Most of us walk and text.  Of course it’s a dumb thing to do.  We all know that.  But we do it anyway.  And except for very rare instances, nothing bad comes of it.  But that’s not always the case.  Walking and texting can be very hazardous.  So not surprisingly, bad things sometimes happen to people who venture down the street with their eyes looking down instead of ahead.  The news is full of stories of people who have suffered mishaps on account of such inattention.   

And when people are injured they file suit.  Finding someone to blame (other than yourself) is as American as Yankee Doodle.  And when people are sued they seek insurance coverage for the mess.  This is the story of Christopher Finley v. Albuquerque Retail Properties, LLC, 2nd Judicial District Court, Bernadillo County, New Mexico, No. 15-1256.

The court described the facts in the underlying action as follows.  In December 2014, while home from college, Chris Finely was visiting a mall in Albuquerque.  Not surprisingly, the twenty-year old college student was sending and reading texts while going in and out of The Gap and A&F.  While on his way to the food court he was texting a friend to let him know that he’d see him there in two minutes.  But Finley never arrived.  With his eyes on his iPhone he walked between two protective benches and straight into a fountain.  Since Finley never saw it he had no chance to block his fall and went down very hard. 

Fortunately for Finley he suffered no neurological damage.  But he was seriously injured nonetheless.  His face landed on a sprinkler head and he broke his jaw and sustained significant lacerations, leaving a large scar on his face that could be permanent.  Finley also suffered no small amount of emotional injury, especially since the incident was caught on a mall security camera and posted on the internet by a mall employee (now ex-employee).   

Despite that Finely seemingly assumed the risk of walking and texting, and was contributorily negligent, he hired a lawyer and filed suit.  Finely’s theory was that the risk of shoppers walking into fountains, on account of distraction by texting, was a well-known one for the mall owner, Albuquerque Retail Properties, LLC.  Therefore, Albuquerque should have taken steps to protect him.  

Albuquerque Retail tendered the Finley complaint to its general liability insurer Pueblo Property & Casualty Co.  Pueblo P&C denied a defense on the basis that Finley’s injuries were not caused by an “occurrence,” defined as an accident.  Pueblo pointed to the complaint allegations that this was the third incident, in the past two years, involving a distracted texter walking into a fountain at a mall owned by Albuquerque Retail.  Plus, it was alleged that Albuquerque Retail knew of other similar mishaps at malls around the country and the risk has even been discussed at retail real estate conventions.  As Pueblo saw it, this was not an accident as defined under New Mexico law. 

Albuquerque Retail undertook its own defense and the case proceeded to trial.  Finley secured a verdict of $485,000 and the jury found him 10% comparatively negligent.  The jury accepted the argument that the risk of Finley, distracted by texting and walking into a fountain, was known by Albuquerque Retail.  Therefore the mall owner should have done more to prevent it.  Finely’s expert argued that the mall should have installed a warning device around the fountain, something similar to the speed bumps on highways that cause vibrations to alert drivers to an upcoming toll booth.                              

Albuquerque Retail settled the matter for $400,000 (after the court reduced the judgment to $436,500 to account for Finley’s 10% comparative negligence) and filed suit against Pueblo Insurance for the amount of the settlement plus $150,000 for the defense costs incurred. 

The court in Albuquerque Retail Properties, LLC v. Pueblo Property & Casualty Co., 2nd Judicial District Court, Bernadillo County, New Mexico, No. 15-8168 held that no coverage was owed to the mall owner.  The court accepted Pueblo’s argument that Finely’s injuries were not caused by an accident.  The court concluded that Albuquerque Retail had enough reasons to know that, by taking no protective measures, Finley’s fall into the fountain was not an “unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.”  Albuquerque Retail at 7 (quoting King v. Travelers Inc., 505 P.2d 1226 (1973)). 

The court stated: “Mall owners are well aware that teens and young adults comprise a large portion of their invitees.  Such property owners are also keenly aware that these individuals are likely to be distracted by their phones while on the mall premises.”  Therefore, the court held that there was no accident and, hence, no occurrence. 

 for Pueblo Property & Casualty Co.

 for Albuquerque Retail

 for me