DEMAND FOR SETTLEMENT - PREMISES LIABILITY / SLIP AND FALL
STATE OF NEW MEXICO
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, New Mexico ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of New Mexico
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[Claims Representative Name / General Counsel]
[Property Owner / Management Company / Insurance Company Name]
[Street Address]
[City, State ZIP]
RE: PREMISES LIABILITY DEMAND - SLIP AND FALL
Our Client: [Client Full Name]
Date of Incident: [Date of Fall]
Location of Incident: [Full Address of Property]
Property Owner: [Property Owner Name]
Property Manager: [Management Company Name, if applicable]
Claim Number: [Claim Number, if assigned]
Dear [Recipient Name]:
This firm represents [Client Name] ("Claimant") for injuries sustained on [Date of Incident] at premises owned and/or controlled by your insured/client, located at [Property Address], in [County] County, New Mexico. This letter constitutes our formal demand for settlement and provides a comprehensive analysis of liability under New Mexico law, our client's injuries, and damages.
I. NEW MEXICO-SPECIFIC LEGAL FRAMEWORK
A. Statute of Limitations
Under New Mexico Statutes Annotated Section 37-1-8, the statute of limitations for personal injury claims, including premises liability, is three (3) years from the date of injury. This incident occurred on [Date], and therefore the limitations period expires on [Expiration Date].
For claims against governmental entities: Under the New Mexico Tort Claims Act, N.M. Stat. Ann. Sections 41-4-1 et seq., written notice must be provided within ninety (90) days of the occurrence. [If applicable: We have complied with this requirement by providing notice on [Date].]
B. Premises Liability Duty Standards Under New Mexico Law
New Mexico has abolished the traditional common law distinctions between invitees, licensees, and trespassers. Under Ford v. Board of County Commissioners, 1994-NMSC-077, 118 N.M. 134, New Mexico applies a uniform standard of reasonable care to all entrants.
Property owners owe a duty of ordinary care to maintain the premises in a reasonably safe condition for all persons who may foreseeably enter. Klopp v. Wackenhut Corp., 1992-NMSC-008, 113 N.M. 153.
This duty includes:
- Discovering dangerous conditions through reasonable inspection
- Correcting or warning of dangerous conditions
- Maintaining the premises in a reasonably safe condition
C. Pure Comparative Negligence
New Mexico follows pure comparative negligence under Scott v. Rizzo, 1981-NMSC-014, 96 N.M. 682. A plaintiff may recover damages even if the plaintiff is more at fault than the defendant. Recovery is simply reduced by the plaintiff's percentage of fault.
Our client bears no responsibility for this incident.
D. Snow and Ice Liability in New Mexico
New Mexico does not follow a blanket natural accumulation rule. Property owners owe a duty of reasonable care regarding snow and ice conditions. See Klopp v. Wackenhut Corp., 1992-NMSC-008.
The analysis focuses on whether the property owner exercised reasonable care under all circumstances, including:
- The nature and extent of the accumulation
- Time elapsed since the weather event
- The owner's knowledge of the condition
- Whether reasonable steps were taken to address the hazard
[If ice/snow case:] The hazardous ice/snow condition at issue was known or should have been known to the defendant, who failed to exercise reasonable care to protect invitees.
E. Notice Requirements
Under New Mexico law, a plaintiff must establish that the property owner had actual or constructive notice of the dangerous condition, unless the condition was created by the property owner. Johnstone v. City of Albuquerque, 2006-NMCA-119.
Constructive notice exists when:
- The condition existed for a sufficient time that it should have been discovered
- A reasonable inspection program would have revealed the hazard
- The hazard was a foreseeable result of the property owner's operations
II. PRESERVATION OF EVIDENCE - LITIGATION HOLD NOTICE
YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this incident and the subject premises, including but not limited to:
- All surveillance video footage from the date of incident (interior and exterior cameras)
- Surveillance footage from 48 hours before and after the incident
- Incident/accident reports prepared by employees or management
- Witness statements taken at the time of incident
- Maintenance logs and repair records for the area of the fall
- Inspection records and checklists for the date of incident and prior 12 months
- Cleaning schedules and logs
- Weather records and reports from the date of incident
- Prior complaints regarding the hazardous condition
- Prior incidents or falls at the same or similar location
- Work orders and maintenance requests for the area
- Photographs of the incident location
- Written policies and procedures for maintenance, inspection, and safety
- Training records for employees responsible for premises safety
- All communications regarding the incident
- Insurance policies applicable to this claim
New Mexico courts recognize spoliation of evidence claims and impose appropriate sanctions. Coleman v. Eddy Potash, Inc., 1995-NMSC-063, 120 N.M. 645.
III. STATEMENT OF FACTS
A. The Premises
The incident occurred at [Property Address], which is [describe property type - e.g., "a retail shopping center," "a grocery store," "a restaurant," "an apartment complex," "an office building," "a hotel," etc.]. At all relevant times, [Property Owner Name] owned, operated, possessed, maintained, and/or controlled the subject premises.
[If property manager involved:]
[Management Company Name] was responsible for the day-to-day management, maintenance, inspection, and safety of the premises.
B. The Hazardous Condition
On the date of the incident, a dangerous and hazardous condition existed on the premises, specifically: [Describe the hazardous condition in detail]
[CUSTOMIZE BASED ON TYPE OF HAZARD:]
-
Wet/Slippery Floor: A liquid substance [water / spilled merchandise / cleaning solution / grease] was present on the floor in the [specific location], creating an extremely slippery and dangerous walking surface. There were no warning signs, cones, or barriers in place to alert persons to this hazard.
-
Uneven Walking Surface: A raised or uneven section of [flooring / sidewalk / parking lot / threshold / carpet] created a tripping hazard. The elevation change was [describe height differential] and was not marked, repaired, or remediated.
-
Snow/Ice Accumulation: Snow and/or ice had accumulated at [location] and had not been properly cleared, salted, or remediated despite adequate time following the precipitation event.
-
Defective Stairs/Steps: The [stairway / steps] at [location] were defective and dangerous due to [describe defect].
-
Inadequate Lighting: The [location] was inadequately lit, obscuring the hazardous condition.
C. The Incident
On [Date of Incident], at approximately [Time], our client was [describe what client was doing] when [describe the fall]:
[Detailed narrative of the incident]
D. Response to the Incident
[Describe what happened after the fall]
IV. LIABILITY ANALYSIS
A. Duty of Care Under New Mexico Law
Under Ford v. Board of County Commissioners, 1994-NMSC-077, and Klopp v. Wackenhut Corp., 1992-NMSC-008, [Property Owner Name] owed our client a duty of ordinary care to:
- Maintain the premises in a reasonably safe condition
- Discover dangerous conditions through reasonable inspection
- Correct dangerous conditions or warn of their existence
- Exercise reasonable care to protect all foreseeable entrants
B. Breach of Duty
Your insured breached these duties by:
1. Actual Knowledge:
[If evidence of actual knowledge - describe]
2. Constructive Knowledge:
Under New Mexico law, constructive notice exists when a dangerous condition has existed for such a length of time that the owner, in the exercise of due care, should have known of its existence. Johnstone v. City of Albuquerque, 2006-NMCA-119.
[Include evidence of constructive notice]
3. Failure to Inspect:
Your insured failed to conduct reasonable inspections that would have revealed the dangerous condition.
C. Causation
The dangerous condition described above was the actual and proximate cause of our client's fall and resulting injuries under New Mexico law.
D. Comparative Fault Defense
While New Mexico applies pure comparative negligence, our client was exercising reasonable care:
- Our client was using the premises in a foreseeable manner
- The hazard was not open and obvious
- Our client had no reason to anticipate the dangerous condition
V. INJURIES AND MEDICAL TREATMENT
A. Summary of Injuries
As a direct and proximate result of the fall, our client sustained the following injuries:
[List primary diagnoses]
B. Treatment Chronology
Emergency Care - [Date]:
[Details]
Surgical Intervention (If Applicable):
[Details]
Follow-Up Care:
[Details]
Physical Therapy/Rehabilitation:
[Details]
C. Current Status and Prognosis
[Describe current condition and prognosis]
VI. DAMAGES
A. Past Medical Expenses
| Provider | Service Dates | Amount Billed |
|---|---|---|
| [Provider] | [Date] | $[Amount] |
| TOTAL PAST MEDICAL | $[Total] |
B. Future Medical Expenses
| Future Treatment | Estimated Cost |
|---|---|
| [Treatment] | $[Amount] |
| TOTAL FUTURE MEDICAL | $[Total] |
C. Lost Wages and Earning Capacity
| Category | Amount |
|---|---|
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL LOST WAGES | $[Total] |
D. Pain and Suffering / Non-Economic Damages
New Mexico permits full recovery for pain and suffering in premises liability cases. There are no caps on non-economic damages. Our client has suffered and continues to suffer:
- Physical pain and suffering
- Emotional distress
- Loss of enjoyment of life
- [Additional non-economic damages]
E. Summary of Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Subtotal] |
| Pain and Suffering | $[Amount] |
| TOTAL NON-ECONOMIC DAMAGES | $[Subtotal] |
| TOTAL DAMAGES | $[Grand Total] |
VII. GOVERNMENT ENTITY CLAIMS
[USE THIS SECTION ONLY IF DEFENDANT IS GOVERNMENT ENTITY]
This claim involves a [municipal / county / state] governmental entity. We have complied with the New Mexico Tort Claims Act, N.M. Stat. Ann. Sections 41-4-1 et seq.:
- Written notice provided within 90 days pursuant to N.M. Stat. Ann. Section 41-4-16
- Notice served on [Entity Name and Address] on [Date]
Note: Under N.M. Stat. Ann. Section 41-4-6, governmental entities may be held liable for dangerous conditions of public buildings, and under Section 41-4-11 for dangerous conditions of streets and highways.
VIII. SETTLEMENT DEMAND
A. Demand Amount
Based upon the clear liability of your insured, the severity of our client's injuries, and the substantial damages incurred, we hereby demand the sum of:
$[DEMAND AMOUNT]
B. Time for Response
This demand will remain open for thirty (30) days from the date of this letter, through and including [Expiration Date].
Failure to respond or failure to make a reasonable offer will result in immediate filing of suit in the District Court of [County] County, New Mexico.
IX. DOCUMENTATION ENCLOSED
- Complete medical records from all treating providers
- Itemized medical bills
- Photographs of the incident location
- Photographs of injuries
- Incident report (if obtained)
- Employment records and wage verification
- Weather records (if applicable)
- HIPAA authorizations
X. CONCLUSION
The evidence in this case establishes clear and indisputable liability under New Mexico premises liability law. Under the uniform duty of reasonable care established in Ford v. Board of County Commissioners, your insured failed to maintain the premises in a reasonably safe condition. Our client, who was lawfully on the premises and exercising reasonable care, was seriously injured as a direct result.
I look forward to your prompt response.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
New Mexico State Bar No. [Number]
Attorney for [Client Name]
ENCLOSURES: [List]
cc: [Client Name]
[File]
NEW MEXICO-SPECIFIC PRACTICE NOTES
-
Pure Comparative Negligence: Recovery allowed regardless of plaintiff's fault percentage. Scott v. Rizzo, 1981-NMSC-014.
-
Unified Duty Standard: No invitee/licensee/trespasser distinction. All entrants owed duty of reasonable care. Ford v. Board of County Commissioners, 1994-NMSC-077.
-
Tort Claims Act: 90-day written notice required for governmental entities. N.M. Stat. Ann. Section 41-4-16.
-
Joint and Several Liability: Generally abolished; defendants liable only for their proportionate share. N.M. Stat. Ann. Section 41-3A-1.
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No Damage Caps: New Mexico does not cap compensatory damages in personal injury cases.
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Prejudgment Interest: Available from date of filing. N.M. Stat. Ann. Section 56-8-4.
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Offer of Judgment: N.M. R. Civ. P. 1-068 provides cost-shifting mechanism.