A Criminal Case Does Not Settle Every Question About a Loss

When someone dies in an assault or shooting, the criminal case often moves on its own schedule. Families are left with hard questions, including whether a conviction has to come first.

A conviction can help a civil claim, but a New Mexico wrongful death case does not depend on one. This page explains how the two cases fit together.

Short answer: a conviction can help, but a civil claim does not depend on one

New Mexico’s wrongful death law focuses on the wrongful act itself. Under NMSA 1978, § 41-2-1, when a death is caused by the wrongful act, neglect or default of another, the person who would have been liable had death not ensued can be sued for damages.

Timing matters too. Under NMSA 1978, § 41-2-2, a wrongful death action must be brought within three years after the cause of action accrues, and it accrues on the date of death (NMSA 1978, § 41-2-2 — three years from the date of death).

The key difference is this: “the conviction helps” is not the same as “the conviction is required.” Don’t let the status of a criminal case alone decide your next step.

Two cases, two sets of rules

A criminal case is brought by the government to address the crime. A wrongful death case is brought by and in the name of the personal representative of the deceased person, on behalf of the family, to address the loss. Under Rule 1-017 NMRA, a wrongful death action must be brought by the personal representative appointed by the district court for that purpose.

The two cases also run on different rules of proof. A prosecutor works to show criminal guilt. A family works to show that another party’s wrongful act caused the death and the losses that followed. The goals differ too: punishment in one case, compensation in the other. That is why the two cases can end in different places, even when they involve the same event.

Damages are decided by a jury. Under NMSA 1978, § 41-2-3, the jury may award compensatory and exemplary (punitive) damages. The jury considers the pecuniary injury to the surviving party and the mitigating or aggravating circumstances of the wrongful act.

Who can bring a wrongful death claim in New Mexico

A personal representative files the claim for the people the law names as beneficiaries.

The statute sets out who shares in any judgment. If there is a surviving spouse and a child or grandchild, one-half of the proceeds goes to the surviving spouse and the remaining one-half to the children and grandchildren, with grandchildren taking by right of representation; parents take only if the deceased is a minor, childless and unmarried, and siblings take only if there is no father, mother, husband, wife, child or grandchild. Under NMSA 1978, § 41-2-3, the proceeds of a judgment are shielded from the deceased’s debts only if the decedent left a spouse, child, father, mother, brother, sister, or child or children of a deceased child.

Where a civil case would be filed is a question that depends on the facts of each case.

How a criminal conviction can be used in the civil case

Causation is still a question for the jury. Under UJI 13-305 NMRA, an act or omission is a cause of injury if it contributes to bringing about the injury and is reasonably connected as a significant link to it.

When the attacker is not the only party who may be responsible

Under UJI 13-1309 NMRA, an owner or occupant owes a visitor the duty to use ordinary care to keep the premises safe.

In a negligent security case, the questions are practical. Were the lighting, locks, gates, or patrols reasonable for the risk? Had there been earlier incidents on the property? Did the owner act on warnings it received? Each answer must be proven with evidence.

The FBI Crime Data Explorer provides agency-level reported crime data for New Mexico jurisdictions. That data can be one input when a case asks whether a crime was foreseeable.

Fault is then compared among the parties. Under NMSA 1978, § 41-3A-1, each defendant is generally liable for its own share of fault, with exceptions the statute lists. The jury assigns percentages under UJI 13-2219 NMRA.

Restitution, timing, and coordinating the two cases

Timing is handled case by case. Whether a civil case can move while criminal charges are pending depends on the facts and on how the court handles each case.

The three-year period in § 41-2-2 starts on the date of death. It does not start when a criminal case ends, so the pace of the criminal case does not reset that clock.

The practical step is to preserve evidence now. Security footage, incident reports, photos, and witness contact information can be lost or fade over time. Writing down what you remember while it is fresh also helps.

Talking with El Gringo Law about your family’s situation

If your family member died in an assault or shooting, and the criminal case is still open, ended in a plea, or never produced charges, you may be deciding whether a civil claim should be reviewed now. A review can look at who may be responsible, what evidence still exists, and when the deadline falls.

El Gringo Law offers a free, confidential initial consultation with no obligation to continue. You can submit the contact form, call, or start a chat. Josh Wood is the responsible lawyer for this page, licensed in New Mexico and Arizona. You can also visit elgringolaw.com.

For the broader practice area, see the firm’s wrongful death page for New Mexico.

Common questions