Recent Blog Posts in June 2006

At the same time, though, we live in an amazing age. Medicine, prior to the internet, was once the exclusive province of doctors. Now, virtually all aspects of medicine may be researched and understood by anyone.

Thus, while bringing medical malpractice suits is more arduous than ever, prevailing on basic liability issues is aided by an attorney's access to unlimited medical data. This allows counsel to understand and explain complex medical concepts to juries in ways never before imagined.

If your medical malpractice attorney is not using the internet, you may want to question why. A case can now be made that attorneys and doctors who do not use the internet as an important basis for research are themselves flirting with malpractice.

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).

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).

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.

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).