releases of liability are then thrown back at the consumer when the consumer is injured because of the negligence of the business, its employees or other agents. Often the releases provide for a release of claims even for the business’ own negligence. New Mexico courts will enforce these only in limited circumstances.

Strict Rules of Construction on Release Agreements

In fact, the court has set forth a number of rules and guidelines regarding the enforcement of these releases. The first rule is that the any such agreement between a business and a consumer will be strictly construed against the drafter of the agreement. In other words, where there is any doubt as the agreements terms or enforceability, the courts will favor the consumer over the business that created the release agreement.

In the seminal 2003 case of Berlangieri v. Running Elk Corp., the New Mexico Supreme court addressed the enforceability of liability releases in the context of horseback rides. The court first addressed broadly whether these liability releases in consumer contexts should ever be allowed. As with most if not all U.S. courts, the court would not accept a categorical prohibition on liability releases. The court reasoned that tort policy and protection of the public, should not completely override freedom of contract.

Balancing of Tort Policies v. Freedom of Contract

Although the court would not adopt an absolute prohibition on these liability releases, it did determine that they should be enforceable only within strict limits with the balance in favor of protecting the consumer. The Court began its analysis with the age-old doctrine that contracts should be strictly construed against the drafter.

Contracts to be Strictly Construed Against the Drafter

The court stated just that when it said that “exculpatory clauses are construed strictly against the drafter.” One very important aspect under this rule is that the release be very specific in what protections the consumer is waiving. This means the substance and wording should be clear and complete. After all, it is hard to say a person consented to terms which were not clearly stated and fully disclosed. This suggests that when a release against the business relieves the business from liability for its “negligence”, the first question for a court is “negligence from what”? A blanket general release for negligence would not seem to meet this specificity requirement.

Non-Exclusive Factors Set forth by the Court

The first rule of construction, interpretation against the business (drafter) in favor of the consumer is mandatory and reflects centuries of legal progress for the protection of the public at large. The court also set forth 6 non-exclusive factors mentioned above:

  1. The business is subject to government regulation.
  2. The service is important to the public and is a practical necessity for some
  3. The service is generally available to the public
  4. The business has a decisive advantage of bargaining strength
  5. The release is non-negotiable and there is no option to pay more to limit it.
  6. The release places the safety of the consumer under the control of the business, subject to the negligence or carelessness of the business, its employees or agents.

None of these factors must be present. It may be that any one of the factors standing alone is sufficient depending on the circumstances. In fact, the court states the factors as non-exclusive which seems to leave open the possibility that none must be present at all.  This in turn suggests that other factors not stated in the court’s opinion  may also be sufficient for voidance of the release. This of course, if allowable at all, would be highly dependent on the situation.

In sum, liability releases are not favored by the court. They will be enforced under strict limitations. There remains a strong public policy for protecting the public over these one-sided release agreements.  On the other hand, when a consumer is injured or killed by the negligence of a business that has a liability release in hand, the business and most importantly its insurer will fight to enforce it tooth and nail.

Among the first challenges of any civil rights claim, like all other personal injury claims, is to identify the parties financially responsible for the harm caused by the civil rights violations. Under §1983 and Title VII civil rights claims, there may be numerous different parties involved in wrongdoing with varying levels of financial responsibility/liability.

Vicarious Liability/Respondeat Superior

The doctrine of respondeat superior is pretty straightforward on its face. The doctrine most often applies to employment situations where an employer is held responsible for the actions of employees or agents.

New Mexico has fairly strict requirements for respondeat superior liability to apply. There is a 4-part test:

  1. The employee engages in conduct he was employed to perform,
  2. The conduct occurs at a time reasonably connected to the work day,
  3. The conduct occurs reasonably close to an authorized work area, and
  4. The conduct arises, at least in part, for the benefit the employer.

These requirements are embedded in the New Mexico Uniform Jury Instructions:

“An act of an employee is within the scope of his or her employment if:

  1.  It was something fairly and naturally incidental to the employer’s business assigned to the employee, and
  2.  It was done while the employee was engaged in the employer’s business with the view of furthering the employer’s interest and did not arise entirely from some external, independent and personal motive on the part of the employee.”

Intentional Wrongdoing (Intentional Torts)

Intentional wrongdoing that leads to harm to another, referred to as intentional torts, are generally excluded from respondeat superior liability. Intentional torts are typically not committed in furtherance of the employer’s interest which is among the requirements for respondeat superior responsibility.
This would prove very problematic in §1983 and Title VII situations. A rigid adherence to the 4 requirements set forth above would shield employers of every stripe including jails, prisons, police departments, and other public and private employers any responsibility for their employee’s intentional torts.

Real or Perceived Authority of Employee Over the Victim

Fortunately, New Mexico has recognized this and allows employer liability for intentional torts in many situations where the employee was arguably acted outside the scope of employment. These exceptions are generally limited to situations where the employee by virtue of his or her employment holds real or perceived authority over the victim of the misconduct.

The situation where power is severely unbalanced between the employee and the victim is always present in jail, prison and police encounters. The same imbalance occurs in employment situations where the employer or direct supervisors have significant authority and power over the employee’s financial welfare.

In these cases, where the employee commits and intentional tort, the employer will be held financially responsible under New Mexico law for the harm caused under the theory of “aided in agency” which basically states that the employer could not engaged in the intentional tort but for the position of authority held by virtue of his or her employment.

Collins & Collins, P.C. can be reached at (505) 242-5958.

The scope of employment issue is very important in determining whether an employer is liable for harm caused by an employee in a DWI auto accident. Among the questions to be asked in these cases is whether intoxication took the employee outside the scope of employment?

Intoxication Can Constitutes Abandonment of Employee Relationship

New Mexico courts have determined that intoxication as a rule (with exceptions) constitutes abandonment of employment. It is assumed that intoxication renders an employee incapable of performing his or her duties. Specifically, even if driving is foreseeable and reasonable as part of employment, DWI driving is not.

Activity of Employee Must Benefit Employer

To remain within the scope of employment, the employee’s activities that led to an accident must have been for the benefit of the employer. This is where the issue gets more complicated. Moreover, employers often make opposite arguments depending upon whether the accident caused harm only to the employee or to others.

Employee Alone Harmed

In cases where the harm was strictly to the employee, the employer will typically argue that the employee was within the scope of employment. Why would they do this? The answer is simple; they want to limit their financial responsibility for the accident.

In a case where only the employee is hurt, if the employee is acting within the scope of employment, the employer gets the protection of the New Mexico Workers’ Compensation Act. Under the Workers’ Compensation exclusive remedy provisions, the employee has only the benefit of the rather meager compensation available under the Act.  For work related injuries, the employee cannot sue the employer for personal injury or wrongful death with very rare exception.

Other Non-Employees Harmed

Not surprisingly, the employer will make the exact opposite argument if a someone other than the employee is harmed. In these cases, the employer will say that the employee was not acting within the scope of employment. Why? Again, it is to reduce financial responsibility for the harm caused.

If the employee in these cases is not within the scope of employment, the employer can shield itself from responsibility or liability for the harm caused by the employee.

Evidence Challenge to Victims of Employee DWI Accident

Non-Employee Scope of Employment Evidence

The challenge to the non-employee victim of a DWI accident caused by an employee is to show that the accident occurred within the scope of employment so that the person can seek compensation through the employer’s insurance.

Employee Scope of Employment Evidence

Interestingly, an employee inured by his or her own DWI accident may have a legal claim against the employer in certain situations involving negligent entrustment of the vehicle. The employee to escape the limitation of the Workers’ Compensation Act exclusive remedy provisions would want to prove he or she was outside the scope of employment when the accident occurred.

Seek Experienced Legal Guidance

As might be surmised, these cases can get quite complicated in determining who all shares in the responsibility for the accident. This matters because this determination will determine what insurance coverage is available for compensation to the victims.

Collins & Collins, P.C. has significant experience in the many areas relevant to these claims: DWI auto accidents, insurance coverage and Workers’ Compensation exclusive remedies. We can be reached online or by phone at (505) 242-5958. There are no attorney fees or costs unless you are compensated.

No matter how clear the fault, truck accident victims often met with deception and denials of responsibility.
No matter how clear the fault, truck accident victims often met with deception and denials of responsibility.

The latest study on large truck accidents from the National Highway Traffic Safety Administration (NHTSA) indicated an increase in the number of injuries and wrongful deaths from 2011 to 2012.

The May 2014 report found that fatalities from large truck accidents increased by 4% from 2011 to 2012.  This reflects 3921 deaths and 104,000 injuries in 2012 as a result of large truck accidents.

The study found that 472 people were killed in New Mexico in large truck accidents.  Most of the fatalities on both the national and New Mexico level were to passengers in the other vehicle.  This might be expected in light of the fact that large trucks will weigh 20 to 30 times more than passenger vehicles.

A collision between a truck and a passenger vehicle is likely to be catastrophic to those in the passenger vehicle.  Of the fatalities in these accidents, 73% were occupants of the other vehicle while only 18% were occupants of the large truck.

These accidents bring up many issues.  Among the first, in terms of compensation to those injured or killed in an accident with a large truck, will be fault for the accident.

Causes of Large Truck Accidents

There are numerous causes for large truck accidents.  To the certain degree, these correspond with the typical causes for other car accidents such as driver inattention, distracted driving, speeding and so on.

The National Safety Council found that the most common causes of auto accidents to be alcohol (30.8%), speeding (30%) and distracted driving (26%).  It is noteworthy alcohol is rarely involved in trucking accidents, which contrasts with the high rate of alcohol involvement in fatal car accidents.

Speeding and distracted driving are likely to play comparable roles in trucking accidents.  However, the trucking industry publications suggested otherwise.  As might be expected from industry trade groups, these trucking industry groups suggested that the accidents are by and large the fault of the other drivers.

This is the response that you will likely receive if you or a loved one is involved in a large truck accident.  “Deny, deny, deny” seems to be the standard response.  However, there are a few characteristics of large truck accidents and the large trucking industry that suggest more careful scrutiny.

Unsafe Practices Dictated by Profits

Unlike drivers of passenger vehicles, truck drivers face significant pressure to remain on the road as long as possible under the law.  Federal law allows truck drivers to drive excessive hours.  The allowance of excessive drive time is not mere happenstance.  The long hours came about from aggressive industry lobbying.

The law allows truck drivers to drive 11 hours straight and 77 hours in a seven day period.  These 11-hour shifts would wear on anyone.  They seem particularly dangerous when speaking of driving large trucks.

Worse yet, it has been found that many truck drivers exceed even the rather dangerous allowable hours under federal law.  These excessive hours are clearly driven by profits as it seems unlikely that a truck driver would put in 77+ hours a week for the love of the open road.

The profit motives also pressures drivers to drive at excessive speeds.  Interestingly, the trucking industry will deny that speeding is an issue or that it is a common factor in accidents.  However, anyone that has ever driven a highway anywhere in the U.S. knows perfectly well that this is pure fantasy.  Trucks drive at excessive speeds.  They do this routinely and it puts innocent drivers at risk.

Proof of Liability/Fault is Critical to a Truck Accident Claim

As might be expected, truck driving companies and their insurance companies are not particularly keen on admitting fault for accidents.  In fact, this seems to be the industry position when reading various industry trade sites.

The typical line seems to be that only 16% of truck accidents are the fault of truck drivers.  When faced with the starting position, you can bet that fair compensation is going to take some work.

This means conducting a thorough investigation of the accident so that you can prove that the truck driver was at fault.  However, keep in mind, that New Mexico follows a comparative negligence state.  This means that the truck driver need not be entirely at fault.

Someone injured or killed in a truck accident can still recover under comparative negligence for the portion attributable to the truck driver.  In cases involving serious personal injury and especially wrongful death, the recovery for damages suffered in a truck accident can still be considerable even when offset by the other driver’s partial fault for the accident.

Seek the Guidance of an Experienced Truck Accident Attorney

Any personal injury case can be difficult and complex.  This is particularly so in cases of truck accidents where the opening position from the truck company and its insurer is that it was not their fault or responsibility.

A personal injury attorney experienced in trucking accidents will deal with this position of denial aggressively to defend your case.

New Mexico Issues can be a Complicated MazeInsurance issues in New Mexico auto accidents can get pretty confusing. There are a number of potentially overlapping issues that can create a maze for those injured in a car accident. This is never more true than when a passenger is injured in an car accident caused or partially caused by the passenger’s spouse or other family member.

Several Insurance Coverage Issues in Family Member Passenger Injury Cases 

The first issue will be whether the other driver was negligent in causing the accident. This will lead to questions regarding insurance coverage. In New Mexico, insurance coverage is often lacking. Many are either uninsured or underinsured.

This then will typically lead to the question of the family’s uninsured/underinsured coverage. This coverage would be related to the injuries caused by the uninsured or underinsured driver.

However, it may also lead to the issue of the family member driver’s liability coverage if that driver was at fault, either totally or partially. This can lead to some interesting coverage issues. It can also lead to some interesting pleading/allegations between different courts and different parties.

Wife Passenger Injured in Truck Accident – Alleged that Husband Partially at Fault

We don’t usually discuss out of state cases here but a recent case from the Mississippi Supreme Court raises a number of these issues. In that case, the passenger was the wife of the driver of the vehicle in which she was traveling. There was a fatal accident involving a rear-end collision by a truck. The husband was killed and the wife suffered severe and permanent injuries.

A federal court lawsuit was filed on behalf of the deceased husband and the injured wife. The trucking company defendant alleged, and the plaintiffs denied that the husband was at fault. The case survived summary judgment and was subsequently settled.

Injured Wife Sues the Estate/Insurance Company of Deceased Husband

Then the case got more interesting. The injured wife then sued the husband’s estate for his role in the accident. It was discovered during the federal suit that the husband had at least partially caused the accident by pulling into traffic at a slow rate of speed.

Thus, the injured wife was taking a position seemingly contrary to her original position that the truck driver alone was at fault. The trial judge dismissed the case on summary judgment due to the contrary positions based on judicial estoppel.

Though the decision was fairly comprehensive, in a nutshell, the Mississippi Supreme Court reversed basically holding that the positions were not entirely inconsistent since the federal court found that factual issues existed regarding fault for the accident.

Comparative Negligence of Truck Driver and Husband

For some, this may come as a surprise and may seem somewhat unfair. Apparently, it is not in Mississippi, and not in New Mexico. Although there may have been other ways of reaching a similar outcome in terms of how the case was filed, the outcome was in terms of liability on the husband’s estate (insurance) is perfectly legitimate and fair.

New Mexico recognizes comparative negligence, as does Mississippi. This means that if both drivers are at fault and one is injured, the injured driver may recover for his or her injuries in proportion to the other driver’s fault. The same would hold true for a passenger. This would include a spouse or other family member.

Liability for Family Member Negligence Covered by New Mexico Insurance Policies

This may seem odd or even unsavory that one family member is suing another. However, the suit is really against the insurance policy of the driver. This throws many injured persons off a little, often to their severe detriment since the injured person and the family, which often includes the at-fault driver will suffer the financial consequences of not seeking recovery for the injuries.

The federal court settlement most certainly accounted for the comparative negligence of the husband. One may rest assured that this was factored into the settlement. The husband’s insurance in New Mexico would clearly covered injuries to passengers including family members. The question would be as apparently was in this case the respective comparative negligence of the husband and the truck driver.

To that end, the wife must still has to go back to trial court to prove husband partially at fault, assuming the insurance company forces her to do this. The insurance company will pay only for that portion of the injuries called for under the policy of insurance. This is what they were paid to do and it is anything but unfair to hold them to it.

 

We recently addressed governmental liability under principles of premises liability. That discussion related to personal injury claims arising out of school violence. The Court in Encinias v. Whitener held that governmental entities, including a school in that case, would be held to the same standards under premises liability law as a private entity.

There is a section of the opinion that discusses what will and what will not lead to a premises liability claim. Many of the examples deal with situations involving governmental entities such as parks, swimming pools, parking lots, schools and so on. However, these same examples are equally helpful in a determination of liability in a private setting.

The examples are worth setting forth, as they somewhat set the loose parameters of premises liability for both governmental and private entities. The list is obviously not exhaustive, but simply illustrative of the many ways premises liability might arise.

Situations Leading to Premises Liability

Without further ado, here is the list of what will lead to premises liability:

1. Perhaps the most interesting example the court gave was “wild dogs roaming the grounds of a housing project.” This is perhaps also most analogous to the protection of students from known violence at school.

2. The court also addressed parking lot and street safety, providing an example of high volumes of vehicles leaving parking lots following a concert. This one is pretty interesting and noteworthy, particularly since at least around Albuquerque this seems to be the norm rather than the exception in concert situations.

3. The Court sets out the example of pool safety where it suggested liability might be found for the operation of a public pool without an adequate level of lifeguards. In case of drowning, this would almost always be an issue. An equally plausible argument for liability not addressed by the Court would be the example of an overcrowded pool where even a large staff of lifeguards could not detect a drowning victim.

4. The next example the Court sets forth involves a prison setting where known gang members are allowed to congregate in a recreation area that was shielded from the observation of prison guards. These same grounds might apply to other settings within a prison as well as other settings where dangers exist but are sheltered from view.

5. Finally, the Court set forth an example of a school‘s creating an unsafe environment in its failure to follow student‘s individualized education plans (IEP‘s). This one was somewhat surprising and may indeed become more problematic over time as school and education budgets are slashed.

Keep in mind that each of these cases involving governmental liability resulted in the waiver of immunity to tort claims for governmental entities under the Tort Claims Act.

Cases That Do Not Lead to Premises Liability

The cases above are helpful. The examples of cases that will not lead to liability are equally helpful. The common thread in these cases is knowledge of the dangerous condition and thus the ability to prevent harm.

1. As addressed in our previous article, failure to supervise children on a playground will not necessarily lead to liability in case of injury. On the other hand, if there are known and preventable dangers such as dangerous and/or aggressive children, then there likely would be liability.

2. Injuries on a playground involving a simple accident without any defect in the equipment such as a fall from a slide will not lead to liability. Accidents do happen on playgrounds and everywhere else in life. Children are prone to have accidents and falls. They cannot all be prevented, and in the case of a fall from a slide, how would supervision prevent this unless the children are clearly misusing the equipment and the playground manager is aware if this?

3. Again, as addressed in our previous article, there is no liability at a school for a single isolated act of violence. A single isolated and presumably unexpected act of violence cannot be prevented. As such, neither a school nor any other entity would likely be held liable for this.

Knowledge and Ability to Prevent Harm is the Common Thread

In sum, governmental entities are treated the same as private entities. Likewise, private entities will be held liable for similar or comparable situations set forth above.

The common denominator in all of these cases is the knowledge of a dangerous condition and the ability to prevent it. Without this, liability for either governmental or private entities will be a challenge. This is not to say it will be impossible and each case must be carefully analyzed on its own.

In cases of premises liability cases, it is important to seek the guidance of an experienced personal injury attorney. These cases can be complex and somewhat challenging with the threshold being liability. From there, there are many other issues that must be addressed but these are best left to another discussion.

DISCLAIMER

Related Reading:
Business Owners‘ Duty of Care to Protect Customers from Criminal Acts
Reexamined Duty of Care in New Mexico Personal Injury Lawsuits
Sorting Out Responsibility in a New Mexico Premises Liability Claim

There was an interesting article in the ABA Journal recently about a New Jersey case where a remote texter/sender of messages to a driver could be held liable for ensuing auto accidents.

The case raises a number of interesting issues. First, may this signify a trend that will spread to other states? Second, as the article points out, it must be proven that the remote texter knew the other texter was driving, thereby encouraging texting and driving. How will this be proven? Third, if this becomes policy or law, does it make sense? Finally, what is a remote texter and/or driver to do to avoid this liability?

Though any other issues will undoubtedly come up as well, we will focus on those above. On the other hand, it is worth keeping an eye on these other issues, which get to the nuts and bolts of liability for the remote texter. For instance, how will liability be delegated between the two texters? Who is more to blame?

There are also insurance issues to be considered. After all, if there is no insurance to invoke, is it really worth suing a high school kid? This leads to the next question. Even if the remote texter is to blame, how would someone injured as a result proceed against the remote texter? Is this considered related to driving thereby invoking auto insurance coverage? Would it come under homeowners insurance if the texts originate from home? Many more will arise as well with perhaps the insurance industry taking the lead in defending on these various grounds.

Can a Trend be Expected?

Getting back to the topics addressed in the ABA Journal article, this is likely to represent a trend. Texting and driving has catastrophic consequences. Distracted driving in fact leads to over 1000 deaths each year according to the CDC‘s Distracted Driving Fact Sheet. Many of these relate to texting. Many more relate to mobile phone use leading to yet another question of whether this comes next.

It is no secret that the government at all levels, from local to national, is attempting to address this issue. There are many laws regarding texting while driving. As far as I know, there are none addressing criminal liability for remote texting. As a result, the civil side will likely take the lead. With this case in place, it can be expected that where texting played a part an accident, there will be investigations to find out who was at the other end.

Problems with Proving Knowledge

This leads to problems with proving knowledge that the remote texter knew the person at the other end of the text was driving. How would this be proven? What level of proof is required? Perhaps, the standard will be “knew or should have known? “Should have known” will raise even more problems regarding proof. The facts of each case will be determinative but rest assured there would likely be few clear-cut cases al a “I know you‘re driving, but I really can‘t help myself.”

In the New Jersey case, it was found that the burden had not been met. However, as noted by the ABA Journal, this was a case of first impression (i.e. first time in court) so the fact patterns necessary to provide knowledge will likely evolve over time.

Is this Good Law?

If it does become a trend in the courts, does the law make sense? Perhaps, the policy makes sense. Obviously, texting and driving can lead to catastrophic results. The wisdom of the policy will come in its application by the courts.

It may be expected that with the door open on these types of claims, there will come many more lawsuits where the remote texter is named as a defendant. It will be up to the courts to determine the fairness of liability in any particular case. It will be up to the courts to hold the parties to the burden necessary to prove knowledge.

After all, without knowledge, how is one to avoid the consequences of the law. And like other areas of negligence, how can you be held responsible for something you could not avoid or prevent?

What Should Remote Texters Do To Avoid Liability?

Obviously, if you know the recipient of your message is driving, then don‘t text. It can wait. Likewise, if it becomes apparent that the recipient is driving, stop texting. Evidence of driving may be explicit or implicit (i.e. “I‘m driving” v. “I am on my way…”).

Little imagination is required to see how remote texters will be put in a bind when the evidence is much less clear. In short, it is hard to know how to behave in the absence of a clear indication of driving.

Avoiding Liability Does Not Mean Avoiding a Lawsuit

It should be noted that avoiding liability and avoiding a lawsuit are two different things. It may be expected that remote texters will start getting named even without clear evidence of knowledge. This will raise the aforementioned insurance issues.

How would a remote texter defend such a suit in the absence of insurance or significant financial resources to expend on a legal defense? The law will evolve over time. In the meantime, there will likely be many innocent remote texters ensnared in lawsuits right along with the guilty.

DISCLAIMER

Related Reading:
Car Accidents: A Leading Cause of Death in Teens
Hypertexting & Hypernetworking: Busy Hands are the Workshop of the Devil?
Employer Liability for Texting Employees

Sidewalks can be somewhat hazardous for pedestrians. This is so in every city or town, and Albuquerque is no exception.

Pedestrians are often injured as result of defective or dangerous sidewalks. These dangers can result from negligent maintenance, failure to repair defects, failure to keep the sidewalk free of debris, and failure to keep the sidewalk clear of ice and snow to name just a few.

Owner/Occupant is Responsible for Sidewalk

The question that immediately arises is who is responsible for keeping the sidewalks safe. In Albuquerque, by city ordinance, that responsibility falls upon the property owner or occupant. This includes both private and commercial property.

The City Ordinance in question (§6-5-5-18) actually addresses more than just sidewalks. It also addresses “drive pad and curb ramps.” Regarding the responsibility for the safety of the sidewalk, the ordinance reads in relevant part:

(A) All sidewalks, drive pads and curb ramps shall be kept clean from rocks and other obstructions, including ice and snow, and in a state of good repair by the owner, occupants, or agents in charge of the abutting property. Sidewalks, drive pads and curb ramps in good repair shall be free of cracks, floats, obstructions, depressions and/or any and all other defects and shall have a uniform longitudinal and transverse gradient.

There are limited exceptions for sidewalks and wheel chair ramps on the rear lot line of property, but otherwise the property owner or occupant is responsible for keeping the sidewalk in a safe condition.

Safe Condition Set Forth in Ordinance

The ordinance sets forth most of the many ways a sidewalk could be dangerous. It is also noteworthy that these conditions are the predominant cause of all slip and fall accidents on sidewalks.

Cracks, depressions, rises, and otherwise uneven sidewalks can cause quite serious accidents and personal injuries. On rare occasions, a fall can result in the wrongful death of the pedestrian. The most serious injuries or wrongful death typically would be associated with head injuries resulting in traumatic brain injury.

Course of Action in Sidewalk Accident

There are a number of important steps to take in a slip and fall accident. Perhaps the most important is to document the location and the condition of the sidewalk.

The location may seem obvious, but with city sidewalks, it is not always that easy to distinguish one sidewalk from another or one particular spot on the sidewalk from another. It is very important to document this.

You should also document the condition of the sidewalk. This means taking pictures from as many angles as possible. It also means taking pictures related to lighting and other surrounding conditions that contributed to the dangerous condition of the sidewalk.

Of course, this is easier said than done if you are badly injured and you have nobody around to assist with these tasks. In this case, it is important to contact an experienced attorney as soon as possible. The attorney will be able to complete these tasks if you are unable to.

Tort Claims Notice

Although the ordinance places responsibility on the owner/occupant of the abutting property, it is always best to err on the side of caution and send a Tort Claims Notice to the City of Albuquerque. This must be done within 90 days of the accident in case of personal injury, and within 6 months in case of wrongful death.

Why take this precaution? Because it may not be clear in many situations who is responsible. This might come up if the city actually conducted negligent repairs. It might also come up if the property owner had put the city on notice of dangerous conditions outside the scope of the owner/occupants responsibility. A dispute as to responsibility may come up regarding the definition of “abutting property.” There might also be issues of control and authority to make repairs.

These are just a few so it is very important to put the city on notice within the 90-day deadline. The city may have no responsibility, it might have full responsibility or it may have partial responsibility. Whatever the case, the Tort Claims Notice will protect your rights to recovery from all possible responsible parties.

DISCLAIMER

Related Reading:
Sorting Out Responsibility in a New Mexico Premises Liability Claim
Broken Promises in Slip & Fall Accidents May Result in Punitive Damages in New Mexico
Slip and Fall Accidents Do Not Always Lead to New Mexico Personal Injury Claims