Jonathan Barlow, Author at Clear Counsel Law Group

Jonathan Barlow

Clear Counsel Law Group / Jonathan Barlow

Previously, we discussed how/why a Nevada-based merchant is permitted to detain a customer thought to have committed a crime in the store. It might be best to discuss how false imprisonment liability attaches to casino employees and their employers.

Casino False Imprisonment

The Nevada legislature has passed specific legislation for casinos, being as they are such an important part of the Nevada economy. Below are the pertinent parts of the relevant statutes, (Chapter 465 concerns crimes and liabilities in gaming):

     NRS 465.101 Detention and questioning of person suspected of violating chapter; limitations on liability; posting of notice.

      1. Any licensee, or the officers, employees or agents of the licensee may question any person in the licensee’s establishment suspected of violating any of the provisions of this chapter. No licensee or any of the officers, employees or agents of the licensee is criminally or civilly liable:

      (a) On account of any such questioning; or

      (b) For reporting to the State Gaming Control Board or law enforcement authorities the person suspected of the violation.

      2. Any licensee or any of the officers, employees or agents of the licensee who has probable cause for believing that there has been a violation of this chapter in the licensee’s establishment by any person may take that person into custody and detain that person in the establishment in a reasonable manner and for a reasonable length of time. Such a taking into custody and detention does not render the licensee or the officers, employees or agents of the licensee criminally or civilly liable unless it is established by clear and convincing evidence that the taking into custody and detention are unreasonable under all the circumstances.

      3. No licensee or the officers, employees or agents of the licensee are entitled to the immunity from liability provided for in subsection 2 unless there is displayed in a conspicuous place in the licensee’s establishment a notice in boldface type clearly legible and in substantially this form:

       Any gaming licensee, or any of the officers, employees or agents of the gaming licensee who has probable cause for believing that any person has violated any provision of chapter 465 of NRS prohibiting cheating in gaming may detain that person in the establishment.

False imprisonment liability (among other liabilities) for casinos is important enough of an issue that the legislature included similar language in the chapter section discussing the “investigation of suspected criminal activity”:

NRS 171.1235 Gaming licensee may detain person suspected of having committed felony in gaming establishment.

   2. Any licensee or the licensee’s officers, employees or agents may take into custody and detain any person when such licensee or the licensee’s officers, employees or agents have reasonable cause to believe the person detained has committed a felony, whether or not in the presence of such licensee or the licensee’s officers, employees or agents.

      3. Detention pursuant to this section shall be in the establishment, in a reasonable manner, for a reasonable length of time and solely for the purpose of notifying a peace officer. Such taking into custody and detention shall not render the licensee or the licensee’s officers, employees or agents criminally or civilly liable for false arrest, false imprisonment, slander or unlawful detention unless such taking into custody and detention are unreasonable under all the circumstances.

      4. No licensee or the licensee’s officers, employees or agents are entitled to the immunity from liability provided for in this section unless there is displayed in a conspicuous place in the establishment a notice in boldface type clearly legible and in substantially this form:

Any gaming licensee or the licensee’s officers, employees or agents who have reasonable cause to believe that any person has committed a felony may detain such person in the establishment for the purpose of notifying a peace officer.

The Distinction from a Shopkeeper’s Right to Detain

The language is similar to that permitting a shopkeeper to detain a customer suspected of theft in a reasonable manner for a reasonable amount of time. In fact that very language is used in subsection 2, of NRS 465.101. It is important to know that although casinos are a valued part of the Nevada economy, their employees are expected to behave in a reasonable manner just like anyone else.

However subsection 2 of NRS 465.101, contains language that provides specific agents of casinos more authority than employees of other establishments to investigate specific crimes. If casino employee has “probable cause” that a guest violated the laws governing casinos, he or she “may question” and detain the suspect, within reason. The statute goes on to say that the casino employees are not liable to criminal or civil charges unless there is “clear and convincing evidence that the taking into custody and detention are unreasonable under all the circumstances.”

“Clear and convincing” is a term of art in civil law. If a ‘propensity of the evidence’ (or a Ted Wells’ “more probable than not”) standard means something occurred at a 51% likelihood, “clear and convincing” is a relatively higher threshold, similar in percentage to a super-majority in electoral politics.

Allow me to bottom-line it for you. The actions by the casino employee must be egregious before there will be civil liability. This begs the question of if the legislature has insulted casinos and their employees from liability. This is not the case. There are examples of juries in Nevada in the previous ten years awarding compensation to victims. For instance, in one case, a casino's employees chained a suspect to the floor. In another case, a guest was detained for cursing at a casino employee after being asked to leave. These are examples of behavior that is “unreasonable under all circumstances.”

Nevada Law / Personal Injury - 05/28/2015

false imprisonment, nevada, merchant, tort

False Imprisonment by a Merchant

We can all agree that theft is wrong¹⁾talking to you Jean Valjean. But we all could also come to a general consensus in stating that it is wrong for a person to be held prisoner against his or her will without any pretext for doing so. Then again, we can agree that a merchant should have some sort of recourse if he or she truly believe a so-called customer has been stealing merchandise. The law pertaining to civil liability for false imprisonment tries to balance these social needs²⁾this is a discussion of the tort only, not the crime.

False imprisonment is an intentional tort, meaning that unlike a negligence action, the tort must have been committed purposefully. For example, accidently locking someone in a closet is not false imprisonment. Besides needing to be intentional, false imprisonment is a product of three elements:

An unlawful restraint of a person
Against the will of that person
Without any legal justification for doing so.

Each of these will be addressed in turn.

False Imprisonment and Unlawful Restraint

This element is used to evaluate the degree that the accuser was restrained against his or her will. Obviously, physically restraining the person so he or she cannot move is sufficient, but there does not need to be actual force. The security personnel of a shop could threaten harm, implied or direct, and that could be sufficient unlawful restraint.

False Imprisonment, Against the Will

Under the prong of the analysis, a judge or jury will listen to the specific facts of the incident and determine of a similarly situated “reasonable person” would have believed that the person was being held against his or her will. If an average, reasonable person could have left the situation then there is no false imprisonment. For example, if the security guard is holding your hand gently, that likely is not enough. Or, if the security personnel is blocking the main exit to the room, but there is a side door open and available to be utilized, then this would not be false imprisonment either.

False Imprisonment and No Legal Justification

This element considers if there is legal justification for holding you in the store without your consent. A good faith arrest and detention at the store for a reasonable period is lawful. Nevada has a statute describing the terms that a shopkeeper may detain a customer. Below is the pertinent section:

NRS 597.850 Shoplifting: Merchant may request person on premises to keep merchandise in full view; detention of suspect; immunity of merchant from liability; display of notice.

      2. Any merchant may request any person on the merchant’s premises to place or keep in full view any merchandise the person may have removed, or which the merchant has reason to believe the person may have removed, from its place of display or elsewhere, whether for examination, purchase or for any other purpose. No merchant is criminally or civilly liable on account of having made such a request.

      3. Any merchant who has reason to believe that merchandise has been wrongfully taken by a person and that the merchant can recover the merchandise by taking the person into custody and detaining the person may, for the purpose of attempting to effect such recovery or for the purpose of informing a peace officer of the circumstances of such detention, take the person into custody and detain the person, on the premises, in a reasonable manner and for a reasonable length of time. A merchant is presumed to have reason to believe that merchandise has been wrongfully taken by a person and that the merchant can recover the merchandise by taking the person into custody and detaining the person if the merchant observed the person concealing merchandise while on the premises. Such taking into custody and detention by a merchant does not render the merchant criminally or civilly liable for false arrest, false imprisonment, slander or unlawful detention unless the taking into custody and detention are unreasonable under all the circumstances.

      4. No merchant is entitled to the immunity from liability provided for in this section unless there is displayed in a conspicuous place on the merchant’s premises a notice in boldface type clearly legible and in substantially the following form:

       Any merchant or his or her agent who has reason to believe that merchandise has been wrongfully taken by a person may detain such person on the premises of the merchant for the purpose of recovering the property or notifying a peace officer. An adult or the parents or legal guardian of a minor, who steals merchandise is civilly liable for its value and additional damages. NRS 597.850, 597.860 and 597.870.

The key phrase of subsection 3 states the suspected customer may only be held “in a reasonable manner and for a reasonable length of time.” Important also (from subsection 4), is that if the merchant observed the items being stolen by the suspected customer, then the shopkeeper is protected from civil litigation unless the detention is “unreasonable under all circumstances.” The statute balances interests of the parties by requiring reasonable behavior by the shopkeeper if a theft is not witnessed, but permits more leeway in detention of a suspect for a witnessed crime.

Footnotes[+]

Footnotes
↑1	talking to you Jean Valjean
↑2	this is a discussion of the tort only, not the crime

Nevada Law / Personal Injury - 05/27/2015

Constructive Eviction of Commercial Tenants

Although the law dealing with commercial landlord tenant issues in Nevada is often either confusing or non-existent, the Nevada Supreme Court recently clarified one aspect of the requirement of tenants providing notice to landlords about uninhabitable conditions prior to vacating.

In certain situations, when a leased property is considered unfit for occupancy, and the landlord fails to properly fix the problem, a tenant may be constructively evicted. If that occurs, the tenant is allowed to vacate the property and abandon the lease. But, if a constructive eviction did not actually occur and the tenant abandons the property, he or she could be on the hook for damages for breach of the lease.

New case law regarding constructive eviction

Until recently, the requirements for a constructive eviction were not clear. In the case of Mason-McDuffie Real Estate Inc. v. Villa Fiore Development, 130 Nev. Adv. Op. 83 (Oct. 2, 2014), the Supreme Court clarified exactly what constitutes a constructive eviction such that a tenant is entitled to vacate a property and cease paying on a lease.

Throughout 2006 and 2007, Mason-McDuffie, the tenant, complained to its landlord about water leaks. With each complaint, the landlord had the roof fixed. In October 2007, the landlord was again informed about leaks, and again, he arranged to have them repaired. After that time, the landlord received no notice of further roof leaks. In December 2007, the tenant vacated the property, claiming constructive eviction based on the landlord’s failure to remedy the leaks. But, there was no evidence that the tenant ever informed the landlord about the leaks after October of 2007, despite the tenant calling their own repair companies to investigate the source of the leaks and potential mold. The tenant could not explain why the landlord was not informed of the issues during November and December of 2007.

The Court clarified that four elements must be met to declare a tenant constructively evicted:

The landlord must act or fail to act.
The landlord's action or inaction must cause all or most of the property to be considered unfit for occupancy.
The tenant must actually vacate in a reasonable time.
The tenant must provide the landlord with notice of the problem and a reasonable opportunity to fix that problem.

As such, the Court held that a landlord cannot be held to have constructively evicted a tenant if the landlord is not aware of a problem and was not given the chance to fix it. A tenant that abandons without giving notice to the landlord of the problem to be fixed will still be liable for damages due under the lease.

In sum, the Court held that a landlord cannot be expected to fix a problem he or she does not know about. Notably, the fact that a landlord has notice of prior problems is not sufficient, valid notice when the landlord reasonably can assume the prior problems have been fixed. As such, a tenant must provide a landlord reasonable opportunity to cure problems or a constructive eviction has not occurred. If a tenant vacates without notice, he or she should be prepared to prove that the landlord received notice of all the issues, otherwise, the tenant will be held accountable for breaching the lease.

For questions about this and other landlord/tenant issues, feel free to contact the attorneys at Clear Counsel Law Group.

Corporations / Nevada Law - 05/27/2015

Employer Liability for Intentional Tortious Acts

Previously, we discussed the potential liability for bouncers and security guards in reference to negligence and intentional torts. It may be worthwhile to discuss the practical implications of a potential lawsuit against a bouncer or security guard for tortious behavior.

Since many folks with jobs in security do not have a large amount of wealth, even if you were to sue and win, there would be little-to-no money available to you to cover the damages suffered (in the biz, they call this “judgement proof”). In turn, many will prefer to sue the employer of the security guard or bouncer, as the employer almost always has more of a cash flow. The issue of holding an employer liable for the actions of the employee is a complicated one, with case law in Nevada going back to 1945.

Is There Employer Liability?

In 1997, the Nevada Legislature codified the Nevada case law to improve the clarity as to if and when an employer (as a respondeat superior) would be held liable for the intentional act of an employee.

      NRS 41.745 Liability of employer for intentional conduct of employee; limitations.

      1. An employer is not liable for harm or injury caused by the intentional conduct of an employee if the conduct of the employee:

      (a) Was a truly independent venture of the employee;

      (b) Was not committed in the course of the very task assigned to the employee; and

      (c) Was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his or her employment. For the purposes of this subsection, conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury.

Each of these elements needs to be unpacked for us to have a better understanding of if an employer will be held liable for his or her employee’s actions.

Independent Venture

The employer will not be held liable for the employee’s actions if the employee is not acting to improve the standing of his or her employer. For example, if the security guard discussed above were to pick a fight with a patron because of something the patron said, this likely could not be construed as furthering the interests of his or her employer.

Course of Employment

The second element questions if the harm occurred while the employee was in the course of employment on behalf of the employer. Removing a patron from a bar while on the clock is within the course of employment; if the same employee were to follow that patron to his or her car (off the clock) and a confrontation ensued, that may not be in the course of employment.

Reasonable Foreseeability

The last prong asks if the employer could reasonably foresee that the employee in question would act unreasonably. Many employers do background checks and training to insure against this possibility, as it would be difficult to foresee that a well-trained person with no criminal record would commit a tortious act. However, it is not unreasonable to foresee that a security guard authorized to use force may go beyond the legal limit. The determination of foreseeability will likely come down to an analysis of the specific facts of the incident.

Nevada Law / Personal Injury - 05/26/2015

no contest, will provision, estate planning

What a "No Contest" Provision of a Will Really Means

Occasionally, I receive phone calls from individuals who are dealing with problems with the executor of the loved one’s estate. Sometimes the executor is refusing to divide the deceased’s personal possessions fairly; sometimes the executor is refusing to communicate with the individual or to share information about the deceased’s estate; and sometimes, in a worst case scenario, the executor is blatantly refusing to follow the deceased’s last will and testament. Often, the individual informs me that she hadn’t yet called an attorney because the executor had told her that if she did so she would be “contesting the will” and the executor would make sure she receives nothing from the estate. “Is that true?” she asks. “Can he really cut me out of the will?”

What is a No Contest Provision?

First, it is important to know that Nevada law does allow a testator (a person who creates a will) to include a “no contest” provision in the person’s will. Specifically, the law states that the testator may make a gift in a will “conditional … upon the occurrence or nonoccurrence of one or more specified events.” NRS 133.065(1). In other words, the testator can require that if the beneficiary ever claims that the will is invalid for some reason (i.e., “contests” the will) then that beneficiary would lose any gift given to the beneficiary in the will. In fact, Nevada law specifically states that “a no-contest clause in a will must be enforced by the court.” NRS 137.005(1).

Unfortunately, uninformed and sometimes malicious executors too often use the “no contest” provision in the will improperly as a way to scare beneficiaries into not raising valid questions regarding the executor’s handling of the estate. Such scare tactics may be employed by uninformed executors who feel that they are “just doing what dad told me to do before he died,” even though it wasn’t written into the will. In worst case scenarios, these scare tactics are used to cover the executor’s tracks of wrongdoing and sometimes actual theft of estate assets.

How to Raise Concerns

Fortunately, Nevada law protects beneficiaries who have legitimate concerns about what is happening with their loved one’s estate and allows the beneficiaries to raise legitimate concerns without being considered to be “contesting the will”.

First, a beneficiary will not be considered to be contesting the will if the beneficiary “seeks only to enforce the terms of the will.” NRS 137.005(3)(a). For instance, if the will states that a beneficiary is supposed to receive dad’s car, but the executor insists that dad told him to give the car to the beneficiary’s sister, the beneficiary can bring an action in court to ask the court to enforce the gift of the car to the beneficiary.

Second, a beneficiary will not be considered to be contesting the will if the beneficiary “seeks only to enforce the [beneficiary’s] legal rights in the probate proceeding.” NRS 137.005(3)(b). A common problem in probate proceedings is an executor that refuses to provide a required inventory or accounting of the estate’s assets to the beneficiaries. If a beneficiary files an action in court asking the court to require the executor to report and account for the assets of the estate, the beneficiary is not contesting the will by asking for the accounting that the beneficiary is legally entitled to receive.

Third, a beneficiary will not be considered to be contesting the will if the beneficiary “seeks only to obtain a court ruling with respect to the construction or legal effect of the will.” NRS 137.005(3)(c). Sometimes there are provisions in a will that simply are not clear because the will was poorly written. A beneficiary is entitled to ask the court to interpret the will and determine what the will means without being at risk of having contested the will.

Fourth, and most importantly, Nevada law protects beneficiaries even if the beneficiary actually does file a court action asking the court to invalidate a will if the action is filed in “good faith” and with “probable cause that would have led a reasonable person, properly informed and advised, to conclude that the will is invalid.” NRS 137.005(4).

The Nevada Supreme Court protected a beneficiary from a no-contest clause even though the beneficiary asked the court to invalidate a will because the beneficiary had a good faith belief and probable cause to believe that the testator was legally incompetent at the time that the will was signed. The Supreme Court refused to enforce the will’s no contest clause even though the beneficiary lost his challenge of the validity of the will when the court determined that the testator actually did have proper mental capacity to sign the will. Hannam v. Brown, 956 P.2d 794, 114 Nev. 350 (1998).

Do not be Intimidated

If you are a beneficiary of a will and the executor (or anyone else) has told you that you are contesting the will and you are going to lose your inheritance if you continue, the best thing you can do is speak with an experienced probate attorney. The worst thing you can do is to give in to these improper scare tactics by not consulting an attorney. More often than not, you will be protected in seeking to enforce your rights under the will and under Nevada law while it is the executor that faces serious problems with the court for employing these scare tactics to hide improper and sometimes illegal actions by the executor.

Estate Planning / Nevada Law / Probate - 05/26/2015

security guard liability, Las Vegas, Nevada

Bouncer and Security Guard Liability

If you were to watch television to get a better understanding of how the law applies to security guards and bouncers, you may come away with the impression that in a bar or club setting, these employees have carte blanche to do as they please in the handling of unruly patrons.

Although the civil law permits a bit of leeway, a shadow of a tort litigation resides over them and their employers. To what extent a security guard or bouncer may be physical with a patron, without incurring civil liability, is the topic of this discussion.

How a Negligent Act Could Incur Security Guard Liability

Most negligence claims are concerned with the issue of the reasonableness of a defendant. A security guard or bouncer, just like everyone else, has a duty to carry out their responsibilities with reasonable care.

Yet, reasonable care is construed a bit more broadly for security guards and bouncers. For these employees, to protect the owner’s property and other patrons, it is reasonable to use minimal force to eject unruly guests.

Whoa Big Fella

However, the figurative line for permissive force is drawn at reasonable.

For example, a bouncer or security guard may grab an unruly guest by the arm and lead him or her to the exit (if you have spent a little time in a casino, you may have seen this), but if the bouncer or security guard were to take the guest outside and toss him into oncoming traffic (this is hypothetical, I have met more than a dozen security personnel throughout the Las Vegas Valley, and not a one showed any inclination toward this kind of behavior), assuming the guest suffered harm, this could be construed as negligence.

The bouncer or security guard’s behavior was reasonable up until they got to the door, after that, the behavior could be negligent.

It is easy to see how throwing an unruly patron into traffic is unreasonable, but in the real world, it is difficult to project exactly where the margin is between reasonable and unreasonable force.

How an Intentional Tort Could Incur Security Guard Liability

An intentional tort, like assault and battery, is a harm committed purposefully (as opposed to a harm caused by the lack of due care). Assault is placing another person in immediate apprehension of impending physical harm. Essentially, it is a physical threat that a reasonable person would take seriously.

An assault becomes a battery once there is unwanted, physical contact.

Since bouncers and security guards are permitted to use minimal force to execute their job responsibilities, the question of if an intentional tort occurred will focus on the degree of force applied by the bouncer or security guard is reasonably necessary.

For example, grabbing an unruly patron by the arm may not be a tort, but knocking the same patron unconscious may be seen as unreasonable and therefore, battery.

Many nightclubs carry insurance that to protect against lawsuits brought by patrons based on the actions of the nightclub employees. Some of the policies have an “assault and battery” clause that protects the insurance company from having to pay assault and battery claims brought against the insured employer.

In turn, the best means of recovering damages may be through a negligence claim. Our attorneys can answer any other questions you have regarding security guard liability.

Nevada Law / Personal Injury - 05/22/2015

Bar and Social Host Liability

It is common knowledge that an intoxicated person may be held liable for causing injury to another. The question arises, however, if a purveyor of alcohol or social host would be held liable for the harm caused by a person consuming alcohol on their premises. The laws vary quite a bit from state to state; this commentary will focus on the liability for Nevada businesses and social hosts.

Social Host Liability is Limited

Unlike many other States, Nevada does not hold purveyors or social hosts liable for the behavior of their guests, so long as the guests are at least twenty-one years of age. Because there are so many different places where a guest could drink without a bar employee or social host having actual knowledge of how much liquor the guest has consumed, the legislature could not find a reasonable basis to declare these third parties liable for the actions of their patrons.

There is an exception. If a minor (person less than twenty-one years old) consumes alcohol at a residence or business, the host or seller may be held liable for the damage caused by the underage individual. NRS 41.1305 is instructive:

NRS 41.1305 Liability of person who serves, sells or furnishes alcoholic beverages for damages caused as a result of consumption of alcoholic beverage: No liability if person served is 21 years of age or older; liability in certain circumstances if person served is under 21 years of age; exception to liability; damages, attorney’s fees and costs.

      1. A person who serves, sells or otherwise furnishes an alcoholic beverage to another person who is 21 years of age or older is not liable in a civil action for any damages caused by the person to whom the alcoholic beverage was served, sold or furnished as a result of the consumption of the alcoholic beverage.

      2. Except as otherwise provided in this section, a person who:

      (a) Knowingly serves, sells or otherwise furnishes an alcoholic beverage to an underage person; or

      (b) Knowingly allows an underage person to consume an alcoholic beverage on premises or in a conveyance belonging to the person or over which the person has control, is liable in a civil action for any damages caused by the underage person as a result of the consumption of the alcoholic beverage.

But what does “knowingly” mean? If construed in its most strict sense, so long as the dram shop (the old legal term for alcohol sellers) had no actual knowledge that the patron is underage (meaning, that the minor never actually informed the bar employee that he is not at least twenty-one), then there would be no liability for the establishment or the employee. This is an incorrect reading of the law.

The Legislative Counsel’s Digest (This is where the legislature leaves notes so that the public can have a better understanding of what they intend a law to mean), from 29 May 2007, is helpful:

[The legislation] makes a person liable in a civil action for damages caused as a result of the consumption of alcohol by an underage person if he knowingly served, sold or furnished alcohol to the underage person or allowed the underage person to consume alcohol on premises or in a conveyance belonging to him or over which he had control. (Emphasis added).

I think we can safely say that a strict construction of the term “knowingly” is inappropriate. By assigning civil liability to those who “allow” minors to consume alcohol on his or her premises, the legislature requires hosts and servers of alcohol to take reasonable care in preventing minors from drinking at their establishments. This includes, but is not limited to, verifying the age of guests or patrons.

Since the Gaming Board does not look kindly upon serving underage individuals, there is a strong incentive for businesses to verify the age of their bar patrons. However, for a regular person just hosting a few (dozen?) folks at his or her home, he or she will want to verify the age of the guests before serving them. Although the Gaming Board has no power to take a license away from you, the potential for being sued because of the irresponsibility of one of your underage guests, should be plenty of incentive to ensure everyone is of age.

Nevada Law / Personal Injury - 05/21/2015

Dog Bite Liability

With more and more folks keeping their dogs off the leash, (I have come across at least three-dozen unleashed dogs in the past year in my outdoor activities, luckily all those pups were kind and loving), questions arise about dog bite liability in our community.

Below I have provided a summary of Nevada law regarding dog bite liability.

Different Classifications of Dog Caretakers

The state of Nevada classifies dog caretakers into three distinct categories to help assign liability. The different categories are listed in decreasing levels of assigned responsibility:

Dog Owner:

The person who purchased/cares for the dog and provides living quarters.

Dog Keeper:

The person who cares, controls and provides shelter for a dog, with or without permission of the owner.

Dog Harborer:

The person who, although not performing enough functions for the dog to be considered a keeper or owner, still provides food and refuge for a dog. Providing a meal for a stray or allowing a dog to wonder on your property is not be enough possession to be classified as a harborer.

Usually, harboring takes place for a limited amount of time, keeping for a more indefinite period.

If your dog bites another individual, and are an owner, keeper, or harborer, then you may be liable for the damages.

Dog Bite Liability in Nevada

Nevada, unlike many other states, has very little legislation with reference to dog injuries. The majority of dog bite cases will be adjudicated through the common law (meaning evaluated and compared with past Nevada case law).

A dog’s first bite will likely be decided under the scienter or negligence framework. If your dog has a biting history, there is a statute that applies. Each will be explained in turn.

Scienter

Meaning, “knowingly” in Latin, it refers to what you may know as the “one-bite rule.”

That is, in particular cases, you will not be held liable for your dog’s first incident of causing harm to another person. This is not a steadfast rule! If your dog is found to have a “dangerous propensity,” then this defense will not apply.

Dangerous Propensity means that you have or had reason to believe that the dog would cause harm to another. For example, if the dog in the past has lunged at and tried to attack strangers.

Negligence

It is still possible, however, if the biting incident is your dog’s first, that you still may be negligent. Unincorporated Clark County and the municipalities of Las Vegas, Henderson, and North Las Vegas all have leash laws requiring dogs to be on a leash at all times outside of the household.

If your dog bites someone while off the leash, you may very well be subject to dog bite liability. The lesson here is to keep your dog on the leash while out and about to avoid unnecessary exposure to dog bite liability.

Statutory Law

NRS 202.500 is the only relevant law on the books, and it concerns so called “vicious dogs.” The statute states as follows:

NRS 202.500 Dangerous or vicious dogs: Unlawful acts; penalties.

1. For the purposes of this section, a dog is:

(a) “Dangerous” if:

(1) It is so declared pursuant to subsection 2; or

(2) Without provocation, on two separate occasions within 18 months, it behaved menacingly, to a degree that would lead a reasonable person to defend himself or herself against substantial bodily harm, when the dog was:

(I) Off the premises of its owner or keeper; or

(II) Not confined in a cage, pen or vehicle.

(b) “Provoked” when it is tormented or subjected to pain.

(c) “Vicious” if:

(1) Without being provoked, it killed or inflicted substantial bodily harm upon a human being; or

(2) After its owner or keeper had been notified by a law enforcement agency that the dog is dangerous, the dog continued the behavior described in paragraph (a).

2. A dog may be declared dangerous by a law enforcement agency if it is used in the commission of a crime by its owner or keeper.

3. A dog may not be found dangerous or vicious:

(a) Based solely on the breed of the dog; or

(b) Because of a defensive act against a person who was committing or attempting to commit a crime or who provoked the dog.

4. A person who knowingly:

(a) Owns or keeps a vicious dog, for more than 7 days after the person has actual notice that the dog is vicious; or

(b) Transfers ownership of a vicious dog after the person has actual notice that the dog is vicious, is guilty of a misdemeanor.

5. If substantial bodily harm results from an attack by a dog known to be vicious, its owner or keeper is guilty of a category D felony and shall be punished as provided in NRS 193.130. In lieu of, or in addition to, a penalty provided in this subsection, the judge may order the vicious dog to be humanely destroyed.

For legal mumbo-jumbo, that was not too painful. There are a couple of takeaways.

First, if your dog has two incidents within an eighteen month period of injuring another person, unprovoked, he or she will be declared “vicious.”

This might subject you to a felony charge if there was another incident after the "vicious" declaration, and perhaps worse, the state may opt to “humanely destroy” your dog.

If your dog is classified as vicious, please do all you can to prevent another incident.

This could include, but is not limited to, using a strong leach, using a muzzle, posting clear signs on your property, and keeping the dog in a secure area while you gone.

If you are the victim of the dog bite, please contact our personal injury department at (702) 522-0696 and schedule a free consultation.

Nevada Law / Personal Injury - 05/19/2015

parental responsibility, children, nevada

Parental Responsibility: How Your Child’s Actions Could Put You In the Poor House

Did you know that an act by your child could leave you liable for up to $10,000? Scary, right? Before you decide to lock up little Steven until he turns eighteen, a small, parental responsibility discussion may be in order so you will have a better idea if and how you might become liable for your child’s actions.

Parental Responsibility Law for Willful Acts of a Minor

The relevant statute is NRS 41.470, which states:

Except as otherwise provided in NRS 424.085 , any act of willful misconduct of a minor which results in any injury or death to another person or injury to the private property of another or to public property is imputed to the parents or guardian having custody and control of the minor for all purposes of civil damages, and the parents or guardian having custody or control are jointly and severally liable with the minor for all damages resulting from the willful misconduct.
The joint and several liability of one or both parents or guardian having custody or control of a minor under this section must not exceed $10,000 for any such act of willful misconduct of the minor.
The liability imposed by this section is in addition to any other liability imposed by law.

What does all that legalese mean? The key terms are “willful misconduct.” In this context, your child expresses “willful misconduct” when he or she is aware, or should have been aware that the action in question would cause harm to another person or property. Luckily, this means that if your child makes a mistake in good faith that is not willful misconduct.

However, if the harm done by your child is purposeful, or if he or she should have known better, you will be held “jointly and severally liable”; this means you, as the parent, will likely have to cover the cost of the damages up to $10,000 (unless your child also happens to have independent wealth).

Harm Caused by Firearm Use

NRS 41.472 controls for harms done by a minor with a firearm. It states that the parent, guardian, or any adult legally responsible for the minor will be held liable for the harm if he or she:

Know[s] the minor has been adjudicated delinquent or been convicted of a crime, or
Know[s] the minor has a propensity toward violence, or
Know[s], or ha[s] reason to know, the minor intends to use the firearm for unlawful purposes and
Allow[s] the minor to use or possess the firearm.

Similar to the willful acts statute, the parent, guardian, or legally responsible adult will be jointly and severally liable for the harm caused. However, NRS 41.472 does not cap the potential damages at $10,000; the adult held responsible will then have to pay for any damages (medical and all other costs).

Harm Caused by Driving

NRS 483.300 states that if a teenager under eighteen-years-old wants a driver’s license or permit, he or she must have the application signed by a parent or guardian. If, while driving, the teenager is then negligent or demonstrates willful misconduct, then the adult who signed the application will be held jointly and severally liable for the harm caused. Note that this is a lower standard than the “willful acts” of NRS 41.470. If there is one conclusion to be drawn from this parental responsibility discussion, it is that little Steven should not be permitted to get behind the wheel before he is mature enough to do so.

Nevada Law / Personal Injury - 05/18/2015

Online Comments and Defamation, Are You At Risk?

How safe is it to share your opinions online? Just because you see lots of other folks online stating things that look defamatory, does that mean you cannot be sued? First we will discuss what defamation is, how best to understand it in our online comment era, and finally, how Nevada law protects the rights of her citizens to express their opinions online.

What is Defamation?

Defamation is a false statement of fact that causes damage to another, usually financial or reputational damage. There are two types of defamation:

Slander: verbal defamation

Libel: written defamation

Written defamation, libel, includes what is written in print and online. Because we are concerned with online comments, this will be a discussion of libel.

Because libel must be a false statement of fact, if you can prove you were telling the truth, the libel case will not stand. This is an easy defense to a libel accusation. There is a second common defense to a libel suit, that the alleged statement was one of opinion, not fact. This is where things get tricky..

The Statement of Opinion Defense to Defamation

On its face, it seems that it would be easy to determine if a statement is one of fact or opinion.

For example, “Steven (not based on any real person!) is not nice to the people around him” is an opinion and therefore, not defamation.

“Steven stole $100 from a little old lady” is a factual statement, and if it were to cause damage to Steven’s life (like if you uttered this statement to Steven’s boss and he lost his job), then the statement could very well be libel.

Ok simple enough, right? But what if the statement is factual, but couched in the form of an opinion? “I think Steven stole $100 from a little old lady.” The law will not permit you to defame someone just by adding the “I think” qualifier; specific defamatory statements (expressed as an opinion) that caused harm for the subject of the statement could indeed be defamatory. It all depends on the circumstances (a la, you may need an attorney’s assistance at this juncture).

Now I ask you to consider our current age, where folks use many different internet forums (Facebook, Yelp, Twitter, just to name a few), to express their opinions not only about other people, but about the products and services of corporations. How do you think very wealthy corporations respond online comments they feel are defamatory?

Nevada’s anti-SLAPP Legislation

The Nevada legislature has passed a law to protect its citizens from Strategic Lawsuits to Prevent Public Participation (called SLAPP lawsuits). Nevada’s anti-SLAPP law is one of the most stringent anti-SLAPP laws in the country. A few highlights from the updated 2013 law:

The protected speech has been expanded to include “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum.” It still needs to be truthful, though.
The court must now respond to a motion claiming an individual is a victim of a SLAPP within seven business days (reduced from thirty).
The court has the discretion to award up to $10,000 (in addition to the cost of hiring an attorney) to a victim of a SLAPP.

A Potential Revision to the Anti-SLAPP law?

Before you close out this window and give a corporation a piece of your mind, know that there may be yet another change on the horizon. In late April of 2015, the Nevada Senate held hearing discussing Senate Bill 444, which would revise the current statute and possibly scale back the protections of the current law. The bill made it out of the Nevada Senate with an unanimous vote, and is currently being debated in the Assembly.

In the same way you do not evaluate the quality of a sausage until it has a casing, we will have to wait and see what becomes of Senate bill 444 before drawing any conclusions. Regardless, use prudence as you make your online comments; once submitted, you will not be able to prevent the consequences.

General Interest / Nevada Law - 05/18/2015

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