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.
-30-
[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.]
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