Las Vegas Injury & Accident Attorney Blog

In most failure to warn cases involving defective products, the burden is on the plaintiff to prove causation of the defective issue.  Most jurisdictions allow the rebuttable heeding presumption that means, in essence, that a party is given the benefit of the doubt that they would have heeded the warning label had it been appropriately warned either by label or otherwise on a product.

This presumption is an effective tool as an attorney does not have to prove the causation aspect of the case, as the burden shifts from the plaintiff to the manufacturer.  The law in Nevada does not allow this, and makes the victim prove that the warning or lack thereof was in fact the cause of the resulting injury.    The Nevada Supreme Court recognized this distinction in their recent opinion Rivera v. Philip Morris, Inc. 125 Nev. Adv. Op. No. 18, June 4, 2009.

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The concerted acts of multiple defendants create liability amongst each defendant.  The issue becomes the amount of damages each must pay as a result of the negligence they each caused.  Under Nevada Law, joint tortfeasers are liable 100% if they are liable for 1% of the damages.

What this means in layman’s terms is simply that if a victim is injured as a result of multiple causes (e.g. more than one at fault party:  two rifle shots, two cars crashing, etc.) the law will not distinguish who must pay the victim as the victim may recover all damages from either party.  Thus, a deep insurance pocket or business entity may be on the hook for the whole amount of the damages depending on a jury’s determination of any fault.  So, if a jury determines the concerted efforts of multiple parties contributed to an accident, the Plaintiff need only prove either party did something wrong.  This equates to getting 100% of the damages.

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 his 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 his comparative negligence or that of his 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 his 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 him.

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.

6.  As used in this section:

(a) “Concerted acts of the defendants” does not include negligent acts committed by providers of health care while working together to provide treatment to a patient.

(b) “Provider of health care” has the meaning ascribed to it in NRS 629.031.

(Added to NRS by 1973, 1722; A 1979, 1356; 1987, 1697; 1989, 72)

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Thank you for reviewing the case. As far as proving liability, on the report itself the lifeguards and security on duty had written down that it was glass that had caused the injury. It was unclear what caused the cut but the doctors at the hospital treated me for the worst case scenario. does that help my case at all?

If it was glass, it means it was not supposed to be there and naturally that makes the case better. The problem still remains in proving the hotel had notice of the glass in the pool. If enough time went by you could argue the hotel had constructive notice, but this is hard to prove–any customer could have broke some glass or eye glasses without anyone knowing. Moreover, we don’t know if it was glass–just speculation. Try calling the risk mgt dept and see if they would be willing to sport you a free visit next time.

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In las vegas slip and fall injuries are prevalent at casinos. although they can happen in a variety of places, from shopping malls to grocery stores.  The key tenant to a slip and fall liability is to prove that the victim had no prior knowledge that the area was unsafe and it was not an open and obvious danger.

With any slip and fall case, the victim must prove that the premise owner either created the dangerous condition or was on notice of the condition or had a reasonable time to discover the condition prior to the accident.

If you believe you are a victim of a slip and fall injury in Nevada, contact the personal injury experts at Benson & Bingham.

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Every summer Las Vegas is once again reminded about the tragedy of mixing unattended children with swimming pools.  Parents and homeowners can attempt to safeguard these areas with alarms, fencing, and nets, but deaths still seem to occur.  The impact is horrific on the families.  Often the loss is preventable.  The only sure way to avoid it is to keep children away from bodies of water including bath tubs, pools, jacuzzi spas, and lakes.  Families with newborns should consider draining their pools or moving (yes moving) to a home that does not have such an attractive nuisance lying in wait for their most precious person.

It is impossible to imagine that a homeowner, nor a parent would leave a 1,000 foot hole in their backyard without filling it up–such a hazard is so dangerous, but it illustrates the point.  Parents should balance the need of that swimming pool verses the fun in the sun it can bring.  And be careful folks: watch who you invite over if you have a pool, since accidental drowing in Las Vegas and throughout Nevada  is a tragic occurence that happens yearly.

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If you have a tire that blows out in California or blows out in San Diego, San Bernadino, Los Angeles, or anywhere in Nevada call the law firm of Benson & Bingham today as we will handle your case from start to finish.  Tire separations occur more frequently then most people realize; however, they are rarely blamed for the fatalities of accidents. Speed, driver error, and other factors are faulted with ultimately causing a rollover accident.  We understand that a blown tire is not your fault.  The age and wear of the tire are factors to be considered, but with out  a doubt, the tire construction is the most important factor in analyzing a defective rubber tire.  If you have suffer a blown out tire, call the tire experts today.

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Geico claims they handle more motorcycle liability claims;  Progressive claims they handle more liability insurance for motorcycle drivers–who is correct?  State Farm Insurance claims they are the largest insurer, and Allstate claims, “your in good hands.”  Farmer’s Insurance uses colossus, a computer program that systematically regulates the payment of claims based on a preprogrammed schedule of lower values on personal injury claims and ,” According to memos from Farmers Insurance, Dietz and his colleagues’ salaries and bonuses were tied to practices that encouraged the delay, denial, underpayment and forced litigation of claims.”

American Family seems to insure everyone, and Nevada General seems to deny everyone.  USAA insurance covers most of the military families.  Century Insurance is last century in terms of adjusting.  Travelers insurance, Liberty Mutual Insurance, Great West Insurance, and Nationwide Insurance, Aetna, Hartford Insurance, Metlife Insurance, CSAA and AAA, Chubb Insurance, Esurance, Prudential, Safeco, Federated Insurance, Sentry, Fireman’s fund, AM FAM, Zenith, CNA, Foremost, Allied, Kemper, Horace Mann, Infinity, Cigna, Mendota, Country Insurance, Conseco Insurance, are all insurance companies that Benson & Bingham fight with!

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Nevada allows attorneys to refer to outside loan companies. Previous to this opinion, lawyers were not allowed to facilitate loans to their client or risk the wrath of the state bar for attempting to help out their financially strapped clients.  Now, we can at least assist without being tormented.  While hard money lenders have jumped into the game, clients usually suffer extremely high interest rates when obtaining money against their personal injury case.  The State Bar finally recognized the need, and balanced that need against the perceived ethical violation of attorneys having an “interest” in their clients case.  (Ironically, our contingency fee already gives us that interest!)

OPINION 29 – 08/07/03 It is ethically proper for an attorney to refer a client having a personal injury claim to a company that will advance the money to the client during the pendency of the claim, with repayment being made from the settlement. Supreme Court Rule 158; Supreme Court Rule 156; Supreme Court Rule 157; Supreme Court Rule 181; Supreme Court Rule 154; Supreme Court Rule 165, Achrem v. Expressway Plaza Limited Partnership, 112 Nev. 727, 917 P.2d 447 (1996); Cal. State Bar Formal Op. No. 2002-159; Ohio S. Ct. Ethics Op. 2002-2; Ariz. State Bar Op. No. 91-22; Md. State Bar Assn. Pof’l Guidance Comm., Guidance Op. No. 91-9; Felicia Galati, Assistant Bar Counsel, Getting Involved in Getting Money for your Civil Litigation Clients: An Ethical Quagmire, Nevada Lawyer,  March 2002 at 15; In Re: Discipline of Joe M. Laub, January 9, 2002, Nev. S. Ct. Appeal No. 36322

SO, WHAT DO YOU THINK?   I suggest attorneys form an alliance and fund each others’ cases to give clients reasonable interest rates.  We can call it the,  “Nevada Personal Injury Loan Consortium”!!!!!

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Never let your attorney make vital decisions without your knowledge.  Often this occurs when the clients are not available or have moved for whatever reason.  The difficulty is realizing this rule is the reality that some clients truly do disappear and the lawyer must make some decision to do the right thing. 

OPINION 35 - 12/11/06  It is unethical pursuant to RPC 1.2(a) for an attorney to include in a fee agreement a provision granting the attorney full and absolute discretion and authority to settle the case upon terms decided by the attorney.   Naturally, this rule does protect the client.

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OPINION 36 – 01/08/07 An attorney may ethically borrow funds from a third-party lending institution for the purpose of obtaining funds for use in paying litigation costs. The attorney must agree to be responsible for the repayment of the loan, interest, and associated reasonable fees irrespective of the outcome of the litigation. Repayment of the loan may not be contingent on the success of the litigation for which the loan is obtained.  This now allows small firms to finance larger litigation cases without the need for in house capital.  Is this a correct rule?

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