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the district court did not abuse its discretion when it first considered respondents' counterclaim for rescission and rescinded the parties' agreement.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 |