Constructive Trust

Constructive Trust


A constructive trust will arise and affect property acquisitions under circumstances where:

(1) a confidential relationship exists between the parties;

(2) retention of legal title by the holder thereof against another would be inequitable; and

(3) the existence of such a trust is essential to the effectuation of justice. 

Locken v. Locken, 98 Nev. 369, 372, 650 P.2d 803, 805 (1982)(citing (citing Schmidt v. Merriweather, 82 Nev. 372, 375, 418 P.2d 991, 993 (1966)).

A constructive trust is a remedial device by which the holder of legal title to property is held to be a trustee of that property for the benefit of another who in good conscience is entitled to it.

Locken v. Locken, 98 Nev. 369, 372, 650 P.2d 803, 805 (1982) See also Namow Corp. v. Egger, 99 Nev. 590, 592, 668 P.2d 265, 267 (1983).


Personal Injury Lawyers can Help

How Does A Personal Injury Attorney Help?

how does a personal injury attorney helpOne of the most stressful situations you are likely to face in life is an injury. When you are injured -- especially if it is the fault of another -- it can be challenging to deal with the financial, physical, and emotional ramifications. A personal injury lawyer can help.

In order to help you get through this difficult time, it can make sense to hire a personal injury attorney. A personal injury lawyer can help you manage the situation, and ensure that you are treated as fairly as possible.

Injury Lawyers Help Deal with the Insurance Company

A personal injury attorney can be quite helpful when dealing with an insurance company. Logically, you would think that the insurance company’s “job” would be to make sure that you are properly compensated in terms of missed wages and medical bills, as well as other deserved compensation.

The reality, though, is that an insurance company is a business. The insurer isn’t working for your best interests; it’s about shareholder interest and the bottom line. This means that you may not be offered a fair settlement from the insurance company. When you are represented by a personal injury attorney, though, you know that someone who has your best interest in mind is speaking for you.

Insurers know that you are serious when you are represented by a personal injury lawyer. You are more likely to get a fair settlement, and the insurer is less likely to drag its feet, when you have a competent lawyer on your side.

 Injury Lawyers Can Give You An Idea of What’s Fair

One of the most difficult aspects of dealing with the aftermath of an injury is the fact that you might not even know what’s fair for your circumstance. Is compensation for pain and suffering customary? Will you be compensated for physical therapy? How long will you likely miss work, and how will your wages be accounted for?

If you don’t understand these procedures, and if you don’t know what paperwork to file, you might not get everything you deserve. A personal injury attorney can help you understand what is usual for your situation. These attorneys practice in injuries, and have seen the results of settlements and lawsuits. You can get an idea of what to expect.

Additionally, your personal injury lawyer can help make sure that all the paperwork is properly filed, and that you meet the necessary deadlines. You might experience delays (or even worse -- rejection) if you don’t file everything properly, or fill out your forms just right. It can be a confusing time, and an experienced attorney can help you navigate the choppy waters.

 Injury Attorneys Focus on the Case, so You Can Focus on Your Recovery

When you are injured, the last thing you want to do is fight with insurance companies and try to remember to file all of the necessary paperwork. Instead, you want to devote your energy to recovering from your injury. Your personal injury attorney can help you by dividing up the workload. You don’t have to worry about as much when you have someone representing your interests.

Focus on your recovery and rehabilitation, instead of worrying about the situation. Your attorney can handle most of the paperwork, and work with the insurance company to ensure that you receive fair compensation.

When you are injured, one of the first things you should do is call a knowledgeable and trustworthy personal injury attorney. A good lawyer knows the ins and outs, and can ensure that you receive the care that you deserve as you recover from an injury.

ClearCast Episode 8: "So You Want Sue That Clown That Scared You.."


[Editor's note]

Welcome to today's ClearCast!

As always, we appreciate you taking a moment to comment on our facebook or twitter pages.

Today, we finally tackle the most pressing issue of this election season: Clown Attacks

At first, it was just single instances in South/North Carolina of folks claiming to have had a clown try to lure him/her into the woods (to what ends, we do not know..).

Now there have been attacks reported in 14 different states, including to multiple Las Vegas Valley high school students late last week.

Are clown people permitted to scare people at will? If you have a genuine fear of clowns, does the law permit you to protect yourself without incurring civil liability?

..We address these questions, and more on today's ClearCast.

Hopefully, now things will finally get back to normal.

Ok, maybe I spoke too soon..

Nope, it's confirmed.


[End Note]


Jordan Flake: Hi, welcome to ClearCast. This is Jared Richards, attorney Jared Richards. I'm attorney Jordan Flake. We're with Clear Counsel Law Group. On ClearCast we like to tackle the big issues.

Jared Richards: The really big issues.

Jordan Flake: The really big issues and really big subjects. Recently, Jared, I don't know if you seen this in the news, but apparently there's this craze where people are dressing up like scary clowns.

Jared Richards: Right.

Jordan Flake: Hiding behind buildings and parking structures, in the woods, and waiting for their opportunity to terrify young children.

Jared Richards: It's not as weird as you think. Let me explain.

Jordan Flake: I did wonder. I saw you with some face paint out there the other day.

Jared Richards: Now you know.

Jordan Flake: Anyway, I think the idea is just the thrill of the prank. I seen some of these videos posted on YouTube, things like that. It's kind of a question of on the one hand is it all fun and games. On the other hand, it's all fun and games until someone gets hurt, right?

Jared Richards: Or until some clown gets stabbed.

Jordan Flake: Until some clown gets stabbed in self-defense or shot. There's kind of a whole spectrum of types of situations that could arise. Since we're lawyers, we should give the legal perspective of the different situations.

Jared Richards: Absolutely.

Jordan Flake: Let's just start with the vanilla kind of run-of-the-mill what you would expect from a normal clown attack. That's such a weird sentence.

Jared Richards: In my experience ...

Jordan Flake: In your normal clown attack, what you normally see happening is somebody who dresses up like a clown and scares the [Inaudible 00:01:39] out of these kids.

Jared Richards: Okay.

Jordan Flake: One of the kids goes home, traumatized, and just feels humiliated and they had run all the way home, they're breathing really hard, they have trouble sleeping that night. They actually maybe didn't even stick around the clown to find out long enough that it was a hoax. They're complaining to their mom.

Jared Richards: Maybe it was just a clown that wanted a friend.

Jordan Flake: Maybe the clown just wanted a friend, we don't know. My question is somewhere in that little bundle of facts is there a personal injury claim?

Jared Richards: Yes, sure. Basically, there are two main theories you could go under. First, just general negligence. Negligence says that you have a duty to act as a reasonably responsible prudent person and if you don't do that and you hurt somebody, you're responsible for it. That gets tempered with the doctrine we call the intentional infliction of emotional distress. Intentional infliction of emotional distress, and this is going to be different in every state, but in Nevada, the IED is intentional infliction of emotional distress, is when somebody acts so outrageous that you think that this is beyond all decency and beyond anything that be acceptable in civilized society.

Now, if they do that and as a result somebody gets hurt with emotional damages, then the clown is responsible. Doesn't matter if the clown's even involved, the clown was always responsible. In this case, the clown would be responsible. There are some caveats. We look at kind of a sliding scale of the outrageousness of what happened versus the effect that it had on the person. The less outrageous it is, the more we want the person to actually prove that they're hurt. If you get scared and you don't sleep that night and the next day you're fine, you probably don't have a case.

Jordan Flake: Right.

Jared Richards: If you then need counseling afterwards and all the sudden your hair turns white, that'd be a great ...

Jordan Flake: Can't hold a job.

Jared Richards: You can't hold a job, it's clearly it's the clown. Try to explain that to people. It's the clowns. As far as the general negligence side, if you were to say fall while running away or it was

Jordan Flake: You fall and you hit your head while running away ...

Jared Richards: All of that would be more of a negligence related to the clown. If you wake up the next day and all of your hair's fallen out.

Jordan Flake: Because you're just so stressed out.

Jared Richards: Because you're so stressed out because of the clown.

Jordan Flake: You can no longer go to the circus.

Jared Richards: Then you're talking about IED.

Jordan Flake: Intentional infliction of emotional distress.

Jared Richards: The intentional infliction of emotional distress.

Jordan Flake: What about good old-fashioned assault? Assault doesn't require touching or is that just something they teach you in law school and now it's totally changed.

Jared Richards: Assault is an incomplete battery.

Jordan Flake: Okay.

Jared Richards: Battery is an unwanted touching. Assault is the creation of the belief of imminent.

Jordan Flake: Imminent. If the clown did like take a swipe at their face ...

Jared Richards: Yeah, if the clown actually comes towards you, if the person thinks, "Oooh, I'm about to get hit," and is reasonable in that anticipation.

Jordan Flake: It has to be right there. It can't be that clown is 15 feet away is going to hit me or is that just a question of degree [Crosstalk 00:05:07]

Jared Richards: That's just a question of degrees, exactly.

Jordan Flake: Question for the jury.

Jared Richards: I think that's going to be a question for the jury, but say somebody stalking online and they say, "I'm going to get you next Tuesday," that's not assault, because it's not imminent. Imminent means next ...

Jordan Flake: It could be intentional infliction of emotional distress.

Jared Richards: Absolutely, it could be.

Jordan Flake: That person is just sitting there freaking out ... The funny thing is, this clown thing, so many people are afraid of clowns.

Jared Richards: Right.

Jordan Flake: I think that if you're out there and you're dressing up like a clown and chasing people around secluded dark places, our legal professional advice that you don't even have to pay for is to not engage in that activity. There we go.

Jared Richards: Wow.

Jordan Flake: Free legal advice.

Jared Richards: I was going to give them a forum they could do something, but yeah ...

Jordan Flake: If you have been attacked ... Listen, if you have been attacked by a clown in any way, shape, or form, and have sustained serious damages ...

Jared Richards: Serious injuries.

Jordan Flake: If the extent of your injuries is, "He kind of spooked me out, I'm now freaked out, I don't want to go to circuses anymore," that's probably not a case, but if your hair's falling out or something like that, then give us a call. Not that Jared specializes in clown PI law ...

Jared Richards: We have a whole department on it. For our basis, the person's dressed up, you have to know who it is. If you don't know who it is ...

Jordan Flake: That's true.

Jared Richards: What kind of claim do you have?

Jordan Flake: If the person's still hanging out, if that clown is still hanging out in that area, though, we could pose as little kids and go and ...

Jared Richards: That's your forum, not mine.

Jordan Flake: Walk over there and say, "Hey, who are you? What's your address so we can serve you with this lawsuit?" Anyway, that is, I guess with that, everyone be careful out there for Halloween. I hope we do a few more Halloween-themed real ClearCasts here in the next few weeks.

Jared Richards: Here's the other thing, don't hit the clown.

Jordan Flake: Oh that's right, we were going to get to that.

Jared Richards: Yeah.

Jordan Flake: What happens if the clown jumps out and the person who the clown tried to scare has a baseball bat and just smacks the clown across the face?

Jared Richards: If the clown is actually jumping out at them, it's probably okay. It's all a question of reasonableness. If you actually think the clown is going to get you, then you probably can hit it back. I think there is a special category for both clowns and mimes, so doesn't matter whether they're coming after you, you can just hit them. No, you'd have to wait for the clown. If you really think you're about to get hurt, you can act in self-defense.

Jordan Flake: Great, that's good to know.

Jared Richards: Clowns be careful.

Jordan Flake: Clowns be careful. I wouldn't want to dress up and hide like a clown or something because I'm afraid I'm going to run across the wrong group of people and they'll just trash me or something.

Jared Richards: Right, exactly.

Jordan Flake: All right, that's ClearCast for today. Let us know what you think about this hotly disputed, highly important issue.

Jared Richards: The big topic of the day.

Jordan Flake: Please reach out to us if you've been assaulted by a clown and we'll see what we can do.

Thank you.


ClearCast Episode 7: What Kind of Legal Trouble is Samsung in Over the Note 7 Recall?

[Editor's note]

..Not bad at all.

And Welcome to today's ClearCast!

As always, we appreciate you coming back and all the comments we've received through our social media channels.

Today, we tackle the controversy surrounding Samsung and the defective Note 7 phone.

If you are unfamiliar, more than 92 cases of exploding Samsung phones have been reported in America (with more than another dozen reports worldwide).

Included are a phone causing a car to burst into flames, and a very sad story of a small boy in Brooklyn whose phone blew up in his hands as he was watching a video.

Samsung has issued a recall for the defective phones. Problem solved, yes?

Not exactly..

Thanks for watching


[End note]




Jordan Flake: Hi welcome to ClearCast. I'm attorney Jordan Flake and I'm here with attorney Jared Richards, my esteemed partner and personal injury attorney extraordinaire. The reason we brought Jared on today is because he's going to give us some insight as to a potential, I don't know I guess it would be a potential products liability issue that's going on in the news right now. If you pull out your phone right now there's a chance that you own a Samsung phone, just because it's a highly popular phone here in America. Jared happens to own the Edge, which fortunately for Jared is not the Samsung phone that's been blowing up.

Jared Richards: It's not likely to blow up on me as far as I know.

Jordan Flake: As far as we know.

Jared Richards: I guess we'll only find out in time.

Jordan Flake: Samsung has recently released the very popular Note 7 and it's been blowing up on people. In fact there have been 92 reported cases of these phones blowing up. How do we start to think about this? Jared, if somebody calls you up on their land line because their phone's exploded. They call you on the land line and they say, "Jared, my Note 7 blew up while I was watching a video. It burned both my happens."

Jared Richards: Now and handless.

Jordan Flake: Now I'm handless.

Jared Richards: When it blows up do we know how violent the explosions are?

Jordan Flake: Brian. Can you help us out. Brian's off camera here. He can help us with that.

Brian: It varies from explosion to explosion. Some have been very serious.

Jordan Flake: Some just kind of catch fire.

Brian: Some explode in people hands. One exploded in a guy's pocket. He had a second degree burn on his hand when he tried to take it out of his pocket.

Jared Richards: What's interesting is, as you know I was in the air quite a bit last week. We had business up in Canada and we had business in Iowa. I had to fly out to go handle those. When I boarded the airplane, every airplane that I boarded, except for Frontier so I guess I worry about them a bit, but every other airline as I boarded they gave us the express instruction that if we have a Note 7 that we are not to turn it on, not to use it, not to take it out of the bag, make sure that it is off at all times. This is something that the ... they were saying that was what the FAA was instructing them to say. It's something that's of concern that airlines certainly don't want to have random fliers and explosions on the airplane. As you try to smuggle the Note 7 and you get tackled as a terrorist. Clearly it's a concern if the phone is going to explode.

The way that I think this is going to play out, it's going to depend. Every state handles this a little differently. When a manufacturer produces products that go to every state, you're going to be dealing with generally in the laws of the state that the person got hurt in. Although that might be an interesting analysis that somebody does at some point if they don't like the laws of their state. We have two problems here. We have one, exploding phones. The exploding phone itself makes the product not worthwhile. Nobody wants have an exploding phone and nobody wants to have the risk of having an exploding phone.

Jordan Flake: Although Samsung did point out that the risk was about the same as getting struck by lighting.

Jared Richards: Sure but nobody opts into that situation. Nobody stands on a mountaintop during a thunderstorm with a rusty umbrella saying, "God I dare you." As I was flying trying to turn on my Note 7 and an air Marshall was tackling me I was trying to explain to him ...

Jordan Flake: It's only as likely as getting struck by lightning.

Jared Richards:  We have three potential different types of lawsuits that might go on on something like that. First you have a class action suit. The point of a class action suit is that everybody has the same kind of damages. Whereas some people have been burnt and some people have had other property destroyed, they don't all have the same type of damage. There is one aspect of damage that everybody does have. That is everybody now has a phone that has either exploded or that they're worried about having explode. The cost of the phone itself is a similar damage across the board. Presumably some law firm out there probably already has started a class action suit to try to represent everybody in the United states in the market that has purchased this phone to try to get them a refund for the price of their phone. Quite frankly that could be a huge class action. For the individual person it's not all that valuable, it'll be a few hundred dollars. For the attorney's that take a percentage of the total amount it's going to be a significant amount.

Then we have two other types of injuries. We have injuries to person and injuries to property. There are two different theories of liabilities that are going to be popular here. The first theory is that of strict products liability. Strict product's liability is only going to deal with the malfunctions that actually hurt a human. Strict product liability, probably if you need to replace your pants that got burnt or on the case that Brian was telling us about where a car was burnt down or if you're an airline owner and somebody smuggles in the Note 7 and blows up your plane with it that really isn't a strict products liability because we're dealing with property damage.

As far as damage to people go, what we look at and different states do different things. The majority of states still follow what we call the consumer expectation test. The consumer expectation test just simply asks the question when you buy a phone and it blows up on you were you expecting it? This area of law actually is really complex and there's a lot of law and a lot of judgement and case law that we can use on this and different tests that we use. The very basic test is that of consumer expectation. If the phone is more dangerous than a consumer would normally expect then it's a dangerous product and the company is going to be strictly liable ...

Jordan Flake: For the damage to the person.

Jared Richards: For the damage to the person under that idea that the manufacturer is really the common factor and it doesn't' even matter, let's say that to make the phone explode you have to turn around three times and spit over your left shoulder and that's the only way you make it explode. You say, 'Well people shouldn't be turning around three times and spitting over their left shoulder. That person was negligent." In strict product liability we don't even care about the negligence of the user. We look at what the manufacturer did.

Jordan Flake: Right so if you left your phone ... let's say the common denominator is everybody had left their phone in a hot car immediately prior to picking it up and putting it in their pocket.

Jared Richards: You say, 'Well why did you do that? That was stupid?"

Jordan Flake: Right you shouldn't leave that in a hot car.

Jared Richards: Under a normal analysis you would look at the total damage. Let's say the total damage was $100 to the person. It's going to be more than that but $100 is a nice even number. You'll say, "Okay well we're going to put 20% on the user because they shouldn't have left it in the car. We'll put 80% on the manufacturer, manufacturer you have to pay 80%." Under strict product liability we don't care what the user did. We put it all on the manufacturer and the manufacturer is going to be liable for the damage they've done.

Jordan Flake: As a policy consideration of we want the big and powerful product manufacturers in our country, such as Samsung, to make safe product.

Jared Richards: To make safe products. Now other states are going to use other tasks, not so much consumer expectation, that was there a safer design? The answer is, I don't know my phone hasn't blown up on me. I'm sure that there's a safer design out there, one that doesn't blow up.

Jordan Flake: Should I just stop carrying my phone. I carry my phone in my front pocket. Could I carry it somewhere else?

Jared Richards:  You're not going to be carrying it ... I was thinking maybe you have a special case to make it so it doesn't ... it's like a firecracker. What happens when you put your hand around a firecracker? Big explosion. You have to be careful. As far a damage to property we use a different theory of law, it's called a product warranty. It's just simply saying there was an implied contract that they were going to give you something that wasn't going to blow up. They breached that contract so now they're responsible for the property damage they caused.

Jordan Flake: Let me ask you a question. Let's say the judge looks into this and they find out that Samsung was like, "Oh man these phones blow up but you know what? We have to rush this out there because iPhone 7 is being put on the market too."

Jared Richards: That's when things get really interesting.

Jordan Flake: Does that come in under the class action side? Now we'd be talking about punitive damages right? Does that come in under the class action side or the personal side or possibly both?

Jared Richards:  Both. What's going to happen is if Samsung actually knew that their product was dangerous before they shipped it out.

Jordan Flake: Yeah Samsung. They probably didn't know which just my guess is.

Jared Richards:  We have no idea. Samsung, please don't sue us we have no idea.

Jordan Flake:      Don't send your people out to us because we don't think you were witting there like, "Oh one in every hundred blows up."

Jared Richards:  You're giving that, I'm just saying I have no idea. I'm not implying they did, I'm not implying they didn't. I have no basis upon which to form an opinion. I'm not forming an opinion. Let's say there's a magic document, the damning email, the magic bullet that you have one of the designers sent a memo over to a vice president that said, "Warning, we're not so sure about this." The vice president got the memo and it went out anyway. Then we're talking about punitive damages and punitive damages are going to apply at all the different levels.

Jordan Flake: All the way, everywhere.

Jared Richards: Well every case the judge makes the determination of whether punitive damages are appropriate in this case. In the class action where everybody has lost, I mean what is the Note it's like $800? Everybody's lost an expensive $800 device either because it's blown up or because it's not worthy, fit, safe to keep in your pocket so they have to get a new phone. I don't know, did they sell a million of these? I don't know how many they sold. You look at the judge and say, "Your honor, they've caused $800 million of property damage by selling unfit phones and they knew about it and they sent it out for profit anyway." The punitive damages there may be very large. Every judge is going to make the determination whether punies are going to be appropriate in their case. If you have somebody who lost a hand, again I don't know how explosive these explosions are, but if somebody lost a hand or lost the use of their hand because it was so burnt, then that person might also very justifiably go after punitive damages against the company.

It's possible there would come a point where a judge would say, "Okay the purpose of punitive damages is never to award the person who's been hurt. It's only meant to send a message." There's already been so many millions of dollars in punitive awards against this company, guys message has been sent. We're not going to find punitive damages appropriate in this case. The plaintiff only has so much room to complain because the punitive damages, although the plaintiff is the one that gets the money. They're never really his, it was for the purpose of teaching a lesson and to prevent other people from doing the same thing.

Jordan Flake: Sure that makes perfect sense. I think that gives us a good rundown on obviously if you have a products liability situation you can probably easily tell if Jared's the right guy to call. If you have something like that pop up let us know. In the meantime, as always, we're very interested to hear your thoughts on this. Let us know if you have a different take on this or if you think the cell phone companies need to be treated differently when they have this type of situation come up. Leave us a message and let us know. Thanks so much for joining Clearcast. We really appreciate it.

Jared Richards:  Thank you.


Do the Dog Bite Laws in Nevada Need to Change?

Hello and welcome to Episode 2 of ClearCast!

We are sure you have heard about the horrific story of the child in Las Vegas that was killed by a pit bull. The fact that the dog had a previous violent incident has many folks in the Valley upset1)and not unreasonably.

In turn, two of our partners sat down for a few minutes to discuss the current state of the dog bite laws in Nevada.

Good information for all Nevada families!

Thanks for watching.

Analyzing the Current State of Nevada's Dog Bite Laws


Jordan Flake: Hi, I'm Jordan Flake, and this is Attorney Jared Richards. His is a personal injury attorney. Welcome to today's Clearcast. We're talking about a really sad event that occurred just very recently here in Las Vegas. Imagine this scenario: A nine-year-old boy was going to visit his friend's house. As soon as he showed up at the door, the owner's pit bull jumped out of the house and attacked the child, a nine-year-old, and ended up killing him. There was a fatality involved with the pit bull.

We brought Jared on today because he's a personal injury attorney, and he knows a lot about what we would colloquially refer to as dog bite law.

Let's talk about this for a second here. Just kind of, let's start really broad and general. Every time a dog bites a person, is the dog owner liable or how does that how does the law kind of even start to work on this? Before we even get to the fatality, if you're just jogging along and somebody else is jogging with their dog the opposite direction, and that dog bites your ankle?

Jared Richards: Right. First of all, tragic, tragic occurrence, and our heart goes out to the family of the boy. In general, we don't have any specific statutes that address the negligence aspect of dog bite liability. We have some criminal statutes, but it's not for general negligence, which means we just go under general negligence law which we call just General Negligence Common Law.

Jordan Flake: There is not some statute that says, "This is dog bite law, NRS1774 in Nevada. There is just we go under what happened in previous cases?

Jared Richards: Right. Kind of.

Jordan Flake: Okay.

Jared Richards: There is a criminal statute, and if you violate the criminal statute then you automatically are going to be liable for damages that are done when you violate the criminal statute. You don't have to violate the criminal statue ...

Jordan Flake: In order to be held ...

Jared Richards: In order to be held responsible.

Jordan Flake: Okay.

Jared Richards: Right, but if you violate the criminal statue your [inaudible 00:02:16].

Jordan Flake: What is ...?

Jared Richards: What it is is everybody has the duty to act as a reasonably safe and prudent person. It's my duty, it's your duty, it's everybody's duty at all times.

Jordan Flake: Which is why we can't drive recklessly.

Jared Richards: That's why we can't drive recklessly, we can't drive drunk, we can't drive distracted. We have to follow the basic safety rules of society as a reasonably prudent, safe person would do. Now, if we breach that duty and as a result of us breaching that duty somebody gets hurt then we're on the hook for the damage that we've caused.

In the case of a dog the question is going to be up to the jury of what would a reasonably prudent and safe person, as an owner, have done in that situation?

This is where we get into questions about whether the one bite rule would apply or not? The one bite rule is a traditional common law doctrine where the owner isn't going to be responsible until the animal has actually attacked somebody at least once before because they don't know that the animal is dangerous.

I don't know that would actually apply here. What's really a jury is going to at and say was there sufficient notice to this particular owner that this particular dog was dangerous?

Jordan Flake: Just so everyone knows out there, the background also on this is that that dog was previously cited for attacking another dog.

Jared Richards: Right.

Jordan Flake: The question is, does that constitute sufficient notice so that the owner of the dog would have said, "You know what if a guest is coming to my home or if the front door is open and we're just dealing with the screen door I better make sure this pit bull is restrained because somebody could come to the door and freak my dog out."

Jared Richards: If you're the person who owns the dog or if you're the insurance company, like the homeowner's insurance that's backing up the dog, you've got to be careful about that because you're going to have a lot of juries out there that might think that. If it's already attacked another animal then it might attack a human. But, there might be juries that think the other way around. It really is going to depend on what the ultimate juries believe. What they think was proper notice to the owner that this was a potentially dangerous animal.

Now, the criminal statute is a little bit different. The criminal statue defines animals under two different varieties, under dangerous and vicious. Dangerous means that when it's provoked it's going to get defensive. Vicious means ...

Jordan Flake: It goes out looking for trouble.

Jared Richards: Yeah, it goes out looking for trouble. You don't need to provoke it. Once it's been either cited as a vicious animal or you observed it be a vicious animal and you've seen it go out and bite then you have seven days, you can't transfer it and you have seven days to get rid of it. If you don't do that and somebody gets hurt then you've committed a misdemeanor. You've actually violated criminal law and you are, what we call, negligent to per se. You are just ... The law's going to assume that you've breached it.

Jordan Flake: That's if they're vicious?

Jared Richards: If the dog is vicious.

Jordan Flake: It seems, kind of, actually light because if you know your dog's basically a weapon ...

Jared Richards: Yeah, and that makes sense. If you've gone to the point where you're actually committing misdemeanors then you're going to be held viable. You don't have to actually get to the point of committing the misdemeanor to be held liable. You don't have to know that you're dog is vicious. You have to know that the dog is vicious before you get criminally cited. To be civilly liable all you have to know is ...

Jordan Flake: The dog is dangerous.

Jared Richards: You have to act as a reasonably sane person would act.

Jordan Flake: It's interesting, the records show in Clark County that there's been like 154 complaints made against dogs and only nine have been characterized as dangerous of those 154 that we kept records of and zero have been classified as vicious. I think it's a pretty rare, apparently, a pretty rare classification.

Jared Richards: That's interesting. Does that mean that there just aren't that many vicious animals out there or ...

Jordan Flake: Do the standards need to change to where ...

Jared Richards: Or do the people who are enforcing the standards just not actually enforce them?

Jordan Flake: Right and that's going to be the issue going forward here is people are going to look at this case and they're going to say, "Well, what went wrong? This dog was already cited as having bit another dog and we have a ..." The thing that we have here is a deceased child. That's a total tragedy.

Jared Richards: Right, that kid is dead.

Jordan Flake: It's just ... When I heard about this story I was just shocked. He's nine. He's a nine-year-old kid killed by a dog.

Jared Richards: What's interesting is that for a while there was a movement, again in various states, when you have a vicious breed of animal like a pit bull, an ultra-aggressive breed of animal or at least the public might perceive as ultra-aggressive that the owner is just going to be assumed to be already on notice that this is a dangerous animal and so they're going to be liable in tort the first time the thing attacks because they're going to assume they're already on notice.

Jordan Flake: You buy a pit bull you know you're buying a pit bull and you know what you're doing.

Jared Richards: There's been a counter movement in the past couple of years where you've had certain states that pass anti-discrimination laws against breeds of animals. I know that Nevada has also implemented that to a certain extent in the criminal statue. It does make you wonder how that would play in the tort. Can a jury still assume that, I don't know if you buy a Rottweiler or you buy a pit bull, you buy a mountain lion, that at some point you have notice that the animal you bought does pose a danger to others just because of it's breed.

Jordan Flake: It's very, very interesting and I think very fertile for academic discussion is it's obviously very unethical to look at race in human beings as a measure of whether or not there's a potential for them to a commit a crime.

Jared Richards: We tend to anthropomorphize, I'm going to screw up the word, these animals and although ... Listen, I like animals too. I like dogs. They have feelings too. However ...

Jordan Flake: The stats don't like. Pit bulls kill humans. They do. I just looked at the stats. It's incredible. Pit bulls are the ones that ... It's overwhelmingly 70% children but they're being by a lot of pit bulls and ...

Jared Richards: Significantly more pit bulls have killed ...

Jordan Flake: Than Golden Retrievers.

Jared Richards: Or Poodles.

Jordan Flake: Or Poodles or Chihuahuas. It turns out there ...

Jared Richards: Not that many Chihuahua deaths.

Jordan Flake: Okay, so maybe last point here, the kid’s name was Derion Stevenson. If the Stevenson's were to come into your office and talk to you about this case and they said, "Hey listen, we're going throw unimaginable pain and suffering. We have his funeral costs and it's just been horrible for us. What are our prospects for recovering in this case. What insurances are out there?"

Jared Richards: That's an interesting question because the natural insurance that you would assume would apply would be the homeowner's insurance. Most people in the State of Nevada or the United States of the world don't really have enough assets to cover an injury like this. My goodness, the boy is dead. Unless you're Wal-Mart you're probably not going to have the kind of money to really truly compensate this family, not that money can. You won't have the kind of money to truly compensate.

What you'd look at first is the homeowner's insurance. The problem you're going to have and something you have to look at is there are certain homeowner's insurances that specifically exclude coverage of what the insurance company defines as vicious animals.

Jordan Flake: Which may be different that the state definition, by the way.

Jared Richards: Right. If I'm going to rely on statistics I'm probably going to rely on the statistics of insurance companies excluding then the state because ...

Jordan Flake: Absolutely.

Jared Richards: Insurance companies are, sorry, cold heart less data driven beasts where this state ...

Jordan Flake: The odd makers and actuaries know their stuff.

Jared Richards: The state does as well.

Jordan Flake: The state, yeah, a lot of interest and so forth.

Jared Richards: A lot of political interest going on. The first danger is is this specifically excluded by the insurance policy and if it is, and this is research I haven't done, is it even allowed to exclude this then there may be additional umbrella insurance. After that you need to make the decision, do you go after the actual personal assets of the family and if you did would they just file bankruptcy? At that point even though you've lost a child, which is horrible, trying to take away all the property of somebody else also ruins their life. It may not make your life better. Those are all things that are difficult to weigh and sometimes it's right and sometimes it's not. Those are all things that that person, they need an attorney. They just need one.

Jordan Flake: Absolutely.

Jared Richards: Whatever attorney they go to they should go to one that has experience in personal injury, preferably experience in animal tort and that is compassionate enough they could actually try to walk them through some of these very, very difficult choices and issues that they're going to have to deal with.

Jordan Flake: Absolutely. Thank you for joining us for Clearcast. Let's just do a few little takeaways.

First of all, Jared is a great personal injury attorney. He's my partner but still he's a great personal injury attorney. If anybody out there has a question about a dog bite case or some other personal injury please seek his expertise. He will do a free consultation.

Second, is we would love to hear what you think. If you could chime in on the blog or on Twitter or Facebook and let us know what you think about pit bulls, about whether or not the laws are too lax, whether or not there's any justice in this situation, what you know ... You may know something about this story or have an opinion that we don't. We love going back and reading over those comments.

Three, just thank you so much for joining us for Clearcast and we'll hope to see you here in the future.

Thanks so much.

Jared Richards: Thank you.



1 and not unreasonably

What You Should Consider if You Are Injured by a Product Defect



Considerations for a Product Defect Claim


Hi. I'm Jared Richards. I'm one of the counselors at Clear Counsel Law Group. One of our readers has asked what they should do if they feel like they have a product defect claim. Product defect claims can be complex. They can be very complex. They can be expensive to litigate.

The first thing you need to do is you need to call an attorney. You need to call an attorney who has experience in product defect claims. Don't just pick anybody, but somebody with actual experience in this area.


product defect, personal injury, las vegas, nevada


Two, you need to make sure that the product is preserved. You need to make sure that you keep it in the exact same state it was at the time of the injury. If you alter it, if you change it, you can have difficulty proving your claim. Now, really the most important thing, of course, in any type of injury is make sure that you get medical care.

That's the most important thing. Your health is the most important aspect of any sort of claim just because it's the most important aspect of your life.

Make sure you go see a doctor. Make sure that you get the care that you need. Call an attorney that has experience, preserve the product, and then let your attorney take it from there.


How a Cyclist Should Handle an Accident With No Police Report


What Should a Cyclist Do After an Accident with No Police Report?


Jared Richards: Hi, my name's Jared Richards. I'm one of the attorneys at Clear Counsel Law Group and one of our readers has asked, he said, "I was a cyclist who was hit by a car. There's no police report but my arm is broken. Can I file a claim?"

The answer is absolutely you can file a claim. Police reports do not determine people's liability.

Police reports can be helpful but police reports can be nonexistent or they can be wrong. At the end of the day, the police report is not actually admissible as evidence at trial so the fact that there's no accident report doesn't mean you can't file a claim.

It can mean that it's more difficult sometimes to file a claim. Let's imagine, for example, that the other drive refuses to admit that the accident even happened. That's where a police report can be very helpful because it helps establish that an accident happened.


Cyclist, car accident, Las Vegas, Nevada, injury


What is really important though is after you get into an accident, even if you're on a motorcycle, or a cyclist, or a pedestrian, if you're a pedestrian make sure you get the other side's insurance information.

Make sure you take pictures if you have your phone with you.

Take pictures of their car.

Take pictures of their license plate number.

Take pictures of their insurance card.

Make sure that you document that it actually happened. Go get medical treatment and yes, their insurance company should cover it.

Also, be aware that if you're a pedestrian or if you're on a bicycle, that most of the time if you have under-insured motorist coverage, that your own insurance company will also help compensate you for your damages.

Looks like Brian has a question.


Brian: If you're a cyclist injured and the police report says you are at fault, will that foreclose your ability to recover a personal injury claim?


Jared Richards: No, again the police report is not admissible in court so it can help lead people to understand what happened at the accident and it can lead people to make, before you actually get to trial, to make decisions about the accident but ultimately the police just come in and they write their report based on what they see at the scene and what they are told by the parties.

That means the cops, most of the time, weren't there and didn't see it happen. Often the cops get it right in their police report.

Most of the time they find the right party at fault but not always and we've definitely seen many examples of where the police were wrong, the police have gone against our clients and yet we still were able to make a claim.

Usually that means that we have to file a lawsuit, unfortunately, but we file a lawsuit and most of the time we'll, if we feel good about the case, then we end up getting a good settlement.

The short answer is police determination against you is not controlling. What is controlling, are the true facts of the accidents.

Anyway, if you have questions, or especially if you've been on a motorcycle, or you are a cyclist, or you're a pedestrian and you get hit by a car, please give us a call.

Those are things we have experience with and we'd love to help you.



Ongoing Medical Treatment and Accepting a Settlement Early


Should You Accept a Settlement Before Completing Your Medical Treatment?



Jared: Hi, my name is Jared Richards, and I'm one of the attorneys at Clear Counsel Law Group. One of our readers has recently asked whether they should accept a settlement before their medical treatment is finished. The answer is it depends. There are different factors that go into this. One of the main factors is what is the size of the insurance policy or what's the size of the funds available to pay the claim.

For example, if you have medical treatment that's going to cost $300,000 over the course of four years but there's only $50,000 to settle this claim, and that's really all there is going to be, then yes.

It would make some sense to accept that settlement before your treatment is finished. However, if it's a large amount of money that is available to pay the claim, let's say a major company has injured you, and they actually have the ability to pay the true value of your claim, then often it's not a good idea to take a settlement before treatment is done.


medical treatment, personal injury, las vegas, Nevada


However, sometimes treatment can take years and years and years. At some point during the settlement, if that's the case, your attorney's going to sit down with your doctors and perhaps a life care planner, that is a professional who is paid to help determine what future medical treatment is going to be, and they can make estimates as to what that expense is going to be.

Then that can factor into the amount that you settle. In that case, you would be settling before your treatment is done.

The short answer is it can be complicated and you should talk to your attorney. Looks like Brian has a question.


Brian: How do you find out how much money is available to pay your claim?


Jared: That can be tricky sometimes. First of all, you need to look for available insurance policies. Now most of the time you can find that through police reports or you can force the other side to disclose that as a term of settlement. If you actually go into a lawsuit, the other side is absolutely required to tell you all insurance available.

Now as far as funds outside of insurance, it's going to vary from state to state. The state of Nevada protects people's personal assets really quite aggressively.

There are so many things that are protected: houses, cars, insurance policies like life insurance policies, annuities, certain investors that are protected that you can never access even if you were to go get a big judgment against them. Because of that, most people simply just look to the insurance policy.

You could try to go after somebody's personal assets if it looks like they have them, but sometimes that's a gamble.

That's one of the things that you should talk to your attorney about and make a game plan as to whether you're going to go after insurance or whether there are also personal assets that might help pay for the claim and might help compensate you for what you've lost.

Anyway, it can be a complicated question, so please talk to your attorney. If you have questions for us, we're happy to help. Give us a call. Thanks.


Reporting Your Personal Injury Settlement on Your Taxes



Do You Need to Report Your Injury Settlement on Your Taxes?


Jared: Hi, I'm Jared Richards. I am one of the partners at Clear Counsel Law Group and one of our clients recently asked us whether or not they need to report their personal injury settlement on their taxes. The real true and clear answer is, you need to go talk to your accountant. If you received a settlement have a real accountant to have a real accountant to actually prepare your taxes for this year, and let them make the final decisions.

As a general principle you do not have to pay income tax on money that is related directly to the injury. If you have been hurt in an accident, car accident, and you have received settlement for emotional damages, for medical bills, for Pain and Suffering, or for your property damage, generally those are not taxable.


Tax Day, taxes, personal injury settlement, las vegas, nevada


The IRS views that as you've lost something and now you are getting it back in monetary format, so it's not really a gain. However, if you receive money for lost income, because that income would have been taxable anyway, you do need to report that to the IRS and you're going to need to pay taxes on it.

Again, talk to your accountant. Before you settle talk to your attorney to talk about how settlement might a portion to help advantage you on taxes. Talk to your accountant he's the one that's ultimately going to make these decisions. Looks like Brian has a question.


Brian: To clarify, Pain and Suffering is included in something directly related to the law suit that wouldn't be taxable.


Jared: It depends. To be quite honest it's been a while since I've had to look this up so, again, talk to your accountant. I want to make sure that's clear.

My general understand is that if the Pain and Suffering is related to an actual physical impact, that the IRS doesn't count that as income.

If the Pain and Suffering is in relation to somebody harassing you, somebody calling you names, that's something you actually might want to talk to your accountant about. That might actually be taxable. Again, you've heard me say it about twenty times in this little video, talk to your accountant about it.

As a general principal Pain and Suffering directly related to a physical injury is not going to be taxable. Thanks and if you have any questions give us a call.


Clear Counsel Law group

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