Monday, March 30, 2015

What Is Comparative Fault in Las Vegas Negligence Cases?

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 §41.141.  NRS §41.141 says that if an injured party [Plaintiff] is not more at-fault than the party they are claiming caused the accident, [Defendant], they can still make a successful personal injury claim against the Defendant.  However, if the jury finds the Plaintiff 50% or less at fault for causing the accident, the jury award will be reduced by the percentage of fault assigned to the Plaintiff.  NRS §41.141 provides in applicable part:

      NRS 41.141  When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants.
      1.  In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or the plaintiff’s decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.
      2.  In those cases, the judge shall instruct the jury that:
      (a) The plaintiff may not recover if the plaintiff’s comparative negligence or that of the plaintiff’s decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.
      (b) If the jury determines the plaintiff is entitled to recover, it shall return:
             (1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to the plaintiff’s comparative negligence; and
             (2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.
      3.  If a defendant in such an action settles with the plaintiff before the entry of judgment, the comparative negligence of that defendant and the amount of the settlement must not thereafter be admitted into evidence nor considered by the jury. The judge shall deduct the amount of the settlement from the net sum otherwise recoverable by the plaintiff pursuant to the general and special verdicts.      4.  Where recovery is allowed against more than one defendant in such an action, except as otherwise provided in subsection 5, each defendant is severally liable to the plaintiff only for that portion of the judgment which represents the percentage of negligence attributable to that defendant.
      5.  This section does not affect the joint and several liability, if any, of the defendants in an action based upon:
      (a) Strict liability;
      (b) An intentional tort;
      (c) The emission, disposal or spillage of a toxic or hazardous substance;
      (d) The concerted acts of the defendants; or
      (e) An injury to any person or property resulting from a product which is manufactured, distributed, sold or used in this State. . . . .

Based upon NRS §41.141, if the jury finds the injured party 20% at fault for the accident, the judge will reduce the jury award by 20%. Since you cannot be more at fault, if the jury found the injured party 60% at fault, NRS §41.141 would bar the injured party from any recovery. 

Next time, we will discuss the “Seat-belt Rule” in Nevada car accident cases.

Monday, March 23, 2015

What is Spoliation of Evidence and How Does it Affect My Las Vegas Personal Injury Case?

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 instructed that the loss of videotape, creates an inference that the evidence was harmful to the at-fault party, otherwise they would have kept the evidence. Bass Davis v. Davis, 122 Nev. 442, 134 P.3d 103, at 107, (2006), and Reingold v. Wet’nWild, Nevada, Inc., 113 Nev. 967, 944 P.2d 800 (1997). This rule applies even if the evidence is lost or negligently destroyed.  The Bass-Davis court held:

[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss. (Citing Turner v. Hudson Transit Lines, 142 F.R.D. 68, 75 (S.D.N.Y.1991); see also Residential Funding Corp. v. DeGeorge Financial, 306 F.3d 99, 108 (2d Cir.2002). Id. at 107.

In Bass-Davis, a customer slipped on a wet floor at a 7-Eleven. The customer claimed that a 7-Eleven employee had mopped the floor but failed to post warning signs. During discovery, the injured party’s personal injury attorney found out that the 7-Eleven franchisee could not locate the surveillance videotape documenting Bass-Davis’ fall. The jury was to be instructed that the videotape would have been detrimental to 7-11.

Next time, we will discuss comparative negligence in Las Vegas personal injury cases.

Tuesday, March 17, 2015

What is the Effect of a Signed Waiver on My Las Vegas Personal Injury Case?

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 (1958). 

After the above case was handed down, the Nevada Legislature instituted what is called “comparative fault”. In comparative fault, if you are 51% or more at fault for your injuries, you cannot recover in a court of law. This law has somewhat changed the analysis of the effect of signed waivers on a case. 

Specifically, in Renaud v. 200 Convention Center Ltd., the Nevada Supreme Court determined an injured person who signed a waiver, was able to present their personal injury claim to a jury. 728 P.2d 445, 441, 102 Nev. 500, 506 (1986). This was after they signed a liability waiver and had later suffered an injury, in a free-fall simulator. The Court explained that because the injured party denied appreciation of the risks associated with the freefall simulator, a question of fact existed regarding whether she had actual knowledge of those risks. The Court went on to say that “Because actual knowledge of the risks assumed is an essential element of this defense, such a matter must be reserved for the fact finder.” Id. The Court further explained that it was necessary to evaluate all the circumstances as they existed at the time the release was obtained. Id. “Considerations should include, but are not limited to, the following: the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing.” 

Based upon Nevada law, whether you can make a claim for personal injury after signing a waiver, is determined on a case by case basis. You should contact your personal injury attorney immediately to discuss your case. Your personal injury attorney will delve into the facts of your case and go over your options with you.

Next time, we will discuss ‘spoliation’ of evidence in Las Vegas personal injury cases.

Monday, March 9, 2015

Can I Sign An Affidavit Without Using a Notary?

What happens if you need to sign an affidavit in the presence of a notary, but you do not have a notary available? Today’s blog will tell you the law on the issue. There is both State and Federal law on the issue of signing an affidavit (sometimes called a “declaration”) without a notary. Nevada law on this issue is set forth in NRS § 53.045 and provides in full: 

NRS § 53.045. Use of unsworn declaration in lieu of affidavit or other sworn declaration; exception. Any matter whose existence or truth may be established by an affidavit or other sworn declaration may be established with the same effect by an unsworn declaration of its existence or truth signed by the declarant under penalty of perjury, and dated, in substantially the following form: 

       1.  If executed in this State: "I declare under penalty of perjury that the foregoing is true and correct."
       Executed on     ____________________                         ________________________                                     
                                            (date)                                               (signature)

The Federal law on this issue is codified in 28 USC 115 § 1746 and provides in relevant part:
 28 USC 115 § 1746. Unsworn declarations under penalty of perjury.  Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

(1) If executed without the United States: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)".

(2) If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)".

Please note that the State and Federal law referenced above apply to declarations and affidavits. Other legal documents, such as wills, trusts and health care power of attorneys should still be signed in front of a notary. If you have any questions as to which documents can be signed without the use of notary, contact your personal injury attorney for more information.

Next time, we will discuss the effect of a signed waiver in personal injury actions.

Monday, March 2, 2015

Can My Facebook Posts Come into Evidence in a Las Vegas Personal Injury Case?

The internet and social media have changed the way in which we interact with one another. This is having a spill-over effect in personal injury cases. We all know that the use of social media sites such as Facebook are relatively new. In the one hundred year history of people making claims of personal injury in Nevada, social networking sites were not something your personal injury attorney had to deal with. The question is now what is the scope of use of social media sites after being involved in a car accident?

It may surprise you, but when you make a personal injury claim, the at-fault party may try to find out everything there is about you. This includes any and all information online. They will look at sites such as LinkedIn and Facebook. In addition to just looking at the sites, they will try to get this information into evidence.

What if all of your Facebook information is private? The short answer is that is does NOT matter. What does this usually mean? That the court will require you to turn over all of your social media posts from the time of the car accident to the present time. The court will then review the posts and determine what the other side can use in its case. This may include any posts relating to the accident at issue as well as your physical activities and your physical condition. 

What is the safest course of action after you are involved in a car accident? Do not post anything online until your case is resolved. If you must post, refrain from posting anything that involves the accident at issue, your physical activities and your physical condition.

It is important to note that this is young and developing field of law. The court’s decision may change and the Nevada Supreme Court could weigh in on what is going on in the trial court level.

Next time, we will discuss if you need to sign documents in the presence of a notary.