Recent Blog Posts in October 2010

Remember to stay safe and alert this holiday weekend as you celebrate Nevada Day and Halloween. The National Highway Traffic Safety Administration reports that almost 5,000 people in the United States died in crashes during the Halloween time period from 1996-2005.

The FDA offers the following tips for a safe Halloween and holiday weekend.

Safe Costumes:
1. Wear costumes made of fire-retardant materials5; look for "flame resistant" on the label. If you make your costume, use flame-resistant fabrics such as polyester or nylon.
2. Wear bright, reflective costumes or add strips of reflective tape so you'll be more visible; make sure the costumes aren't so long that you're in danger of tripping.
3. Wear makeup and hats rather than masks that can obscure your vision.
4. Test the makeup you plan to use by putting a small amount on your arm a couple of days in advance. If you get a rash, redness, swelling, or other signs of irritation where you applied it, that's a sign you may be allergic to it.
5. Check FDA's list of color additives6 to see if additives in your makeup are FDA approved. If they aren't approved for their intended use, don't use it.
6. Don't wear decorative contact lenses unless you have seen an eye care professional and gotten a proper lens fitting and instructions for using the lenses.

Safe Treats

7. Don't eat candy until it has been inspected at home.
8. Trick-or-treaters should eat a snack before heading out, so they won't be tempted to nibble on treats that haven't been inspected.
9. Tell children not to accept--or eat--anything that isn't commercially wrapped.
10. Parents of very young children should remove any choking hazards such as gum, peanuts, hard candies, or small toys.
11. Inspect commercially wrapped treats for signs of tampering, such as an unusual appearance or discoloration, tiny pinholes, or tears in wrappers. Throw away anything that looks suspicious.

The Nevada workers' compensation scheme is contained in the Nevada Industrial Insurance Act ("NIIA"). To recover for injuries under the NIIA, an employee must have been injured in the course of her employment, and the injury must have arisen out of her employment. The meaning and scope of these requirements has been subject to much litigation.

In Rio All Suite Hotel & Casino v. Phillips, 126 Nev. Adv. Op. No. 34 (September 30, 2010), the Nevada Supreme Court addressed the requirement that injuries "arise out of" employment. The Court adopted an "increased risk" test to determine whether certain injuries arise out of employment. While clarifying the law, the decision unfortunately limits coverage for injured Nevada employees.

In Rio, the Court explained that there are three types of risks: employment-related risks, entirely personal risks, and neutral risks. Employment-related risks are risks specific to the particular job, and are generally considered to arise out of employment. Entirely personal risks, on the other hand, are risks associated with an individual's personal condition or health.

The Rio Court dealt specifically with neutral risks, which are neither entirely employment related nor personal. The Court noted that falling down the stairs for an unknown reason, or for no reason, could be a neutral risk. After analyzing different tests used in other jurisdictions to deal with neutral risks, the Court adopted the "increased risk" test. This test asks whether the employment exposed the claimant to a risk greater than that which the general public was exposed. The increase does not have to be qualitative; it can be quantitative. The Court stated that if an employee is required to use the stairs more frequently than the general public, that is an increased risk. In Rio, because the employee had to use a certain flight of stairs to take her mandatory breaks, the court held that her injury, caused by a twisted ankle while using those stairs, arose out of employment.

The Court rejected the actual-risk test or the positional-risk test, used in other jurisdictions. The actual-risk test allows recovery "when the employer subjects the worker to the very risk that injures him." The positional-risk test asks "whether the claimant would have been injured 'but for the fact that the conditions and obligations of the employment placed the claimant in the position where he was injured.'" These tests favor recovery in more circumstances than the increased-risk test.

The Court stated that the increased-risk test "strikes an adequate balance between the employee's right to receive compensation for a work-related injury and the employer's right not to be held liable for every injury suffered by an employee in the workplace." However, the limitations that this test will place on employees' ability to recover may prove that this test does not strike an appropriate balance, and employees will not receive compensation for injuries incurred while on the job.

In general, employers are not vicariously liable for the acts of independent contractors. However, an exception exists where an absolute nondelegable duty is imposed. If an absolute nondelegable duty were to exist in Nevada, a hospital would remain primarily responsible for negligence of independent contractor doctors.

In Renown Health v. Vanderford, 126 Nev. Adv. Op. No. 24 (July 1, 2010), the Nevada Supreme Court declined to impose such a duty on hospitals in Nevada. The Court analyzed Nevada statutes, public policy, common law principles, and standards created by the Joint Committee on the Accreditation of Health Organizations (JCAHO) standards, and ultimately opted not to create a nondelegable duty for hospitals in Nevada.

However, the Court clarified that hospitals may be held liable for the negligence of independent contractor doctors under the ostensible agency theory. The theory applies when a patient goes to the hospital and the hospital selects the doctor to treat the patient, such that it is reasonable for the patient to assume the doctor is an agent of the hospital. The Court identified the following factors to determine whether the ostensible agency theory should be applied: (1) whether the patient entrusted herself to the hospital, (2) whether the hospital selected the doctor, (3) whether the patient reasonably believed the doctor was an agent of the hospital, and (4) whether the patient had notice of the doctor's independent contractor status.

In a dissenting opinion, Justice Cherry wrote that he would adopt a nondelegable duty for hospitals