Accident, car accident, Las Vegas, Metro, non-injury, investigation

Las Vegas Metro to Resume Investigating Non-Injury Accidents in January

In March of 2015, the Las Vegas Metropolitan Police Department announced it would stop responding to car accidents where neither party was injured. This was quite an interesting change since Metro had been reporting to all car accidents for nearly forty years. Budget and staffing concerns were cited as the reason for the cut back, and citizens were left puzzled. Many clients raised concerns to our office: What happens if I don't feel injured right away but later realize I am? What if the person deserves a ticket? What if someone who hits me denies s/he were at fault and my insurance will not cover me?

These are just a small sample of the dozens of concerns that were raised. Personally, the concern that stuck me the most was a question of safety. A female client expressed concern to me that if she got in an accident after dark, she would not feel comfortable exchanging insurance with a complete stranger, leaving her vulnerable on the side of the road. This resonated with me. Particularly of concern was when a person who causes an accident and might face someone with “road rage,” which is quite rampant in Nevada. All of these concerns appeared likely to cause other problems for the citizens that the police may not have anticipated.


Accidents, car accident, las vegas, metro, investigation


I certainly can understand this non-response policy working well in smaller, slower paced cities but not in the Las Vegas Valley. Our city continually ranks high in the number of accidents, making a decreased police presence on the streets all the more concerning. If the thought of getting a ticket for causing a minor accident is not looming over people’s heads, drivers will probably take more risks and end up causing more accidents in the long run.

On the other hand, of course, we all want the police to be protecting the streets from murders, robbers, and kidnappers and not spending hours taking statements from victims of a paint-smudging minor collisions. I am sympathetic the the resource concerns of Metro.


Metro changes course with non-injury car accidents

As it turns out, public safety concerns outweighed this ill-fated policy. Starting January 2016, the policy will be officially reversed. Metro will again respond to any accident where they are called and prepare a report for the parties.

Clearly, there are other ways to save officers time in responding to accidents, specifically by reducing the number of accidents! It is clear that Las Vegas has too many, and the reasons are many and complicated. The roads need to be safer for our citizens, but getting there will not be easy. Perhaps if tickets were more expensive and more common, drivers would be more cautious and more motivated to be careful. There are many options for reducing the number of accidents on our roadways. Intersection cameras might be expensive at first, but are likely to pay off in the long run. Or perhaps, harsher penalties for those who drive under the influence. This, combined with the presence of ride shares like Uber and Lyft may help keep Las Vegas safer by making it easier for folks to get a ride home. Lowering speed limits, raising the age to start driving, adjusting the patterns at high-accident intersections, mandatory insurance increases with each accident, or even public ad campaigns reminding people how getting a little bit ahead on the roadway really does not save time in the long run.

These are just a few options for making our roads safer. However, all public safety measures come with a cost and it’s often hard to get the citizens on board for raising the funds needed, i.e. taxes…. But for now, it is a step in the right direction to put police back on the scene of even minor accidents, so these small inconveniences do not end up as big hassles later on.

veterans day parade, las vegas, nevada

In Case you Missed the Las Vegas Veterans Day Parade

And what a Veterans Day Parade it was! A special thanks to the parade organizers (visit their website) for their kindness and hospitality. The atmosphere could not have been more friendly and welcoming; it was a real joy to cover for the blog.

Also, did you know that the Las Vegas Veterans Day Parade is the 2nd largest in the nation (after New York), and thus, the largest this side of the Mississippi? Pretty darn impressive.

I have organized the photos into two parts: Part I featuring our brothers and sisters in uniform, Part II (you will want to make sure you don't miss these), pictures of our young people, some very small (and adorable), some much larger than I.

Click on the photos that intrigue you to see them full size. They may take a handful of seconds to load, but it is well worth it.


Photos from the Las Vegas Veterans Day Parade

There is Parade Marshall, Brigadier General Joe Heck (Also our Congressman). From my perspective, he really seemed to be enjoying himself.

There is stand from which the ceremonies were administered. The City should be proud for how well the parade was organized.

Congresswoman Dina Titus of Las Vegas, riding in style.

Commissioner Steve Sisolak received an award of gratitude before the parade of his assistance.

I don't know about you, but I could either ride a horse or carry a flag

The Goodmans, Mayors past and present

Apparently I wasn't the only one sensitive to the noise.

Yes, that vehicle is called a "Bone-Crusher".


You can't have a Military Parade without the USO.

My little flag is found a home on my desk.

Is the dog wearing goggles? You betcha.

City Councilman Steve Ross.

The Knights of Columbus.

Who is the Trump person I keep hearing about?

Yes, you are reading that right.

Part II: Our Future Leaders

A tip of the hat to the Valley High School March Band that played (and memorized) a great Sousa melody.


The folks here at Clear Counsel just want express our gratitude for the service of our men and women in uniform. Bless you all.

Cryotherapy, nevada, product liability

Cryotherapy and Liabilty

There can be so many benefits to unconventional therapies and natural remedies. Many people like to dabble in essential oils, vitamins, and yoga. But some people like to go to the extreme. Case in point: Cryotherapy. This new and largely unknown procedure works by exposing people to extremely cold temperatures using liquid nitrogen for short periods of time. This exposure to various parts of the body is thought to act as an extreme “ice pack” of sorts by reducing inflammation, pain, and soreness in the body. Cryotherapy also claims to be able to heal tissues of the body, increase energy, reduce aging, and combat depression1)according to the company that sells it, anyway…. Certain athletes are rumored to use it to heal injuries instead of an ice bath. These cryotherapy “spas” have recently popped up in Las Vegas, and then quickly made the news when an off-duty manager froze to death in a cryotherapy chamber after hours. Sounds terrifying if you ask me, but apparently it is catching on.

At least it was.

A Fatal Cryotherapy Accident

On October 20th, the body of the 24 year old manager was found in the fetal position, frozen to death inside the chamber. According to various news sources, it appears that the worker attempted to use the cryotherapy chamber on herself while she was alone, against standard procedures. However, at this time of publication, it is unclear what really happened. The chambers are supposed to be properly adjusted for a person’s height so they always have access to oxygen above the level of the cryotherapy chamber. News reports speculate that the machine may have put out too much nitrogen, possibly locked her in, or otherwise malfunctioned. But a machine malfunction is nothing more than speculation at this point until further investigation can be done. News reports are also fairly consistent in noting that the cause of the death was most likely “operator error.”


Will There be a Lawsuit?

But what about compensation for the victim’s family? This is a tougher question. No regulatory agency appears to oversee the cryotherapy business. Not the cosmetology board, not the medical board, and certainly not the FDA. Users are invited to participate in cryotherapy at their own risk. This is the same as the disclaimer on a bottle of vitamin C, which notes that it is not a drug regulated by FDA; but clearly the risk is quite different. So, the only option at this point looks like civil litigation. Although it would initially appear to be an uphill battle because users participate in the therapy at their own risk, this might not really be the case. Depending on what actually went wrong, if the victim’s family can prove that the “operator error” was a reasonably foreseeable misuse, then they will have a fairly strong case against the company. Should it have been fairly obvious that a user of the machine might try to operate it alone? Maybe the machine should have had an automatic shut off or a finger print pad confirming that there were two operators overseeing the use…. On the other hand, the victim was clearly violating safety procedures by using the machine alone after hours. But again, maybe her employer should also be held liable for not having better security which could have prevented employees from entering the building after hours alone. These are all factors that will play out in what will most definitely be an interesting case.

Products liability is a somewhat unique area of law which puts a huge burden on the manufacture of a product to anticipate all “reasonably foreseeable” misuses. In this case, a cryotherapy chamber carries so much risk as a reasonably foreseeable misuse can (and maybe did) cause death. No amount of warnings and disclaimers can negate liability if an economically feasible safety feature could have been incorporated into the product. The examples above, like an automatic shut off or device to ensure two operates were present, certainly do not seem too complicated in light of the innate risk of the product being sold. If there is a company policy that a person should never use the machine alone, then this is clearly a foreseeable misuse. But, this is all just speculation at this point, as we do not know enough facts surrounding the incident to know anything for sure. We will continue to follow the matter closely as it plays out.


1 according to the company that sells it, anyway…
Republican debate, Trump, rubio, cruz, Abraham Lincoln, cnbc

Your 3rd Republican Debate Recap (Full of Clips!)

I asked a potential Republican caucus-goer this morning if she had watched the debate, her response: "No way, I'm just tired of all that stuff." When asked to explain what she meant, she stated that all the name-calling and antics have really turned her off to the process.

Apparently, that message has gotten through to our Republican candidates! And not a moment too soon!

This was, by far, their best collective performance. It is as if they watched the first Democrats' Debate1)Why they keep calling it the "Democratic debate" is beyond me, and realized that a rising tide lifts all boats. Other than Mr. Kasich and Mr. Bush, both of whom we will get to in a moment, everyone came out smelling like roses. Politics is probably my third favorite sport after baseball2)Ya gotta believe! #LGM and football3)It is not clear why the sports media has not caught on to my titling this weekend's Packers at Broncos affair as "Super Bowl 49.5". Also, when was the last time Peyton was a dog at home?? Middle School?? I digress.., but the previous Republican debates were difficult to watch with all the bickering. Not so this time. Correction, mostly not so this time.4)stay tuned

The CNBC put clips of the debate up on their youtube channel, and shockingly, none of them are of the candidates ceaselessly mocking the moderators (Btw, our Youtube channel is way better).

Lucky for you, I found them. Get ready for some fun.


The Best of the Republican Debate Clips

Mr. Cruz won the debate right here:

I saw the Frank Luntz on with Megyn Kelly after the debate, and he said this was the highest scoring debate line he had ever seen. Pent up frustration, anyone? To the credit of the CNBC folk5)it is not clear me who watches this channel, once they took this verbal thrashing, the moderators stopped with the silliness and got back to policy. I, for one, felt badly for them.


Finally Now, the Trump Clips from the Republican Debate


Mr. Kasich is clearly out of his league here. It was only a matter of time before his Lehman history came up for discussion. As The Wire teaches us, "If you come at the king, you best not miss."

A quick thought on Mr. Trump. Yesterday was the first time I thought that he had a real chance at this thing. He showed an immense amount of political dexterity in completely overhauling his approach. He saw that Mr. Carson overtook him in Iowa, and instead of doubling down on the bluster, he backed off a bit. He was significantly more kind than he has been in the previous debates, and in particular, I appreciate his change in tone over immigration. It is one thing to want to discuss out immigration policy, certainly nothing offensive by talking about it in the hypothetical. But there is absolutely no reason to demonize our Latino brothers and sisters, and last night he finally stopped. I just want to thank him for elevating his dialogue.

Now that I got that out of my system, let's watch Trump be Trump.

I love the "Right" after each assertion. He's too much.

Of course, like any good entertainer, he knows how to close:

I'm pretty sure (not completely) that Mr. Trump is correct here. I recall the debate being announced as 3 hours long. Why lie, CNBC?

Did Trump win the online poll? Of course, like always. Hard to discount 300,000 votes.


Mr. Rubio vs. Mr. Bush

I was kind enough yesterday to explain to Mr. Rubio that in order to win the nomination, he needs to follow the Obama model.6)still waiting for my "Thank you." I have yet to understand why folks are so interested in Mr. Rubio's Senate attendance. It is one thing for folks that dislike Rubio to use it as further evidence that he should not be President. Mr. Bush, however, did not play this correctly:

To Mr. Rubio's credit, he was ready. Call him all the names you like, but Mr. Rubio consistently has been prepared in this election season.

Of course, he had some thoughts on the main stream media to share:


How attacking the media will help Mr. Rubio in the long run is not clear. They are a sensitive bunch. We have quoted Mark Twain previously about the risk in arguing with folks that buy ink by the barrel. Yet, attacking the media has worked great for Mr. Trump7)Mr. Trump is smart to attack selected members of the press while calling others "Terrific". This should be distinguished from categorizing all of the main stream media as biased, so we'll see.


The Phenomenon That is Mr. Carson


I have never heard this distinction made before.

The moderators had some more gotcha material for Mr. Carson as well, which we don't have time for8)like we care about his previous endorsements. Today he published his tweet which encapsulates his appeal to his fans:

What that has to do with running the military, I don't know. But he seems like a very nice man.


Mr. Christie May Have Won

His campaign needed a shot in the arm, and Mr. Christie brought his A game9)I am not evaluating his policy proposals, just debate performance. I have yet to see a politician win a national election running on cutting entitlements.

He had a few great moments besides this, yet, the voting public seemed not to notice or care. See the Drudge poll above. Luckily for Mr. Christie, the Gray Lady strummed up some controversy:


Would the Vegas-hating10)and rat infested NY Times actually publish such a piece after all the candidates called the media biased last night? Are they that tone-deaf? Yes.

Mr. Christie, your thoughts?

Ms. Fiorina, Mr. Huckabee, and Mr. Paul also did pretty well. Unfortunately, with ten people on stage, our coverage can only get to so much.

Hopefully, by the November debates, we can divide the candidates into groups of three so we can actually get more than 10 minutes of dialogue per candidate. They should have Sen. Graham moderate!


The Washington Post (The Fix, in particular) annotated the debate, they do great work.

This Gawker clip is amazing. Mr. Rubio11)I, by the way, am younger than Mr. Rubio in this clip and or Mr. Bush should check out William Manchester's The American Caesar.  Chiang Kai-Shek had quite the influence on the Korean War if they only care about his influence on American politics.

And you can watch the full debate below:



1 Why they keep calling it the "Democratic debate" is beyond me
2 Ya gotta believe! #LGM
3 It is not clear why the sports media has not caught on to my titling this weekend's Packers at Broncos affair as "Super Bowl 49.5". Also, when was the last time Peyton was a dog at home?? Middle School?? I digress..
4 stay tuned
5 it is not clear me who watches this channel
6 still waiting for my "Thank you."
7 Mr. Trump is smart to attack selected members of the press while calling others "Terrific". This should be distinguished from categorizing all of the main stream media as biased
8 like we care about his previous endorsements
9 I am not evaluating his policy proposals, just debate performance. I have yet to see a politician win a national election running on cutting entitlements.
10 and rat infested
11 I, by the way, am younger than Mr. Rubio in this clip
Rubio, GOPdebate, trump, CNBCGOPdebate, carson

On Mr. Rubio and his Election Chances

Wednesday 28 October is the “Economics” debate for the Republican Party1)As opposed to the previous debates? Yes, I know. Contain yourself. Lots of the hot-take pundits see this as Jeb!’s2)Say what you will about Mr. Bush, but he is a gift to all of us who enjoy a little syntax humor.  last stand. And they may not be entirely wrong. The big money folks got had by the Karl Rove crowd in the last election; as to what happened to the hundreds of millions of dollars spent to “defeat” President Obama has yet to be explained. Though none of us will ever forget that amazing clip of Karl Rove freaking out on the Fox News screaming that the election results were wrong, as if his livelihood depended upon it or something. These big money folks didn’t acquire this kind of wealth by repeating expensive mistake-investments over and over again, so therefore, it is fair to presume that Jeb! is on a shorter leash than his establishment cohorts from 2012.

When it comes to Mr. Carson and Mr. Trump, each has made it clear why people should vote for them through their anti-establishment message. Jeb! has yet to create a compelling narrative. He seems like a nice enough man, but cautiously criticizing President Obama has not created a sufficiently compelling narrative to get people to vote for him. He has run a campaign as if he wants to be trustee of the federal government, which I would distinguish from leading nation’s people into the 21st Century. I do not envision3)of course I could be wrong, this comes from the cat that thought Scott Walker had a good shot at this thing. Hey, don’t judge. Nate Silver did too, and he is much better at political prognostication than most a scenario in which Mr. Bush becomes the front runner once again.


Which brings us to Mr. Rubio

Mr. Rubio is the establishment’s next best chance to win the nomination. I began to take him seriously after seeing this clip in which he discusses the Black Lives Matter movement in a cogent way:



I am not convinced any of his rivals can do that, by that I mean speak about the BLM movement without making me cringe4)I am not claiming that his answer was perfect, just that it wasn’t horribly offensive.


Now watch this:


Personable, right? At risk of irritating nearly every reader, there are easy comparisons to draw between Mr. Rubio and Candidate Obama from 2008. From age to speaking ability to attractive personal story to relatively little national governing experience, there are undeniable similarities5)Obviously, there are different policy proposals.


But can Mr. Rubio win?

Now let us recall 2008 for a moment, in particular the Democratic Primary. If only those that caucus experience had voted in the primary process, then Sen. Clinton would have won easily. It was Mr. Obama’s ability to draw first time voters into the process that catapulted him to the White House6)and his subsequent inability to keep those voters engaged that left him with a Republican controlled Congress.

Eight years hence, each party now has a similar dynamic. A poll of Iowa democrats came out over the weekend showing Sec. Clinton with a commanding lead in Iowa:


The Bernie folks, rightly or wrongly, take issue with the methodology of the poll because the sample size is made of democrats that have participated in the past two Iowa Caucuses. The Bernie crowd believes that the campaign is mobilizing first-time voters in a similar manner that Mr. Obama did in 2008. There is no method (as far as I know) of polling first-time voters7)even if you could, does it make sense to rely on them?. If Bernie is going to win, first-time voters will be the only way.

..This applies to Mr. Rubio as well, as you will see. Buzzfeed wrote up a great summary of the dissonance between how the media portrays Mr. Rubio (“The Frontrunner” “The Republican Savior”) and his disappointing poll numbers. The media narrative for the Republican nomination operates under the assumption that Mr. Carson and Mr. Trump will no longer be in the race come caucus time8)If you can go on a book tour and improve your poll numbers, why drop out?. To some degree, this is valid. Recall that at this time in 2012 former Godfather’s Pizza CEO Herman Cain was the big front-runner for the nomination, only to leave hastily once information about his personal indiscretions began to leak out in November. Stuck in the forest of the day-to-day politicking, it is difficult to remember that the election is still more than a year away. Plenty of time for plenty more to happen.


Immigration and Mr. Rubio

Regardless, this tea party flavor-infused Republican party has very little tolerance for moderation on key issues, one of which is immigration. Mr. Rubio tried to lead a bipartisan coalition to pass an immigration bill, only for it to blow up in his face politically, and he has been running away from it ever since.  The Republican party may have hit a Catch-22 where the candidate needs to take a hard line on the immigration, but that hard line will prevent the candidate from receiving enough popular support to win a national election.

Is there a way out of this dilemma? Sure, but it will not be easy. Certain candidates are taking the easy road on immigration by playing off of people’s fear of the unknown. Mr. Rubio does not have to do that, but he does need to signal to those scared of a massive immigration influx that he understands/will address their fears. In the modern media age, how does one hold people’s attention long enough to make such a nuanced point? Mr. Obama was forced into making a speech on race after Rev. Wright upset much of the establishment with his pointed remarks, Mr. Rubio should follow the same course. Instead of attempting to avoid the matter, he needs to face the immigration fear-mongers head on. Leaders Lead.


How Mr. Rubio takes the crown

Resolving the immigration issue is a necessary, but not sufficient condition for Mr. Rubio to win. To cut to the chase, he needs more votes. Take a look at this poll:


To be frank, the needed votes do not look like they are coming from the Republican electorate reflected in the polling we see dominated by Mr. Trump and Mr. Carson. He needs, like ’08 Candidate Obama and ’16 Sen. Sanders, to bring more first-time voters to the polls, possibly a lot of them.

Luckily for Mr. Rubio, there are a lot of potential voters out there just waiting to be inspired. Two-thirds of the electorate did not vote in the 2014 mid-term election. Think about that for a moment; significantly more than half of the electorate was so turned-off to the political process that they could not even bother to vote last year.  Don't believe me?

The establishment politicians like to blame the voters for their apathy, but that is just a lame cop-out. Voters need, and want, to be inspired. Not since President Bush’s message of “Compassionate Conservatism” has the Republican party tried to inspire the populace9)nor have they won the Presidency. Government spending (seemingly the only issue of the recent, pre-Trump Republican party) speaks to such a small part of the voting public, that it just seems nonsensical that this is the dominate topic of conversation for our Republican friends.

Here’s a neat fact, more than 50% of the American workforce earns less than $30,000/year. Do you think these folks care about the government budget? They, and probably up to 80% of the population want to know how, if we give you our vote, you will improve our lives.

What Ms. Palin dismissed as that “hopey changey stuff” is exactly what you need, Mr. Rubio. This is not a contest over whom can hand out the most entitlements to the voters10)as it has been characterized by previous candidates, but a challenge over whom can inspire. Think Reagan, think Kennedy, think Lincoln, and rise above the cynicism. There is no other way to get those first-time voters to the polls.

I can only prescribe what to do, not how.  There's a big difference between winning and not losing.

The Republicans have spent too many years now telling us what they aren’t. Now is the time to tell us what you are. Go big or you’ll be heading home, in defeat. Best of luck, Senator.



1 As opposed to the previous debates? Yes, I know. Contain yourself.
2 Say what you will about Mr. Bush, but he is a gift to all of us who enjoy a little syntax humor.
3 of course I could be wrong, this comes from the cat that thought Scott Walker had a good shot at this thing. Hey, don’t judge. Nate Silver did too, and he is much better at political prognostication than most
4 I am not claiming that his answer was perfect, just that it wasn’t horribly offensive
5 Obviously, there are different policy proposals
6 and his subsequent inability to keep those voters engaged that left him with a Republican controlled Congress
7 even if you could, does it make sense to rely on them?
8 If you can go on a book tour and improve your poll numbers, why drop out?
9 nor have they won the Presidency
10 as it has been characterized by previous candidates

Child Negligence: When a Hug Can Go Terribly Wrong

In 2011, Jennifer Connell attended the birthday party of her eight-year-old nephew Sean Tarala.1)Read more about the facts here. Ms. Connell broke her wrist and sued, but she lost. The break of her wrist was the boy’s fault and not hers.

If a person unintentionally hurts another person, we usually expect the person who caused the harm to be responsible, even if the harm is the result of an enthusiastic hug.  But what if the person causing the harm in the process of giving a hug is just an excited eight-year-old child?  Should the child’s parent or guardian be required to pay?  And how does a person’s homeowners insurance play into the equation?

It may be helpful to discuss some scenarios that have some similarities with each other when analyzing these questions, the first of which is nearly identical to Ms. Connell’s case.  They are as follows:


3 Child Negligence Scenarios

Scenario one: 8 year-old Sean Imahugger, while playing in the street near his parents’ home where he lives, sees his aunt arrive.  He runs to greet her because she has come for his birthday party.  He then enthusiastically jumps into the air to hug her while shouting “Auntie I love you!” They both fall to the ground, but auntie breaks her wrist in the fall. Sean did not consider that they might fall prior to the hug. She incurs medical bills and, as a result of the incident, her wrist is forever weakened, and it is now less flexible, which makes her daily routine at work typing on her computer more difficult.

Scenario two: Four year little-league veteran Jeff ImaGoodAllAmericanKid, who is also 8 years old, was playing baseball in the narrow street near his parents’ home where he lives. While at bat, he sees neighbor 3 year-old Frankie IopenFrontDoors wandering on the sidewalk across the street.  Jeff thinks2)if he considers the possibility at all that it is very unlikely that his baseball would hit Frankie. Sadly, the probabilities are in neither boys’ favor on this day. Jeff makes contact with the ball with his bat and the ball hits Frankie in the head, which knocks him unconscious and causes him to fall and break his arm. He incurs medical bills, reverts to needing diapers again, suffers nightmares and has a daily fear that he will be hit by falling objects when he is outside.

Scenario three: Without his parents’ knowledge, 8 year-old adventurer Dennis ImaMenace comes home from school and takes the keys to his parents’ old car from the junk drawer and drives the car on a joy-ride down the street. He knows about driving because he drives ATVs on his grandpa’s farm, and his Dad lets him sit on Dad’s lap to help steer the old car while Dad drives on the dirt roads. Unfortunately, Dennis does not make the turn of the end of his street and crashes into a neighbor’s home. Sadly, the neighbor’s mixed-breed dog was killed in the incident. The property damage totaled $25,000, including the cost of a replacement dog with all shots from the local pound.


The Child's Negligence Caused Harm in All Three Scenarios, Now What?

In all three scenarios, a child did something that resulted in unintended actions or consequences, which are commonly referred to as accidents3)Or a 'tort' in legalese.  In each, the results were costly to someone else.  Someone must pay the price because the child certainly cannot, at least not in full.  The persons who will most likely pay the cost of these damages will either be the persons hurt or the child’s parent or guardian (I am just going to say “parent” from here on), whether or not the parents have some form of insurance.

Negligent acts are unintentional4)Although this term is unnecessary, added for clarity accidents for which the law states that someone should be financially responsible. The above scenarios involve actions that would most likely be negligent acts on the part of the child; however, children cannot be sued directly and children do not usually have funds or insurance to pay claims or judgments.

In most states, there are laws that make a parent legally responsible for the negligent acts of their children.  However, the parent must have failed in their duties to supervise their children in the standard and customary manner for the area in order for the parent to be responsible for the negligent acts of the children.  This is called negligent supervision. Laws regarding negligent supervision by a parent is sometimes more specific when automobiles are involved.

An analysis of whether a parent should be liable for negligent supervision usually requires knowledge about the type of activity that the child in which the job was engaged, analysis of the parent prior knowledge of that child, including their abilities and personality, and knowledge about the parent such as where they were when the accident occurred versus where s/he should have been.


Now that We Understand Child Negligence, Let Us Look at Those Scenarios Once More

In scenario one, Sean Imahugger was probably negligent in his overenthusiastic hug, but should his parents be responsible for the injuries to Sean’s aunt? Sean’s parent was probably home because it was his birthday. Unless Sean had a history of being too physically aggressive, including with his affection, his parent likely had no prior notice that he would run up to and hug Sean’s aunt with such enthusiasm that they would both fall over.  Thus, it is not unreasonable that a jury found that Sean’s parents should not be responsible for the injuries to Sean’s aunt.

The result in scenario one is probably the least fair because Sean’s aunt certainly did not cause for own injuries, yet she is the person least likely among the persons harmed in these scenarios to be compensated for her damages. She is reasonable for wanting someone else to pay for her injuries5)If you disagree, put yourself in her shoes. It is a difficult situation.  Unfortunately, these are one of those accidents for which the law does not provide a remedy for the person who is harmed.

In scenario two, we know a little more about what Jeff ImaGoodAllAmericanKid’s parent likely knows about Jeff and the location of the incident.  His parent had to sign him up and take him to little league baseball for four years.  Thus, Jeff’s parents should know that Jeff has some abilities in hitting a baseball.  We also know that Jeff and his parents live on a narrow street and that baseballs are hard objects that can cause damage to other people and property.  This type of claim may be a toss-up in front of a jury, who may find that the parents should have ensured that Jeff played baseball on the nearby field instead of on his neighborhood street.

In scenario three, the parents likely knew that Dennis ImaMenace drove ATV’s on grandpa’s farm, and Dad was teaching Dennis to drive the old car.  The keys were apparently kept in a location were Dennis could find and get them.  Did his parents know he was adventurous on other occasions that would suggest that he would do something like this? The results of this type of a claim would be less likely in favor of the parents of Dennis; however, a jury may still find that these facts are not sufficient to show that one of his parents should have known that he would drive the car on his own.


Homeowner's Insurance and Child Negligence

If one of the harmed persons in the above scenarios expected payment from the parent for their damages, and the parent purchased homeowner's insurance, the next questions are whether the insurance would defend the claim and pay if the parent is found liable.

In most homeowner's insurance policies, if a family member who is living at the home causes another person to be injured, the homeowners insurance will provide coverage and defend against such claims.  Insurance policies have many exclusions and fine print, including against car accidents and intentional acts that cause harm.  In all of the above three scenarios, a homeowner's insurance would be expected to defend against claims made arising out of the scenarios.  The homeowner's insurance would only be expected to pay the harmed parties if a jury or judge decides against the homeowner or the insurance chooses to settle to avoid going to trial.

It is important to note that every situation is unique as even small facts can turn a claim/case from bad to good or vice versa. The value of a good personal injury attorney is that s/he will be able to assess the facts of a specific scenario to determine the likelihood of recovery.


1 Read more about the facts here.
2 if he considers the possibility at all
3 Or a 'tort' in legalese
4 Although this term is unnecessary, added for clarity
5 If you disagree, put yourself in her shoes. It is a difficult situation
minimum wage, labor, nevada, labor commissioner, court

Nevada Courts vs. The Labor Commission, RE: Minimum Wage

A recent decision by a district judge in Carson City indicates that Nevada courts are willing to overrule Nevada’s government agencies in order to protect the state’s workers.


Voters increased the minimum wage by referendum in 2006

In 2006, Nevada voters voted to amend the Nevada Constitution’s minimum wage provisions. Article XV, Section 16 now states employers must pay a wage of not less than $5.15 per hour if the employer provides health benefits of $6.15 per hour if they employer does not provide health benefits. The minimum wage is actually $7.25 per hour without providing health benefits and $8.25 with health benefits to comply with the federal minimum wage. The Nevada Constitution states that if the employer chooses to pay the lower wage and offer health insurance they cannot charge more than a certain portion of the employee’s pay. “Offering health benefits within the meaning of this section shall consist of making health insurance available to the employee for the employee and the employee’s dependents at a total cost to the employee for premiums of not more than 10 percent of the employee’s gross taxable income from the employer.” Nev. Cons. Art. XV Section 16(A). The language seems clear, right? Apparently not.


Where there is the slightest bit of ambiguity, a lawsuit will soon follow

Of course, employers would want to interpret this provision to mean that they could charge employees for health insurance up to 10% of all gross taxable income, including tips and other gratuities. It’s not an illogical interpretation since tips are a large part of some employee’s income and taxes must be paid on tips and hourly wages. But, the problem is, the Constitutional language clearly states that the 10% calculation only applies to gross taxable income “from the employer.” It is these three little words that spurred one big lawsuit.

In Hancock v. the Nevada Labor Commissioner, the Plaintiff challenged the Nevada Department of Labor’s implementing regulation which stated that “gross taxable income” for the purposes of calculating health insurance costs included all income reflected in a W-2 including “tips, bonuses, and other compensation.” NAC 608.104(C). The Plaintiff, Mr. Hancock, argued that the Constitution means what it says: that the only income that can be considered for calculating the cost of health insurance is that income from the employer. The Nevada Labor Commissioner argued that the language of the Constitution really meant “all income attributable to the employer” including tips which are earned only because the employer provides the job. The Court found that the language was so clear and that the Labor Commission wanted to simply write out the phrase “from the employer” which was not within their rights, or even the Court’s rights to do. The Court noted that bonuses or other compensation could certainly count as part of the 10% calculation if the employer pays them, but that tips do not come “from the employer” as the language requires. Notably, the Court pointed out that finding tips to be a proper part of the calculation for health insurance costs would go against the whole point of the amendment which was to provide cost effective health insurance largely at the expense of the employer.

The Labor Commission’s position was not unreasonable, it was just wrong in light of the plain language of the Constitution. As the Commissioner pointed out, not including tips in the 10% cost of health insurance provides a great advantage to tipped employees that non-tipped employees do not receive. In Las Vegas, tips contribute much to the income for so many jobs, that I have to agree, the Constitution’s language does provide an advantage to tipped employees, who often make much more money than strict hourly or salaried employees. As a former cocktail waitress, I can vouch for this. It is unlikely the voters were aware of the ambiguity when the Amendment was voted upon at the polls. Tips are part of income for which taxes have to be paid, so it is unclear to me why the Constitution would make such a distinction. On the other hand, tips can be unreliable so maybe the idea was that people can only afford to pay insurance based on income that’s guaranteed. But in a right to work1)some might say "fire" state, no income is really guaranteed…

A ruling such a this is a huge deal in Nevada with so many casino dealers, casino hosts, cocktail waitresses, bartenders, valets, bellhops, and countless other tipped jobs who make up such a huge part of our labor force. I suspect that casinos and other employers of these job categories will do some major lobbying to get the Constitutional amendment changed to better suit their financial needs. A more inclusive definition of income means that employers can charge employees more and pay less for health insurance. I assume that 10% of a minimum wage salary does not entirely cover the cost of health insurance these days, so any additional money that employers can collect from their workers would directly benefit their bottom line. Based on the plain language of the Constitutional amendment, the judge got it right. Plain language rules over all else, right or wrong. For now, the regulation cannot be enforced.


The Labor Commissioner lost on a second issue as well

A second regulation, indicating that employers only had to “offer” health insurance to lower paid employees, rather than actually “provide” it was also declared invalid. NAC 608.100(1). The Plaintiff argued that the whole point of the Constitutional amendment was that employers need to “provide” health insurance, not just “offer” it. The Labor Commission argued that “offering” insurance is “providing” it and all that they were required to do was make health insurance available. The Court disagreed and found in favor of the Plaintiff noting that the amendment requires employers to “provide, furnish, and supply” health insurance rather than just offer it to ensure that employees are in fact insured. As such, the regulation was also declared invalid and its enforcement postponed.

Both of these decisions relied on strict interpretation of the constitutional amendment, and in my opinion the Court made the right decision. When the language is clear, the amendment must be applied according to what it says.

But it is interesting that the Labor Commission would create implementing regulations that were somewhat brazenly contradictory to the plain language of the Constitution. We will keep an eye out for any appeals to see how this plays out.

Want to learn more? KNPR recently had a nice discussion.


1 some might say "fire"
detrimental reliance, utley, mets, mlb, postseason, dodgers, tejada

Utley, Tejada, Mets, Dodgers, Instant Replay and Detrimental Reliance

Before we begin, here's the clip of Chase "I just play the game hard" Utley breaking the leg of the Mets' shortstop Reuben Tejada from Saturday night:



Type "Mets" or "Utley" into the twitter, and you will be up to your eyeballs in hot takes. Allow me to share a a few so you get a feel:



And those were the tweets that were fit to print.



I know a few New Yorkers. Might be best for Utley to stay off the streets today.



Does it have to be Matt Harvey?? Also, that may not be real dirt.








Still not sure if that is good or bad.


Or as they say in Queens: "Mets baseball, where we turn the other cheek"1)This is not accurate. I doubt I can out hot-take the Utley conversation on the twitter, but regardless, this time would  be better suited to explain why the umpires ruled the way they did, and the roots of the ruling in doctrines of law2)Seriously!.


The Call on the Field

So after Utley's open-field tackle3)he has decent form in hitting a guy who does not see him, Utley ran directly off the field (after being called "out"), right to the dugout to think about what he did. Upon replay, folks discovered that in the process of having his fibula fractured, Tejada never touched 2nd base. Funny enough, in breaking Tejada's leg, Utley jumped over the base and never made contact with the base either.

The Dodgers challenged the ruling the field, and once the umpires saw that Tejada did not touch the base, the call was reversed by the powers that be, and Utley4)because he was not ejected for some reason went back to second base. He eventually scored after the Dodgers rallied in the 7th inning5)Nothing will spark your team out of the doldrums like a little unnecessary, violent contact. Yes, I am a bitter Mets fan.

It has been fun to watch folks practice their statuary interpretation skills with the MLB rulebook. Let us look now:

Thank you Jared.

There is more then enough out there discussing if Utley should have been called out. This part of the issue is not all that engaging6)Remember kids, we only apply the "comment" of the rule in our statutory interpretation if the language of the statute is ambiguous. Our umpire friends are very professional, and I have little doubt that they are well-equipped to make such judgment calls7)After watching the Dodger stud starting pitching get 2 inches off the plate in either direction though, if they replaced the home plate umpire with a robot, I would not necessarily complain.

The interesting element of the play results from Utley being deemed safe at 2nd base without ever actually touching 2nd base. To understand why/how this is possible, we will need the assistance of a little contracts law..


Detrimental Reliance, Promissory Estoppel, and Chase Utley

After the umpires overturned the call and permitted Utley to return to second base, Mets manager Terry Collins went out to challenge the same call, insisting that a player cannot be safe if he never touched the bag.

This, strangely, is not true. In fact, it was a contracts concept called detrimental reliance applied in action.

How about a definition?

Determinant reliance: reliance by one party on the acts or representations of another, causing a worsening of the first party's position. Detrimental reliance may serve as a substitute for consideration and this make a promise enforceable as a contract.8)Black's Law Dictionary, Pocket Edition. 2006.


By calling Utley "out," incorrectly, Utley actually relied on the umpires to his detriment and prematurely headed back to the dugout.  The umpires then had no choice but to apply the general principle of promissory estoppel9)defined as "[t]he principle that a promise made without consideration may nonetheless be enforced to prevent injustice if the promisor should have reasonably expected the promise to rely on the promise and if the promisee did actually rely on the promise to his or her detriment." Black's. to make the situation right.

The legal concept of promissory estoppel is useful for judges to make all the parties of a contractual relationship whole if one of the parties of the contract acted with good-faith reliance (to his/her detriment) in presuming that the opposite party would abide by the terms of the contract.

Although not an exact fit in baseball, a similar principle applies with regard to players and instant replay. It is not reasonable for Utley to expect that the umpire got the call wrong as he is relying on the umpires to know the rules and make correct calls.

This is the big issue with instant replay in baseball10)this issue has gone on unaddressed all year: it creates a second, fake reality once the umpires make an out call. All plays in baseball are interconnected, meaning that an "out" call on one side of the diamond will effect how the other 10 or more players on the field act subsequently. It is impossible to go back into a sequence after-the-fact and determine what would have happened if the umpires had made a correct call.

Dare I say it, but instant replay is not a good fit for baseball. Maybe for home runs, but a bright demarcation needs to be drawn after that. The best example I have is that if the umpires would have initially called Utley "safe," then there is no way for him to have been permitted back to second base upon replay because he never actually touched the base! Yes, he was declared "safe" only because he was initially called "out."

This, like all rule changes in sport, will have to wait until there is an egregious error committed on the field that affects the outcome.

Enjoy the game this evening, a New Yorker just texted me with an update that yes, the rumors are true, there currently is a bat signal projected above Gotham...



1 This is not accurate
2 Seriously!
3 he has decent form in hitting a guy who does not see him
4 because he was not ejected for some reason
5 Nothing will spark your team out of the doldrums like a little unnecessary, violent contact. Yes, I am a bitter Mets fan.
6 Remember kids, we only apply the "comment" of the rule in our statutory interpretation if the language of the statute is ambiguous
7 After watching the Dodger stud starting pitching get 2 inches off the plate in either direction though, if they replaced the home plate umpire with a robot, I would not necessarily complain
8 Black's Law Dictionary, Pocket Edition. 2006.
9 defined as "[t]he principle that a promise made without consideration may nonetheless be enforced to prevent injustice if the promisor should have reasonably expected the promise to rely on the promise and if the promisee did actually rely on the promise to his or her detriment." Black's.
10 this issue has gone on unaddressed all year

What is an Appropriate Amount of Car Insurance to Carry?


How Much Car Insurance Coverage Would You Recommend?


Hi, I'm Jared Richards. Hi, I'm Jared Richards. I'm one of the partners here at Clear Counsel Law Group. Now, one of our readers has recently asked us how much insurance coverage he should have on his car. It's an interesting question because there are many different types of insurance coverage you can have on your car. There's insurance coverage that will cover the property damage that you cause if you're at fault. There's insurance coverage that will cover property damage done to your car even if it's your fault. There is other coverage that will cover your car if it's somebody else's fault and they don't have enough or they don't have any insurance. That's for the property damage. Let's talk about injury.

Now, it's the same idea. There is liability insurance that's going to cover you if you hurt somebody else. There's uninsured and underinsured motorist coverage that covers you if somebody else hurts you. Then there's MedPay. MedPay simply pays for medical bills. Now I want to talk about how much coverage we have in liability. The answer, I think, is having as much as you can afford. Now, it's tempting sometimes to either not buy insurance, which is just wrong, I think it's immoral to not buy insurance, or to simply go with the state minimums. I think that's also problematic, and possibly also a moral issue.

Now, I understand there are budgetary issues that every family has to deal with. Sometimes, realistically, minimum policies is all that the family can possibly afford. Even if you had the best budgeter examining and altering their budget, they would still put them on a 15/30, a minimum policy. If you have more money, and getting more insurance is not relatively all that much more expensive, buying is helps two people. One, it helps protect you. I had somebody come in recently and say that they had been in a car accident and somebody was suing them. They had assets that were exposed. If you have assets, if you have a lot of money in the bank account, if you have property, if you have real estate rental property, if you have other investments, you need to have insurance. You should also talk about it to an attorney, and you can come talk to our asset protection department, about how to set up those assets so they are protected.

Let's move on to what I view as a moral issue of protecting others if it's your fault. The idea is that none of us wants to cause an accident, none of us. It's so easy to do it. Some are from sheer stupidity. They're doing things that they shouldn't be doing: drinking driving, things like that. Some of them are just simple mistakes. We all mistakes when driving. Luckily, for most of us, we don't make mistakes when somebody's in our way. But people screw up, and it's an accident and people get hurt. Now if you find yourself in that situation where you have seriously hurt somebody, don't you want to be in a position where you can offer up your own insurance policy? You know it's not going to make it right. You know it's not going to bring them back their legs or make them work again. It's not going to make it better. It's not really going to truly make it even, but it's the best you can do.

If you're sitting on a 15/30 policy and, heaven forbid, you nod off at the wheel or you over-adjust your car and you over-adjust your car and you make a mistake that anybody can make, and you kill somebody or you paralyze them for life, or you otherwise seriously, seriously hurt them, you want to be in a position where you can make it as right as possible. For those that have financial ability, I really encourage go buy at least $100,000 of coverage, at least, preferably 250. I've even seen a 500/500 policy. Now on top of that, both to protect yourself and to protect others, umbrella policies are very inexpensive. Purchasing a million dollars in coverage on top of your car insurance policy for just negligence, it's a very affordable prospect. It protects your assets and it fulfills your duty to try to make things right if you have committed a wrong, even if it's accidental.

I'm not selling insurance here, but you may want to talk to your insurance agent and make sure that your limits are appropriate to protect you, to protect your family, and to protect the other people that are on the road around you. If you have any questions, feel free to give us a call. Thanks for watching this video, and we'll see you in the next video.

EMV, credit card, small business, nevada, liability

Taking the Shock out of the Shock-and-Awe of EMV Liability

Nevada retailers and other merchants who accept credit card payments are rightfully confused and concerned about new EMV liability rules that will take effect on October 1, 2015. Though it is certainly disconcerting to hear that the retailer or merchant might be liable for fraudulent credit card transactions (as opposed to the credit card companies), the reality is that Nevada retailers and merchants are not facing impending doom and business ruin by not updating to EMV-compliant technology immediately. Of course, Nevada retailers and merchants should be aware of how these new rules affect their business and should make their own cost-benefit analysis before investing in new technology.


What is EMV and the “liability shift”

In the best layman’s terms I can think of, an EMV credit card includes a small chip rather than the standard magnetic stripe that we have all been used to seeing on the back of our credit cards. It is claimed that EMV-enabled cards incorporate safety features that will avoid almost all possibility of fraudulent credit card transactions. When literally billions of dollars of credit card fraud occurs every year with the standard magnetic stripe cards, this is a great development in the fight against financial fraud.

However, there has been a great amount of concern about the new EMV rules that take effect on October 1, 2015. The biggest question is about the “liability shift” that occurs on October 1, 2015. In uncomplicated terms, on October 1, 2015, retailers and merchants that accept credit card transactions that turn out to be fraudulent may be left on the hook for those losses, instead of the credit card companies who have always previously covered all instances of fraud1)It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.. In short, the new EMV rules push some of the financial loss from fraudulent credit card transactions to the retailer, rather than the credit card companies.

Nevada retailers, particularly small businesses, should rightfully be concerned about this liability shift. One large fraudulent transaction could ruin a small business. To protect against this liability shift, the credit card companies are pressuring retailers to purchase expensive new credit card processing equipment that is EMV-compliant. Should Nevada retailers invest hundreds or thousands of dollars in new credit card processing equipment that is EMV-compliant? Should they take the risk of not having the equipment? What exactly is the risk of not paying for upgraded EMV-compliant equipment? Let’s try to take a bit of the shock out of these questions.


When a Nevada retailer might be liable for fraudulent transactions

Most importantly, Nevada retailers will be responsible for the financial losses from a fraudulent credit card transaction only in one circumstance: when a customer presents an EMV-enabled credit card, but the retailer is not using EMV-compliant credit card processing equipment to run the transaction. In this situation, if the transaction turns out to be fraudulent, the retailer will bear the liability (i.e., the financial loss) from the fraudulent transaction. It is also important to consider that if a customer presents a traditional magnetic stripe credit card, which is processed on either the old non-EMV-compliant equipment or the new EMV-compliant equipment, and the transaction turns out to be fraudulent, the retailer is not financially liable for this loss.


Should Nevada retailers take the risk?

Nevada retailers should justifiably be concerned about the financial harm to their business if the retailer is liable for a fraudulent transaction. However, as with most business matters, the retailer simply has to calculate a risk analysis and determine as a business matter whether it makes sense right now to protect against this risk by purchasing the expensive new equipment. The first consideration for Nevada retailers is the general fact that the vast majority of credit card transactions in Nevada will likely continue to be processed with the traditional magnetic stripe cards for quite some time. Only a relatively small number of credit card holders have and use an EMV-enabled card2)Las Vegas' retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now. Remember, any time that a fraudulent transaction occurs with the traditional magnetic stripe card, the retailer is not liable. Nevada retailers would do well to study their transactions in their business over the next month or two to determine how many credit card transactions are processed with EMV-enabled cards. If the number of these transactions is relatively few, the retailer may choose to take the business risk of possible liability on those few transactions.

Of course, in the next few years, we will see more and more credit cards issued with the EMV chip included, rather than the magnetic stripe. But over time, retailers will naturally purchase new credit card processing equipment as part of their normal course of business as equipment becomes outdated or broken. The retailer may choose to wait until the natural cycle of their business to change to the new EMV-compliant processing equipment. In any event, whether retailers choose to make the switch now or in the future, it is unlikely that a retailer will want to hold onto non-EMV compliant equipment forever.

Making the decision to transfer to EMV-compliant equipment is simply a business decision of weighing risks3)When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud and costs. Will a retailer be liable for the financial loss of a fraudulent transaction if the retailer processes an EMV-enabled card on non-EMV compliant equipment? Yes. Is that risk likely to arise? Maybe, maybe not. If the number of customers using EMV-enabled cards is low in the first place, and if the risk of the customers engaging in fraudulent transactions is even lower, a retailer may just conclude that the “liability shift” of the new EMV rules is much ado about nothing and may just choose to continue business as normal. But, as I like to say, “It doesn’t matter until it matters.” When that one ruinous fraudulent transaction does come through, do not say that you were not warned of the risk.

And, we wish you all a Happy EMV Day on October 1st!


1 It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.
2 Las Vegas' retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now
3 When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud
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