Handling Accident

This month’s blog is a follow up to our previous discussion of the Behr case, on what damages can be awarded to an injured party at trial. As readers may recall from last month’s blog post, the Behr case dealt with an alleged brain injury following a car accident. See the unpublished opinion from the Nevada Court of Appeals. Behr v. Diamond , No. 66612 (Nev. App., 2015).   The Behr court determined that a claim for future pain and suffering on subjective injuries must be supported by expert testimony. Expert testimony is needed to establish that "[F]uture pain and suffering is a probable consequence rather than a mere possibility." Lerner Shops of Nev., Inc. v. Marin , 83 Nev. 75, 79-80, 423 P.2d 398, 401 (1967).  A subjective disability was defined as one that was not visible to others. Common examples of subjective injuries were: headaches and low-back pain, as well as mental worry and distress. See Gutierrez v. Sutton Vending Serv., Inc., 80 Nev. 562, 566, 397 P....

You cause a car accident and get sued. Now what? Part of having car insurance means your insurance company has to hire a lawyer to defend you in lawsuits. What happens if your insurance company thinks you didn’t have coverage for the acts alleged against you? Your insurance company can write a “reservation of rights” letter, saying that they will hire a lawyer to represent you. But if it turns out that you acted intentionally or did something else that is “excluded” under your policy, your insurance company will not have to pay any damages. This issue came up after a rowdy house party in Las Vegas. See State Farm Mutual Insurance Company v. Hansen, 131 Nev.Ad.Op. 74 (2015). In the Hansen case, Stephen Hansen went to a house party. When things got out of control, Stephen tried to leave. To keep Stephen and the fight going, some of the party guests tried to prevent Stephen from leaving the party. Eventually Stephen drove off. But, as luck would have it, the party was in a gated communi...

We have all seen the orange cones around the city as new freeway construction continues in the Las Vegas Valley. As part of that process, the City of North Las Vegas wanted to take some land to expand the 215. Although it involved the government’s forced sale of private property, eminent domain, the recent case involving the City of North Las Vegas discusses when pre-judgment interest starts on cases. See City of NLV v. 5th & Centennial, LLC 130 Nev.Ad.Op. 66 (August 7, 2014).  Although it dealt with real property, this case might have applications on personal injury cases.   In the City of North Las Vegas case, the trial court calculated pre-judgment interest from the time the lawsuit (Complaint and Summons) documents were served on the City. However, the property owner asserted that interest should start when the acts complained of took place. The Nevada Supreme Court agreed with the complaining party and held: “prejudgment interest should be calculated from the date o...

In a Las Vegas slip and fall case, a property owner is only liable for your injuries if there were on notice of the dangerous condition which caused your fall. Your Las Vegas Personal Injury Attorney therefore has to prove that the owner was on “notice” of the dangerous condition. How is this done? The best way of showing this, is by finding evidence of prior similar falls. This evidence is required, because your Las Vegas Personal Injury Lawyer has to show that the at fault party “knew or should have know” that what caused you to fall, was a known hazard. One would think that the property owner would simply turn this evidence over. However, in your Las Vegas Personal Injury Attorney’s experience, the at fault parties fight tooth and nail before turning over any of this potentially damning evidence. What this means, is that your Las Vegas Personal Injury Attorney has to fight in court, to get a copy of this evidence. The good news, is that your Las Vegas Personal Injury Attorney has b...

The Nevada high court recently changed the way Las Vegas Personal Injury Lawyers conduct their trials in Nevada. In the past, each judge had different rules when it came time to picking a jury in personal injury trials. This meant different results, based upon which judge you had for your case. Considering there are over 20 different trial judges in Las Vegas, this was like spinning the roulette wheel of judges! In a recent case, the Nevada Supreme Court made two major announcements in personal injury trials. See Khoury v. Seastrand. 132 Nev. Ad. Op. 52 (2016). The first ruling by the high court, is that specific dollar amounts CAN be used during jury selection to uncover potential bias regarding verdict amounts. Las Vegas Personal Injury Lawyers were sometimes blocked in ferreting out biased jurors. If your Lawyer wants to strike a potential juror because they don’t believe in people making claims for injuries, they can now put out hypothetical numbers and see if jurors have a person...

Today’s blog deals with the issue of whether a “physical” injury is needed to make a personal injury claim. While at first blush, this may seem like a silly question, the answer may surprise you. Your Las Vegas Personal Injury Lawyer will tell you that a “physical” injury is not always necessary in asserting a Las Vegas personal injury claim. A recent decision from our state’s high court explores this issue.  You may remember the outbreak of hepatitis C that struck the Las Vegas Valley a few years ago, when a medical facility was accused of re-using syringes and vials. This was the Sadler v. Pacificare of Nev., Inc. ,130 Nev. Ad. Op. 98 (2014). To make things easier, we’ll just call it the “Hepatitis C” case. In the Hepatitis C case, patients who had been treated at the medical facility were scared that they may have been exposed to hepatitis C. Through their Las Vegas Personal Injury Lawyer, they wanted the at fault medical facility to pay for their diagnostic testing and monit...

Today’s blog deals with the worker’s compensation platform and how that may affect your personal injury case. Let’s take an example that you are driving for a work related errand. While you are stopped for a red light, you are violently rear-ended by an inattentive driver. Due to the negligence of the at fault driver, you seek immediate medical attention. As a result of your injuries, you also miss time from work and have to get additional follow up medical care.  Since you were working at the time of the accident, you can make two claims. One claim would be for worker’s compensation benefits, to pay for your accident related medical care. The other claim would be against the at fault driver and their insurance. The claim against the at fault party can be for more than just getting your medical bills paid and instead can be for pain and suffering and other damages.  It is important to note that the worker’s compensation program gets a credit for any monies the at fault third ...

Health insurance may affect your personal injury case in ways that you may have not considered. Nowadays almost everyone has health insurance, since it is required by law. However, if your health insurance paid for some of your accident related medical treatment, it is entitled to get paid back for that advance payment. What does this mean? If you settle your personal injury claim, your health insurance gets paid off the top before anyone else gets paid, including you.   Not only is your personal injury attorney required to pay your health insurance for your accident related medical treatment, the health insurance company must be paid first, before anything else is paid. There are a few legal issues that come into play, which are set forth here: The “common fund” doctrine is an equitable doctrine that arises where a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to reasonable attorney’s fee from the fund as ...

If you are injured at a casino, due to the intentional act of an employee, is the casino liable? The answer is yes, in Nevada, if a jury finds the act was “reasonably foreseeable”. In a recent case, Mandalay Bay was sued, when a woman was assaulted in her hotel room by a hotel employee. See Anderson v. Mandalay Corp., 131 Nev.Ad.Op. 82 (2015).  In that case, a female hotel guest was asleep in her Mandalay Bay hotel room.  While she was sleeping, an employee, with hotel room keycard access, entered her room and sexually assaulted her. What makes this case so egregious, is that the employee had a history of bad behavior and Mandalay Bay still gave him access to guestrooms.   The Nevada high court said that employers are vicariously liable for employees’ intentional harms if the injured person can show the intentional conduct was “reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of [the employee’s] employment.” NRS 41...

What happens in a Court case, when the other side wants to introduce irrelevant evidence into a trial? Your accident attorney will file what is called a “Motion in Limine”. In a Motion in Limine, your attorney will outline every irrelevant fact or argument the other side may make at trial, and ask the Court to rule, before the trial starts, to not allow this irrelevant evidence into the trial. Examples could be prior unrelated accidents, criminal arrests and improper arguments to the jury.   The applicable Nevada state law on this issue is Nevada Revised Statute (“NRS”)48.035. NRS 48.035(2) states that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” When preparing a Motion in Limine, NRS 48.035 is often cited.   Motions in Limine are designed to see...

When you are involved in a car accident in Las Vegas, you may have missed work and lost income due to the injuries you sustained in the accident.  Sometimes people think that they can just tell the at-fault party’s insurance company the amount of their lost wages. However, the insurance company will not accept this self-reporting of lost income. Instead, the insurance companies require written documentation of any lost wages sustained by an injured person. The best evidence of lost wages comes from your own human resources department. First, you need your employer’s human resources department to draft a letter on your employer’s letterhead regarding your lost wages. Secondly, this company letter should have your hourly rate of pay, together with the number of hours of work you lost, due to the accident. It is important that your doctor has given you an ‘off work’ slip, which you took to your employer, documenting that you were under doctor’s orders not to work, during the period of...

In most car accident cases, the liability of the at-fault driver is clear. If you are stopped at a red light and a drunk driver crashes into the back of your car, then everyone will generally agree that the drunk driver was 100% at fault for the accident. However, not every personal injury case in Nevada is that straightforward. In cases where the other side might argue that you, as the injured person, were at fault, we apply “comparative negligence” law in Las Vegas personal injury cases. “Comparative negligence” law  in Nevada means, that the jury will “compare” and assign fault percentages to both the injured and at-fault parties. Nevada courts have held that “the purpose of the comparative negligence statute [is] to eradicate the harsh effect of a plaintiff's contributory negligence whenever such negligence is not greater than that of the source against which recovery is sought.” Mizushima v. Sunset Ranch, 103 Nev. 259, (1987).   The applicable statute is NRS §41.14...

Today’s blog discusses what is ‘spoliation of evidence’ and how can it affect your Las Vegas personal injury case. Spoliation of evidence, is when a person or company losses evidence in a personal injury case. The most common example of spoliation of evidence, is when a company losses the videotape of a person’s fall.  Nevada law provides that when a potential for a personal injury claim exists, a party ‘is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.’ Banks v. Sunrise Hospital, 102 P.3d 52, 58 (Nev. 2004) (quoting Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 914 (1987).  Even if a lawsuit has not yet been filed and if there is only “a potential for litigation [lawsuit],” the duty to preserve evidence arises.  Nevada law holds that should the at-fault party be unable to produce the videotape, then the injured party is entitled to a ‘loss of evidence’ jury instruction. The jury is in...

We have all experienced taking a trip or doing an activity, where you are required to sign a waiver before participating in the activity. Normally, we sign the waivers because we do not think anything bad will actually happen. But, what happens if you are injured in an activity after you sign a waiver? Whether the waiver will bar you from making a claim will depending on the unique facts of your case. It will be up to the judge in your case, to determine if you can present your personal injury case to a jury.  Historically, in Nevada there first must have been voluntary exposure to the danger. Sierra Pacific v. Anderson, 77 Nev. 68, at 71-73, 358 P.2d 892, at 894 (1961). Second, there must have been actual knowledge of the risk assumed. The Nevada High Court previously stated that “A risk can be said to have been voluntarily assumed by a person only if it was known to him and he fully appreciated the danger.” Id. , quoting Papagni v. Purdue, 74 Nev. 32, 35, 321 P.2d 252, 253 (195...

Sometimes people make mistakes. Sometimes these mistakes result in criminal convictions. If a person has a criminal conviction and they are making personal injury claim, that criminal conviction may be brought up by the at-fault party during trial. The law on this is set forth in NRS §50.095.  NRS §50.095 provides in full:   NRS 50.095 Impeachment by evidence of conviction of crime.        1.  For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is admissible, but only if the crime was punishable by death or imprisonment for more than 1 year under the law under which the witness was convicted.         2.  Evidence of a conviction is inadmissible under this section if a period of more than 10 years has elapsed since:       (a) The date of the release of the witness from confinement; or       (b) The expiration of...

In today’s blog we will be discussing what happens if you loan your car out to a friend and they cause a car accident . Whether you are liable for the resulting damages or injuries they cause is determined on a case by case basis. If you loaned your car out to a friend, who had a perfect driving record and gave you no other cause for concern, you will likely not be held liable for the damages they cause.   However, if you knew your friend had been in multiple car accidents or was intoxicated when you gave them your keys, you will likely be held financially responsible for their actions. This type of liability, is called “negligent entrustment”.  It essentially means that you were negligent in giving someone else permission to drive your car.   To make a successful claim of negligent entrustment, the injured party must allege four elements. Those elements are (1) the owner of the car owed a duty of care to the injured party; (2) the car owner breached that duty of care to ...

Las Vegas has one of the highest accident rates in the western states. If you are a parent and your teenager is preparing to get their driver’s license, you may have more to be concerned about besides their safety on our roads. If you buy your teenager a car and are the legal owner of that car, special responsibilities come with that arrangement. In Nevada, as a parent owning a car that their teenager is involved in a car accident , means the parent can be held liable for any property damage or personal injuries that their minor child causes. This is called the “Family Purpose Doctrine” and is set forth in NRS 41.440: LIABILITY OF OWNER OF MOTOR VEHICLE FOR NEGLIGENT OPERATION BY IMMEDIATE MEMBER OF FAMILY NRS §41.440. Imposition of liability. Any liability imposed upon a wife, husband, son, daughter, father, mother, brother, sister or other immediate member of a family arising out of his or her driving and operating a motor vehicle with the permission, express or implied, of such own...

Most personal injury cases are filed in State Court. However, there are times when the at-fault party (aka ‘defendant”) may attempt to transfer (in legal terms “remove”) the case from State Court to Federal Court.  State court generally assumes that one or both parties to the action, are residents of the state in which they are being sued. However, if the at-fault/defendant is not a resident or does not do business in Nevada (if it is an insurance company), the defendant can seek to have the case transferred to Federal Court. When the defendant is not a Nevada resident or business, then the Federal removal is based upon “Diversity Jurisdiction”.  However, the case has to have a value of more than $75,000.00. This is generally called the “amount in controversy”. Relevant case law says that Diversity Jurisdiction exists only "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs ... " (formerly $50,000). 28 USC§ 1332(a); See Arbau...

The disclosure of damages in Nevada injury cases is mandated by our Nevada Rules of Civil Procedure. Specifically, Rule 16.1 (a)(1)(c) requires that once litigation is ongoing, your personal injury lawyer is required to disclose all of your damages. When does this happen? After an Answer to the Complaint (lawsuit) is filed, then your injury attorney and the other side, will personally meet for an Early Case Conference, to agree on discovery dates and discuss your case. At this Early Case Conference or within 14 days thereafter, your accident attorney will disclose your damages to the other side. There is a continuing obligation to update your computation of damages, so the other side has this information well before any trial date is set.   What do your “damages” consist of in your case? Your damages would be your past and future medical bills, lost wages and any loss you sustained as result of the accident. These are called your “special” damages. Your attorney will also ...

When you need to disclose expert witnesses in Las Vegas injury cases, the first place to look is Nevada Rules of Civil Procedure, (usually shortened to “NRCP”) Rule 16.1.  Rule 16.1 provides in part: RULE 16.1.  MANDATORY PRETRIAL DISCOVERY REQUIREMENTS (a) Required Disclosures.  (2) Disclosure of Expert Testimony.                    (A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under NRS 50.275, 50.285 and 50.305.                    (B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly in...