Las Vegas Injury & Accident Attorney Blog

In recent years, most contracts have become very inclusive of arbitration provisions to mandate arbitration over a jury trial.  Arguably, this takes away from victims rights to have a jury decide the damages–something our fore fathers likely never envisioned changing.  But, it has.  The reality is that arbitration clauses limit a person’s ability to become litigious.  Real estate contracts now have provisions that mandate arbitration.  Often, the rules of evidence are relaxed, the arbitration is quickly performed, the costs are less, and it is final in its’ adjudication.  Sadly, this wave of alternative dispute resolution has certainly kept the court rooms from being inundated with contractual disputes, but has also taken such a strong right away: the right of your neighbors to hear your dispute on the merits and make an appropriate value decision.

In the context of automobile insurance cases, binding arbitration is mandated in certain policies.  Why?  It saves the carrier money to arbitrate a matter over litigating it in court.  It also takes away the “jackpot” that juries can sometimes award–even when justice requires.  This is problematic.  Often, the 1st party coverage does nothing to discuss terms of the arbitration.  It requires you arbitrate, but leaves out the important and sometimes crucial terms.  Thus, an attorney should argue, that the missing terms must be interpreted to fall under regular court rules.

For example, if a policy of insurance mentions an arbitration clause, but fails to state whether costs and attorney fees would be available to the prevailing party then the default would be the state civil procedure rules as they apply in a regular jury trial.  Also, who must pay for the arbitration?  Is this something the person seeking the justice must pay, or must the defendant pay or must they split the costs?  The costs can run up to many thousands of dollars depending on the complexity of the arbitration.

More and more people are now finding these sneaking clauses in their doctor’s offices.  I had a client who went in for an elective medical procedure (plastic surgery) and noticed this odd statement that she is is giving up her rights to a jury trial if she signed the bottom line.   Other people are now finding this adhesion provision in the contract that they must accept if they want the necessary service.  Some would argue this is merely an insurance requirement by the mal-practice carrier, and it just might be.  Sadly, our own congress set out to limit everyones’ rights by voting for a Federal Arbitration Act that severely limits a person’s contractual rights.  If you have been involved in an accident or are now facing an arbitration Call Benson & Bingham today.

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Tort Law is very specific on the types of damages a victim can recover for.   Most, if not all, humans have some type of pre-existing medical condition that may have the appearance of being related to a recent trauma.   In the context of the personal injury, the typical accident case involves disruption of the spinal cord or related body parts.  The obvious problem is that most adults have some type of “degeneration” in the spine via the vertebra or discs that show up on MRI or other film.  Disc protrusions can happen for a myriad of reasons.   Knee injuries can also occur to “old football” injuries or other falls not relating to the current traumatic car accident.

This “aggravation of a preexisting condition” is to be considered by the jury as a question of fact.  Nevada civil jury instructions lay out the law as it relates to old and new injuries.  Anything old is not compensable, however, anything new is.   So, a jury must consider all the facts of the new injuries or aggravation and put a value on it.   Benson and Bingham understands your new complaints, and can help prove that damage does relate to the immediate trauma.

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Q: “My 23 yr old daughter was punched in the nose at House of Blues during a concert. Her nose was broken and I would like some legal counsel on how to possibly proceed from here. She was not drinking.”

A: It’s tough to advise given we don’t know who the defendant(s) were? Typically, it is very hard to find liability against a business simply because it happened on their property.  Lack of security or negligent security cases are hard to prove given the criminal act involved by a 3rd party, here the assault and battery.

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Traveling on any of the freeways in Las Vegas (I15, 215, 95, summerlin parkway) one finds themselves surrounded by semi trucks or commercial vehicles.  This scenario is dangerous enough without the element of speed.  Commercial and Public Transportation vehicles are to be held to a higher standard than that of private party drivers and need to drive responsibly.  A basic speed law exists so no person shall drive a vehicle upon a highway at a speed greater than is reasonably or prudent, having due regard for weather, traffic, visibility, and the surface condition.

In no event should an individual travel at a speed which endangers the safety of others.  Semi trucks are extremely heavy and do not stop in tight situations.  When a thirty thousand pound tractor trailer impacts a private party vehicle fatalities or life changing injuries often occur.  Benson & Bingham has represented individuals and families who have requested aggressive counsel to pursue negligent commercial drivers for speeding. If you have questions concerning speeding commercial drivers contact the accident attorneys of Benson & Bingham now at 702-382-9797.

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Pedestrians crossing the street take significant risks.  Most collisions between pedestrians and motor vehicles result in wrongful death, head trauma, loss of limbs, brain damage and/or broken bones.  However, not all pedestrians use common sense often times causing their own injuries.  While a driver must yield to the right of way to a pedestrian crossing the roadway in a crosswalk, a pedestrian may not suddenly leave a curb or other place of safety so as to create an immediate hazard.  When no crosswalk is available, a pedestrian shall yield to the right of way to all vehicles.

Finally, the answer to one of the great unknowns… Once a pedestrian begins to cross the roadway where traffic is controlled by an automatic signal device, and before completing the crosswalk the signal changes, the pedestrian is not required to retrace his or her steps, nor stand still, but may proceed as required by law exercising ordinary care.

If you or a loved one suffered injuries while acting as a reasonable prudent pedestrian, contact personal injury attorneys, Benson & Bingham @ 702-382-9797 and get the attention you deserve.

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Over the course of the past ten years bicycle riders in Las Vegas have seemed to multiply exponentially. To accommodate the growing recreation many surface streets have bicycle lanes (i.e. Charleston Boulevard). However most motorists are unaware that bicyclists have the same rights to the road as a motor vehicle. To that extent it is important cyclists keep aware of their environment to ensure safe interaction between them and the motorists.

Here are a few simple reminders to keep everyone safe: Cyclist should only ride on the right side of the road and stay to the furthest point right as possible, obey all traffic signals and use proper hand signals. While motorists must yield to cyclist as they would for motorized vehicles, and motorists may not park or drive in a designated bicycle lane. All parties must pay particular attention to children as they may not follow traffic rules and require additional consideration. Following these guidelines will help avoid many cycle or auto accidents, and improve the enjoyment and safety for all riders.

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Often times physicians do not preform the appropriate tests or evaluations in determining the cause of an individuals health problems. However, a misdiagnosis or failure to correctly diagnose a patients symptoms does not always give rise to medical malpractice.

First, an individual must be evaluated by another physician to determine if the initial doctor deviated from the standard of care.  Secondly, one must determine if the initial physicians misdiagnosis or failure to diagnose the patient caused the patient additional damages.  For example, did the doctor fail to diagnose cancer found in a patient which if diagnosed initially could have prevented the cancer from growing or spreading; or did the doctor overlook a tumor which subsequently was found to be the same size as the tumor was during the initial evaluation, thereby the patients damages were essentially the same.

An individual must be able to prove the doctors negligence caused them additional damages.  To be successful in medical malpractice lawsuit the plaintiff must be able to state their damages and demonstrate those damages to a jury with specificity.  Contact the Law Offices of Benson and Bingham if you believe you have been subjected to misdiagnosis or sub-standard care.

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Often the personal injury attorney is faced with a dilemma in multiple defendant personal injury actions. Usually, one defendant is the “deep pocket” with potential liability, and others are sued because they were associated with the incident, but not necessarily responsible for the incident. For example, in a products liability lawsuit, a plaintiff may sue multiple parties in a Ford or Toyota vehicle defect case. This involves suing the manufacturer, Ford or Toyota, and the seller of the car (the distributor). Most jurors would likely only find liability against the manufacturer (unless or course the vehicle was modified from the original condition). When a litigator proceeds to trial against two or more defendants, and only prevail against one of them, Nevada case law allows the costs of the prevailing defendant to be essentially “passed through” the plaintiff and onto the defendant you prevailed against.  The cases that stand for this proposition are Semenza v. Caughlin Crafted Homes 111 Nev. 1089, 901 P.2d 684  (1995), and Schouweiler v. Yancy Co. 101 Nev. 827, 712 P.2d 786 (1985).

Why is this important? It takes the risk out of suing multiple defendants and encourages the notion of suing everyone who may or may not be liable to protect the interests of the victim plaintiff. Call Benson and Bingham if you need help with a major accident case involving one or multiple defendants.

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