As Nevada Reopens, Will Personal Injuries Come Surging Back?

As directed by Nevada Governor Steve Sisolak, the state’s economy entered the second phase of “reopening” this past Friday, May 26. The changes come after the governor’s office tracked a steady decline in positive tests for COVID-19 and hospitalizations caused by the illness over a month-long period. [1] This will clear the way for even more ordinary economic activity, and along with that shift there may be an outsized increase in Nevada personal injuries.

A Downward Spiral

Governor Sisolak’s actions in mid-March were among the earliest and most aggressive in the country as he sought to protect Nevadans from the novel coronavirus pandemic, which causes the disease dubbed COVID-19. [2] Back in mid-March, the disease was thought to be highly contagious and lethal; subsequently we have learned that its spread can be contained significantly by practicing good hygiene, maintaining “physical distancing” (a.k.a., “social distancing”) and avoiding large gatherings of people indoors, and increasing the use of masks even among people who do not feel sick.

But several weeks ago, this was not known and there were limited testing resources for determining the prevalence of the disease in Nevada. As a precautionary measure, all “nonessential” businesses were ordered to close; this included the state’s world-famous casinos, which resulted in some 200,000 job losses across the state. [3]

As more people stayed home – whether newly unemployed or still working but utilizing telecommuting options – we saw a significant decline in Nevada personal injuries. With fewer drivers on the road, we saw falling rates of Reno/Sparks car accident injuries. With casinos shuttered, no patrons were injured in Las Vegas casino slip-and-fall accidents. And with people interacting less in a face-to-face capacity across the state, there were fewer acts of negligence requiring the involvement of Reno or Las Vegas personal injury lawyers.

With the state’s flagship industries waning, a downward spiral of economic effects quickly emerged. Laid off casino workers spent less money on clothing, lawn care, and new cars as they tightened their belts to adjust to their new economic realities. Flagging demand for these businesses – combined with outright bans on their operation, in some cases – pushed those pressures up the economic food chain. (And from personal experience as Nevada accident attorneys, we can attest that the demand for our services fell, too.)

Phases of Reopening, and Personal Injuries?

In April, Governor Sisolak unveiled his Roadmap to Recovery, a set of standards that would usher in the state’s gradual “reopening” and return toward normal economic activity. While the plan has strong branding, and although each step so far has been based on clear metrics and guidelines, the Governor has generally been careful not to promise too much or lock himself into too many details. Here is an overview:

• Phase One – Battle Born Beginning | May 9 | reopening with restrictions for restaurants; bars, etc. serving food; salons, etc.; certain retailers; in-store sales of cannabis
• Phase Two – Silver State Stabilization | May 29 | limited reopening of bars and entertainment; casinos opening with restrictions June 4
• Phase Three – On the Road to Home Means Nevada | June 30 (or earlier) | fewer restrictions on mass gatherings
• Phase Four – Home Means Nevada | date unknown | return to normal, pre-COVID operations but with enhanced hygiene

The Roadmap includes a master plan and individual phase-specific guidelines. [4][5][6] As the state returns to “normal” operation, the same downward spiral of economic activity may be reversed, and with it Nevada personal injuries may come surging back.

One unknown area of potential Nevada personal injury liability comes from the reopening itself. If hindsight shows us that the state’s businesses reopened too early, who will be liable for illness contracted during this period?

The Governor and other public officials will surely be held immune from civil liability for their actions, since there is a longstanding principle of protecting government officials from personal injury liability arising from their official actions. The obvious target of  lawsuits from COVID-19 illness would be the businesses that elect to reopen. The case is clearest where a business fails to adopt reasonable precautions to protect employees and customers, which could include discouraging (or perhaps even failing to encourage) the use of facial masks and adopting harsh medical-leave policies that encourage employees to come to work even when they suspect they may have contracted the coronavirus.

But it is also possible that no Nevada personal injury claim can lie from a customer who contracts COVID-19 after visiting a business that flouted reasonable safety precautions. A personal injury action for the tort of negligence requires that each of several elements be proved. The first is the breach of a duty; this is the general idea that the defendant failed to use reasonable care to protect those in danger. The plaintiff must have suffered an injury, and that harm must have been factually and legally related to the defendant’s failure to exercise adequate care.

It may turn out that factual causation is the hardest element to prove in a Nevada personal injury case for contracting COVID-19. Given the disease’s long incubation time – typically 2 to 14 days, but in some cases perhaps as long as 21 days – and the varying degrees of symptoms people can show, it may be very difficult to identify where a COVID-sickened person contracted the illness. In such cases, plaintiffs will likely fail to recover anything for their harm unless they work with experienced Nevada injury lawyers who can help establish the causal link between the plaintiff’s injury and the defendant’s failure to take adequate harm.