Recently, a state appellate court issued an interesting opinion in a personal injury case discussing an issue that frequently arises in New Mexico personal injury cases that are filed against government agencies or others who allow for the free use of their land. The case presented the court with the issue of whether the defendant city was entitled to immunity in a case filed by a plaintiff who was injured when he struck a pothole while riding his bicycle in a public park.
Ultimately, the court held that the plaintiff failed to establish that the city had knowledge of the pothole, and thus was unable to establish that the city acted “willfully or maliciously.” Thus, the court dismissed the plaintiff’s case.
The Facts of the Case
The plaintiff was riding a bicycle in a park that was maintained by the defendant city. As the plaintiff was riding along a paved path in the park, he struck a pothole and fell of his bike. The plaintiff sustained serious injuries as a result of the fall, and filed a personal injury lawsuit against the city.
The city argued that it was entitled to immunity under the state’s recreational-use statute. The recreational-use statute prohibits a party who was injured on another’s property from holding the landowner responsible if the landowner has allowed for the free use of their land for recreational purposes.
Under the state’s recreational use statute, a qualifying landowner cannot be held liable for injuries unless the landowner acted “willfully or maliciously.” The court ultimately held that the plaintiff’s evidence was unable to prove that the city knew about the pothole, let alone “willfully or maliciously” allowed it to remain.
New Mexico’s Recreational Use Immunity
New Mexico’s recreational use statute is contained in New Mexico Statutes § 17-4-7. Specifically, the statute provides that a landowner who allows for others to use her land for “hunting, fishing, trapping, camping, hiking, sightseeing or any other recreational use” does not extend any assurance that the property is safe, does owe a duty of care to the recreationalist, and does not assume any liability for their injuries.
This statute applies to both government and private landowners. However, in order for the recreational use statute to apply, the landowner must not charge a fee for the use of their land, and the burden of establishing that the recreational-use statute applies rests with the landowner.
Have You Been Injured on Another’s Property?
If you or a loved one has recently been injured in a New Mexico slip-and-fall accident while on another’s property, you may be able to recover for your injuries through a New Mexico premises liability lawsuit. At the Fine Law Firm, we have decades of experience representing New Mexico injury victims in all types of cases, including New Mexico premises liability claims. We understand how the state’s recreational-use statute is applied by New Mexico courts, and are prepared with convincing arguments when it should not be applied. To learn more, call 505-889-FINE to schedule a free consultation today.
More Blog Posts:
Government Immunity in New Mexico Car Accident Cases, New Mexico Personal Injury Lawyer Blog, September 17, 2018.
New Mexico Failure-to-Warn Product Liability Claims, New Mexico Personal Injury Lawyer Blog, September 6, 2018.