You're on Main Street, facing North, stopped at the light where El Paseo hits Main. Late afternoon, darkening sky. It's been raining all day. Roads are wet and slippery, maybe even getting icy.
The light turns green and you drive into the intersection, then spot a cop car speeding down El Paseo toward you, bubble-gum machine flashing. Mom shouts “Speed up!” You almost make it. The cop-car crashes into your car's rear. You're injured.
Your lawyer files suit. Even speeding toward emergencies (here, an armed-robbery report from a nearby PicQuik) law enforcement vehicles must drive safely. State law and city regulations say so.
The city files an answer July 15, 2014. Denying negligence by the officer and negligent training and supervision by city. And saying you were negligent. Legally, your negligence could reduce your damage award, even nullify it.
The city also countersues you for the cost of vehicle repairs and lost value. The city alleges caused the crash by speeding up.
Now imagine instead that you're a juror in District Court, hearing this case in late January 2016.
City lawyers argue that the cop was going 50-55 miles per hour and wasn't negligent. Plaintiff was. You listen politely.
You hear evidence of a crash review board. The officer admitted he was going 55-60 (a little faster than the city claims), that this was too fast for conditions, and that he couldn't stop. He was concentrating on getting to PicQuik, and “wasn't thinking about his driving.” The review board found the accident preventable (by the cop) and ordered him to attend defensive driving classes and emergency response training.
You notice that the review board report is dated three full months before the city's answer denied the officer's negligence. You find for the Plaintiff and give her a lot of money.
This is an opinion column. I opine that:
The review board did everything right (except misspelling “driving” in “diving too fast for conditions”) and should be commended – particularly in comparison with a hospital I'll write about soon, where it's reportedly standard procedure to report all incidents as (a) not serious and (b) not at all the hospital's fault. Our police department told it like it was. Morality aside, that's how you improve your performance.
Did the city's lawyers screw up? At first it looks that way. They'd likely seen the crash review report, and took a gamble denying negligence. (And did countersuing the injured Plaintiff risk teeing off a juror or two? I probably wouldn't have done it; but such counterclaims can buttress a comparative negligence defense.) I don't want to come in now and say “Because you lost, you screwed up!” It doesn't always work that way.
Often, evidence such as the crash review report never gets to the jury. If someone slips at BigMart, we want BigMart to fix the problem. If there are internal memos about putting in new “No-Slip” flooring, right after someone fell, that's good. Letting the injured customer's lawyer use those as evidence that BigMart was negligent in that case would discourage fixing the problem. Not admissible. I suspect the admissibility of the crash report will be a major issue on appeal. As will the damage amount.
The $280,000 damage award seems a lot. “Idiots should have settled!” you shout. But what if Plaintiff's lawyer kept asking for more than $1 million, for injuries the city thought didn't justify even $200,000?
Assessing such cases without all the facts can be difficult. On this one, without more research, I won't predict how the appeal turns out. So stay tuned.
[This column appeared in the Las Cruces Sun-News this morning, Sunday, 3 April 2016, and will also appear later today at the KRWG website under News--> Local Viewpoints. I welcome comments and criticism here and/or on those sites.]
[At this point, the City of Las Cruces has notified the court system and the Plaintiffs that it will appeal, but has not yet filed a detailed appeal. Clearly the admission of the crash review board report will be a contested issue. Quite possibly, so will the damage award. I didn't cover the trial, but I think the Plaintiff's actual damages were relatively small compared to the award of future damages, so the damage award could be an appellate issue too. There may be others. I've seen cases (including a jury trial involving Dona Ana County before the same judge) where I had sat through the entire case and thought the County's appellate arguments were unlikely to carry the day. Here, I have too little information to form a definite opinion. Once I see the City's appeal and Plaintiffs' response, I may have a stronger opinion.]