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Can you Sue Clark County for an Uneven Sidewalk or Crack?

Does Clark County have Liability from Suit?

Generally speaking, states have what is called “sovereign immunity.” This means that the State of Nevada and all its political subdivisions is immune from liability—it cannot be sued in civil or criminal courts. However, in 1965, Nevada waived this immunity and consented to “have its liability determined in accordance with the same rules of law as are applied to civil actions against individuals and corporations.” [1] What does this mean? It means that the State of Nevada preferred to be judged in accordance to the same standards as its citizens—The state of Nevada CAN be sued. It is important to note, however, that Nevada’s immunity is preserved to some degree by NRS 41.033 [2] , which states as follows:

  1. No action may be brought under NRS 41.031 or against an officer or employee of the State or any of its agencies or political subdivisions which is based upon: (a) Failure to inspect any building, structure, vehicle, street, public highway or other public work, facility or improvement to determine any hazards, deficiencies or other matters, whether or not there is a duty to inspect; or (b) Failure to discover such a hazard, deficiency or other matter, whether or not an inspection is made.

  2. An inspection conducted with regard to a private building, structure, facility or improvement constitutes a public duty and does not warrant or ensure the absence of any hazard, deficiency or other matter.

This statute makes clear that Clark County, as a political subdivision, cannot be sued for its failure to inspect—this would apply to public sidewalks. As such, if an action against the county consists of a theory of liability based on “failure to inspect,” or “failure to discover,” the uneven or cracked sidewalk—that action will likely fail in the Nevada court systems. [3]

When Can Clark County Be Sued?

If the county knew or should have known that a defect exists, they CAN be held liable. In what context would the county be held liable? Well, in Butler v. Bogdanovich, the County sent an inspector to view and inspect a single-family dwelling that the Bogdanovich family was building. The county inspector visited the site multiple times during construction and “signed off” on the project. [4] Years later, the Butler’s purchased the house and discovered defects—they sued the county for negligently approving the construction. [5] Here, the court held that “If the County had knowledge of the defects, the County owed a duty to take action as a result of the discovery of the deficiencies. Immunity will not bar actions based on the public entity's failure to act reasonably after learning of a hazard.” [6]

Other Cases supporting the knowledge theory of liability:

“As indicated by Nardozzi, NRS 41.033 does not provide immunity to the public entity if that entity fails to take reasonable action once it gains express knowledge of the hazard.Chastain v. Clark Cty. Sch. Dist., 109 Nev. 1172, 1175, 866 P.2d 286, 288 (1993)

“The evidence presented in this case leads to the inference that the defect was plainly visible to anyone with knowledge of the applicable building code requirements, and that the structure failed to satisfy applicable building code requirements at the time the Clark County inspector approved the structure…Thus, an issue of fact existed as to whether the Clark County building inspector approved the structure despite having knowledge of its defect. Knowledge of the defect would bar the county from claiming immunity from the Davenports' claim under NRS 41.033.” Davenport v. Cty. of Clark, 111 Nev. 467, 470, 893 P.2d 1003, 1005 (1995)

What Qualifies as “Knowledge” so as to Render the County Liable?

When the court talks about “knowledge” they refer specifically to express knowledge—which essentially means that the County had notice of the dangerous condition. Nevada courts have declined to extend knowledge to situations where the county would only have constructive notice. [7] What is the difference between express and constructive notice? The court addressed this issue in Chastain v. Clark County School Dist (1993)—an action against CCSD for injuries sustained by a child in a school sandbox. In Chastain, the court explained that because CCSD was only notified in the past that broken bottles and debris where found in the school’s sandbox, but not on the day that the accident occurred, this would only constitute constructive notice. [8] Since, CCSD did not have express knowledge that there was debris in the sandbox, on that particular day—only constructive notice of the potential hazard, they would be immune from liability under NRS.41.033.

On a second theory of liability, however, Chastain alleged that the sandbox in question was low on sand and had the sandbox been adequately filled with sand she would not have been injured. On this issue, the court determined that CCSD did have express knowledge. What made the difference? Testimony from an employee about how regularly she ordered sand for the sandbox. The court determined that based on this information, it would have been readily apparent to CCSD that they did not have an adequate amount of sand in the sandbox on the day of the accident. [9]

What Is the Maximum that You can Recover in a Tort Action against Clark County?

The maximum recovery in any tort action against the government has been capped by the Nevada legislature at $100,000.00. NRS 41.035 states as follows:

An award for damages in an action sounding in tort brought under NRS 41.031 or against a present or former officer or employee of the State or any political subdivision, immune contractor or State Legislator arising out of an act or omission within the scope of the person’s public duties or employment may not exceed the sum of $100,000, exclusive of interest computed from the date of judgment, to or for the benefit of any claimant. An award may not include any amount as exemplary or punitive damages.

When might the County Limit not Apply?

In circumstances where a there is a cracked or uneven sidewalk and a pedestrian trips causing injury to himself, the County limit will apply if a person can overcome the issue of notice as previously discussed. Benson & Bingham has handled case like this and also cases involving manhole covers and hazardous holes in pavement. Typically, there is no way to exceed the $100,000 cap. The only way to avoid the cap is if a case can be filed in Federal Court under a Federal Statute that preempts State Law. An example of this would be a civil rights violation where someone is wrongfully treated by a state actor. Even though a cap exists, the Federal Law preempts the state law and requires the State to pay more. This is common with law enforcement cases (government personnel acting under “color of law”) where citizens are wrongfully shot or racial discrimination is proven and a person’s civil rights have been violated. If a Federal law can be applied, Federal pre-emption may be an avenue to exceed the State cap.

 [1]  NRS 41.031, see also *Fischmann v. City of Henderson*, 92 Nev. 659, 660, 556 P.2d 923, 923 (1976)
 [2]  Id.
 [3]  Id.
 [4]  Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985)
 [5]  Id.
 [6]  Id.
 [7]  *Chastain v. Clark Cty. Sch. Dist.*, 109 Nev. 1172, 1177, 866 P.2d 286, 289 (1993)
 [8]  Id.
 [9]  *Chastain v. Clark Cty. Sch. Dist.*, 109 Nev. 1172, 1177, 866 P.2d 286, 289 (1993)

Did you Know: Both Joe Benson and Ben Bingham are members of the Million Dollar Advocates Forum and were selected as Top 40 Trial Lawyers under 40?