One of the many considerations in a personal injury lawsuit is whether the defendant owed a duty of care to those that are injured.
A duty of care is a requirement that a person proceed in a reasonable manner while performing any acts that could possibly harm others. Generally, the defendant‘s behavior is measured against a reasonable person‘s behavior, which varies based on the facts of the case. In other words, the jury will ask: would a reasonable person have acted like the defendant did?
For liability and recovery in a personal injury lawsuit, there must first (with rare exceptions) be a finding of negligence.
For a finding of negligence and consequent liability, there must first be a duty of care. The New Mexico Court of Appeals recently issued a decision reviewing the duty of care owed by a shopping center to protect its inhabitants from automobiles.
In Rodriguez v. Del Sol Shopping Center, a driver, who had been forbidden from driving by her doctor due to a seizure disorder, was driving her pick-up truck which had mechanical problems in the Del Sol Shopping Center parking lot. While traveling the truck‘s accelerator became stuck while depressed and the brakes failed. Simultaneously, the driver experienced a “baby seizure,” which caused her to pass out. The pick-up truck continued to accelerate, crossing the ten-foot wide pedestrian sidewalk, snapping a metal handrail, and crashing through the shopping center‘s floor-to-ceiling glass wall. Tragically, three people were struck and killed and an additional six sustained serious injuries. The estates of the deceased and the injured patrons filed lawsuits against the shopping center alleging that the defendant failed to protect them from the pick-up truck accident by posting traffic signs and placing additional barriers between the parking lot and the medical center.
Typically, the owner or occupier of a property owes a general duty of ordinary care to keep those that he or she invites onto the property safe. Ordinary care is the care a reasonable person would use when acting in the same way. Ordinary care can even include protecting persons on the property from the actions of a third party where they owner or occupier knows or should know of a specific danger. In a case like this one, it is clear that the defendant owed a general duty of care, because they owned the property. However, the court had to examine whether the defendant owed the inhabitants of the buildings a duty to protect them from vehicles straying from the parking lot.
The unlikelihood of these circumstances, a defective vehicle with an inept driver striking a building, showed that the defendant could not have foreseen the danger that caused the plaintiffs‘ harm. After all, there is no apparent risk of being struck by a car while inside a building. With statistics showing that it was highly unlikely that a vehicle would strike a building and cause harm to those inside, the defendant could not be expected to foresee the danger. In other words, you cannot prevent what you cannot foresee and if you can‘t prevent it, then there is generally no duty to protect against it. Similarly, the defendant did not fail to meet generally accepted safety customs. Neither the layout, surface, use, signage or nature of the surrounding businesses could have prevented the unfortunate incident. While the erection of barriers or bollards could have prevented the vehicle from striking the building, their use is above and beyond what is normally required for safety reasons, so the defendant could not have been expected to use them here.
While this decision was unfortunate for those affected by the vehicle crash, it does not mean that they were not able to bring other lawsuits against other responsible parties. It is important to discuss any situation where your injury was caused by another with an experienced injury attorney to see if you are entitled to a recovery.
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