New Mexico

 

 

Statute of Limitations (NEW MEXICO)

 

Personal Injury - 3 yrs. (including Breach of Warranty) [N.M.S.A. § 37-1-8] [Chavez v. Kitsch, 374 P.2d 497 (N.M. 1962)]

Wrongful Death - 3 yrs. (from date of death) [N.M.S.A.§ 41-2-2]

Property Damage - 4 yrs. [N.M.S.A. § 37-1-4]

Written Contracts - 6 yrs. [N.M.S.A. § 37-1-3]

Oral Contracts - 4 yrs. [N.M.S.A. § 37-1-4]

Contract for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [N.M.S.A. § 55-2-725]

 

Depending on the nature of the claims asserted and the context out of which they arise, personal injury claims may accrue, for limitations purposes, at the time of the occurrence, the time of injury, or the time of discovery [Gerke v. Romero, 237 P.3d 111 (N.M. App. 2010)].  Where an individual has been injured by an unsafe or defective product and the resulting injury does not immediately manifest itself, the statute of limitations commences when Plaintiff knows, or reasonably should know through diligent inquiry, that he has been injured [Martinez v. Showa Denko, K.K., 964 P.2d 176 (N.M. 1998)].

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Statute of Repose (Products) (NEW MEXICO)

 

None.

 

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Admissibility of Expert Testimony (NEW MEXICO)

 

Daubert is adopted only in cases that require scientific knowledge.  Application of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training [State v. Alberico, 861 P.2d 192 (N.M. 1993); State v. Ferran, 2015 N.M. Unpub. LEXIS 3 (N.M. 2015)].

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Causes of Action (NEW MEXICO)

 

Strict Liability – In 1972, New Mexico Supreme Court adopted Rest. (2nd) of Torts, 402A [Stang v. Hertz Corp., 83 N.M. 730 (N.M. 1972)].  However, in 1997, New Mexico Court of Appeals explained the concept of strict liability by relying on Section 1 of Rest. (3rd) of Torts:  One engaged in the business of selling/distributing products who sells/distributes a defective product is subject to liability for harm caused by the product defect; a product is defective if, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings [Spectron Dev. Lab. v. Am. Hollow Boring Co., 123 N.M. 170 (N.M. Ct. App. 1997)].

 

Negligence – A supplier of a product has a duty to use ordinary care to avoid a foreseeable risk of injury caused by a condition of the product or manner in which it is used. This duty is owed to persons who can reasonably be expected to use the product and to persons who can reasonably be expected to be in the vicinity during the use of the product.  The supplier’s duty to use ordinary care continues after the product has left his possession. A supplier who later learns, or in the exercise of ordinary care should know, of a risk of injury caused by a condition of the product or manner in which it could be used must then use ordinary care to avoid the risk [13-1402 NMRA].

 

Breach of Warranty – New Mexico Supreme Court had adopted the standard UCC express warranty [N.M.S.A. § 55-2-313]; implied warranty of merchantability [N.M.S.A. § 55-2-314]; implied warranty of fitness for particular purpose [N.M.S.A. § 55-2-315].  A seller’s warranty (express or implied) extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [N.M.S.A. § 55-2-315].

 

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Definition of “Defect” (NEW MEXICO)

 

A product is defective if, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.  A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.  The ultimate test for determining if a product is defective as a result of improper design is whether the product constitutes an unreasonable risk of injury.  “Unreasonable risk of injury” is one which a reasonably prudent person having full knowledge of the risk would find unacceptable [Fernandez v. Ford Motor Co., 879 P.2d 101 (N.M. Ct. App. 1994)].

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Also, see discussion below re: design defects.

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Liability of Sellers (NEW MEXICO)

 

Any person in the chain of distribution is strictly liable [Livingston v. Begay, 652 P.2d 734, 738 (N.M. 1982)].  For liablity to apply, such person must be engaged in the business of selling such products. 

 

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Defenses (NEW MEXICO)     

 

Comparative Negligence – New Mexico follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981)].  Applies to product liability cases [Comment to 13-1427 NMRA].

 

Assumption of Risk – A form of negligence, subject to the comparative negligence rule [Crespin v. Albuquerque Baseball Club, LLC, 216 P.3d 827 (N.M. Ct. App. 2009)].

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Product Alteration/Modification – In order for a manufacturer to be liable, the injury must have been proximately caused by a condition of the product which was not substantially changed from the condition in which the product was placed on the market (or in which the supplier could have reasonably expected it to be used).  Substantial change in the product relieves Defendant of liability if the change itself is a proximate cause of the harm done [13-1422 NMRA].

 

Product Misuse – Manufacturer is not liable where an injury is caused by a misuse of the product which was not reasonably foreseeable to the Defendant [13-1403 NMRA].

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (NEW MEXICO)

 

ELD is recognized and applied, but usually only in commercial cases. 

 

In commercial transactions, when there is no great disparity in bargaining power of the parties, economic losses from injury of a product to itself are not recoverable in tort actions [Utah Intern., Inc. v. Caterpillar Tractor Co., 775 P.2d 741 (N.M. App. 1989)].  The court specifically decided not to address whether ELD applies to non-commercial consumers.

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (NEW MEXICO)

 

In a products liability action, it is not necessary that proof as to whether a product was defective or whether it caused damages be shown by direct evidence; proof may be by circumstantial evidence alone. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the fact sought to be proved. N.M. Unif. Jury Instructions 17.6. The requirement upon the plaintiffs under the circumstantial evidence rule is that the facts and circumstances together with the inferences that may be legitimately drawn therefrom, must indicate with reasonable certainty that the product was defective and the defective product caused the plaintiffs' damages [Carter Farms Co. v. Hoffman-Laroche, Inc., 492 P.2d 1000 (N.M. Ct. App. 1971)].

 

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Design Defects (NEW MEXICO)

 

Under the theory of strict liability, there are three types of defects: manufacturing defects, design defects, and warning defects [Fernandez v. Ford Motor Co., 879 P.2d 101 (N.M. Ct. App. 1994)].  In designing and packaging a product, the manufacturer has the duty to possess and apply the knowledge available to reasonably prudent manufacturers [13-1410 NMRA].

 

The existence of a reasonable alternative design is a relevant consideration by a jury but a specific finding on this issue is not required.  Court use the “unreasonable-risk-of-injury” test.  While a jury is required to make risk-benefit calculations, consideration of alternative designs is but one of several risk-benefit considerations that a jury may balance in determining whether a product created an unreasonable risk of injury.  The following list of risk-benefit considerations is utilized: (1) the usefulness and desirability of the product; (2) the availability of other and safer products to meet the same need; (3) the likelihood of injury and its probable seriousness (i.e., “risk”); (4) the obviousness of the danger; (5) common knowledge and normal public expectation of the danger (particularly for established products); (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings); and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive [Bustos v. Hyundai Motor Co., 243 P.3d 440 (N.M. Ct. App. 2010)].

 

State of art has not been adopted as a defense [Brooks v. Beech Aircraft Corp., 902 P.2d 54 (N.M. 1995)].

 

Compliance with industry customs, standards, codes, rules, or governmental rules, standards, codes is evidence of the acceptability of the risk, but it is not conclusive [13-1408 NMRA].  Such compliance is evidence of ordinary care, but it is not conclusive [13-1405 NMRA].

 

 

 

 

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Failure to Warn (NEW MEXICO)

 

Under the theory of strict liability, there are three types of defects: manufacturing defects, design defects, and warning defects [Fernandez v. Ford Motor Co., 879 P.2d 101 (N.M. Ct. App. 1994)]. 

 

If, in light of all the circumstances of a case, an adequate warning would have been noticed and acted upon to guard against the danger, a failure to give an adequate warning is a cause of injury [13-1425 NMRA].

 

The supplier must use ordinary care to warn of a risk of injury. However, there is no duty to warn of a risk unknown to the supplier, unless, by the use of ordinary care, the supplier should have known of the risk.  A product presents an unreasonable risk of injury if put on the market without warning of a risk which could be avoided by the giving of an adequate warning.  The supplier has no duty to warn of risks which he can reasonably expect to be obvious or known to foreseeable users of the product [13-1415 NMRA].

 

To satisfy the duty to warn or to give directions for use, a warning or directions for use must be communicated by a means which can reasonably be expected to reach persons using the product [13-1417 NMRA].

 

To satisfy the duty to warn or to give directions for use, a warning or directions for use must be adequate. To be adequate, a warning or directions for use must have certain characteristics: (1) it must be in a form that can reasonably be expected to catch the attention of the reasonably foreseeable user of the product; (2) it must be understandable to the reasonably foreseeable user of the product; and (3) it must disclose the nature and extent of the danger [13-1418 NMRA].

 

The notion that warnings are presumed to be heeded by those who read them may apply to both actual, existing warnings and hypothetical warnings that could have been given [Magoffe v. JLG Indus., 2008 U.S. Dist. LEXIS 99080 (D.N.M. 2008)].

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Independent Cause of Action for Evidence Spoliation (NEW MEXICO)

 

Tort of intentional spoliation has been recognized, while tort of negligent spoliation has been rejected [Coleman v. Eddy Potash, Inc., 905 P.2d 185 (N.M. 1995)].

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