Las Vegas GOP Debate, Trump

Your Last of 2015, Las Vegas Republican Debate Recap

Well we made it.

You thought there was not way we could get through 5 of these things, yet, here are are, still intact, awaiting the 7th1)no idea if this is accurate Space Warriors movie. The Iowa Caucus is a little more than a month away, so we are pretty much done with these debate stuff?

..Not exactly. If you round down, there are only like a dozen more debates left, which is less than 20, which is preferable to 30? (Doing the best I can here..).

Given how the race has shaken out to this point, it is difficult for me to add much analysis. It’s a one man show right now, according to polls/media coverage/social media mentions. Between you and me, it is fascinating how a reality TV host with no political experience could dominate the party of Lincoln, but here we are. Unfortunately, Mr. Trump has blown the dust off the ole Dixiecrat playbook from the early 20th century2)Gov. Pataki called him a “Know-nothing” during the JV debate, which is a great/pretentious reference that a few of us enjoyed, and has seriously offended more than half the country.

I watched the Trump Vegas rally from Tuesday night, and it was political theater at its very best. Yet I cannot write the explainer3)Trump: How did this happen? that I want to, because I do not want folks to think that I or anyone here at Clear Counsel endorse any of Mr. Trump’s policy ideas.

Therefore, as any discussion of Mr. Trump is 3rd rail, and there is no serious contender to him for the nomination as of now, I am left to provide a few highlights from the debate, and then a nice selection of links so you get can an idea of how much disagreement there is over who won/lost/flubbed.

…Don’t worry, I have some comedy at the end.

 

Debate Highlights Part I: Trump vs. Bush

Jeb! earned that exclamation point last night. Finally, someone had the gall to question Mr. Trump, yet the fellow establishment Republicans just left him to flounder alone. It went about as well for Jeb! as you would guess:

 

 

About 4 debates too late. But still, it is nice to see that Jeb! has a little fight left in him. Jeb! desperately needed Sen. Graham on stage to back him up4)Who might be the only Republican that can match Sec. Clinton on foreign policy. The rest of these folks have seen the poll numbers showing how nearly 2/3rds of Republican primary voters like Mr. Trump’s policy ideas. Is this about principle or winning?

There’s a reason Jeb! hasn’t taken on Mr. Trump until now.

At one point, the Rand Paul fans in the crowd5)they were a boisterous bunch, much to the chagrin of the political reporters tweeting from inside the debate hall, started booing Mr. Trump for surveillance of potential terror suspects, of all things6)I know, contain yourself. Let’s see how Mr. Trump handled it:

 

Seems to have gone fine. The establishment folks should be worried, Mr. Trump is getting better at this format.

But maybe Jeb! and Mr. Trump are going to make-up and play nice?

Probably not:

 

Rubio vs. Cruz

This is the nightmare scenario for the establishment GOP folks. I have two more clips to show you, then we will discuss:

 

 

 

Thoughts on who won? Unsure, right? Both men speak very well and are aware that there is not enough room in the race for both of them with Mr. Trump taking all of the free-media attention. The attacks on Mr. Cruz’s honesty/integrity hurt him with the voters he has taken/still wants from Mr. Carson. The “amnesty” line of attack on Mr. Rubio hurt him with the much of the anti-immigrant section of the GOP electorate.

In a fight, one senator has to win and the other has to lose, right? The other possibility is that they both lose. Which is what happened last night. In order to beat Mr. Trump, the establishment candidate will need to unite the suit-and-tie element of the party. A divided establishment cannot stand7)up, at least to a billionaire bully.

I aggregated a good selection of links below so you can see the split by the corporate media in regard to winners/losers. Mr. Trump’s easiest path to victory is a divided GOP.

The last 4 links are provided for entertainment purposes only. Thanks for reading.

 

https://twitter.com/DanScavino/status/677117117519425536/photo/1

 

http://www.washingtonexaminer.com/nevada-gov.-sandoval-warns-gop-trump-spells-electoral-disaster/article/2578517

http://www.vox.com/2015/12/16/10288202/republican-debate-cnn-trump-cruz

http://www.desmoinesregister.com/story/news/elections/presidential/caucus/2015/12/16/iowans-trump-falls-short-gop-debate-rubio-shines/77392200/

http://www.cnn.com/2015/12/16/politics/marco-rubio-ted-cruz/index.html

http://www.washingtontimes.com/news/2015/dec/15/charles-hurt-cnn-turns-gop-debate-aggravating-irre/

http://www.breitbart.com/big-government/2015/12/15/yuuuge-donald-trumps-best-gop-debate-yet/

Ted Cruz’s Missed Moment?

http://www.bloombergview.com/articles/2015-12-16/republicans-debate-foreign-policy-divorced-from-reality

http://www.latimes.com/politics/la-pol-prez-republican-debate-trump-analysis-20151216-story.html

http://www.thedailybeast.com/articles/2015/12/16/was-marco-rubio-overrated-all-along.html?via=desktop&source=twitter

Does Cruz Satisfy Trump Backers?

http://www.weeklystandard.com/the-war-in-vegas/article/2000244

http://www.slate.com/articles/news_and_politics/war_stories/2015/12/gop_candidates_proved_they_know_nothing_about_foreign_policy_in_the_cnn.html

http://www.washingtonexaminer.com/power-rankings-december-debate-leaves-trump-cruz-rubio-as-clear-front-running-trio/article/2578484#.VnFo2CUprLo.twitter

http://www.usnews.com/opinion/articles/2015-12-16/9-republicans-need-to-go-after-the-debate

https://twitter.com/KateBennett_DC/status/676978704258621440/photo/1

Footnotes   [ + ]

1. no idea if this is accurate
2. Gov. Pataki called him a “Know-nothing” during the JV debate, which is a great/pretentious reference that a few of us enjoyed
3. Trump: How did this happen?
4. Who might be the only Republican that can match Sec. Clinton on foreign policy
5. they were a boisterous bunch, much to the chagrin of the political reporters tweeting from inside the debate hall
6. I know, contain yourself
7. up, at least to a billionaire bully
puppy mill, Las Vegas, pet stores

Is the Las Vegas Puppy Mill Ordinance Constitutional?

The greatness of a nation and its moral progress can be judged by the way its animals are treated.

Mahatma Gandhi

 

On 30 November, the City of Las Vegas held a meeting to get public comment regarding the proposed city ordinance that would ban pet stores from selling dogs that were purchased from a so-called “puppy mill.”

Elizabeth Gadley of KTNV was nice enough to post a few photos from the public meeting. Folks look as cheerful about the subject as you would expect1)Hard for me to think of a public meeting topic that would have most of the attendees smiling; these are our times, unfortunately.:

 

 

You can read a media account of the meeting here.

The city only took public comment at the meeting and did not pass any regulations, making this the best time to evaluate the law (as in, before it will go into effect). Before we can discuss the constitutionality of the proposed ordinance, however, it is best to take a step back and look at what a puppy mill is.

 

What is a Puppy Mill?

 

In short, very distasteful. In essence, they are factory farms for producing puppies at the best profit margins. Imagine you were going to attempt to breed dogs for the most amount of money possible, how would you do it?

  1. Keep the female dogs in a constant state of pregnancy to produce the maximum number of puppies during the mother’s lifetime.
  2. Store the dogs in the smallest confines possible in an effort to keep costs as low as possible.
  3. Leave the dogs in the cages in order to keep labor costs minimal.

Distasteful indeed.

This is not the correct forum to be anymore graphic than my description above, but the pictures of a puppy mill are the most persuasive. Take a little time if you are unfamiliar to check out these links before continuing:

 

http://www.humanesociety.org/news/publications/whitepapers/puppy-mill-research.html?referrer=https://www.google.com/

http://www.vice.com/read/i-worked-for-a-puppy-mill-915

http://www.newsweek.com/investigating-puppy-mills-94245

http://usatoday30.usatoday.com/news/nation/2007-10-31-puppy-mills-main_N.htm

 

https://www.aspca.org/animal-cruelty/puppy-mills

 

That should be sufficient. The City of Las Vegas is righteous and moral in its attempt to cease the sale of puppy mill dogs by area pet shops, and this piece will continue under that assumption. Yet, an inquiry into the constitutionality of the proposed ordinance is a different matter.

 

What Does the Las Vegas Puppy Mill Ordinance Say?

 

First, I would like to thank the folks managing the City of Las Vegas twitter account for providing me the text of the ordinance2)Unfortunately, the link provided no longer functions. I printed off of the ordinance while I had the chance and will quote from my hard copy..

The ordinance is only a page and half long, the most important part being Section 1(A):

No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose3)??? of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization

The ordinance goes on in Section 1(B) to require pet stores to keep certification that their animals are not from puppy mills for one year. Section 2 declares if one section of the ordinance is unconstitional, than the rest of the ordinance remains good law. Section 3 repeals any part of the city code in conflict with the new ordinance, and Section 4 defines the punishment for violation of the ordinance4)a fine of no more than $1,000 or a jail term of not more than 6 months.

Seems simple enough, right? Think again; this is constitutional law we are talking about after all.

 

Applying the Phoenix Puppy Mill Law for Comparison of Constitutionality

 

Multiple media accounts have stated, erroneously5)I’m sure it was an accident, that the Las Vegas ordinance is similar to the one passed by Phoenix. They are correct in stating that each concerns the subject of pet stores selling puppy mill dogs, but there is a very important distinction between the laws, which we will get to in a moment.

The Phoenix law is important because its constitutionality was challenged in federal court by the disaffected area pet store. As much of an6)self-proclaimed expert as I am of constitutional law, it seems reasonable to rely on the analysis of the Arizona judge regarding the constitutional questions at hand7)His 36 page opinion also happens to be well-reasoned and thoughtful

First, let’s take a look at the Phoenix law:

8-3.06 Prohibition on sale of dogs or cats:

A.    No pet shop or pet dealer shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from:

1.    An animal shelter;

2.    A private, nonprofit humane society or nonprofit animal rescue organization; or

3.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

B.    All pet shops and pet dealers shall maintain records, for a period of one year from the date of acquisition, listing the source of all dogs or cats under their ownership, custody or control. Records shall be immediately available, upon request, to law enforcement, code compliance officials, and any other City employees charged with enforcing the provisions of this section.

C.    This section does not apply to:

1.    A person or establishment, other than a pet shop or pet dealer, which displays, sells, delivers, offers for sale, barters, auctions, gives away, brokers or otherwise transfers or disposes of only dogs and cats that were bred and reared on the premises of the person or establishment;

2.    An animal shelter;

3.    A private, nonprofit humane society or nonprofit animal rescue organization; or

4.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

D.    Nothing in this section shall prevent a pet shop or pet dealer from providing space and appropriate care for animals owned by an animal shelter, nonprofit humane society or nonprofit animal rescue agency and maintained at a pet shop for the purpose of adopting those animals to the public.

Date of Addition/Revision/Deletion – Section 8-3.06

+1    Addition on 12-18-2013 by Ordinance No. G-5873, eff. 1-17-2014

 

Section A and B are very similar to the Las Vegas ordinance, which we will deal with first (Section C will come soon, not to worry).

That’s right, now it is time to get out our pocket constitutions!8)Get out from under the desk, it’s going to be ok.

Article I, Section 8 Clause 3 of the U.S. Constitution states that the Congress shall have the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Much of our discussion going forward will concern just those first three words.

 

Puppy Mill and the Dormant Commerce Clause

 

Is the ordinance constitutional? You are going to be sorry you asked..Kidding, please don’t go! I promise we will get through this without too much pain9)I will skip the really trying parts.

Before we move on to the Commerce Clause analysis, I can hear our loyal readers shouting at their ithings10)trademark pending “I remember that GMO discussion regarding the Supremacy Clause. How can these municipalities regulate interstate commerce in this instance?” Great question! The difference here is that the federal law regulating the treatment of animals, the Animal Welfare Act, states that it “shall not prohibit any State (or a political subdivision of such State) from promulgating standards in addition to those standards promulgated11)Subsection 2143(a)[1]. Thus, the answer to your question is that the states are permitted to regulate in this arena, so long as the rest of the constitution is abided by.

..Like the Commerce Clause above.

Now we need to define to the so-called Dormant Commerce Clause. Judge Campbell, the author of the Phoenix decision, explains it better than I can:

The Clause also contains a “‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.”…This negative aspect has come to be known as the “dormant Commerce Clause.”… Courts “analyze dormant Commerce Clause claims using the Supreme Court’s two-tiered approach.”…“The first tier asks whether the Ordinance ‘either discriminates against or directly regulates interstate commerce.’” …If so, the Ordinance is subject to strict scrutiny – a “virtually per se rule of invalidity[.]”…The second tier has come to be known as the Pike balancing test. Under Pike, the Court asks whether the burden the Ordinance imposes on interstate commerce is “clearly excessive in relation to the putative local benefits.” (citations omitted, emphasis added)12)Puppies ‘N Love et al v. Phoenix, City of, F.Supp.3d . 2015 WL 4532586 (D. Ariz., 2015), p. 8 link

I will spare you anymore Commerce Clause discussion13)we could go deep into this rabbit hole; there is a reason the Phoenix opinion is 36 pages long, it is the bold part above that really is pertinent to our discussion. The Las Vegas law, like the Phoenix law, will not be subject to strict scrutiny14)because it does not directly regulate interstate commerce, but instead will be evaluated by the Pike balancing test.

We will assume, for sake of brevity, that the ordinances being discussed only incidentally affect interstate commerce. With that being so, the ordinance will be upheld “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit.”15)Id. at 28.16)This is where my more conservative friends get upset about judicial activism, and they have a point here. The judge will now evaluate the the effectiveness/value/purpose of the law, and if it is to her liking, then the law will obviously pass the balancing test. If the law seems frivolous in effectiveness/purpose/value then she will say that it does not pass the balancing test. One could argue these are evaluations that should be made by the legislature. If anyone dares to tell you that constitutional law is not political, that judges are just “referees,” for example, stop taking that person seriously at once.

Judge Campbell weighs the factors of the Pike test in favor of Phoenix. He concludes:

“The modern law of what has come to be called the dormant Commerce Clause is driven by concern about ‘economic protectionism, that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’” The Ordinance is not an act of economic protectionism. It is a legitimate attempt to curb the problems associated with the inhumane treatment of animals and local dog homelessness and euthanasia. (citation omitted) 17)Id. at 30.

There is no reason to think the the proposed Las Vegas ordinance would not pass a similar evaluation, given that the need to curtail the inhumane treatment of animals and help find homes for homeless animals is no less serious here. A similar law in Chicago was also recently upheld.

 

Where the Las Vegas Puppy Mill Ordinance May Have Some Constitutional Trouble..

 

So everything’s dandy right? The Phoenix law got the sign-off from a federal judge, so there is no reason to to think the Las Vegas ordinance will have any legal trouble…or is there?

Recall earlier that I claimed the Phoenix law differs from the Las Vegas ordinance in one major regard. Allow me to reproduce Section C of the Phoenix Ordinance:

C.    This section does not apply to:

1.    A person or establishment, other than a pet shop or pet dealer, which displays, sells, delivers, offers for sale, barters, auctions, gives away, brokers or otherwise transfers or disposes of only dogs and cats that were bred and reared on the premises of the person or establishment;

2.    An animal shelter;

3.    A private, nonprofit humane society or nonprofit animal rescue organization; or

4.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

D.    Nothing in this section shall prevent a pet shop or pet dealer from providing space and appropriate care for animals owned by an animal shelter, nonprofit humane society or nonprofit animal rescue agency and maintained at a pet shop for the purpose of adopting those animals to the public.

The proposed Las Vegas ordinance copied Sections A and B from Phoenix, but left out the above text. Why? Well, I am happy to speculate. Of the 36-page opinion quoted above in our Dormant Commerce Clause discussion, more than 2/3rds of it addresses the constitutionality of Part C. Any serious constitutional challenge to the ordinance would concern the municipalities creating an economic climate that favors local sellers to the detriment of out-of-state sellers.18)Judge Campbell upheld Section C above as constitutional, by the way.

Perhaps the City of Las Vegas thought the best way to avoid a constitutional challenge would be to delete the most controversial language of the Phoenix ordinance19)Or maybe their copy/paste functions as well as mine. Politically, this seems like the best course of actions and the city attorney should be commended on his cleverness.

But this may have unintended consequences.

Chew on this question: Based on the quoted language of the Las Vegas ordinance above20)No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization, what is the definition of “pet shop”?

The purpose of Section C of the Phoenix ordinance is to clarify what businesses the new ordinance would apply to. There is no language in the Las Vegas ordinance addressing this issue.

This is a big deal, honest. If you breed your own dog and sell a puppy to a neighbor, are you a pet shop? If not, how many dogs would you have to sell before you would be classified as a pet shop? Are only shops with business licenses considered pet shops?21)And so on, and so on.

There’s a constitutional law theory called the Vagueness Doctrine that may come into play here. The Legal Information Institute will assist us with a definition:

1) A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable.  Criminal laws that violate this requirement are said to be void for vagueness.  Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.  By requiring fair notice of what is punishable and what is not, vagueness doctrine also helps prevent arbitrary enforcement of the laws.

2) Under vagueness doctrine, a statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.22)Source

A word on the practicalities of constitutional law before we continue. A law or ordinance is never unconstitutional on its face; meaning, the legislature/city council cannot pass a law that is unconstitutional upon ratification. A court must declare a law unconstitutional for it to be so. My point being that all laws are constitutional until a court says otherwise.

So, for the sake of this conversation, neither of these ordinances, as passed, are unconstitutional. I am only saying that there may be a risk that a court might declare the ordinances unconstitutional.

The City of Las Vegas, while cleverly23)I mean that in the true connotation of the word omitting the disputed language from the Phoenix case, may have opened the door to a different constitutional issue. One might say that it makes more sense24)in terms of risk, not to mention good law/clarity to just include language similar to Section C of the Phoenix ordinance as a federal judge has already declared it constitutional. Why open a fresh can of worms with little legal precedent?

 

That was fun, right? I appreciate you sticking around and spending a little time with us on the Clear Counsel blog. If you are thinking of adopting, I highly recommend the Nevada SPCA25)That little dog in my avatar came from there. They even post photos online of the dogs (and other animals) available for adoption. Look at those cute faces and tell me your home would not be improved with a little fury friend!

http://www.nevadaspca.org/adoptable-animals/adoptable-dogs

 

A couple more links for further reading:

 

http://lasvegas.suntimes.com/las-news/7/104/18721/puppy-mill-regulations-map

 

http://www.abajournal.com/magazine/article/anti_puppy_mill_legislation_across_the_country_is_dogging_pet_stores/

 

Footnotes   [ + ]

1. Hard for me to think of a public meeting topic that would have most of the attendees smiling; these are our times, unfortunately.
2. Unfortunately, the link provided no longer functions. I printed off of the ordinance while I had the chance and will quote from my hard copy.
3. ???
4. a fine of no more than $1,000 or a jail term of not more than 6 months
5. I’m sure it was an accident
6. self-proclaimed
7. His 36 page opinion also happens to be well-reasoned and thoughtful
8. Get out from under the desk, it’s going to be ok
9. I will skip the really trying parts
10. trademark pending
11. Subsection 2143(a)[1]
12. Puppies ‘N Love et al v. Phoenix, City of, F.Supp.3d . 2015 WL 4532586 (D. Ariz., 2015), p. 8 link
13. we could go deep into this rabbit hole; there is a reason the Phoenix opinion is 36 pages long
14. because it does not directly regulate interstate commerce
15. Id. at 28
16. This is where my more conservative friends get upset about judicial activism, and they have a point here. The judge will now evaluate the the effectiveness/value/purpose of the law, and if it is to her liking, then the law will obviously pass the balancing test. If the law seems frivolous in effectiveness/purpose/value then she will say that it does not pass the balancing test. One could argue these are evaluations that should be made by the legislature. If anyone dares to tell you that constitutional law is not political, that judges are just “referees,” for example, stop taking that person seriously at once.
17. Id. at 30
18. Judge Campbell upheld Section C above as constitutional, by the way.
19. Or maybe their copy/paste functions as well as mine
20. No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization
21. And so on, and so on.
22. Source
23. I mean that in the true connotation of the word
24. in terms of risk, not to mention good law/clarity
25. That little dog in my avatar came from there.
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

 

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

 

veterans day parade, nevada, las vegas

 

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

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Congresswoman Dina Titus of Las Vegas, riding in style.

 

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

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

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The Goodmans, Mayors past and present.

 

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

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Yes, that vehicle is called a “Bone-Crusher”.

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

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My little flag is found a home on my desk.

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Is the dog wearing goggles? You betcha.

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City Councilman Steve Ross.

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The Knights of Columbus.

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Who is the Trump person I keep hearing about?

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Yes, you are reading that right.

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Part II: Our Future Leaders

 

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

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veterans day parade, nevada, las vegas

 

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.

 

cryotherapy, Las Vegas, Nevada

 

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.

Footnotes   [ + ]

1. according to the company that sells it, anyway…

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.Max: Learning how to drive

 

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.

Footnotes   [ + ]

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.

Footnotes   [ + ]

1. some might say “fire”
wrongful death, tony stewart, nevada, las vegas, speedway

How the Tony Stewart Wrongful Death Case Would Turn Out in Nevada

I am sure that most of you have heard, at least in passing, about the horrible accident that took the life of race car driver Kevin Ward Jr.. Because the case has gotten so much play1)for better or worse in the press, I thought it might be an opportune time to apply the known facts of the incident to Nevada law so our readers have a better idea how a wrongful death tort works in practice.

 

What Happened

You should watch the cellphone video yourself and make your own determination of the facts (Warning: Graphic.). Ward died shortly after being hit by a race car that was driven by Tony Stewart.

On August 9, 2014, Ward and Stewart were racing winged sprint cars, which are the unusual looking buggy-like vehicles that have oversized spoilers on their roof and hood.2)Source They were racing on a short dirt oval track in the town of Canandaguia, New York.

Ward’s car crashed while the cars of Stewart and Ward were next to each other, possibly as a result of a relatively minor collision between the two. Ward exited his car and walked toward the middle of the dirt racetrack while the other race cars were still driving. Since the racetrack is a short oval, it only took about 22 seconds for Stewart’s car to come back around to where Ward was walking and pointing in the general direction of Stewart’s approaching car. It was then that Stewart’s car hit Ward and knocked him further down to the ground.

 

 

A Little Background on the Cars/Track/Drivers

The race involved 360 Winged Sprints; “360” refers to the cubic inch iron block size of the engine, which produce between 700 and 800 horsepower; the vehicles are light, typically less than 1,475 pounds, which results in a very powerful and light vehicle. For comparison sake, the top selling small car for 2014 was the Toyota Corolla, the mid-range LE model of which weighs 2,855 pounds and has 132 horsepower.

The oval track is 1/2 mile in total length, which just about double the length of a high school 400 meter track. The track appears slightly sloped with the outside being a little higher than the inside of the track; it is otherwise flat. In the middle of the oval, there are very few obstructions preventing spectators or racers to see the opposite side of the track.

It was nighttime and moderately well lit. It did not appear as well lit as a baseball park at a good community field, but lighting was sufficient to show many details from the stands on the opposite side of the oval.

Tony Stewart was 43 years old at the time; he was and is well known and a very experienced and successful NASCAR and sprint car racer. Kevin Ward Jr. was a local 20 year old sprint car racer who graduated from a South Lewis Central high school. His high school is located in the small town of Turin, New York, which is just a two and a half hour drive away from Canandaigua.

 

The Scope of Our Discussion

This is purely a hypothetical because it is an analysis of the claims of Ward’s estate and his decedents if the accident occurred in Nevada.

There are persons who may claim that Tony Stewart may have intended to harm Ward, but that issue will not likely prevail and will not be addressed here. The issues addressed here are whether Stewart’s actions were negligent, regardless of whether he intended on intimidating Ward or not. Next, even if it can be proved that Stewart was negligent, Ward was almost certainly negligent by placing himself in harm’s way through his actions of walking towards moving race cars during an active race. What would Ward’s negligence be and how would it affect the claim of his estate and heirs?

 

The Relevant Wrongful Death Law

In order to succeed on a wrongful death action in Nevada, a party must prove that “the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another.”3)NRS 41.085. A legal cause is a “cause which is a substantial factor in bringing about the injury.”4)Nevada Jury Instructions – Civil 2011 Edition Inst. 4.16; Cnty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 114 Nev. 749, 759, 961 P.2d 754, 760 (1998).

Since wrongful death is a negligence claim, the family of the person who passed away must show that the “tortfeasor,” the person alleged to have caused the death, was actually negligent. The Nevada Supreme Court held that in order to demonstrate negligence the plaintiff must show:

(1) there was a duty owed;

(2) there was a breach;

(3) causation; and

(4) damages were suffered.5)Scialabba v. Barndise Const. Co., 921 P.2d 928, 930 (Nev. 1996) (citing Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 4, 805 P.2d 589, 590 [1991]

 

The determination of duty is adjudicated by the court6)Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008). The remaining issues of negligence are fact intensive for a jury to decide.7)Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 1106, 864 P.2d 796, 802 (1993).

In Nevada, a defendant may assert a defense that the injured or deceased plaintiff was also negligent and the claim should be reduced by that percentage of negligence or eliminated.8)(NRS 41.1410). Nevada is a state that prevents recovery completely only if the plaintiff was more than 50% at fault9)Id.. If the plaintiff is 50% or less responsible for the incident, s/he may recover damages reduced by his or her share of the negligence.

 

How Does Nevada Law Apply to This Accident?

At this point, there are a number of facts that are not known that may be found through discovery in litigation. Aside from background information about the track and race, the only real piece of evidence available for analysis is the 52 second video taken by a cell phone of a witness. Other videos may exist as taken by other witnesses, Canandaigua Motorsports Park, or the organizers of the race, which has videos of other races on their website. We do not have the testimony of any depositions from Stewart, other racers, and other witnesses. They may be able to provide some important facts that we do not have. The opinions and testimony of experts will likely be required to explain to a judge or jury safe practices of drivers, track operators, and race organizers.

The rules of the Canandaigua Motosports Park and Empire Super Sprints also provide useful standards for determining the duties of the operators, organizers, and drivers. Under Section B.12 of Empire Super Sprints 2014 Rules of Conduct and Procedure, it states:

If there is an accident, the field will be restarted with the car or cars causing the restart, plus any stopped car, going to the rear of the field.

 

The rules leave much to be desired, for example, they do not define accident, restart, and or the procedures of a restart. The rules make multiple references to colors of flags indicating actions, but do not state what flag is flown after an accident to indicate a restart. They also do not state what actions are to be taken by the drivers upon notice of a restart. If the flag person communicated to the drivers that there was an accident, or just that there is to be a restart, then the drivers have no reason to be racing, driving quickly, or passing one another because rule B.12 also states that, except for those involved in the accident, the order of racers will be preserved for the restart. In the beginning of the video, there is a person on a raised stand near the spectator bleachers who has multiple colored at his feet. If the race organizer or director did not properly train its employees on how to respond to an accident, they may be subject to liability as well.

It makes sense that a restart was communicated to the drivers after the accident because in the first 13 seconds of the video, which was before and immediately after the crash, many of the racers traveled on the far outside of the track on the straight portion after the turn (one car passed just after the collision and while Ward’s car was still moving). After the first 13 seconds, approximately 18 cars can be seen in the foreground passing between Ward and the inside of the track prior to Stewart’s car hitting Ward, most of which appear to be much closer to the inside of the track than the outside. Only 3 more cars passed after Stewart’s, immediately after which a waiting ATV and truck quickly entered the track, which indicated that the people waiting to help Ward were probably able to see that these last 3 racers were the last to enter a line for the restart. According to the race results, there were a total of 22 racers. This makes a total of 24 cars, including Stewart’s and another that passed Ward’s car after the first collision. It is quite possible that a restart flag did not go up until after the first two cars passed the flag position and had to pass the accident scene twice.

Assuming that a restart was communicated, this shows three big reasons why a driver should have been traveling slowly. First, the cars should slow down and drive to avoid any stopped or disabled cars. There was not much dust to prevent visibility, the track was small, and the visibility out of the side of a sprint car is quite good; thus, a racer should easily be able to see a stopped car even from the opposite side of the track and on the approach sufficient to be able to avoid it.

Second, the cars had to be slowing down because they would presumably have to stop for the line-up in preparation for the restart. All three of the cars that came after Stewart’s second collision drove past less than five seconds later; they were not driving quickly and one was moving so slowly you can almost read the words on the side of the tires.

Third, there was no reason to hurry because the order of the racers is preserved unless you are Stewart and Ward, both of whom were supposed to be sent to the back of the race for being involved in the collision (assuming Stewart’s car actually made contact with Ward’s car).

Based upon the information obtained from the video in combination with the rules and some assumptions, it appears that Stewart was likely negligent for failing to drive slowly and avoid Ward walking on the track. While it is difficult to tell exactly, it appears that after Ward exited his vehicle, three of the 18 passing cars did not drive past on the very inside of the track. Stewart was the last of the three. He had the most time to slow down of the three and he was the 17th of now-21 cars to enter the line for the restart. He likely had ample time to observe Ward on the track and to take actions to avoid him by traveling on the inside of the track just like most of the other safe drivers.

Some individuals have commented that Ward should not have been on the track so Stewart should be excused. That is similar to stating that any driver who hits a pedestrian on a freeway should face no liability. Drivers on a freeway still have obligations to drive safely and avoid hazards and other people, even if the pedestrian is not supposed to be there.

In regards to comparative negligence, there is little doubt that Ward is at least partially at fault for the unfortunate incident. Common sense dictates that a pedestrian does not belong in the middle of dirt racetrack where multiple vehicles are traveling. Furthermore, the 2015 Canandaigua rules, which were likely the same in regard to this section state:

Any driver involved in an accident, spin, or has a mechanical failure on the track MUST stay in their car until the Safety Crew arrives. If there is imminent danger of fire or leaking fluids you may exit the car and stand as close to the car as possible. If you exit your car you will be penalized.10)Source

 

Ward clearly violated this rule, which was for his own safety. The most difficult determination is whether Ward’s negligence exceeded Stewart’s. This decision would probably be affected by evidence not available to the public at this time such as whether Stewart “revved” his engine while passing Ward in an attempt to intimidate Ward, which would also suggest that the location of Stewart’s car closer to Ward was also part of an intimidation tactic. If so, this would show Stewart was behaving even more dangerously than the video shows. Assuming that there was an order for the racers to restart, Ward had some expectation of safety in walking on the track because the cars would be slowing down to get in line. While additional facts could tip my opinion either way, I am going to slightly side with Ward and argue that he was 45% at fault and Stewart was 55% at fault.

 

Concluding Thoughts from Our Hypothetical Wrongful Death Discussion

It would ultimately be up to a jury to decide whether Stewart should be held at fault for wrongful death of Kevin Ward Jr.. After Stewart’s and Ward’s cars appeared to have collided, causing Ward’s car to lose control and crash, it appears a restart of the race was ordered. Ward negligently walked on foot towards the middle of the track before all the cars stopped and approached Stewart’s car, which was moving when Ward’s body was tragically thrown. Stewart likely knew of the importance to slow down and stay away from the accident scene and appeared to only partially perform these actions. Thus, both men appeared to be negligent, yet Stewart appeared to be slightly more so.

Footnotes   [ + ]

1. for better or worse
2. Source
3. NRS 41.085.
4. Nevada Jury Instructions – Civil 2011 Edition Inst. 4.16; Cnty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 114 Nev. 749, 759, 961 P.2d 754, 760 (1998).
5. Scialabba v. Barndise Const. Co., 921 P.2d 928, 930 (Nev. 1996) (citing Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 4, 805 P.2d 589, 590 [1991]
6. Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008
7. Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 1106, 864 P.2d 796, 802 (1993).
8. (NRS 41.1410
9. Id.
10. Source
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!

Footnotes   [ + ]

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
UBER,, las vegas, clark county, employment law, employee, independent contractor

Are Uber Drivers Employees of the Company?

There are so many reasons to live in fabulous Las Vegas; we have great weather, low taxes, a healthy job market, and plenty of entertainment for all walks of life. But one downside of life in the desert is that it is rather difficult to get around without a car. The public bus system in Las Vegas is difficult to navigate and entirely inconvenient for many1)Not to say that our bus drivers work extremely hard, and we appreciate it very much. Taxis tend to cater to tourists and do not seem to want to do long drives to and from homes far from the strip2)Multiple people in my office have stories of cabs refusing to drive to the suburbs from downtown. Enter Uber, the immensely popular, ride sharing service.

 

What is Uber?

The concept of Uber is simple: download the app on your phone, and request a ride. The app will instantly show you the drivers in your area and send the closest one to come get you. Often times, the wait is only a matter of minutes. Each driver is assigned a rating by reviews of customers and if a driver has a low rating, a rider can reject that driver and wait for the next closest one. It is convenient, fast, and relatively3)Compared to a cab cheap. It is even safe for the drivers who never have to carry money because all payment is done through a credit card on the app.  Uber takes 20% of the fare and the rest belongs to the driver4)Additionally, the app will estimate the entire fare up front so you will not be surprised upon your arrival.

Many locals/non-locals in Nevada like to go out at night and have a drink or two, so Uber will likely reduce DUIs and related accidents because it is so simple/easy; it is silly not to use it if you need a ride. But, a unique service like Uber does come with quite a few legal and practical issues that relate to classifying drivers and paying taxes.

 

Employees vs. independent contractors

As a general matter, workers either fall into two categories: employees or independent contractors. Employees are the default worker status, when someone:

  1. works closely for an employer,
  2. is under an employer’s control, and
  3. is an integral part of the employer’s operation.

Hiring employees can be expensive for an employer who has to pay minimum wage, pay payroll and other taxes, provide breaks, purchase health insurance, and comply with various regulations regarding work environment and benefits. Hiring an independent contractor is cheaper by far. An independent contractor:

  1. works outside of the control of the employer,
  2. often on a more temporary or piecemeal basis, and
  3. must pay all taxes on their own without employer withholding.

Independent contractors are cheaper because employers do not have to pay payroll taxes, provide insurance, provide a place to work, and they do not have to comply with wage and hour laws because the contractor works on his or her own time. Each employment relationship is unique and must be examined on a case by case basis to determine whether someone is an employee or independent contractor.

 

Are Uber drivers  employees or independent contractors?

Uber claims that their drivers are independent contractors, but I am not so sure. Why does it matter, you ask? Well, if Uber drivers were classified as employees, the company would have to spend quite a bit more money paying taxes, benefits, insurances, and possibly providing cars for the drivers to use while working. But, all of these costs would likely be passed onto the consumer and likely hurt Uber’s bottom line. On the other hand, employees would benefit by receiving protections of wage and hours laws, receiving benefits, and being eligible for unemployment benefits if laid off.

Interestingly, despite the benefits, being classified as employees might be the exact opposite of what Uber drivers want. As it stands now, once hired by Uber, each driver must take his or her own personal vehicle to a designated mechanic for inspection. It is this personal vehicle that drivers will use for work. Each driver decides when to work, for how long, and where to drive. They have no one to answer to other than the reviewers who will ensure repeated business and an ongoing job with their positive feedback. A job like this can mean extra money for someone with another job or an income for someone who has limited childcare. There are many benefits to being an independent contractor in this business, and Uber likely appeals to many people who shy away from a 9-5 traditional setting job5)Paging Las Vegas buskers.

Although Uber claims their drivers are independent contractors, recent decisions by California courts have found otherwise for drivers in similar circumstances to those of Uber drivers here in Nevada. It remains to be seen whether Uber is eventually forced to classify their drivers as employees, but there are so many pros and cons to being an employee and an independent contractor, that Uber is really left between a rock and a hard place. Their business model depends on the flexibility and independence of each driver but at the same time, wage, hour laws and benefits regulations are designed to protect the work force.

 

Now what for Uber Drivers?

But what if Uber employees just will not fit into either category? Nevada could recognize a new class of employees to better protect workers and meet the needs and budget of a modern company like Uber.  Other countries, like neighboring Canada, have various categories of workers. Maybe therein lies the answer. If Nevada creates a new class of workers, Uber drivers could maintain independence and still receive important protections and benefits. Many independent contractors could potentially benefit from a new category of worker: freelance writers, web designers, and online marketing specialists, just to name a few.

I do not expect Uber to reclassify their employees since it cuts into their bottom line. But, it is a fairly close call as to whether the drivers are employees or independent contractors. Uber controls prices and monitors employee performance like a traditional employer, but Uber does not tell drivers when to work or how to drive, allowing them to make the decisions like an independent contractor would do. Yet, if Uber is sued for wage and hour violations, it is fairly likely that a judge would find a driver to be an employee under the control of Uber, which is what happened in California. So, if lawsuits like that cut into Uber’s bottom line, I suppose there would be a point where it would just be cheaper to have drivers be employees. I would guess though, that it would take a substantial number of lawsuits to make it financially beneficial for Uber to amend its policies. Perhaps if it looks like Uber may be in trouble for misclassifying employees down the road, then they might spend the money to lobby for new classifications. We shall see.

But, that is a long time away since Uber’s just getting started. It appears right now that the state of Nevada has given Uber to “go ahead” but Clark County has not and is trying to stop Uber from operating. But that’s a story for another day…..

Footnotes   [ + ]

1. Not to say that our bus drivers work extremely hard, and we appreciate it very much
2. Multiple people in my office have stories of cabs refusing to drive to the suburbs from downtown
3. Compared to a cab
4. Additionally, the app will estimate the entire fare up front so you will not be surprised upon your arrival
5. Paging Las Vegas buskers
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