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Negligence

Negligence


Elements

It is well established that to prevail on a negligence claim, a plaintiff must establish four elements:
(1) the existence of a duty of care,
(2) breach of that duty,
(3) legal causation, and
(4) damages.

Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1175 (Nev. 2008);Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009).

Sub-categories

Proof

Damages

Defenses

Misc

With regard to the duty element, under common-law principles, no duty is owed to control the dangerous conduct of another or to warn others of the dangerous conduct. See Mangeris v. Gordon, 94 Nev. 400, 402, 580 P.2d 481, 483 (1978). An exception to this general rule arises, however, and an affirmative duty to aid others is recognized when (1) a special relationship exists between the parties or between the defendant and the identifiable victim, and (2) the harm created by the defendant’s conduct is foreseeable. Lee v. GNLV Corp., 117 Nev. 291, 295, 22 P.3d 209, 212 (2001); Elko Enterprises v. Broyles, 105 Nev. 562, 565-66, 779 P.2d 961, 964 (1989); Mangeris, 94 Nev. at 402, 580 P.2d at 483.

Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280-81 (Nev. 2009).

Attorney liens

General

“In Nevada, there are two types of liens an attorney may hold to ensure that clients pay their attorney’s fees: (1) a special or charging lien on the judgment or settlement the attorney has obtained for the client, NRS 18.015(1); Morse v. Eighth Judicial District Court, 65 Nev. 275, 281, 195 P.2d 199, 202 (1948); and

(2) a general or retaining lien that entitles an attorney, if discharged by the client, to retain the client’s papers, property or money until a court, at the request of the client, requires the attorney to deliver the retained items upon the client’s furnishing of payment or security for the attorney’s fees.Morse v. Eighth Judicial District Court, 65 Nev. 275, 281, 286, 195 P.2d 199, 202, 204″
Figliuzzi v. Eighth Judicial Dist. Court In and For County of Clark, 111 Nev. 338, 342, 890 P.2d 798, 801 (1995).

Elements

  • Special or Charging Liens:
    • A client places a claim, demand or cause of action (including a claim for unliquidated damages) into the hands of an attorney for suit or collection
    • The attorney successfully obtains a judgment, settlement, collection, ect., for the client
    • The attorney then has a lien on the proceeds of the judgment, settlement, or collection for:
      • The amount of the fee agreed upon by the client and attorney, or
      • If no fee agreement exists, for the reasonable value of the attorney’s services

NRS 18.015.

Example Cases

Figliuzzi v. Eighth Judicial Dist. Court In and For County of Clark, 111 Nev. 338, 342, 890 P.2d 798, 801 (1995).

Morse v. Eighth Judicial District Court, 65 Nev. 275, 821, 195 P.2d 199, 202 (1948).

NRS 65.275

Proof

Damages

Defenses

Misc

  • An attorney at law shall have a lien upon any claim, demand or cause of action, including any claim for unliquidated damages, which has been placed in his hands by a client for suit or collection, or upon which a suit or other action has been instituted. The lien is for the amount of any fee which has been agreed upon by the attorney and client. In the absence of an agreement, the lien is for a reasonable fee for the services which the attorney has rendered for the client on account of the suit, claim, demand or action.
    NRS 18.015.
  • We further conclude that when a client enters into an independent retainer agreement with a forensic accountant for accounting services in furtherance of the client’s litigation, the attorney is not responsible for the accountant’s fees under the principal theory enunciated in Molezzo, and the attorney cannot claim the forensic accountant’s unpaid fees as costs in his attorney’s lien.
    Bero-Wachs v. Law Office of Logar & Pulver, 123 Nev. 71, 157 P.3d 704, 709 (2007).
  • The attorney’s right is not based upon (or limited to) his lien. It is based upon contract express or implied. The lien, as is true of other forms of lien, is but security for his right. To hold that an attorney’s right to compensation is limited to his lien rights is in effect to deprive him of any right to contract for other than a contingent fee, since no fee contract could ever be enforced save in event of a successful recovery to which a lien might attach.
    Gordon v. Stewart, 74 Nev. 115, 117, 324 P.2d 234, 235 (1958).

Nevada’s Theories of Liability

Nevada’s Theories of Liability


 

This section is a work-in-progress attempt to provide a basic reference for litigators looking for a starting point in analyzing their cases.  

 

Also, there are two new formating issues that have come to my attention. First, a glitch in the software has caused some of my articles to lose their formating.  Second, Google has instituted a block on all popups containing their site.  So I have lost my citations to Google Scholar.  I am working on fixing these issues.

Wrongful Use of a Computer

 

 

Wrongful Use of a Computer

Elements

The text of NRS 205.4765et seq is far to large for the purposes of this summary. It suffices to say that, in general, it is unlawful to use/take/publish/access/destroy (etc.) data on a computer without authorization

  1. data, a program or any supporting documents which exist inside or outside a computer, system or network NRS 205.4675(1)
  2. equipment or supplies that are used or intended to be used in a computer, system or network NRS 205.4675(2)
  3. a computer, system or network a device used to access a computer, network or data NRS 205.4675(3)
  4. a device used to access a computer, network or data NRS 205.4675(4)

OR

5. cause to be introduced or attempt to introduce a computer contaminant into a computer, system or network NRS 205.4675(5)

[Editor’s Note: Please note that this list is abbreviated as to the elements of individual causes of action and is not an exhaustive list of causes of action listed in NRS 205.473 et seq. Please refer directly to the statute for more guidance.]

Example Cases

[TruCounsel Editor Note:  It seems that only one Nevada case has addressed this statute at this time: the unreported federal case listed below.  Other states have similar laws and presumably there is case law addressing those similar laws.]
Under Nevada Revised Statute 205.4765, it is a misdemeanor for a person to gain unauthorized access to data or supporting documents that exist inside or outside a computer, system, or network. NRS 205.4765.
As above, Plaintiffs allege that Defendants violated Nevada Revised Statute 205.4765 by knowingly, and without authorization, obtaining or attempting to obtain access to Oracle’s software and support materials, including at least 100,000 unauthorized files by using automated search crawlers to cull restricted and unauthorized information. (Am.Compl.¶¶ 44, 102.) Therefore, the court finds that Plaintiffs have likewise pled a claim for violation of asserted facts Nevada Revised Statute 205.4765.

Oracle USA, Inc. v. Rimini St., Inc., 2:10-CV-00106-LRH, 2010 WL 3257933 (D. Nev. Aug. 13, 2010).

Proof

Damages

NRS 205.511 Victim authorized to bring civil action.

1. Any victim of a crime described in NRS 205.473 to 205.513, inclusive, may bring a civil action to recover:

(a) Damages for any response costs, loss or injury suffered as a result of the crime;
(b) Punitive damages; and
(c) Costs and reasonable attorney’s fees incurred in bringing the civil action.

2. A victim of a crime described in NRS 205.473 to 205.513, inclusive, may bring a civil action pursuant to this section whether or not the person who committed the crime is or has been charged with or convicted or acquitted of the crime or any other offense arising out of the facts surrounding the crime.

3. The provisions of this section do not abrogate or limit the right of a victim of a crime described in NRS 205.473 to 205.513, inclusive, to bring a civil action pursuant to any other statute or the common law.

(Added to NRS by 1999, 2706; A 2001, 1244)

Defenses

Misc

 

Wrongful Foreclosure

 

Wrongful Foreclosure

 

Elements

An action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish that at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor’s or trustor’s part which would have authorized the foreclosure or exercise of the power of sale.
Collins v. Union Federal Sav. & Loan Ass’n, 99 Nev. 284, 662 P.2d 610, 623 (Nev.1983)

Example Cases

Proof

  • Plaintiff must affirmatively plead that he is not in breach

Plaintiffs’ claim for wrongful foreclosure falls short because they have failed to allege that they were not in default on their loan obligations when Defendant initiated the foreclosureproceedings. Although Plaintiffs claim that Defendants’ actions were fraudulent, malicious, and oppressive, Plaintiffs do not affirmatively allege that they breached no condition of the mortgage agreement sufficient to permit foreclosure proceedings against them. Thus, the Court dismisses Plaintiffs’ claim for wrongful foreclosure.
Larson v. Homecoming Financial, LLC, 680 F.Supp.2d 1230, 1237 (D. Nev. 2009).

Damages

Defenses

Misc

 

Tortious Discharge

Tortious Discharge

 

Elements

The essence of a tortious discharge is the wrongful, usually retaliatory, interruption of employment by means which are deemed to be contrary to the public policy of this state. D’Angelo v. Gardner, 107 Nev. 704, 718, 819 P.2d 206, 212 (Nev. 1991).

Example Cases

Proof

Damages

Defenses

[A] public policy tort should not be recognized in this case based on the fact that a comprehensive statutory remedy exists. Shoen v. Amerco, Inc., 111 Nev. 735, 896 P.2d 469 (Nev. 1995).

“In Sands Regent v. Valgardson, 105 Nev. 436, 439-40, 777 P.2d 898, 900 (1989), we refused to recognize an action for tortious discharge even though the defendant had violated Nevada’s public policy against age discrimination because the plaintiffs had already recovered tort damages under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 and under NRS 613.310. In contrast, in D’Angelo, 107 Nev. at 721-22, 819 P.2d at 218, we held that appellant Jones was entitled to pursue an action for tortious discharge against his employer because we concluded the statutory remedy provided in NRS Chapter 618, dealing with occupational safety and health, was far less comprehensive than the one in Valgardson. The statutory remedy did not allow victims to bring suit to recover tort-type damages for injuries, but simply provided for an action by the administrator of the division of occupational safety and health for reinstatement and past wages, not general damages. Id.” Shoen v. Amerco, Inc., 111 Nev. 735, 896 P.2d 469 (Nev. 1995).

Misc

A public policy tort cannot ordinarily be committed absent the employer-employee relationship, the tort, the wrong itself, is not dependent upon or directly related to a contract of continued employment…. D’Angelo v. Gardner, 107 Nev. 704, 718, 819 P.2d 206, 212 (1991).

 

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