When Someone Else Shares the Blame: Comparative Fault in New Mexico Negligent Security Cases

Being hurt in an assault on someone else’s property raises hard questions. One of them is whether your own choices could lower what you can recover. In New Mexico, your share of fault reduces your award. It does not automatically cut you off from recovery.

Comparative fault works this way in negligent security cases. Under UJI 13-1320 NMRA, when an owner or occupant breaches the duty to use ordinary care to keep premises safe for a visitor and the visitor is injured by the acts of a third person, the owner’s or occupant’s breach is compared with the conduct of the third person who actually caused the injury. The visitor’s own fault is also compared if the court determines that a jury question exists regarding the visitor’s comparative fault. Each share changes the final number. Here is how that math works and what shapes the percentages.

The Short Answer: Yes, Comparative Fault Can Reduce a Negligent Security Recovery

Yes, comparative fault can lower a negligent security recovery. It does not erase the claim by itself. New Mexico follows pure comparative negligence, a system where fault reduces damages rather than barring them.

Under Scott v. Rizzo, New Mexico uses pure comparative negligence: an injured person’s own share of fault reduces the damages by that percentage, but never bars recovery.

New Mexico applies pure comparative negligence, so an injured person who is partly at fault can still recover, with damages reduced by their own percentage of fault.

So the real question is not whether you had any fault. It is how much fault a jury assigns to you, and what that does to the total damages.

Many people worry that one small mistake will end their claim.

Negligent security cases often turn on two questions at once. What did the attacker do? What did the property owner fail to do to prevent it? The answers to both shape the percentages more than any single fact.

The rule explains the math. It does not tell anyone what a case is worth.

How New Mexico’s Pure Comparative Negligence System Works

The steps come from the UJI 13-2218 comparative negligence instruction. First, the jury totals the damages. Second, it assigns percentages so they add up to 100%. Third, it reduces the injured person’s total damages by that person’s percentage.

Here is a simple example. Suppose a jury finds total damages of $200,000. It assigns the injured visitor 20% of the fault. The visitor’s award drops by $40,000, leaving $160,000. This is a hypothetical, not a prediction of any real case.

Juries decide percentages by weighing each party’s conduct. The standard is ordinary care, which is the care a reasonably prudent person would use. The UJI 13-1603 ordinary care instruction adds that the care required grows as the risk that should reasonably be foreseen grows.

In plain terms, the old rule asked whether the plaintiff was at fault at all. A yes could end the case. The pure rule asks how much. For someone deciding whether to act, that difference matters most. Your own choices still count. They reduce the award in proportion, so the details of what happened carry real weight.

How Fault Is Divided in a Negligent Security Claim

Fault usually splits between the attacker and a property owner who had a duty to protect visitors. The owner’s duty is to use ordinary care to keep the premises safe for visitors, under the UJI 13-1309 visitor duty instruction.

The core question is foreseeability. Did the owner know, or should it have known, about a real risk of crime? Did it take reasonable steps, such as lighting, locks, access control, or patrols?

The UJI 13-1320 commentary says a landowner has a duty to exercise ordinary care to protect visitors from harm resulting from the foreseeable conduct of a third party, including criminal conduct. The owner’s negligent failure to protect can be compared to the attacker’s conduct. The same commentary warns against letting an owner shift a disproportionate share of blame onto an attacker whose intentional act directly caused the injury.

Records can show what was foreseeable. The FBI Crime Data Explorer publishes agency-level reported crime data for New Mexico jurisdictions.

Contracted security adds another layer. A security company or property manager may share fault with the owner. Under § 41-3A-1, in causes of action to which several liability applies, a defendant who establishes that another’s fault is a proximate cause of the plaintiff’s injury is liable only for the portion of the total damages equal to the ratio of that defendant’s fault to the total fault attributed to all persons, including plaintiffs, defendants and persons not party to the action. There are exceptions, such as persons who acted with intent to injure.

Worked Example: A Visitor Who Entered a Restricted Area

Consider a hypothetical visitor who walks past a faded restricted-area sign. A gate to a loading yard is propped open. Later that night, someone attacks the visitor in that yard.

A jury would typically weigh several facts. Was the sign clear and visible? How long was the gate open? Was the visitor invited or directed there? Was the yard lit and patrolled? Had anything similar happened there before?

New Mexico keeps trespassers as a separate classification. Under Ford v. Board of County Commissioners, visitors get a single standard of reasonable care, while trespassers stay in their own group.

The same facts can lead to different percentages. A jury that sees a clearly posted sign and an open gate may view the visitor’s choices differently than one that sees a faded sign and a dark yard. The owner’s response afterward also counts. Each factor pulls the percentage in a different direction.

This example shows the kinds of facts that matter. It is not a forecast for anyone.

Evidence That Shapes Fault Percentages

Evidence shows what was known, what was done, and when. Those three things often shape the percentages.

Security camera footage can show where the visitor was, how the area was watched, and the timing of events.

Incident reports, police reports, and witness statements record what happened and what was known before and after the attack. A prior incident report can bear on foreseeability.

Records about the property matter too. Lighting schedules, lock and gate logs, staffing rosters, prior complaints, and maintenance logs can show whether a known gap was fixed.

Causation also matters. Under UJI 13-305, an act or omission is a cause if it contributes to bringing about the injury and the injury would not have occurred without it. The security gap must also be reasonably connected as a significant link to the injury.

Keeping copies of anything you already have is a sensible first step.

Common Questions About Comparative Fault in These Cases

A small percentage still lowers the award, so the number matters as much as the fact that it exists.

Talk Through Your Facts With El Gringo Law

If you were hurt in an attack on someone else’s property and wonder how your own choices affect your recovery, our team is ready to talk it through. A conversation can focus on what happened at the property, what records exist, and how your choices fit into the timeline.

Our free first consultation is confidential, with no obligation to continue.

Every case is different, and past results do not indicate a similar outcome.

This page was written for El Gringo Law. Josh Wood is the responsible lawyer for its content, and he is licensed in New Mexico and Arizona. You can read more about negligent security claims in New Mexico or visit elgringolaw.com.