What are the laws concerning premises liability in New Mexico and Texas?
Texas has become more conservative with both legislation and appellate decisions. New Mexico is a more favorable state for an injured party bringing an action, but basically the law is the same. It is rather complex and a little bit archaic. If you go shopping to a store such as Lowe’s or Albertson’s, you are called an invitee which means you are there for the benefit of the store. So, they owe you a duty to protect you from any and all conditions and to warn you of conditions. If another shopper spills some liquid, they have a duty to inspect the premises and a duty to put up warning signs and protect other shoppers.
If you are at a business premises for an interview, you are what is called a licensee. You are there for your benefit and their benefit, and the only duty that the property owner owes you is to disclose known defects. They have no duty to search out for defects or to warn you of defects.
The third classification is a trespasser. Obviously, if you are a trespasser on someone else’s property, they owe you no duty at all unless you are a minor. There are some very, very good laws that protect children called the Attractive Nuisance laws. We all know that children are attracted to conditions and do not have the maturity to not climb over a fence or go through a gate onto a contractor’s premises and play around. Therefore, children are a very special subject in premises liability. They are entitled to much more protection, but basically that is it.
If you are shopping or at a retail premises, they owe you a duty to warn you and to seek out the bad conditions, whether it is spilled liquid or a low shelf that may cause an elderly person to trip. I have handled those types of claims. The level of responsibility owed to you depends upon what kind of premises you are on.
So if someone slipped and fell while in a local grocery store and suffered an injury, how would your firm help in that situation?
One of the first things we look for is whether the store made a report of the fall. The store is required to make a report, an accident report on the incident. Also, they are obligated to notify their insurance carrier, and they all are required to have insurance carriers, we send investigators to the scene as soon as possible. We look for whether the spilled liquid has any other marks or traces of having been there a while, if there are other shopping cart wheel marks that have gone through it, if there are other step-marks, footprint marks that have dried out. If so, obviously that spill has been there a while. If it is been there a while, that obviously increases the duty and obligations of the retail store to defend that, “Hey, we should have found that because it had been there a while.”
Keep in mind, though, that they have the duty to inspect their premises to even look for defects that may cause a trip or a slip. So those people need to do inspections. It is a rather complex area of the law sometimes, and fast action is typically very important. We use investigators very effectively. We use photographs of the scene very effectively. These days, with just about everyone having a camera on their cell phone, they can take a picture of the liquid they slipped in. You can see where the mark is that they caused when they slipped. You can see if the edges are dried around the liquid area so you can determine how long it is been there. You can see again if there are other marks of either shopping carts or footprints in it. So in this new day and age, it is different than the old days. We encourage people to take photographs at the scene and bring them to us.
How would your firm help if someone had a tripping accident at a place of employment?
Well, first of all there is worker’s compensation. You cannot sue your employer for common negligence if they have worker’s comp. You have to give notice of a worker’s comp claim within 30 days. So, you need to ask if your company has workers compensation protection. You need to go to their claims people to obtain the proper forms. You need to fill out the forms as soon as possible in order to get your worker’s compensation claim in their hands and in formal notice to them within the 30 days. If they do not have insurance, then that is a different story. Then they owe you the same duty as a retail store would.
How would your firm help if I fell because the handrail on my apartment’s stairwell gave way?
Our firm had a case like that where there was no stairwell, there was no railing at all, and the manager’s apartment in the same very large complex had a railing and a handrail. Because this person was injured inside her own apartment, she was a licensee. They did not owe her a duty to search and warn her of defects, but they did have a duty to warn her of known defects. So we were able to do very well for that lady because the depositions we took proved that even the property manager had a similarly shaped apartment with an upstairs and a stairwell with a hand-railing.
If you are outside your apartment premises, then it is much like the retail store. They owe a duty to protect you from known conditions. They owe a duty to warn you. They owe a duty to have proper lighting.
We had a claim recently where a waste management company had built up a three or four inch cement pad where it placed it is big metal, cement dumpster, and they discontinued using that site. As a result, there was a place in the parking lot where there was a square cement rising that was three or four inches high all the way around.
The area was not well lit, there were no warning signs or orange cones put out, and a lady comes in after dark and trips. She was elderly and was very badly hurt. Consequently, that case did very well. If you are outside your apartment in the common areas of a complex, an apartment complex or a commercial business complex, then they owe you duties that are more than those owed to you if you are injured inside your own premises.
What about an airport where there are a lot of local vendors?
The local vendors are going to be responsible for their space. They are going to have a lease with the city. All of these airports are city or county government based. We have had a number of those at the El Paso airport and other airports. If it is a retail vendor, you are going to have the same laws as if it is a grocery store or other retail store. They are going to owe you a duty to know, seek out, and warn you about known conditions that may result in falls.
However, if it is in the common area, then it is a claim against the city and/or the county and/or the state. This instance requires a certified mail, 30 day statutory notice from your lawyer to the city, the mayor, and the city council. It follows the statutory format of what you tell them about the accident. From then you have six months to actually file the lawsuit. So, there are some time limits if you are dealing with airports that are very important.
We have had a lot of people come to us about these claims. One very nice gentleman fell at the El Paso airport, and since he just did not know about the law, he did not get to me within the 30 day notice time. He did not even get to me within the six month time. However, there is a law that says if the airport personnel, the police, or the city representatives have actual knowledge of the injury and the fall, then you do not have to give the written notice to them within the 30 days.
But, the case law in Texas has become very conservative. The action notice has been whittled down to circumstances in which you really need to hire a lawyer promptly and make sure you get that 30 day written certified mail notice to the proper government authorities.
What would you say is someone’s greatest benefit in consulting a slip and fall type of attorney?
There is no question but that a good law firm is going to help maximize your claim. They are going to handle it professionally. They are going to know how to build a foundation of your claim from your medical expenses to your lost wages, to your lost wage or earning future benefits due to your pain and suffering. Insurance companies love it when someone is not represented by counsel. They will seek you out as quickly as they can and try to write you a check early because they save money doing that.