NRS 41.133 states that when "an offender has been convicted of the crime which resulted in the injury to the victim, the judgment of conviction is conclusive evidence of all facts necessary to impose civil liability for the injury."
In Cromer v. Wilson, 126 Nev. Adv. Op. No. 11 (March 11, 2010), the Nevada Supreme Court addressed the effect of this conclusive evidence of liability on the issues of comparative negligence and damages. The defendant was convicted of felony DUI and felony reckless driving in an accident that severely injured the plaintiff.
The district court had allowed the jury to decide the issue of liability instead of granting the plaintiff's motion for summary judgment. The jury found the defendant liable. In determining liability, the jury was allowed to consider comparative negligence, and it found the plaintiff 25% at fault and the defendant 75% at fault. The jury returned a verdict in favor of the plaintiff and awarded $4,530,785.50 in damages.
On appeal, the Nevada Supreme Court held that NRS 41.133 establishes a conclusive presumption of liability when an offender has been convicted of the crime that resulted in the injury to the victim. Thus, the district court should have granted the plaintiff's motion for summary judgment on the issue of liability, and the trial should have resolved only the issue of damages.
However, the Court also held that NRS 41.133 does not abrogate the law regarding comparative negligence or damages. Therefore, while NRS 41.133 establishes a conclusive presumption of liability, a defendant may argue comparative negligence pursuant to NRS 41.141 to reduce an award of damages at a trial as to damages only.
The Nevada Supreme Court addressed the applicability of NRS 41A.097, Nevada's medical malpractice statute of limitations, to equitable indemnity and contribution claims.
In Saylor v. Arcotta, 126 Nev. Adv. Op. No. 9 (March 4, 2010), a taxicab passenger was injured when his cab was in an accident. The passenger died during surgery after being hospitalized for a heart attack two weeks after the taxicab accident.
The passenger's heirs sued Jack Saylor, the taxicab driver, and the cab company, Deluxe Taxi Cab Service. Saylor and the Deluxe Taxi learned through discovery that medical malpractice may have been the cause of the passenger's death. Saylor and Deluxe Taxi filed a third-party complaint against the passenger's treating physicians, respondents Dr. Karen Arcotta, Dr. Muhammad Bhatti, and Dr. Nancy Donahoe, for equitable indemnity and contribution.
The one year statute of limitations for medical malpractice imposed by NRS 41A.097 had already passed. The issues presented to the Court were what limitations period applied to the third-party actions for equitable indemnity and contribution.
Equitable Indemnity
The Court held that "equitable indemnity claims that arise out of medical malpractice allegations are not subject to NRS 41A.097(2)'s limitations period for medical malpractice claims, but are instead subject to NRS 11.190(2)(c)'s limitations period for actions on implied contracts."
Contribution
The Court explained that "a contribution claim arises 'where a judgment has been entered in an action against two or more tortfeasors for the same . . . wrongful death.' " Pursuant to NRS 17.285(3), a contribution claim must be filed within 1 year after the judgment has become final by lapse of time for appeal or after appellate review.
Thus, the Court concluded that "once a contribution claim arises, it is subject to a one-year statute of limitations."
Click here for the Advanced Opinion
22% of Nevada motorists are uninsured, according to Jim Gibbons' chief of staff, Robin Reedy.
According to Chicago company InsureNet, Nevada could raise $30 million by using InsureNet's system of photographing license plates to identify uninsured and unregistered vehicles.
The proposal was rejected on Wednesday.
The Law Vegas Review Journal reports that Nevada fines its motorists $250 for driving while uninsured and $500 for driving without valid registration, but the offenders are difficult to catch.
According to the journal, "critics raised the privacy issue, although a spokesman for InsureNet said any information collected by the company would go into a national law enforcement computer network, and the company itself would not retain the information."
No other state currently uses InsureNet to verify the insurance status of motorists.
The Nevada Supreme Court addressed the liability of a hotel for injuries occurring in an automobile accident after evicting intoxicated persons from the hotel premises in Rodriguez v. Primadonna Company, 125 Nev. Adv. Op. No. 45 (October 1, 2009).
In Rodriguez, 17 year old Fabian Santiago had been drinking with his two adult uncles, Manuel and Daniel Garibay, on hotel property where they were checked in as guests. They became disruptive, and hotel security intervened. The hotel security officers' requested that Fabian and his uncles leave the property. Hotel security accompanied the three men as they retrieved their belongings. Manuel told another guest that the three of them were going to their car in the parking lot to "sleep it off." Manuel had not intended to drive, as he did not have valid license and he believed he was too intoxicated. When the men were escorted to their vehicle, Manuel told Daniel he was sober enough to drive. Hotel security personnel informed the men, seated in their car, that they had to leave the hotel parking lot and exit hotel property. After leaving the property, Manuel rolled the vehicle while driving at approximately 80 miles per hour. 17 year old Fabian suffered extreme spinal injuries and, as a result, is quadriplegic.
In addressing the claim of negligent eviction, the Court was faced with the issue of whether the hotel owed an affirmative duty to ensure Fabian's safety after he was evicted from hotel property. The Court reviewed Nevada law regarding intoxicated patrons:
- In Nevada, hotel proprietors have the statutory right to evict from the premises anyone who acts in a disorderly manner or who causes a public disturbance in or upon the premises. NRS 651.020.[1]
- In Nevada, commercial liquor vendors, including hotel proprietors, cannot be held liable for damages related to any injuries caused by the intoxicated patron, which are sustained by either the intoxicated patron or a third party, including when the intoxicated patron is a minor.
- Nevada subscribes to the rationale underlying the nonliability principle--that individuals, drunk or sober, are responsible for their torts.
The Court concluded that "when a hotel proprietor rightly evicts a disorderly, intoxicated patron, the hotel proprietor is not liable for any torts that an evicted patron commits after he or she is evicted that result in injury." The proprietor does not have the duty to prevent injuries caused by the intoxicated patron that are sustained either by the patron or by third parties after the eviction has been executed.
The Court did recognize that hotel proprietors do have a duty to act reasonably under the circumstances. The Court stated, however, that in accordance with the principles underlying Nevada's rejection of dram-shop liability, so long as a proprietor does not use unreasonable force in evicting a patron, the hotel proprietor is not required to consider a patron's level of intoxication in order to prevent speculative injuries that could occur off the proprietor's premises.
Thus, although the hotel may have known that Fabian's step-uncle was intoxicated and could not safely drive, the Court concluded, "as a matter of law, that Primadonna did not have the duty to arrange safer transportation, prevent an intoxicated driver from driving, or prevent Fabian, a passenger, from riding with a drunk driver."
Two weeks ago, the Nevada Board of Medical Examiners issued an emergency regulation to restrict the ability of medical assistants to perform certain injections, such as Botox.
As reported by the Las Vegas Sun, the regulations prohibited doctors from allowing medical assistants to inject "cosmetic fillers, chemotherapy, anesthetics or inflammatory drugs," stemming from "a controversy in Las Vegas about unlicensed medical assistants performing certain procedures that some argued should be left to a doctor."
However, on Tuesday, District Judge Kathleen Delaney issued an injunction to prevent the regulation from going into effect, based on the Nevada Board of Medical Examiners' procedures used to adopt the regulations. The Board violated Nevada's open meeting laws by not hearing all public comments before voting on the regulation.
The regulation was not to affect the administration of flu shots.
The Las Vegas Sun reported that the Nevada Supreme Court denied a challenge to the civil enforcement of Nevada's indoor smoking ban.
The criminal enforcement of the smoking ban had already been held unconstitutional, and the statutory basis for criminal enforcement has been removed from the statute.
However, civil enforcement of the smoking ban is constitutional, despite the challenge from Las Vegas businesses. The businesses challenged the provisions under the equal protection clause, as the statute exempts gambling areas in large casinos, certain taverns, and certain strip clubs.
In rejecting the challenge, the Supreme Court reasoned that the exemptions did not violate equal protection because they are justified by the fact that "minors are prohibited from gambling areas in casinos, unlike in smaller bars and restaurants where slot machines are "incidental" to their overall business."
The Nevada Supreme Court addressed the scope of an insurer's duty to defend under the implied covenant of good faith and fair dealing in Allstate Insurance Co. v. Miller, 125 Nev. Adv. Op. No. 28 (July 30, 2009).
The opinion considered when an insurer has a duty to inform its insured about settlement opportunities.
The Court held that an insurer's duty to defend includes a duty to "adequately inform the insured of settlement offers," including reasonable offers that exceed policy limits. An insured's failure to so inform its insured can be used as a factor in bad faith claims. The failure to inform can also serve as a proximate cause of damages to the insured.
See the entire opinion here
The Nevada Supreme Court clarified business defamation in Clark County Sch. Dist. v. Virtual Educ., 125 Nev. Adv. Op. No. 31 (August 6, 2009).
The case presented the issues to the Court of whether "the absolute privilege applies to defamatory communications made by a nonlawyer in anticipation of a judicial proceeding," and "whether allegedly defamatory statements made about a business's product provide a basis for defamation per se or for business disparagement."
The Court concluded that in a business defamation action under Nevada law, "the absolute privilege affords parties to litigation the same protection from liability that exists for an attorney for defamatory statements made during, or in anticipation of, judicial proceedings."
Furthermore, "when allegedly defamatory statements concern a business's product and the plaintiff seeks to redress injury to economic interest, the claim is one for business disparagement, not defamation per se."
See the Court's opinion here.
The Nevada Supreme Court refused to recognize a "heeding presumption" in strict products liability failure-to-warn cases, in its June 4 decision, Rivera v. Philip Morris, Inc.
A heeding presumption is a rebuttable presumption that allows a fact-finder to presume that the injured plaintiff would have heeded an adequate warning if one had been given.
The Court's reasoning:
In Nevada, it is well-established law that in strict product liability failure-to-warn cases, the plaintiff bears the burden of production and must prove, among other elements, that the inadequate warning caused his injuries. Because a heeding presumption shifts the burden of proving causation from the plaintiff to the manufacturer, it is contrary to Nevada law. Rather than demanding that the plaintiff prove that the inadequate warning caused his injuries, a heeding presumption requires the manufacturer to rebut the presumption that the plaintiff would have heeded an adequate warning by demonstrating that a different warning would not have changed the plaintiff's actions. While other jurisdictions have permitted this shifting of the burden of production, we are unwilling to do so.
See Rivera v. Philip Morris, Inc., 125 Nev. Adv. Op. No. 18 (June 4, 2009) for the full opinion.
The San Jose Mercury released a helpful list of changes to Nevada law taking effect on July 1.
Among the new laws detailed by the AP article are the following:
-- AB10 protects nurses against retaliation for disclosing problems that endanger patients at hospitals or other medical facilities; and SB229 seeks to ensure that foreign-trained doctors who get visas to work in "medically underserved" areas actually provide care in those areas.
-- SB307 calls for a study of Nevada's Medicaid system. The program provided insurance to an average of more than 180,000 people, including the elderly, disabled, children and pregnant women, in fiscal 2008.
-- AB389 is aimed at helping to prevent identity theft by making less credit card information available on printed receipts. The new law prohibits printing more than the last five digits of credit card numbers and expiration dates on copies of customer and business receipts.
Senate Bill 227 adds new requirements for data collectors, aimed to provide increased security for consumers' personal information. The bill applies to data collectors who accept card payments for goods or services. It requires data collectors to comply with Payment Card Industry (PCI) Data Security Standards, or requires the use of encryption to protect personal information transmitted electronically.
The law, amending Chapter 603A of NRS, repeals NRS 597.970 and is effective January 1, 2010.
You can read the entire bill here.
Bill AB 495 has made it to the Senate but further support is needed! The bill seeks to repair some of the harm caused by the KODIN (Keep Our Doctors in Nevada) legislation. Among other things, KODIN put a cap of $350,000 on damages for pain and suffering in medical malpractice suits. The Hepititis outbreak that occurred under the watch of Dr. Desai and his colleages has brought into serious question the amount of protection we should afford physicians when they are blatently negligent. Bill AB 495 will remove the cap on damages as well as some other protections that have proven beneficial for doctors like Desai in the past.
I thank those of you who contacted your representatives to urge them to vote yes on this bill. Now I ask that you contact your senators and urge them to do the same.
Dear Senator,
I strongly support Bill AB 495, which seeks to lift some of the obstacles for injured patients in medical malpractice suits. The KODIN legislation, which implemented these obstacles has caused irreputable harm to injured patients and has given unnecessary protections to doctors like Dr. Dipak Desai. I ask that you please vote yes for Bill AB 495.
Sincerely,
[name]
Terry Care, Chair tcare@sen.state.nv.us
Mark Amodei mamodei@sen.state.nv.us
Valerie Weiner vweiner@sen.state.nv.us
Maurice Washington mwashington@sen.state.nv.us
Allison Copening acopening@sen.state.nv.us
David Parks dparks@sen.state.nv.us
Mike McGinness mmcginness@sen.state.nv.us
NRS 41A.097 provides the limitations period for filing lawsuits regarding medical malpractice and wrongful death claims, among others. The statute has gone through a complicated series of amendments.
Statutory History, from NRS 41A.097:
Until 2002, the statute of limitations for medical malpractice and wrongful death was on a 4 year/2 year scheme. A lawsuit must have been filed within 2 years of discovering the injury, but in any event, no later than 4 years after the date of the injury. The statute read, in part:
- An action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first.
2002 Amendments. In 2002, NRS 41A.097 was amended. The 2002 amendment created a 4/2, 3/2 scheme. If malpractice occurred before Oct 1, 2002, it was under the 4/2 scheme discussed above. If after October 1, 2002, the lawsuit instead was under a 3/2 scheme. For 2 years, the statute read in part:
- An action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for injury occurring prior to October 1, 2002
- An action for injury or death against a provider of health care may not be commenced more than 3 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for injury occuring on or after October 1, 2002
KODIN Amendments The "Keep Our Doctors in Nevada" initiative led to a further amendment to the statute of limitations in medical malpractice and wrongful death claims. KODIN changed the two year inner limit to one year for injuries accruing after October 1, 2002. So, if malpractice occurred before Oct 1, 2002, it is still 4/2. If after October 1, 2002, it is 3/1. However, in order that the statute not be applied retroactively, the KODIN only applied to actions accruing after KODIN became effective on November 23, 2004. So, if malpractice occurred on November 22, 2004 (so, under section 2, but pre-KODIN), the 3/2 rule applies, not the KODIN 3/1. If malpractice occurred on November 24, 2004, however, the 3/1 rule applies. The statute now reads, in part:
- An action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for injury occurring prior to October 1, 2002
- An action for injury or death against a provider of health care may not be commenced more than 3 years after the date of injury or 1 year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for injury occurring on or after October 1, 2002
Check back for more information about statute of limitations in Nevada!
**This blog is not intended and should not be used as a substitute for competent legal advice from a licensed attorney**
In 2004, voters approved Question 3, known as the "Keep Our Doctors in Nevada" (KODIN) initiative. The legislation cut the statute of limitations for filing a medical malpractice suit from two years to one, and set a cap on damages for pain and suffering at $350,000. Given the complicated nature of many malpractice claims, the $350,000 cap on damages makes it financially unsound for lawyers to represent patients on these complicated claims.
The outbreak of Hepatitis C at the Endoscopy Center of Nevada in February 2008, has forced legislators to revisit the protections that the Question 3 initiative gave to health care professionals.
Bill AB 495 seeks to remove this safety net for doctors so that injured patients can once again be adequately compensated for their injuries. I have seen many death and serious injury cases since the passage of KODIN in which injured Nevada residents were deprived of meaningful compensation because of the restrictions imposed by this legislation.
While proponents of KODIN argue that it provides for greater and less costly access to health care, the legislation does nothing to deter medical errors or adequately compensate victims of malpractice.
I strongly encourage you to send a letter similar to the one below, urging your representatives to say "YES" to AB 495.
Dear [Assemblyman/woman]:
I am strongly in support of Bill AB495, which takes unnecessary and dangerous protections away from the healthcare industry.
The so-called KODIN legislation that became effective in 2004 has been a travesty for the citizens of Nevada. There have been too many deaths and serious injuries suffered by insured Nevadans; the pain and suffering for which is grossly under-compensated, if compensated at all.
It is time for us to return to a system where insurance companies and healthcare institutions accept responsibility for their actions!
AB495 is an important bill. Please give it full consideration and please vote for AB495.
Sincerely,
[Your Name]
Representatives:
Bernie Anderson, Chairman banderson@asm.state.nv.us
Tick Segerblom, Vice Chair tsegerblom@asm.state.nv.us
Marilyn Dondero Loop mdonderoloop@asm.state.nv.us
William Horne whorne@asm.state.nv.us
Ruben Kihuen rkihuen@asm.state.nv.us
Mark Mandeno mmanendo@asm.state.nv.us
Harry Mortenson hmortenson@asm.state.nv.us
James Ohrenschall johrenschall@asm.state.nv.us
Bonnie Parnell bparnell@asm.state.nv.us
Barbara Buckley, Speaker bbuckley@asm.state.nv.us
John Oceguera, Majority Leader (Assembly) joceguera@asm.state.nv.us
Stephen Horsford, Majority Leader (Senate) shorsford@sen.state.nv.us
According to the National Fire Protection Association, an estimated one out of every four fire-related deaths in the United States in 2006 was caused by smoking materials (i.e. cigarettes, pipes, cigars, etc.), making smoke materials the leading cause of fire deaths. Not only do smoking materials-related fires take lives, but they also cause millions of dollars in property damage each year. In 2003, New York adopted a fire-safety standard for cigarettes that required all cigarettes sold in New York to have low ignition strength. Tobacco companies were required to sell new "fire-safe" cigarettes that had bands around them to stop them from burning if not puffed on regularly. The standard became effective in June 2004 and roughly a year later there were already reports that the annual death toll for cigarette related fires had fallen by a third. Today, as many as 38 states have adopted similar fire-safe cigarettes standards, and Nevada is now joining the trend.
On March 3, 2009, Nevada legislators introduced Bill AB 229, seeking to set up the requirements and performance standards for fire-safe cigarettes to be sold in the State. The new requirements will apply to all cigarettes sold or offered for sale in the state but will not apply to cigarettes purchased by wholesalers before the effective date of the bill if the wholesaler can show that the Nevada cigarette revenue stamps were affixed to packages before the effective date and that he purchased a similar quantity of cigarettes during that period the previous year. As in New York, cigarettes will be required to have bands on them that act as "speed bumps" in the burning process. There are additional labeling requirements and all cigarettes must be recertified under the safety standards every three years.
Under Nevada law provides statutory authority for hospitals to place a lien on certain insurance proceeds. NRS 108.590 provides that "Whenever any person receives hospitalization on account of any injury, and he, or his personal representative after his death, claims damages from the person responsible for causing the injury, the hospital has a lien upon any sum awarded the injured person or his personal representative by judgment or obtained by a settlement or compromise to the extent of the amount due the hospital for the reasonable value of the hospitalization rendered before the date of judgment, settlement or compromise."
This statutory lien provision does not extend to underinsured motorist coverage, although in some states hospital liens do attach to UM coverage. Why not in Nevada?
The Nevada Supreme Court addressed the issue in Washoe Medical Center, Inc. v. Reliance Ins. Co., 112 Nev. 494 (1996). There, the Court articulated why hospital liens do not attach to first-party UM coverage.
The Court noted that the express language of the statute does not authorize attachment to UM coverage. NRS 108.590, quoted above, refers to "damages from the person responsible for causing the injury." An injured party's own insurance provider, through which received UM coverage, cannot be included as a person responsible for causing the injury. Thus, the Court concluded that "hospital liens do not attach unless an injured person claims damages from the third-party tortfeasor and the injured person is subsequently awarded damages pursuant to a judgment, settlement or compromise with the third-party tortfeasor or the third-party tortfeasor's insurance carrier."
On February 12, 2009 Representative Hank Johnson of Georgia introduced the bipartisan Arbitration Fairness Act of 2009. That Act is meant to safeguard citizens from being forced into entering arbitration and would make entering arbitration possible only after the dispute has arisen as to protect consumers from corporations.
Mandatory binding arbitration clauses are hidden in the fine print of everything from cell phone, credit cards, franchise and employment agreements to nursing home care contracts. These clauses force consumers or employees to give up their right to take their case to court in the event there is a dispute with the corporation.
"The Arbitration Fairness Act will prevent negligent corporations from stacking the deck against consumers who unknowingly sign away their access to justice," said American Association for Justice President Les Weisbrod. "Arbitration can only be an effective means to resolve disputes when both parties agree voluntarily, not when it is forced upon consumers in secret to limit their rights."
The Arbitration Fairness Act will help people like Jamie Leigh Jones, who was raped, drugged, beaten, and then confined to a shipping container by KBR/Halliburton employees while working in Iraq. Because of a clause placed in her employment contract, KBR tried to force Ms. Jones to submit to a binding, secret, non-appealable arbitration. Ms. Jones had to fight to obtain access to the justice system because she unknowingly signed an arbitration clause as part of her 18-page employment contract.
For more on this issue, please click here.
A recent editorial in Modern Medicine reported that the Nevada Supreme Court will be deciding whether or not pharmacies can be held liable for death or injuries caused by a customer under the influence of prescription medication. In June of 2004, Patricia Copening, while under the influence of hydrocodone, drove her car into two men who had pulled over to fix a flat tire. Robert Martinez was severely injured and Gregory Sanchez Jr died as a result of the accident.
Under Nevada law, prescriptions are tracked in an effort to reduce drug abuse. A year before the accident, the Prescription Controlled Substance Abuse Prevention Task Force informed the doctors and pharmacists who supplied Copening with hydrocodone that she could be a drug abuser. The task force urged them to "use their professional expertise to assist patients who may be abusing controlled substances." Because the pharmacies were adequately warned, the victims' attorneys argue that they are liable for continuing to fill the prescriptions.
Judge Douglas Hernon, for the Eighth Judicial District, dismissed the pharmacies from the lawsuit arguing that Nevada law does not provide for a legal duty to refuse to refill a prescription even if there does exist an ethical duty to protect the public.
Senior Editor, Alania Scott, opined that if the Supreme Court rules in favor of the plaintiffs, it will mean that any pharmacist who is aware that a customer could be a potential drug abuser "must call the doctor, or stand on the legal duty to refuse to fill the prescription."
Nevada Legislators introduced Bill AB200 on March 5, aimed at expanding Nevada's "Good Samaritan" Law. Under existing law in Nevada, many medical professionals are shielded from civil liability for rendering care, gratuitously and in good faith, in emergency situations. Exceptions to such liability exist where the health care provider already has a patient/physician relationship with an individual or where a medical professional is grossly negligent, reckless or engages in willful and wanton conduct.
The new legislation expands this protection to psychologists and expands protection to medical professionals who render care in good faith to help victims of natural and man-made disasters.
KRNV-TV reported that the Bill was challenged as too vague by Graham Galloway of the Nevada Justice Association, representing trial lawyers. to see article click here
A year after procedures involving the reuse of syringes at the Endoscopy Center of Nevada led to a hepatitis C outbreak, Nevada legislators have proposed new regulations to require higher standards in Nevada health care.
The Las Vegas Sun reports that the pending legislation would:
- Require outpatient surgery centers like the one that caused the outbreak to obtain accreditation by a nationally recognized organization.
- Require physicians and their related businesses and centers to obtain accreditation before providing certain services involving anesthesia and sedation.
- Allow public agencies to investigate suspected infectious disease problems and to issue cease and desist orders if necessary.
- Ban retaliation and discrimination against nurses who report unsafe medical practices.
- Sanction medical facilities that fail to report "sentinel events" -- those unexpected occurrences involving death or serious physical or psychological injury, or the risk of such outcomes.
In a cool move to provide more public access to Nevada courts, the Nevada Supreme Court announced that it will begin live webcasting oral arguments.
The webcasts will be available through the court's website, at www.nvsupremecourt.us, tentatively beginning in March.
Currently in Nevada, police cannot pull over a driver who is not wearing a seatbelt. Drivers who are pulled over for another reason and who are found to not be wearing a seatbelt can still be ticketed for failure to buckle up.
A new seatbelt bill has been introduced in the Senate which would allow police officers to pull drivers over for suspicion of failure to wear a seatbelt.
The fine for the offense would remain at $25.
You can check out the bill here
In Valdez v. State, the Nevada Supreme Court recently ruled on the constitutional rights and statutory procedures regarding instructing a jury on the separating the finding of guilt from the penalty phase of the legal process in a first-degree murder case.
In Valdez the Court addressed four issues:
1) Whether the district court must explicitly instruct the jury, immediately prior to deliberations in a first-degree murder case, that it is to determine only the question of guilt and not deliberate on the sentence until the separate penalty phase of the proceedings;
2) Whether the jury acted improperly by deliberating the penalty while deciding the issue of guilt, and if so, whether the district court abused its discretion in denying a motion for a mistrial based on this jury misconduct;
3) Whether numerous alleged acts of prosecutorial misconduct require reversal; and,
4) Whether cumulative error warrants reversal in this case.
The Nevada Supreme Court ultimately found that "the district court's failure to give a written instruction regarding bifurcation was an abuse of discretion" and that the ensuing juror misconduct violated Valdez's constitutional rights and therefore warrants reversal.
The entire opinion can be found here.
The Supreme Court recently clarified some Nevada labor law issues in Baldonado v. Wynn Las Vegas, 124 Nev. Adv. Op. No. 81 (October 9, 2008).
In the class action lawsuit, Plaintiffs, table game dealers, were at-will employees at a casino in Las Vegas. The casino modified its employment policy to require the dealers to share the tips received from customers with persons in certain lower-level management positions. The dealers brought an action in district court, believing that the new policy violated Nevada labor laws, including NRS 608.160, which prohibits employers from taking employee tips.
The Court addressed three issues:
1) Question: Does NRS 608.160 imply a private cause of action to enforce its terms?
Conclusion: The Nevada Labor Commissioner must administratively hear and decide complaints that arise under Nevada's labor laws. There is no private cause of action to enforce NRS 608.160 in the district courts in the first instance.
2) Question: Is declaratory relief nonetheless available to employees who allege that the statute's terms were violated by an employment policy?
Conclusion 2: Declaratory relief is not available when an adequate statutory remedy exists, so the employees lacked standing to seek declaratory relief.
3) Did those employees assert a viable breach of contract claim based on the employer's unilateral modification to the employment policy?
Conclusion 3: Because the plaintiffs are at-will employees, whose employment terms are generally subject to unilateral prospective modification by the employer, and because as a matter of law they had no enforceable contract concerning the future distribution of their tips, the employees failed to assert a viable claim of breach of contract.
See the opinion here.124NevAdvOpNo81.pdf
In Cook v. Sunrise Hospital & Medical Center, issued on October 30, the Nevada Supreme Court clarified the proper treatment of the "mere happening" jury instruction in medical malpractice cases. A "mere happening" jury instruction is an instruction asserting that the mere happening of an accident, is, by itself, an insufficient basis for liability.
The case was a medical malpractice action brought against Sunrise Hospital, in which the Plaintiff, Mrs. Linda Cook, alleged that Sunrise Hospital's negligence during a surgical procedure caused complications which ultimately led to the amputation of Mrs. Cook's leg. The case went to trial and was heard by a jury, who received the following instruction: "the mere fact that an unfortunate or bad condition resulted to the patient involved in this case does not prove, or even imply, that by virtue of that fact, the defendant is negligent." The jury returned a quotient verdict, six to two, in favor of Sunrise, and the district court entered judgment against Mrs. Cook.
Issue: Whether the district court's "mere happening" instruction misstated the law.
The Supreme Court held that the instruction misstated Nevada law because it failed to inform the jury that it could consider all of the circumstances leading to the plaintiff's injury as possible evidence of the defendant's negligence. Thus, the jury instruction may have confused or misled the jury.
The Court reversed the judgment after finding that prejudice resulted because, but for the mistake in instructing the jury, it is probably that the Plaintiff may have won his/her case, as the case was close and the evidence could have supported a finding of negligence against the Defendant.
You can find the full opinion here. 124NevAdvOpNo85.pdf
Paul Revere Life Insurance Company and UnumProvident Corporation were hit with a combined $60 million dollar verdict in a retrial of a disability insurance bad faith case originally tried in 2004. The June verdict in Las Vegas was six times the punitive damage award originally awarded to Plaintiff G. Clinton Merrick.
Summarized by Friedman, Rubin & White, attorneys for Merrick:
As vice president at General Foods in the 1970s, Merrick was instrumental in the development of the Kool-Aid Man and Country-Time Lemonade advertising campaigns and had thereafter become a successful venture capitalist. Merrick was a founder and managing director of Consumer Venture Partners of Greenwich, CT, and also a founding investor and director of Samuel Adams Brewing Co. He purchased a Paul Revere disability insurance policy in 1989. In 1991, Merrick began to suffer the affects of Lyme disease with chronic fatigue syndrome, though it went undiagnosed for a period of time. His work performance suffered and he tried to continue working. By 1994 he could not meet the grueling business travel and analytic requirements of a venture capitalist and he moved to Summerlin, NV, for his health. He put his insurer, Paul Revere on notice of claim in 1994 and filed his claim in 1995. Paul Revere accepted liability in 1995 and continued to pay benefits until December 1996. At that time, Paul Revere was in the process of being acquired by Provident Companies, Inc. which in 1999 became, UnumProvident Corp., which subsequently changed its name to Unum Group in 2007.
Merrick's lawyers alleged that improper claims handling practices begun at Provident were brought to Paul Revere and influenced its claim handling with respect to Merrick's claim both before the initial denial and afterward. These practices at the Unum Group of disability insurers have been the subject of media scrutiny including exposés on 60 Minutes and Dateline NBC as well as in multiple governmental investigations. "The jury heard evidence of a fifteen year scheme to cheat disabled people," said Rick Friedman, Merrick's lead trial attorney. "The money made off this scheme is in the hundreds of millions, if not billions of dollars. Jury after jury, and regulator after regulator has condemned their practices, but still they continue." According to Friedman, "The verdicts will keep coming until their practices change."
The Nevada Supreme Court issued a decision last week in Vredenburg v. Sedgwick CMS allowing surviving family members to recover workers' compensation death benefits under certain circumstances when an injured employee commits suicide.
NRS 616C.230(1) provides for workers' compensation benefits for accidental employee deaths but precludes surviving family members from recovering when a the employee's death was caused by his "willful intention to injure himself."
The Supreme Court ruled that a suicide is not "willful" for the purpose of denying workers' compensation death benefits if a sufficient causal chain links an employee's work related injury to the employee's suicide. The precedent setting standard requires a surviving family member to show the following:
(1) the employee suffered an industrial injury,
(2) the industrial injury caused some psychological condition severe enough to override the employee's rational judgment, and
(3) the psychological condition caused the employee to commit suicide.
Vredenburg v. Sedgwick CMS, 124 Nev. Adv. Op. No. 53 (July 24, 2008)
The full opinion can be found here
The Nevada Supreme Court clarified a few sections of Nevada's Uniform Act on Rights of the Terminally Ill last week in Estate of Maxey v. Darden, 124 Nev. Adv. Op. No. 43 (July 2008). The Act authorizes three procedures for terminally ill patients or their families to withhold life-sustaining treatment. First, under certain circumstances, an individual may direct an attending physician to withhold life-sustaining treatment by executing a declaration. Second, an individual can execute a declaration designating another person to make decisions regarding withholding treatment. Finally, if neither declaration is present, a terminally ill patient's attending physician can withhold life-sustaining treatment if he or she receives surrogate consent from certain family members. In Estate of Maxey, involving the third situation, the Supreme Court addressed the meanings of "attending physician," valid "surrogate consent," and "terminally ill" under the Act.
Attending Physician
Evaluating the term "attending physician" de novo, the Court concluded that "in light of the Act's purpose and the Nevada Legislature's decision not to define "attending physician" with any particular limitations, we determine that the Legislature intended the attending physician to be the physician who has primary responsibility for the patient's treatment and care at the time when administering life-sustaining treatment becomes an issue."
Surrogate Consent
The Act requires that an attending physician act on the surrogate's written consent, attested by two witnesses. The Court determined that "an attesting witness must have personal knowledge that the surrogate gave written consent to withholding or withdrawing the terminally ill patient's life-sustaining treatment. If an attesting witness is present at the time when the surrogate provides written consent, personal knowledge of the surrogate's intent is presumed. Because, however, NRS 449.626(1) does not require an attesting witness to subscribe his or her name to the consent form, but instead only requires attestation, proof of the attesting witness's personal knowledge is not necessarily limited to the witness's signature on the consenting document."
Terminally Ill
The Court concluded that an attending physician's determination that a patient is terminally ill is subject to judicial review because the Act imposes a duty to act in accord with reasonable medical standards when determining the patient's status. Thus, "only if the physician acts in accord with such standards is he or she entitled to immunity from civil liability. A physician's conformity to the standard, when taking any action under the Act, is therefore subject to judicial review."
You can take a look at the entire opinion here: http://www.leg.state.nv.us/SCD/124NevAdvOpNo43.pdf
On December 27, 2007 the Nevada Supreme Court clarified in Awada v. Shuffle Master, Inc., 123 Nev. Adv. Op. No. 57, the manner in which a Nevada District Court may handle mixed claims for legal and equitable relief at trial and found as follows:
In this appeal, we consider the primary issue of whether a district court has the authority to bifurcate the legal and equitable claims presented in a single action, conduct a bench trial on an equitable claim, and then use the findings of fact and conclusions of law from that bench trial to dispose of the case. On this issue of first impression, we conclude that Nevada district courts have discretion to bifurcate legal and equitable claims in a single action and to first conduct a bench trial on an equitable claim. Furthermore, a district court that exercises such discretion may then use its findings of fact and conclusions of law as a basis for disposing of claims remaining in the case, so long as it does so in a manner consistent with Nevada law and our rules of civil procedure.
We also consider whether the district court abused its discretion by sua sponte disposing of the remaining claims in a summary judgment-like manner after conducting a bench trial on respondents' counterclaim for rescission. In this case, the district court did not abuse its discretion when it first considered respondents' counterclaim for rescission and rescinded the parties' agreement. Based on its findings and conclusions, the district court properly disposed of all of appellants' contract-based claims against respondent Shuffle Master, Inc., because those claims could not stand absent a valid contract. However, the district court improperly granted summary judgment as to the claims against respondent Mark Yoseloff and appellants' remaining claims against Shuffle Master because those claims can survive absent a valid contract between the parties. Additionally, the district court erred in resolving those claims without satisfying the procedural requirements of NRCP 56.
Accordingly, we affirm the district court's judgment as to appellants' claims for breach of contract and contract-based claims for breach of the implied covenant of good faith and fair dealing; we reverse the district court's judgment as to appellants' claims for fraud, civil conspiracy, conversion, unjust enrichment, and tortious interference with contractual relations/prospective economic advantage and as to appellants' claims against Yoseloff; and we remand this case to the district court for further proceedings consistent with this opinion.
Nevada law requires that child and adult care facilities be licensed and follow certain rules and regulations. Assembly Bill No. 283 adds new requirements to this law. Chapter 432A of NRS now requires that child and adult care facilities maintain and provide certain information to parents, guardians or legal representatives. New requirements also make failure to comply grounds for revocation of a facility's license.
Section 1 of the new bill adds several new requirements. The bill requires that child and adult care facilities maintain records of licensure, inspections, complaints, and any disciplinary actions. Facilities must make the information available to the public or guardians of those cared for in the facility upon enrollment and upon request.
Section 2 allows the licensing bureau to deny, suspend or revoke the license of any facility that fails to comply with these new regulations. Section 4 allows the health division to deny, suspend or revoke the license of any facility that fails to comply with these new regulations.
SB7, effective October 1, 2007, establishes civil liability for certain acts involving the provision of alcohol and controlled substances.
Existing law provides immunity from civil liability to a person who serves or sells an alcoholic beverage to another person for damages caused by an intoxicated person as a result of that service or sale. (NRS 41.1305) Section 2 of this bill limits that immunity to a person who serves, sells or furnishes an alcoholic beverage to another person who is at least 21 years of age. In contrast, section 2 makes a person liable in a civil action for damages caused as a result of the consumption of alcohol by an underage person if he knowingly served, sold or furnished alcohol to the underage person or allowed the underage person to consume alcohol on premises or in a conveyance belonging to him or over which he had control. The liability created does not apply to a person who is licensed to serve, sell or furnish alcoholic beverages or to an employee or agent of such a person.
Section 1 of this bill further makes a person liable in a civil action for damages caused as a result of the use of a controlled substance by another person if the person knowingly served, sold or furnished the controlled substance or allowed the other person to use a controlled substance in an unlawful manner on premises or in a conveyance belonging to the person allowing the use or over which he has control.
Another Nevada legislative session has come and is almost gone.
I will report on interesting legislative developments over the next few months.
AB 468, effective October 1, 2007, requires providers of health care who refer patients to or recommend physical therapy to a patient to provide a written disclosure to the patient of any financial interests that the provider of health care has in a facility recommended or to which a patient is referred. This bill also clarifies that this new requirement does not authorize a referral or recommendation which is otherwise prohibited.
The following blurb comes from the Nevada Supreme Court's website as of today:
"Over the past 30 years, Nevada's Judicial and Legislative Branches have partnered to promote the creation of an intermediate appellate court - the Nevada Court of Appeals - and are in the process of doing so again.
A new study compiled by the Nevada Supreme Court at the behest of the Nevada Legislature demonstrates that the time is right to establish the new court level.
Nevada is one of just 11 states that do not have an intermediate appellate court, placing the burden on the Nevada Supreme Court to resolve all appeals. Currently, the seven-member Court must address more than 2,000 matters annually - one of the heaviest caseloads in the nation.
This from the Nevada Supreme Court's site at http://www.nvsupremecourt.us/info/news/index.php?contentID=120:
Nevada Supreme Court Chief Justice William Maupin has announced the creation of a commission to study the way legal assistance is provided for criminal defendants who cannot afford to hire their own attorneys.
Chief Justice Maupin said the Commission on Indigent Defense, which is the second Supreme Court commission to be announced in two weeks, will study the issue statewide.
The Commission will be chaired by Justice Michael Cherry, who had a history of public sector criminal defense service before becoming a judge. Chief Justice Maupin will be an ex officio member.
"The Supreme Court believes deeply in the principle that all indigent defendants should be provided effective attorney representation so their rights are preserved and the integrity of the court system is protected," Chief Justice Maupin said.
Justice Cherry added that "when court appointed attorneys are ineffective or inadequate, it sometimes results in cases being reversed and new trials ordered. "That is costly for taxpayers and an additional burden on the court system. The best solution is to have competent, experienced, and effective attorneys available to represent indigent defendants."
Systems for providing representation for those unable to afford their own attorneys range from state and county public defender offices to contract attorneys and court appointed lawyers.
Problems arise when a case has multiple defendants and each defendant requires a separate attorney unconnected to attorneys for the other defendants. It is not unusual in criminal cases for defendants to request public funded attorneys.
Chief Justice Maupin noted that while the indigent defense issue has become controversial in Clark County, the problem is also acute in rural counties where attorneys are rare. Attorneys in rural conflict cases often must be brought in from urban centers.
"This Commission will address the issue from a statewide standpoint so we can determine what works best for each area, given the available resources," he said. "We are aware of the costs involved and hope the Commission weighs the needs of the justice system and the resource requirements."
"What is most important is that we have a criminal justice system that effectively serves the needs of the defendants, the courts, and the public," Chief Justice Maupin said.
This from the American Association of Justice:
Nevada Lawmakers Vote For Doctor-Backed 'I'm Sorry' Law
"A Nevada Senate committee voted Wednesday for a bill that would prevent doctors' apologies to their patients or patients' families from being admitted as court evidence if they're sued for negligence later on. The 'I'm Sorry' measure, SB174, provides that any doctor's expression of 'apology, regret, sympathy, commiseration, condolence or compassion' about a patient's suffering or death can't be used in court. Lawmakers voted to take out the word 'fault' from that list. In a 4-3 vote along party lines, the Senate Judiciary Committee allowed the bill to move forward, with all four Republicans supporting the proposal and Democrats voting 'no.'"
AAJ quoting Joe Mullin, Associated Press, Las Vegas Sun 4/04/07
Last blog we looked at the definition of attorney/client privilege in Nevada.
This blog we examine the definitions within the definition.
For instance, under Nevada law, the term "client" is defined as follows:
49.045. "Client" defined
"Client" means a person, including a public officer,
corporation, association or other organization or entity, either public
or private, who is rendered professional legal services by a lawyer,
or who consults a lawyer with a view to obtaining professional legal
services from him.
Interestingly, there is always an argument that you become a "client" of an attorney, at least for the purpose of obtaining privilege, as soon as you talk to an attorney about your case and regardless of whether you retain him or pay him.
Let's look at a few other definitions:
49.055. "Confidential" defined
A communication is "confidential" if it is not intended to
be disclosed to third persons other than those to whom disclosure
is in furtherance of the rendition of professional legal services to
the client or those reasonably necessary for the transmission of the
communication.
49.065. "Lawyer" defined
"Lawyer" means a person authorized, or reasonably believed
by the client to be authorized, to practice law in any state or nation.
*Note here that the lawyer may not even be licensed to practice in Nevada, but if you think he is, privilege may apply.
49.075. "Representative of the client" defined
"Representative of the client" means a person having
authority to obtain professional legal services, or to act on advice
rendered pursuant thereto, on behalf of the client.
49.085. "Representative of the lawyer" defined
"Representative of the lawyer" means a person employed by
the lawyer to assist in the rendition of professional legal services.
Next blog I'll set out the legal list of who may claim this privilege and what exceptions exist.
One of the most common privileges we hear about is the attorney/client privilege.
The general scope of this privilege is set out in NRS 49.095 and provides:
49.095. General rule of privilege
A client has a privilege to refuse to disclose, and to prevent
any other person from disclosing, confidential communications:
1. Between himself or his representative and his lawyer or
his lawyer's representative.
2. Between his lawyer and the lawyer's representative.
3. Made for the purpose of facilitating the rendition of
professional legal services to the client, by him or his lawyer to a
lawyer representing another in a matter of common interest.
Lawyers are fond of defining things and the Nevada statutes contain numerous definitions and qualifications that effect this privilege. More on those next blog.
The evidentiary concept of "privilege" protects certain types of disclosures in certain situations.
NRS 49.015 provides, generally:
49.015. Privileges recognized only as provided
1. Except as otherwise required by the Constitution of the
United States or of the State of Nevada, and except as provided in
this Title or Title 14 of NRS, no person has a privilege to:
(a) Refuse to be a witness;
(b) Refuse to disclose any matter;
(c) Refuse to produce any object or writing; or
(d) Prevent another from being a witness or disclosing any
matter or producing any object or writing.
2. This section does not:
(a) Impair any privilege created by Title 14 of NRS or by
the Nevada Rules of Civil Procedure which is limited to a particular
stage of the proceeding; or
(b) Extend any such privilege to any other stage of a
proceeding.
In general, then, a privilege exists when provided for by law. Next blog we'll begin to look at the most common privileges.
Here is the final installment of cases that deal with proving medical malpractice claims in Nevada:
In an informed consent case, plaintiff's assertion that he or she would have refused treatment must be reasonable under the circumstances. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).
In determining reasonableness, the court may consider testimony of the patient as well as medical evidence regarding the risks of remaining untreated, the possible alternative treatment and the risks and expected benefits of alternative treatments. No single type of evidence is to be conclusive; rather, all evidence must be considered by the fact-finder in determining whether, had the full extent of the risk been known, plaintiff would have reasonably refused treatment. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).
A qualified nurse may testify regarding the national standard of care for a hospital. Oehler v. Humana Inc., 105 Nev. 348, 775 P.2d 1271 (1989).
When establishing standard of care to be applied in a medical malpractice case, plaintiff must use testimony of expert witnesses with knowledge of the prevailing standards. There is no requirement that the expert medical witness be from the same specialty as defendant; the issue is simply one of the witness' actual knowledge. Rees v. Roderiques, 101 Nev. 302, 701 P.2d 1017 (1985).
In order to recover in a medical malpractice case against a board certified specialist, the patient must demonstrate that the defendant specialist failed to meet the standard of skill and care expected of a reasonably competent practitioner in the same specialty, wherever practicing. Wickliffe v. Sunrise Hospital Inc., 101 Nev. 542, 706 P.2d 1383 (1985); Orcutt v. Miller, 95 Nev. 408. 595 P.2d 1141 (1979).
Here is the third installment of cases that deal with proving a medical malpractice case in Nevada:
To prove medical malpractice, plaintiffs must first establish the accepted standard of medical care or practice, and then must show that the doctors' conduct departed from that standard, and legally caused injuries suffered. Fernandez v. Admirand, 843 P.2d 354, 108 Nev. 963 (1992).
To prevail in a medical malpractice action, the plaintiff must also prove that the alleged negligence more probably than not caused the ultimate injury. Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991).
Under the "loss of chance" doctrine in a medical malpractice action, the injury to be redressed by law is not defined as death itself, but, rather, as the decreased chance of survival caused by the medical malpractice. Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991).
A doctor has the duty to disclose information that a reasonable practitioner in the same field of practice would disclose; the doctor's duty is measured by a professional medical standard, which the patient must establish with expert testimony. NRS 449.710; Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).
A lack of informed consent must be demonstrated through expert testimony based upon NRS 41A.100, which requires expert testimony to prove negligence in medical malpractice actions. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).
To establish proximate cause in an informed consent case, there must first be a showing that the unrevealed risk which should have been revealed by the doctor actually materialized, as well as showing that the patient would have refused surgery had he been informed of the risk. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).
This blog I will continue with Nevada Supreme Court case selections that pertain to proving medical malpractice claims in Nevada.
As always, when I list holdings from multiple cases, selections are listed in chronological order starting with more recent cases:
In a medical malpractice case, under the traditional doctrine of res ipsa loquitur, the presumption of negligence arises after plaintiff has established that the event in question is one that ordinarily does not occur in the absence of negligence; whether plaintiff has established this may be within the common knowledge of a lay person. If not, expert testimony is required. Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).
NRS 41A.100 replaces, rather than supplements, the classic res ipsa loquitur formulation in medical malpractice cases where it is factually applicable. Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).
The very fact that Rentnelli's condition continued to deteriorate after treatment by the Reno doctors, but immediately improved after the Santa Barbara doctors' treatment, would lead a reasonable person to believe that the first doctors did not adequately treat Rentnelli's ailments. Dutt v. Kremp, 894 P.2d 354, 111 Nev. 567 (1995).
As a general rule, a plaintiff must use expert testimony to establish medical malpractice. NRS 41A.100; Jain v. McFarland, 109 Nev. 465, 851 P.2d 450 (1993).
The locality rule is not the standard to be applied to board certified specialists in malpractice actions. Mishler v. Nevada Board of Medical Examiners, 109 Nev. 287, 849 P.2d 291 (1993); Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1141 (1979).
Last blog, I listed an excerpt from my new book that included many fact situations that give rise to medical malpractice claims in Nevada.
This blog I will concentrate on those cases that discuss proving medical malpractice claims in Nevada and in the next two blogs I will finish this discussion of proof.
The following case selections are listed in chronological order starting with some of the most recent cases to touch upon proving medical malpractice. The reader should note that the law of medical malpractice is closely related to the law of negligence. As such, Nevada legal decisions that pertain to negligence sometimes come into play in medical malpractice litigation:
The district court's refusal to allow evidence of the fact that the surgical procedure performed had not been approved by the FDA was within its discretion. Hansen v. Universal Health Services of Nevada, Inc., 115 Nev. 24, 974 P.2d 1158 (1999).
Exclusion of SIIS survey, which consisted of brief descriptions of numerous other cases in which Dr. Thalgott performed surgery, was appropriate. The district court could properly find that injecting these other cases into trial would prolong the trial, confuse the issues and divert the jury to collateral matters. Hansen v. Universal Health Services of Nevada, Inc., 115 Nev. 24, 974 P.2d 1158 (1999).
A prior court case describing similar surgical events was admissible in support of the expert's opinion that patient's condition was medically possible. Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998).
Under NRS 41A.100, Nevada's medical malpractice res ipsa loquitur statute, the presumption of negligence automatically applies where any of the enumerated factual circumstances are present. All plaintiff need do is present some evidence of the existence of one or more of the factual predicates enumerated in the statute. If the trier of fact then finds that one or more of the factual predicates exist, the presumption must be applied. NRS 41A.100 provides the following circumstances: (a) A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery; (b) An explosion or fire originating in a substance used in treatment occurred in the course of treatment; (c) An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care; (d) An injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto; or (e) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient's body. NRS 41A.100; Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998); Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).
Here are further case facts from some of Nevada's most notable medical malpractice cases:
Common-law professional medical standard for informed consent, rather than a patient-oriented standard of informed consent, applies to the chiropractic field. Bronneke v. Rutherford, 120 Nev. 230, 89 P.3d 40 (2004).
Consent to treatment may be express or implied. By seeking chiropractic treatment, Plaintiff's consent to the particular technique may be implied because as a practical matter, health professionals cannot be required to obtain express consent before each touch or test they perform on a patient. Bronneke v. Rutherford, 120 Nev. 230, 89 P.3d 40 (2004).
An attorney had probable cause for filing a malpractice action against physicians, and thus did not commit tort of malicious prosecution, because the reasonable attorney believed that action was legally tenable. The fact that the patient's condition continued to deteriorate after treatment by a first group of physicians, but immediately improved after treatment by a second group of physicians, would lead a reasonable person to believe that the first group did not adequately treat the patient. Dutt v. Kremp, 894 P.2d 354, 111 Nev. 567 (1995).
A mother may maintain a medical malpractice action.
Here are facts from some of Nevada's most notable medical malpractice cases:
Plaintiff underwent surgery for treatment to his shoulder, but suffered an injury to his brain, causing his vegetative state. The brain is not directly or proximately related to the rotator cuff surgery. Therefore, the district court did not abuse its discretion when it submitted a res ipsa loquitur instruction to the jury. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004).
Sunrise had a duty to sequester the anesthesia equipment after victim's cardiac arrest. Evidence concerning Sunrise's duty to preserve the evidence assisted the jury in relation to its prerogative to draw a negative inference from Sunrise's consummated sale of the equipment. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004).
Expert admitted that, under the circumstances, he could not determine whether the equipment contributed to victim's injury since he was unable to examine the equipment because Sunrise had failed to properly identify which machines were used during surgery. Expert's testimony and opinions established that it was possible for the subject equipment to malfunction intermittently. His testimony was also helpful to establish the standard of care for preserving the identity of the machines and providing grounds for the imposition of sanctions for failure to preserve evidence. It assisted the jury in understanding how the machines could have malfunctioned and why it was reasonable to draw an adverse inference from Sunrise's failure to identify the machines. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004).
Here are the elements of a medical malpractice claim in Nevada:
1. Defendant physician, hospital or employee of a hospital, failed, in rendering services, to use the reasonable care, skill or knowledge ordinarily used in similar circumstances;
2. Defendant's conduct was the actual and proximate cause of plaintiff's injury; and,
3. Plaintiff suffered damages.
NRS 41A.009; See, Prabhu v. Levine, 112 Nev. 1538, 930 P.2d 103 (1996).
In order to prevail in a medical malpractice claim in Nevada each of the foregoing elements must be proved.
Here is the second part of our continuing discussion of Nevada negligence law.
Set forth below are case citations and holdings that deal with damage issues in such cases.
The statutes of repose bar only those actions arising out of design and construction-related negligence, but not negligent maintenance. Davenport v. Comstock Hills-Reno, 118 Nev. 389, 46 P.3d 62 (2002).
Under NRS 41.141, a plaintiff who is fifty percent at fault is not barred from recovery, but his damages are reduced by his own percentage of negligence. NRS 41.141(1); State Farm Auto Ins. Co. v. Commissioner of Insurance, 114 Nev. 535, 958 P.2d 733 (1998).
In Nevada, an abutting property owner or occupant does not have a duty to keep a sidewalk in front of his/her property in a reasonable safe condition, and liability will not lie unless owner created defect in manner independent of and apart from ordinary and accustomed use for which sidewalks are designated. Wiseman v. Hallahan, 113 Nev. 1266, 945 P.2d 945 (1997).
Recovery is barred when the danger is obvious, not because the negligence of the plaintiff is greater than that of the defendant, but because the defendant is not negligent at all. The defendant has no duty to warn against an obvious danger and cannot, therefore, be negligent in failing to give such a warning. Harrington v. Syufy Enterprises, 113 Nev. 246, 931 P.2d 1378 (1997).
The obvious danger rule survives the adoption of comparative negligence statutes. Harrington v. Syufy Enterprises, 113 Nev. 246, 931 P.2d 1378 (1997).
The obvious danger rule does not apply to situations where liability is predicated upon acts other than a failure to provide adequate warning of a dangerous condition. Thus, even where the danger is obvious, a defendant may be negligent in having created the peril or in subjecting the plaintiff to peril. Harrington v. Syufy Enterprises., 113 Nev. 246, 931 P.2d 178 (1997).
Where an unforeseeable supervening cause intervenes between defendant's negligence and plaintiff's injury, defendant is relieved of liability. Dakis v. Scheffer, 111 Nev. 817, 898 P.2d 116 (1995); El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 691 P.2d 436 (1984).
Express assumption of risk is essentially a contract where the plaintiff signs a document and openly agrees to hold the defendant harmless for known and inherent dangers of a particular activity. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994).
With the single exception of an express assumption of risk, the assumption of risk doctrine has been subsumed by our comparative negligence statute and is no longer a bar to recovery for negligence. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994); Mizushima v. Sunset Ranch, 103 Nev. 259, 737 P.2d 1158 (1987).
Where a foreign substance causing a patron to slip and fall results from actions of persons other than the business or its employees, the business is liable only if it had actual or constructive notice of the condition and failed to remedy it. Chastain v. Clark County School Dist., 109 Nev. 1172, 866 P.2d 286 (1993); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 849 P.2d 320 (1993).
The contributing fault on the plaintiff's part could reduce the plaintiff's recovery under the doctrine of comparative negligence, but it does not negate a finding that the defendants' negligence was the proximate cause of the plaintiff's injuries. Joynt v. California Hotel & Casino, 108 Nev. 539, 835 P.2d 799 (1992); Taylor v. Silva, 96 Nev. 738, 615 P.2d 970 (1980).
NRS 41.500, the Good Samaritan statute, provides that any person who renders emergency aid, gratuitously and in good faith, is not liable for acts of ordinary negligence. The phrase "gratuitously and in good faith," limits the protection of this statute to those situations in which the rescuer was not already under a duty to act. NRS 41.500; Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).
Critical ingredients of "emergency" situation within meaning of Good Samaritan statute are as follows: suddenness, unexpected necessity for immediate action, lack of time for measured evaluation of alternative courses of action, and respective efficacy and priority of alternatives. NRS 41.500; Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).
The vitality of express assumption stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk. Mizushima v. Sunset Ranch, 103 Nev. 259, 737 P.2d 1158 (1987).
To relieve a defendant from liability under an "act of God" theory, the act must be such a providential occurrence or extraordinary manifestation of the forces of nature that it could not reasonably have been foreseen, and the effect thereof avoided by reasonable care or by the use of those means which the situation renders reasonable to employ. Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962).
Here is the first part of our continuing discussion of Nevada negligence law.
Set forth below are case citations and holdings that deal with damage issues in such cases.
Relief in contribution and implied indemnity is unavailable to the extent those claims arise from the intentional or punitive liability of the party seeking such relief. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
Whether Beckwith thought Reccelle was God or his evil master is of no matter because he admittedly struck Reccelle in the eye with the desire of getting away from him. This is a non-accidental intentional act even if Beckwith did not intend to harm Reccelle. Thus, we conclude that Beckwith's act of striking Reccelle is not an occurrence under the insurance policy and is excluded from coverage under the policy language concerning intentional misconduct. Beckwith v. State Farm Fire and Cas. Co., 120 Nev. 23, 83 P.3d 275 (2004).
A government entity is afforded immunity for pre-emergency negligence when the damage caused by the negligent emergency management was exacerbated by the pre-emergency negligence. A government entity, however, is not immune from liability for its pre-emergency negligence that is not intertwined with damage caused by later negligent emergency management activities. Vermef v. City of Boulder City,119 Nev. 549, 80 P.3d 445 (2003).
An employer was not vicariously liable for its employee's negligence when the employee commuted from his home to a jobsite in his private vehicle. Kornton v. Conrad, Inc., 119 Nev. 123, 67 P.3d 316 (2003).
State employees engaged in child protective services are entitled to quasi-judicial immunity when they provide information to the court (e.g., reports, case plans, testing evaluations and recommendations) pertaining to a child who is or may become a ward of the State. When a state agency or its employees provide their decision-making expertise to the court, they act as an arm of the court and are entitled to absolute quasi-judicial immunity. However, once the court makes a decision ratifying the recommendations of the state agency (e.g., placement in foster care, need for further medical evaluation, etc.), the state agency and its employees are no longer acting as an arm of the court. Rather, their function in carrying out the order of the court falls within the executive branch of government and pursuant to their statutory duties. Specifically, quasi-judicial immunity does not apply to state agencies or their employees for the day-to-day management and care of their wards. State v. Second Judicial Dist. Court ex rel. County of Washoe, 118 Nev. 609, 55 P.3d 420 (2002).
The Court declined to recognize an independent tort for spoliation of evidence regardless of whether the alleged spoliation is committed by a first or third party. Additionally, the Court concluded that a negligence claim for spoliation does not exist under the circumstances presented in this case. Timber Tech Engineered Bldg. Products v. The Home Ins. Co., 118 Nev. 630, 55 P.3d 952 (2002).
Here is a continuing survey of cases and holdings that pertain to damages in Nevada negligence cases. As always, cases are listed in chronological order starting with more recent cases.
An employer may be liable for punitive damages for acts or omissions of its agents if, but only if, (a) principal or managerial agent authorized doing and manner of act; (b) agent was unfit and principal or managerial agent was reckless in employment or retaining him, (c) agent was employed in managerial capacity and was acting in scope of his employment, or (4) principal or managerial agent of principal ratified or approved act. Smith's Food & Drug Centers, Inc. v. Bellegarde, 114 Nev. 602, 958 P.2d 1208 (1998).
Absent injury to person or property, a plaintiff may not recover in negligence for economic loss. Arco Products Co. v. May, 113 Nev. 1295, 948 P.2d 263 (1997); Local Joint Executive Board v. Stern, 98 Nev. 409, 651 P.2d 637 (1982).
Emotional distress can be an element of damage recovered by a direct victim in a negligence cause of action. Shoen v. America, Inc., 111 Nev. 735, 896 P.2d 469 (1995).
When a party negligently damages the property of another, the damage award should be designed to compensate the injured party in full measure for the total harm proximately caused by the defendant's breach of duty. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 866 P.2d 1138 (1994).
Economic loss is something other than property damage. Economic losses include lost profits, lost productivity, lost wages, business expectations and other losses that flow from the loss of the things damaged by the defective product. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Pratt and Whitney Canada, Inc., 107 Nev. 535, 815 P.2d 601 (1991).
This blog I will finish Nevada Supreme Court case selections that pertain to proving negligence claims in Nevada.
As always when I list holdings from multiple cases, selections are listed in chronological order starting with more recent cases:
To satisfy actual causation element in a negligence action, plaintiff must show that but for defendant's negligence, plaintiff's injuries would not have occurred. The legal causation requirement means that defendant must be able to foresee that his negligent actions may result in harm of particular variety to certain type of plaintiff. Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).
In determining foreseeability, a defendant need not foresee the extent of the harm, or the manner in which it occurred. He need only foresee that his negligent conduct could have caused a particular variety of harm to a certain type of plaintiff. Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).
Duty to act affirmatively to aid others in peril is generally imposed where special relationship exists between parties, such as innkeeper-guest, teacher-pupil, or employer-employee. Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).
NRS 48.095 excludes evidence of subsequent remedial measures to prove negligence or culpable conduct, unless such evidence is offered to prove another purpose such as feasibility of precautionary measures. Robinson v. G.G.C., Inc., 107 Nev. 135, 808 P.2d 522 (1991); Jacobson v. Manfredi by Manfredi, 100 Nev. 226, 679 P.2d 251 (1984).
A res ipsa inference of negligence is permitted when: 1) Plaintiff has shown that defendant was in exclusive control of the instrumentality causing harm; 2) The accident was one that does not ordinarily occur in the absence of negligence; and, 3) Defendant is in a better position to explain the cause of the accident. Landmark Hotel & Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297, 757 P.2d 361 (1988); Otis Elevator Co. v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985).
Res ipsa loquitur is balancing doctrine, and while plaintiff need not show exact cause of injury, he must at least show that it is more probable than not that the injury resulted from the defendant's breach of duty. If that is shown, an inference of negligence on the part of the defendant arises and it is then incumbent on the defendant to come forward with rebuttal evidence. Otis Elevator Company v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985); American Elevator Company, v. Briscoe, 93 Nev. 665, 572 P.2d 534 (1977).
For an act to be the "proximate cause" of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220 (1981).
The policy rationale for the doctrine of respondeat superior is grounded on the theory of control rather than on an entrepreneur theory; once a master-servant relationship is established, the principal inquiry is whether the tortious conduct occurred within scope of employment. Natl. Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 584 P.2d 689 (1978).
The improvement of safety devices is not indicative of negligence but merely of a desire to prevent future injury to person or property. Bomar v. United Resort Hotels, Inc., 88 Nev. 344, 497 P.2d 898 (1972); Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962).
Last blog, I listed an excerpt from my new book that included many fact situations that give rise to negligence claims in Nevada.
This blog I will concentrate on those cases that discuss proving negligence claims in Nevada and next blog I will finish this discussion of proof.
The following case selections are listed in chronological order starting with some of the most recent cases to touch upon proving negligence:
In determining whether an agent acts in a managerial capacity, the key is to look to what the individual is authorized to do by the principal and to whether the agent has discretion as to what is done and how it is done. Job titles should be of little importance. Smith's Food & Drug Centers, Inc. v. Bellegarde, 114 Nev. 602, 958 P.2d 1208 (1998); Cerminara v. California Hotel and Casino, 104 Nev. 372, 760 P.2d 108 (1988).
Evidence of subsequent, similar accidents involving the same condition may be relevant to issues of causation and whether there is a defective or dangerous condition. Reingold v. Wet 'N Wild, 113 Nev. 967, 944 P.2d 800 (1997).
As I said last blog, I plan to provide in-depth information on Nevada civil law in general, and the elements of Nevada legal theories in particular, in many future blogs. Much of this legal research is extracted from the Second Edition of my first book, Elements of Nevada Legal Theories.
Nevada is a notice pleading jurisdiction. This means that civil complaints in Nevada can be pleaded rather loosely as long as they ensure that an opposing party is put on notice of the legal theories upon which a party is proceeding.
The Nevada Supreme Court has long held that pleadings will be liberally construed to place matters into issue which are fairly noticed to the adverse party. Pittman v. Lower Court Counseling, 110 Nev. 359, 871 P.2d 953 (1994).
The test for whether allegations in a complaint are sufficient to assert a claim for relief is whether the allegations give fair notice of the nature and the basis of a legally sufficient claim and the corresponding relief requested. Vacation Village v. Hitachi America, 110 Nev. 481, 874 P.2d 744 (1994). While the rules for pleading in Nevada are liberal, it is nevertheless essential to thoroughly understand the elements of recognized legal theories, preferably early in a case, since such elements constitute a framework for discovery, a blueprint for proof at trial, and an aid in the formulation of jury instructions.
Such elements also ensure that a complaint is properly drafted and answered.
And so, without further ado, I'll start my next blog with the elements of negligence claims in Nevada with special attention to fact scenarios that the Nevada Supreme Court has discussed in this context.
The elements of a negligence claim in Nevada are as follows:
1. Defendant owed a duty of care to plaintiff;
2. Defendant breached that duty;
3. The breach was the legal cause of plaintiff's injuries; and,
4. Plaintiff suffered damages.
Scialabba v. Brandise Construction Co., 112 Nev. 965, 921 P.2d 928 (1996).
The Nevada Supreme Court has dealt with and discussed many fact situations in which negligence was at issue. Here are selections from some of those cases:
Tangible, physical injury must occur during policy period for coverage to be triggered, and insured's allegedly negligent welding of support structure for sign and modifications of bolts were not "property damage" during policy period. United National Ins. Co. v. Frontier Ins. Co., Inc., 99 P.3d 1153 (2004).
A joint tortfeasor seeking to perfect a contribution claim in the context of a settlement must first extinguish the liabilities of the other joint tortfeasors against whom contribution recovery is sought. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
A tortfeasor seeking to perfect an implied indemnity claim in the context of a settlement is not required to extinguish the liabilities of joint tortfeasors against whom indemnity recovery is sought. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
Any joint tortfeasor in a multi-defendant tort action may obtain protection from claims of contribution and implied indemnity by settling with the tort claimant in good faith under NRS 17.245. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
The district court's discretion in determining the good or bad faith of a particular settlement is not talismanic, but rather, must be exercised based upon a myriad of considerations. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
The remedies of contribution and implied, i.e., noncontractual indemnity allow parties extinguishing tort liabilities by way of settlement or payment of judgments to seek recovery from other potential tortfeasors under equitable principles. Contribution is a creature of statute, while implied indemnity is generally a creation of the common law. Under the Nevada statutory formulation, the remedy of contribution allows one tortfeasor to extinguish joint liabilities through payment to the injured party, and then seek partial reimbursement from a joint tortfeasor for sums paid in excess of the settling or discharging tortfeasor's equitable share of the common liability. Generally stated, implied indemnity allows a complete shifting of responsibility to an "indemnity obligor" when the party seeking indemnity has extinguished its liabilities incurred as a result of the indemnity obligor's active fault. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
Under NRS 17.265, the provisions of the contribution statutory scheme do not impair rights of indemnity and, more particularly, where one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
A tortfeasor seeking to perfect a contribution claim through a prejudgment settlement process must pay an amount in excess of his equitable share of liability and must explicitly extinguish the liability of the joint tortfeasor from whom contribution is sought as part of the settlement. The substantive right to contribution is governed by a factual determination as to whether the payment has exceeded the settling party's equitable share of the common liability. A party seeking to perfect contribution as part of a settlement is not required to obtain a formal ruling that his settlement is in good faith. However, a tortfeasor seeking protection against claims of contribution by nonsettling tortfeasors should obtain a formal ruling that its settlement is made in good faith under NRS 17.245. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
A tortfeasor seeking to perfect an implied indemnity claim via settlement is not required to extinguish the liability of the indemnity defendant. This having been said, failure to extinguish the liability of the indemnity defendant leaves the claim in some jeopardy, given the possibility that the district court, as in this case, could approve a separate subsequent settlement between the claimant and the potential indemnity defendant. Accordingly, a settlement that extinguishes the liability of the indemnity plaintiff and the indemnity defendant preempts the statutory protection provided under NRS 17.245 for an indemnity defendant who attempts to settle with the underlying plaintiff at a later time. A tortfeasor seeking to perfect an implied indemnity claim as part of a settlement is not required to obtain a formal ruling that the settlement is in good faith unless he wishes protection from implied indemnity claims against him. And a tortfeasor seeking a unilateral settlement and protection against claims of implied indemnity by nonsettling tortfeasors should obtain a formal ruling that its settlement is made in good faith under NRS 17.245. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
Good-faith determinations are governed by a myriad of considerations, including the liability permutations arising from the merits of the contribution and indemnity claims. A settling defendant seeking protection from contribution and implied indemnity claims has the burden of proving that the settlement was in good faith. Relief in contribution and implied indemnity is unavailable to the extent those claims arise from the intentional or punitive liability of the party seeking such relief. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).
Statute requiring claims against dissolved corporations to be filed within two years after dissolution did not apply to claims arising after the dissolution, and homeowners' claims did not arise until the alleged defects were, or should have been, discovered. Beazer Homes Nevada, Inc. v. Eighth Judicial Dist. Court ex rel. County of Clark, 97 P.3d 1132 (2004).
Arbitrator did not manifestly disregard the law by failing to apply spoliation presumption in favor of motorcyclist when truck owner and truck driver lost or destroyed accident-scene photographs. Bohlmann v. Byron John Printz and Ash, Inc., 120 Nev. 543, 96 P.3d 1155 (2004).
Under the specific terms of this policy, an insured's alleged negligent supervision of an adult son who commits statutory sexual seduction is not a covered occurrence, and the intentional-acts and child-molestation exclusionary language is not ambiguous. Fire Ins. Exchange v. Cornell, 120, Nev. 303, 90 P.3d 978 (2004)
A negligence claim can be alleged in a construction defects cause of action initiated under Chapter 40. Olson v. Richard, 120 Nev. 240, 89 P.3d 31 (2004).
An apartment owner was negligent in failing to warn a resident about a drop-off between the landscaping and the parking areas. The statutes of repose do not obviate the duty of owners and occupiers to maintain their property free of hazards. Davenport v. Comstock Hills-Reno, 118 Nev. 389, 46 P.3d 62 (2002).
A restaurant owed a duty towards an intoxicated invitee to act reasonably, but the restaurant had no duty to administer the Heimlich maneuver to invitee. Lee v. GNLV Corp., 22 P.3d 209, 212, 117 Nev. 291 (2001).
Hotel did not have duty to pedestrian who slipped and fell on icy sidewalk to keep sidewalk in reasonably safe condition, as there was no special use of sidewalk by hotel that created hazard beyond normal atmospheric conditions; there was no evidence that use of sidewalk by hotel or its customers caused dangerous condition, that hotel did anything itself to increase pedestrian's risk of harm, or that condition that caused fall was consequence of unnatural accumulation of ice or snow caused by traffic pattern of other guests between hotel and curb. Wiseman v. Hallahan, 113 Nev. 1266, 945 P.2d 945 (1997).
In the situation where a property owner hires security personnel to protect his premises and patrons, that property owner has a personal and nondelegable duty to provide responsible security personnel. Therefore, for purposes of respondeat superiority liability, security personnel are the employees of the property owner as a matter of law, even if the property owner engaged a third party to hire the security personnel. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996).
NRS 651.010, which limits liability of innkeepers for damage to their guests' personal property, does not extend to the valet parking area of the innkeeper. NRS 651.010; Tienda v. Holiday Casino, Inc., 109 Nev. 507, 853 P.2d 106 (1993).
The Good Samaritan statute does not cover emergency situations involving uninjured, healthy persons. NRS 41.500; Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).
In view of the comparative negligence statute, a social "drinking club" and its members could be liable for the death of an initiate during his initiation to the club even though the doctrine of "last clear chance" was rendered inappropriate by such statute. Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979).
Thanks to all my readers who have waited a week or two while I stepped away from blogging to finish the four books that I've been working on for a number of years.
I have always felt that the highest purpose of legal blogs is to educate legal consumers. Therefore, I plan to utilize materials from my books in my blogs starting today with extended and in-depth information on the law of negligence in Nevada extracted from the Second Edition of my first legal book (originally published in 1999 and completely updated in 2006), Elements of Nevada Legal Theories.
I believe that this sort of in-depth tailored legal research is not available anywhere else on the Internet. Please do not hesitate to let me know if you find this type of information useful.
You live in Arizona. You're driving in Nevada. You hit something in the road and your car flips. You're seriously injured and you sue the auto manufacturer (a Deleware company) and the car dealer (an Arizona company). Does Nevada law govern the case or Arizona law?
The Nevada Supreme Court clarifed this issue in General Motors Corp. v. Dist. Ct. 122 Nev. Adv. Op. No. 41(2006), a decision published a few weeks ago.
The Court overturned previous law and applied the Second Restatement of Conflict of Laws, section 145.
The Court stated that the Second Restatement's most significant relationship test begins with a general principle
that: the rights and liabilities of parties with respect to an issue in tort are governed by the local law of the state that, "with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in section 6." Section 6 identifies the following principles:
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
These principles are not intended to be exclusive and no one principle is weighed more heavily than another.]
Upon this basis, the Court held that in a scenario such as that presented above, Nevada law would apply against the manufacturer and Arizona law would apply against the seller.
A lot of litigants (and attorneys, too) might be surprised to find out that a private binding arbitration award can still be appealed. The Nevada Supreme Court discusses this issue in a new case, Clark Cty. Educ. Ass'n v. Clark Cty. Sch. Dist., 122 Nev. Adv. Op. No. 30 (2006).
There, the Court clarifies the common-law grounds available for a court to review a private arbitration award. The Court had previously recognized that a private arbitration award may be reviewed under two common-law grounds: (1) the award is arbitrary, capricious, or unsupported by the arbitration agreement; or (2) the arbitrator manifestly disregarded the law. Under the first ground, the Court clarifies that the reviewing court may only concern itself with the arbitrator's findings and whether they are supported by substantial evidence or whether the subject matter of the arbitration is within the arbitration agreement. Under the second ground, the Court concludes that the reviewing court may only concern itself with whether the arbitrator knew of the law and, if so, consciously disregarded it, not whether the private arbitrator's interpretation of the law was correct.
Binding arbitration is not always the final step that many think it is.
I've handled a lot of cases that involve Nevada and its political subdivisions. Many entailed serious injuries. Some, for instance, involved sexual assaults by health care professionals and teachers on patients and students. All had one thing in common: Nevada "immunity" caps.
There are special laws that govern lawsuits against Nevada and its political subdivisions. These laws, and the Nevada Supreme Court cases that have interpreted these laws, eliminate an injured party's ability to sue in certain cases and limit potential damage awards in those cases in which lawsuits are allowed.
Nevada law provides that parties that prevail against the state or one of its subdivisions may recover a maximum of $50,000.00 per claim. This law is complex, however, and many exceptions exist and continue to develop.
If you have an injury claim against Nevada or one of its poltical subdivisions, you should consult an attorney to evaluate how Nevada's immunity caps apply to your situation.
Ever wonder when you as a parent become liable for an accidents or intentional injuries caused by your child?
Nevada law addresses this in two statutes:
First, NRS 41.470 provides:
1. Except as otherwise provided in NRS 424.085, any act of willful misconduct of a minor which results in any injury or death to another person or injury to the private property of another or to public property is imputed to the parents or guardian having custody and control of the minor for all purposes of civil damages, and the parents or guardian having custody or control are jointly and severally liable with the minor for all damages resulting from the willful misconduct.
2. The joint and several liability of one or both parents or guardian having custody or control of a minor under this section must not exceed $10,000 for any such act of willful misconduct of the minor.
3. The liability imposed by this section is in addition to any other liability imposed by law.
Next, NRS 41.472 adds:
1. If a parent, guardian or other person legally responsible for a minor under the age of 18 years:
(a) Knows that the minor has previously been adjudicated delinquent or has been convicted of a criminal offense;
(b) Knows that the minor has a propensity to commit violent acts; or
(c) Knows or has reason to know that the minor intends to use the firearm for unlawful purposes,
and permits the minor to use or possess a firearm, any negligence or willful misconduct of the minor in connection with such use or possession is imputed to the person who permits such use or possession for all purposes of civil damages, and, notwithstanding the provisions of subsection 2 of NRS 41.470, that person is jointly and severally liable with the minor for any and all damages caused by such negligence or willful misconduct.
2. As used in this section, "firearm" has the meaning ascribed to it in NRS 202.253.
As I indicated a blog or two ago, cases that are appealed from arbitration or fail in mediation may proceed into Nevada's Short Trial Program. Here's an overview of that program:
-A presiding judge is appointed and hears all motions.
-The parties exchange document and witness lists and meet for a pretrial conference to chart out the course of the case.
-The case is calendared and set for trial to commence not later than 120 days from the date the judge was assigned.
-Parties may quote from depositions rather than call witnesses, and other evidentiary rules are relaxed.
-Expert witnesses may be used but the use of live expert testimony is discouraged.
-A jury of 4 to 6 members is chosen.
-A judgment may not exceed $40,000.00 per plaintiff.
-Diehard parties may appeal a case within the Short Trial Program directly to the Nevada Supreme Court.
I'll discuss incentives and financial risks built into Nevada's ADR system in my next blog or two.
The Nevada judicial system has continued to refine its attempt to route smaller cases (generally those with a value of under $40,000) away from district court jury trials and through a series of alternative dispute resolution programs.
In Washoe County, Nevada, there are two basic choices in cases of this nature.
First, parties can proceed through arbitration. In this form of alternative dispute resolution, the parties each strike two names from a list of five arbitrators and an arbitrator is chosen and sets the basic rules for discovery and an arbitration hearing. Evidentiary rules are often highly relaxed and most arbitrations take less than half a day. Also, arbitration hearings occur faster than trials, with most completed within six to eight months of filing a complaint.
The parties present their cases at the arbitration hearing and the arbitrator hears evidence and makes an award to the prevailing party.
Parties may also opt intially to proceed through a structured mediation program. Mediation, unlike arbitration, is a process in which a decision is not made by a third party. Rather, an appointed mediator works with the parties (who are usually in separate rooms) and attempts to bring them together to a mutually acceptable (or mutually unacceptable) resolution.
If a party is dissatisfied with an arbitration result, or if mediation fails to bring the parties together, litigants can opt to then proceed into Nevada's Short Trial program. More on this next blog.
Punitive damages are meant to punish intentional or exceptionally stupid (my term, not the legislature's) conduct.
Punitive damages are available in Nevada auto accident cases under certain limited circumstances. NRS 42.010 provides as follows:
42.010. Exemplary and punitive damages: Injury caused by operation of vehicle after consumption of alcohol or controlled substance
1. In an action for the breach of an obligation, where the defendant caused an injury by the operation of a motor vehicle in violation of NRS 484.379 or 484.3795 after willfully consuming or using alcohol or another substance, knowing that he would thereafter operate the motor vehicle, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant.
2. The provisions of NRS 42.005 do not apply to any cause of action brought pursuant to this section.
Nevada laws recognize that insurers owe special duties to their insureds and protections are set forth, both in Nevada statutes and in Nevada regulations, to protect insureds from their insurance companies. Nevada law allows for punitive damages to be awarded against an insurer that breaches certain obligations to its insured.
While numerous claims against an insurance company are possible in any given case, Nevada's "bad faith" claim (which is actually called a "breach of the implied covenant of good faith and fair dealing" claim) requires proof of the following elements:
-Plaintiff and defendant entered into a contract;
-Defendant owed a duy of good faith to plaintiff arising from the contract;
-There was a special element of reliance or a fiduciary duty between plaintiff and defendant where defendant was in a superior or entrusted position;
-Defendant breached his duty by engaging in misconduct; and,
-Plaintiff suffered damages as a result of the breach.
An insurance company acts in bad faith when it wrongfully denies coverage to an insured. An insurance policy is considered a contract between you and your insurance carrier. This contract requires that your insurer act in "good faith" toward you.
Insurers frequently attempt to deny claims for any reason they can. Also, even when an insurer acknowledges that a claim or lawsuit is covered by the insurance policy, it often attempts to underpay a claim. To prove bad faith, the insured needs to show that the insurer failed to honor the contract and had no cause not to pay what was due.
Insurers have a duty to deal fairly with insureds. Every insurance contract contains an unwritten covenant or promise of good faith imposed by law upon an insurer to always act fairly toward its insureds in handling their claims.
There are many examples of how an insurer can commit bad faith. These include: failing to promptly and thoroughly investigate a claim; unreasonably delaying payment; unreasonably denying benefits; using unreasonable interpretations in translating policy language; refusing to settle a claim or reimburse you for the entirety of your loss, etc.
Insureds should immediately notify their agents of claims and review their insurance policy as it relates to the claim. Document all events, notes and all contacts and communications made, whether written or verbal, with the insurer. Keep track of the dates and times of communications and the identities of those with whom you spoke.
If you feel like your insurance company has treated you unfairly, please feel free to call or email me and I'll be happy to discuss your case.
I am an injury lawyer. Areas of law overlap, though, and I try to make it a habit to understand, generally, employment law in Nevada.
Nevada has always been an employer-oriented state in the view of the Nevada Supreme Court. This held true once again in a noteworthy case that arose from a disgruntled professor's denial of tenure.
There, the Court held that tenure is a multidimensional, subjective, decision-making process where numerous traits and work habits of a professor are considered. The Court went on to say that the University of Nevada, Reno's denial of tenure was discretionary under the contract and not a breach of contract. Faculty appointment at the university level, said the Court, is an area poorly suited for judicial supervision, and thus one where judicial restraint must be exercised. This judicial reluctance to intrude upon university decisions is imbedded in the deeply rooted principles of academic freedom. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. University of Nevada, Reno v. Stacey, 116 Nev. 428, 997 P.2d 812 (2000).
This case makes clear that professors need to think twice before challenging tenure decisions in Nevada.
Although medical malpractice is really a form of negligence, it must be proven through the use of expert witnesses. Doctors are usually needed to evaluate cases and to testify against other doctors. Similarly, nurses are frequently required to testify against other nurses. Defense lawyers hire their own experts in an effort to defeat the plaintiff's case. In medical malpractice trials, the jury is usually left to decide which side's experts offered a more credible explanation of a health care provider's conduct and whether such conduct fell below the standard of care required under the circumstances. It is a frightening aspect of modern medicine that lawyers for both sides can generally find well-credentialed doctors to support their positions.
Relatively recent changes to Nevada's medical malpractice statutes now require that all medical malpractice cases filed in Nevada's courts contain an expert affidavit.
Nevada statute NRS 41A.071 provides:
Dismissal of action filed without affidavit of medical expert supporting allegations. If an action for medical malpractice or dental malpractice is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the allegations contained in the action, submitted by a
medical expert who practices or has practiced in an area that is substantially similar to the type of practice
What this means, in effect, is that victims of malpractice must find an expert witness before a case is first filed. The defense, by contrast, is not required to submit an affidavit with their answer.
Nevada medical malpractice plaintiffs are at a significant disadvantage from the start of a case: first, because our new one-year statute of limitations (thanks to the insurance and medical industry lobbies) makes it extremely difficult to gather records and gain a review in this length of time; and second, because plaintiffs divulge a great deal about their case from the start while defendants can wait until close to trial to reveal their expert theories.
Nevada's 2004 ballot initiative, concieved and created by the U.S. medical malpractice insurance lobby, and naively passed by Nevada's voters (who thought that they were voting to "keep doctors from moving out of Nevada"),contains a new one-year statute of limitations that severely curtails the rights of Nevada's medical malpractice victims.
Nevada statute 41A.097 provides:
1. Except as otherwise provided in subsection 3, an action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for:
(a) Injury to or the wrongful death of a person occurring before October 1, 2002, based upon alleged professional negligence of the provider of health care;
(b) Injury to or the wrongful death of a person occurring before October 1, 2002, from professional services rendered without consent; or
(c) Injury to or the wrongful death of a person occurring before October 1, 2002, from error or omission in practice by the provider of health care.
2. Except as otherwise provided in subsection 3, an action for injury or death against a provider of health care may not be commenced more than 3 years after the date of injury or 1 year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for:
(a) Injury to or the wrongful death of a person occurring on or after October 1, 2002, based upon alleged professional negligence of the provider of health care;
(b) Injury to or the wrongful death of a person occurring on or after October 1, 2002, from professional services rendered without consent; or
(c) Injury to or the wrongful death of a person occurring on or after October 1, 2002, from error or omission in practice by the provider of health care.
3. This time limitation is tolled for any period during which the provider of health care has concealed any act, error or omission upon which the action is based and which is known or through the use of reasonable diligence should have been known to him.
4. For the purposes of this section, the parent, guardian or legal custodian of any minor child is responsible for exercising reasonable judgment in determining whether to prosecute any cause of action limited by subsection 1 or 2. If the parent, guardian or custodian fails to commence an action on behalf of that child within the prescribed period of limitations, the child may not bring an action based on the same alleged injury against any provider of health care upon the removal of his disability, except that in the case of:
(a) Brain damage or birth defect, the period of limitation is extended until the child attains 10 years of age.
(b) Sterility, the period of limitation is extended until 2 years after the child discovers the injury.
This statute, which purports to affect cases retroactively, will no doubt be the subject of legal challenges. In the meantime, Nevada's medical malpractice victims must act quickly to obtain counsel and have their cases evaluated. Delay is no longer an option.
There are numerous types of courts in Nevada, but injury cases are generally handled in the Nevada district court system.
Generally speaking, there are two phases to most cases: 1) the settlement phase, and 2) the litigation phase.
The litigation phase of a case can be divided into three distinct stages: 1) the complaint and answer stage, 2) the discovery stage, and 3) the trial stage.
This is the second of a series of articles that pertains to the stages of litigation in Nevada district courts cases. This article will focus on the discovery stage.
Discovery Stage
"Discovery" is the broad term used to characterize the various tools a lawyer can employ to gain information that may be valuable to the prosecution or the defense of a case.
In most cases, the parties must meet for the purpose of an early case conference within a certain period of time after an answer is filed. The parties must exchange, at this conference, lists of potential witnesses and lists of documents with copies of those documents. Often, a trial or arbitration date is established at the early case conference. Injured litigants should note that a hearing date is important to the progress of a case. Defense lawyers often wait until a case is close to arbitration or trial to make meaningful settlement offers.
After an early case conference other types of discovery are possible. These include:
- Depositions, at which witnesses are sworn and their testimony is recorded.
- Interrogatories, or written questions to the other side.
- Requests for production of documents to a party.
- Requests for party admissions.
- Requests to inspect or to test.
- Records subpeonas, to obtain records from nonparties.
Although most lawyers do not copy their clients with all of the discovery obtained in course of a case, clients should feel free to sit down and discuss the progress of discovery with their counsel. Cases are often won or lost in the discovery stage.
There are more than 75 statutes in Nevada that limit the manner in which a legal action may be brought. These are frequently known as "statutes of limitation" and often relate to the length of time that a party has to bring a claim under Nevada law. Claims that are not brought within applicable statutes of limitations may be subject to dismissal.
Nevada Revised Statute 11.190 governs statutes of limitation for a majority of legal actions brought within this state.
Those evaluating a claim to understand when it must be brought (generally the date by which the action must be filed in court) must be careful, however, since particular types of claims (medical malpractice, for instance) have statutes of limitations contained elsewhere in Nevada law.
NRS 11.190 provides:
NRS 11.190 Periods of limitation. Except as otherwise provided in NRS 125B.050 and 217.007, actions other than those for the recovery of real property, unless further limited by specific statute, may only be commenced as follows:
There are numerous types of courts in Nevada, but injury cases are generally handled in the Nevada district court system.
Generally speaking, there are two phases to most cases: 1) the settlement phase, and 2) the litigation phase.
The litigation phase of a case can be divided into three distinct stages: 1) the complaint and answer stage, 2) the discovery stage, and 3) the trial stage.
This is the first of a series of articles that pertain to the stages of litigation in Nevada district courts cases.
This article will discuss in broad terms the compaint and answer stage and future articles will deal with the discovery and trial stage.
Complaint and Answer Stage
Litigation starts when a complaint is filed. A complaint contains factual allegations against the other side and sets forth legal claims and a "prayer" for relief. Claims are made up of elements and a party must prove each and every element of a claim to prevail on that claim.
Different types of damages are available upon the proof of different claims. Exact damage amounts are not alleged in district court complaints; rather, general allegations usually allege an approximate damage amount.
Similarly, facts set forth in complaints do not need to be exhaustive. Nevada is a notice pleading jurisdiction, which means, basically, that complaints only need to contain enough information to give the other side notice of a party's claims.
Most defendants have 20 days to answer a complaint. An answer sets forth defenses (such as failure to adhere to the statute of limitations or failure to set forth the necessary elements of a claim) and may set forth counterclaims or claims against third parties.
Arbitration
In many parts of Nevada, complaints that reflect that the value of a case is under $40,000.00 must proceed through arbitration before a party is entitled to a bench or jury trial.
This is the first in a series of articles that deal with claims for sexual abuse under Nevada law.
Nevada has laws that protect victims of sexual molestation. Unfortunately, sexual molestation cases often arise in the home, in schools and colleges, at churches and in other environments in which one should be safe from such conduct.
Nevada recognizes that many individuals are molested when they are very young. In recent years a great deal of research has been done on the issue of repressed memory. Children and young adults may not remember being molested until late in their life. For this reason, Nevada statutes provide, at NRS 11.215, that young victims of sexual abuse have many years, under certain circumstances, to bring claims.
Nevada's "repressed memory" statute of limitations provides:
NRS 11.215 Â
1. Except as otherwise provided in NRS 217.007, an action to recover damages for an injury to a person arising from the sexual abuse of the plaintiff which occurred when the plaintiff was less than 18 years of age must be commenced within 10 years after the plaintiff:
(a) Reaches 18 years of age; or
(b) Discovers or reasonably should have discovered that his injury was caused by the sexual abuse, whichever occurs later.
2. As used in this section, "sexual abuse" has the meaning ascribed to it in NRS 432B.100.
Insurance Companies Often Act in Bad Faith
Nevada laws recognize that insurers owe special duties to their insureds and protections are set forth, both in Nevada statutes and in Nevada regulations, to protect insureds from their insurance companies. Nevada law allows for punitive damages to be awarded against an insurer that breaches certain obligations to its insured.
While numerous claims against an insurance company are possible in any given case, Nevada's "bad faith" claim (which is actually called a "breach of the implied covenant of good faith and fair dealing" claim) requires proof of
the following elements:
1. Plaintiff and defendant entered into a contract;
2. Defendant owed a duty of good faith to plaintiff arising from the contract;
3. There was a special element of reliance or a fiduciary duty between plaintiff and defendant where
defendant was in a superior or entrusted position;
4. Defendant breached duty of good faith by engaging in misconduct; and,
5. Plaintiff suffered damages as a result of the breach.
An insurance company acts in bad faith when it wrongfully denies coverage to an insured. An insurance policy is considered a contract between you and your insurance carrier. This contract requires that your insurer act in "good faith" toward you.
Insurers frequently attempt to deny claims for any reason they can. Also, even when an insurer acknowledges that a claim or lawsuit is covered by the insurance policy, it often attempts to underpay a claim. To prove bad faith, the insured needs to show that the insurer failed to honor the contract and had no cause not to pay what was due.
Insurers have a duty to deal fairly with insureds. Every insurance contract contains an unwritten covenant or promise of good faith imposed by law upon an insurer to always act fairly toward its insureds in handling their claims.
Examples Of Bad Faith
There are many examples of how an insurer can commit bad faith. These include: failing to promptly and thoroughly investigate a claim; unreasonably delaying payment; unreasonably denying benefits; using unreasonable interpretations in translating policy language; refusing to settle a claim or reimburse you for the entirety of your loss, etc.
Making Insurance Claims
Insureds should immediately notify their agents of claims and review their insurance policy as it relates to the claim. Document all events and all contacts and communications made, whether written or verbal, with the insurer. Keep track of the dates and times of communications and the identities of those with whom you spoke.
If you believe that your insurance company has acted in bad faith, contact an experienced attorney as early as possible.
|
 |
|