'Land of Enchantment' in 'Hellhole': Tort reform group calls New Mexico's appeals court 'pro-liability'

By Kelly Holleran | Mar 2, 2010

Justices of the New Mexico Court of Appeals. Top row: Linda M. Vanzi, Michael E. Vigil, Roderick T. Kennedy, Robert E. Robles, Timothy L. Garcia. Bottom row: Jonathan B. Sutin, James J. Wechsler, Cynthia A. Fry, Michael D. Bustamante, Celia Foy Castillo

To tourists, New Mexico's heavenly vistas make it the "Land of Enchantment," but to legal reform advocates, the state's appeals court makes it a hellhole.

For the first time, the American Tort Reform Foundation (ATRF) ranked the New Mexico Court of Appeals on its 2009-2010 "Judical Hellhole Report." Each year the group lists the courts it believes are dispensing uneven justice.

In the No. 5 spot, the New Mexico appellate court is now among infamous "hellhole" jurisdictions like the No. 1-ranked South Florida and the No. 2-ranked West Virginia.

"The main issue that we have found is that the (New Mexico) appellate court seems to take a liability expanding predisposition," said Cary Silverman of the Washington, D.C.-based law firm Shook, Hardy and Bacon, who helped the ATRF compile the report.

"The areas that we've outlined show not just pro-plaintiff, but also pro-liability rulings," he said.

The ATRF first took notice of New Mexico's court system in 2003 when a state Supreme Court decision allowed an owner who had left his keys in his car at a repair shop to be sued for injuries that resulted when a thief stole the vehicle and led police on a high speed chase that ended in a crash.

Since then, New Mexico's appeals court has received rankings such as "Dishonorable Mention" or "Places to Watch" in the ATRF's annual report. Despite its status, though, the ATRF said the court shows no indications of changing, prompting the group to move it to full "hellhole" status.

"Every year, we go through this again and again," Silverman said. "It shows no signs of improvement while other jurisdictions have shown improvement. Places like Madison County [Ill.] have come off the list."

Within the past year, the New Mexico Court of Appeals has thrown out three rules that traditionally apply in court, Silverman said.

In one decision, appellate court judges overturned a long-recognized "baseball rule" that says stadium owners and teams are not liable if a spectator is injured by a flying ball as long as there is a net behind home plate where the risk of injury is greatest.

On July 31, the appellate judges decided that owners would be held responsible for severe injuries a 4-year-old boy received during pregame batting practice at a minor league baseball stadium in Albuquerque. In the incident, the boy had been standing with his family when a home run over the left-field fence entered the picnic area and struck him.

The court found that the baseball rule provided unnecessary immunity to sports teams and owners. The case is now on appeal to New Mexico's high court, where the ruling could have a signifcant impact on little league, high school and college baseball teams if the decision is allowed to stand, the ATRF's report states.

"Anyone who has attended a baseball game has seen the signs warning spectators of the risk that a ball may get hit into the stands," the report states. "It is an inherent risk of attending a game, one that could only be avoided if the team installed netting around the entire stadium and eliminated the hope and joy of kids' catching a batted ball."

Justice Roderick T. Kennedy dissented from his colleagues, saying their decision overturned years of judicial precedence.

"My colleagues rejected nearly 100 years of American jurisprudence today," Kennedy wrote. "By refusing to adopt the baseball rule, they isolate our state from others having already considered the matter."

In another controversial ruling, appellate justices decided that a manufacturer of a machine could be held liable for a person's injuries, even if that person has ignored training and even if the equipment has been altered from its original state making it more dangerous.

In doing so, the appellate court reversed a trial court's dismissal of a product liability claim brought against the manufacturer of a rock-crushing machine. In the complaint against the manufacturer, it was admitted that the plaintiff climbed into the portable rock crushing machine to free a lodged rock while it was operating.

But at some point previous to the incident, a company other than the manufacturer had removed metal plating on the machine, exposing the flywheels, court papers say. Thus, when the man attempted to free the jammed machine, he extended his leg into an uncovered flywheel, causing his leg to break. The man later died from a blood clot.

Although no other person had climbed into the machine prior to the deceased man's attempt - most stood on a platform above the hopper to remove rock jams -- New Mexico's justices found it reasonably foreseeable that the man would climb into the machine without turning it off. And they found it acceptable to blame the manufacturer despite the fact that alterations had been performed to the equipment.

Again, Judge Kennedy dissented from his colleagues.

"While [the manufacturer] might reasonably expect that jams need to be cleared, modifications that facilitate the process while the machine is running and expose workers to moving parts is beyond the limits of reasonable anticipation," Kennedy wrote.

"Misuse of the plant by climbing into a place made even more dangerous by another's modification and yet more so when the plant was still running is something an objective observer could fairly regard as inconceivable."

And, in a third controversial decision, justices allowed a lawsuit for emotional distress filed by emergency workers to continue through the court system. The ruling came despite the fact that most courts recognize that emergency responders, such as police officers and firefighters, cannot sue for emotional distress injuries that are an inherent part of the job. Ultimately, the jury did not award any damages to the plaintiff.

"Here you had a jury that actually decided they would apply the traditional rule while the appellate court said we'll let them think about it," Silverman explained.

These three cases and other New Mexico appellate court rulings show that the court is likely to rule for liability expansion, Silverman said.

"The message being sent by the report is that New Mexico's appellate judges need to carefully consider cases and whether they are adhering to traditional bounds of liability or whether they are going to expand the bound of liability," Silverman said.

The New Mexico Court of Appeals is the intermediate court in the state. With a jurisdiction covering the entire state, it reviews appeals in all cases, except those criminal cases involving the death penalty or life imprisonment. According to the court's Web site, its caseload is about 900 cases per year.

There are 10 judges on the court who act in panels of three on all appellate opinions, and agreement of two judges is required. Six of the judge's are located in the state capital, Santa Fe, and the other four are in the state's largest city, Albuquerque.

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