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Nevada Law

Clear Counsel Law Group / Nevada Law
slayer rule, probate, NRS, Nevada

The Slayer Rule in the News

A couple of weeks ago, we all lost one of the great musicians of American history 1)and a personal hero of mine.  Although his greatness and legacy cannot be tarnished, there has been an unfortunate development with reference to the distribution of his estate.  2)This is not a discussion of the specifics of that case, but a general discussion of the law.  Beneficiaries of his estate have stated publicly that other potential beneficiaries murdered the deceased whose estate is now in question.  Although I have no personal knowledge of the circumstances, this may be an opportune time to discuss, hypothetically, what happens if a beneficiary of an estate murders the grantor (the original owner of the estate assets).

 

The slayer rule

The law regarding the hypothetical above goes back a long way.  In 1886, the U.S. Supreme Court first established what is called the “Slayer Rule.” 3)Mutual Life v. Armstrong 117 U.S. 591, 600.  In 19th century language, the court stated that is against the interests of public policy for a murderer to profit from his crime.  The law caught on in popularity; as of now, forty-eight states have some version of a slayer rule.

In Nevada, Chapter 41B of the Nevada Revised Statutes codifies the principles of the ‘Slayer Rule’4)See Holliday v. McMullen, 104 Nev. 294, 296, 756 P.2d 1179, 1179 (1988) for a common law example of Nevada’s slayer rule; it states in pertinent part:

 

  NRS 41B.200  General rule; killer cannot profit or benefit from wrong; anti-lapse statute and right of representation; contingent, residuary and other beneficiaries; common law.

      1.  Notwithstanding any other provision of law, the provisions of this chapter apply to any appointment, nomination, power, right, property, interest or benefit that accrues or devolves to a killer of a decedent based upon the death of the decedent. If any such appointment, nomination, power, right, property, interest or benefit is not expressly covered by the provisions of this chapter, it must be treated in accordance with the principle that a killer cannot profit or benefit from his or her wrong.

 

Simple enough, the law states that the “killer cannot profit or benefit” from the crime.  But does the murderer need to be convicted of the crime before above statute applies? Not necessarily.

 

The plot thickens with respect to the slayer rule

Am I claiming then that if a beneficiary is accused of murder then he or she will lose interest in the estate? No.  The answer is a bit more nuanced.  Later in Chapter 41B, there is clarification on this point:

  NRS 41B.260  Civil action: Parties; burden of proof; evidence; stay of proceedings; limitation on time for commencement.

      1.  For the purposes of this chapter, an interested person may bring a civil action alleging that a person was a culpable actor in the felonious and intentional killing of a decedent. An interested person may bring such a civil action whether or not any person who is alleged to be a killer in the civil action or any other person is or has been, in a separate criminal action, charged with or convicted or acquitted of being:

      (a) A culpable actor in the felonious and intentional killing of the decedent; or

      (b) A culpable actor in any other offense arising out of the facts surrounding the killing of the decedent.

      2.  If an interested person brings a civil action pursuant to this section, the court shall determine, by a preponderance of the evidence, whether a person who is alleged to be a killer of the decedent was a culpable actor in the felonious and intentional killing of the decedent. If the court finds by a preponderance of the evidence that a person who is alleged to be a killer of the decedent was a culpable actor in the felonious and intentional killing of the decedent:

      (a) The finding of the court conclusively establishes for the purposes of this chapter that the person feloniously and intentionally killed the decedent; and

      (b) The person shall be deemed to be a killer of the decedent.

      3.  If, in a separate criminal action, a person is charged with being a culpable actor in the felonious and intentional killing of a decedent or with any other offense arising out of the facts surrounding the killing of the decedent and:

      (a) The person is acquitted of the charge;

      (b) The charge is dismissed; or

      (c) A verdict or judgment is not reached or entered on the charge for any reason, evidence concerning any such matter is not admissible in a civil action brought pursuant to this section.

      4.  Upon its own motion or the motion of an interested person, the court may, in whole or in part, stay the proceedings in a civil action brought pursuant to this section during the pendency of any separate criminal action that has been brought against a person who is alleged to be a killer in the civil action. The provisions of this subsection do not limit the power of the court to stay the proceedings in the civil action for any other reason.

 

Subsection 1 states that a beneficiary may lose interest in the estate if he or she has been “charged with or convicted or acquitted” of murder of the estate’s grantor.  Subsection 1(b) expands the possibilities further to include a “culpable actor…arising out of the facts surrounding the killing.” As you can see, charged with and acquitted, are standards far less strenuous than a conviction.

Subsection 2 establishes that a court shall use a “preponderance of the evidence” standard 5)meaning the event occurred more likely than not in determining if Chapter 41B shall be applied to exclude the murdering beneficiary from the will.  If you are attempting to think of an example of when a murderer could be acquitted, but still found culpable by a preponderance of the evidence, think of a certain Heisman Trophy winner currently in a Nevada prison.

Subsection 4 allows the court to pause the proceedings if the judge cannot make a preponderance determination at present time to allow the criminal proceedings to continue, in hopes that more evidence may come to light.

These probate challenges are as sensitive as they are complicated.  With a large enough estate, a 41B slayer rule challenge could contest a serious amount of money.

Footnotes

Footnotes
↑1 and a personal hero of mine
↑2 This is not a discussion of the specifics of that case, but a general discussion of the law
↑3 Mutual Life v. Armstrong 117 U.S. 591, 600
↑4 See Holliday v. McMullen, 104 Nev. 294, 296, 756 P.2d 1179, 1179 (1988) for a common law example of Nevada’s slayer rule
↑5 meaning the event occurred more likely than not
Nevada Law / Probate - 06/02/2015
surveillance video

May an Insurance Carrier Take Surveillance Video of Me?

So, unfortunately, you have been in an auto accident.  In case the pain and suffering you are going through is not enough, now there is a tricky-looking fellow1)an employee of the insurance company taking surveillance video of you.  Is this permissible?

Yes.

In Nevada, an insurance carrier, their hired representative, or anyone else, may record surveillance video of you as long as they are in a public place, even from the curb in front of your house on a public street. They may use this information for their own internal purposes to get to know you and verify your claims of injuries due to the car accident, but they may also keep this video on file to see if your statements are consistent with what their video shows.

The bigger questions involve what the video means for your claim and whether or when you can require the insurance carrier or their hired representative to show or disclose the video.

First, let us discuss what the video means for your claim.

 

Will my claim lose now because I got caught on surveillance video?

So you were hurt in a car collision, you went to the hospital or urgent care clinic because your back and neck hurt from the whiplash and you called a personal injury attorney to represent you. Your treatment is going well and you are feeling better, but not completely back to normal. You go outside and shovel snow, move your trash bin, work on your vehicle, pull some weeds, play catch with your children or something similar.

Then you realize that there appears to be a person in a car taking pictures and video of you. You call your attorney who asks you to describe the car and license plate, but you do not remember because you were distracted by the person taking the video. You ask your attorney, “is my claim ruined because I was caught doing…?”

The short answer is probably not. What were you doing? If you participated activities that required significant physical ability and strength, such as performing back-flips on your trampoline or dirt jumping on your motorcycle during a time period in which you claimed that you had difficulty sitting, standing, bending over, sleeping, walking, and so on, your claim probably will be in trouble.

More likely, you were observed in the video doing typical chores such as shoveling snow, moving your trash, etc. The severity of your injuries in comparison to the amount of strength and exertion required by the activity will largely dictate how much the video might affect your case. The insurance carrier may have been verifying your claims of injury for their own purposes, seeking to catch you participating in activities you should not be, or both. You should speak with your attorney about the potential impact of the video.

 

Show me the surveillance video

When you called your attorney about the surveillance video, you demanded to see the video. Unfortunately, the person generally has a right to take such photographs or video from a public place in Nevada. Furthermore, the photographs or video are private property of the person who took them; thus, you cannot require them to turn the photos/videos over to you. Your attorney probably will not be able to get the video either, at least at first. Just because another person caused the car crash and hurt you, and you made a claim through their insurance, it does not initially entitle you to obtain the results of their investigation.

Of course, in the above paragraph, the key qualifiers are “at first” or “initially” because video can usually be obtained if you file a properly pled lawsuit within the requisite time period. Under Nevada’s rules of discovery, anything that is “not privileged which is relevant” may be obtained by any other requesting party. This includes video.

Even if requested, a Defendant may object to disclosure until trial or at least until after your deposition on the grounds that it is impeachment evidence. Impeachment evidence is something that shows you are or have not told to truth, and its use is often depicted in movies as the “gotcha” moment. Nevada case law is unclear about whether a party is permitted to withhold disclosure of a video where not specifically requested, but the surveilling party must generally disclose it if requested before trial, but not necessarily before your deposition. Your deposition may not be until one, two, or maybe even three years after the surveillance video incident; thus, you may forget what happened that day.

There may be actions you can take to help prepare you for your deposition if you suspect someone took video of you, and you should contact an attorney to help you with this.

Clear Counsel Law Group is experienced in guiding people who have suffered injuries from car accidents through the difficult process of attaining financial restitution for the harm they endured.

Footnotes

Footnotes
↑1 an employee of the insurance company
Nevada Law / Personal Injury - 06/01/2015
helmet motorcycle liability

Motorcycle Helmet Laws and Liability

Previously, we discussed what the current Nevada statutes are regulating motorcycle riders, and how, in an accident, not following those laws may affect the outcome and amount of a potential settlement.  However, we did not cover the helmet law.  Let us do so now.

 

Does Nevada have a helmet law for motorcyclists?

Yes, indeed.  In fact, the law has been in effect for more than forty years.  Unlike other states, Nevada requires all passengers, of all ages, to wear a helmet. The statute is as follows:

 

   NRS 486.231  Protective headgear and glasses: Standards; when use required.

      1.  The Department shall adopt standards for protective headgear and protective glasses, goggles or face shields to be worn by the drivers and passengers of motorcycles and transparent windscreens for motorcycles.

      2.  Except as provided in this section, when any motorcycle, except a trimobile or moped, is being driven on a highway, the driver and passenger shall wear protective headgear securely fastened on the head and protective glasses, goggles or face shields meeting those standards. Drivers and passengers of trimobiles shall wear protective glasses, goggles or face shields which meet those standards.

      3.  When a motorcycle or a trimobile is equipped with a transparent windscreen meeting those standards, the driver and passenger are not required to wear glasses, goggles or face shields.

      4.  When a motorcycle is being driven in a parade authorized by a local authority, the driver and passenger are not required to wear the protective devices provided for in this section.

      5.  When a three-wheel motorcycle on which the driver and passengers ride within an enclosed cab is being driven on a highway, the driver and passengers are not required to wear the protective devices required by this section.

      (Added to NRS by 1971, 1469; A 1973, 1194; 1975, 1083; 1979, 857; 1985, 1959)

 

As you can see, the only exception to the law is if the driver is authorized to appear in a parade.  Note also that the law requires “protective glasses” to be worn by all passengers.

 

How will not wearing a helmet affect a personal injury claim?

The answer to this inquiry depends upon the type of injuries that resulted from the accident.

No helmet, with a head injury: Because Nevada has a helmet law, and this is seen as a codification of a duties one has as a motorcyclist, not wearing a helmet might be seen by the law as the motorcyclist contributing toward his or her own injuries.

However, NRS 484D.495(4)(b) states that not wearing a seat-belt "[m]ay not be considered as negligence or as causation in any civil action or as negligent or reckless driving under NRS 484B.653." Given that a seat-belt and a helmet function in a very similar manner1)as a preventative measure to protect the rider in the unlikely instance that there is an accident, it seems unreasonable to assign liability to the helmet-less victim of a motorcycle accident when the same assignment of liability is expressly prohibited for a seat-belt-less victim of an automobile accident.

No helmet, without a head injury: Even with the law requiring a helmet, if the injuries stemming from an accident do not include a head injury, then the fact the rider was not wearing a helmet is irrelevant2)Do not take this chance; please wear a helmet.

 

Will the legislature change the helmet law?

In the current 2015 legislative session, State Senator Don Gustavson, through Senate Bill 142, attempted to repeal Nevada’s requirement that motorcyclists wear a helmet at all times.  He proposed allowing motorcyclists the freedom to choose to wear a helmet if the rider is over twenty-one, and has at least one year of driving experience.  However, SB 142 was amended, deleting this provision, and the helmet law discussed above still stands in the version of the law signed by Governor Sandoval.  This no-helmet trend  is worth keeping an eye on.

 

Footnotes

Footnotes
↑1 as a preventative measure to protect the rider in the unlikely instance that there is an accident
↑2 Do not take this chance; please wear a helmet
Nevada Law / Personal Injury - 06/01/2015
bankruptcy lien, chapter 7

The Effect of a Lien on Trailer Homes in Bankruptcy

 A former client recently found himself in a situation where a creditor sued him for an old debt that he had failed to pay. He never responded to the lawsuit and the creditor soon obtained a lien against him. The creditor then recorded the judgment with the county recorder. When the former client came to consult with me about proceeding with filing a bankruptcy case, he was curious to know what effect the recorded judgment would have, if any, on his personal residence. He lived in a trailer (or mobile home). In order to answer his question, we turned to the controlling Nevada law on the subject, which is found in Nevada Revised Statutes (“NRS”) 17.150 (2), and which states in pertinent part:

 

A transcript of the original docket or an abstract or copy of any judgment or decree of a district court of the State of Nevada or the District Court or other court of the United States in and for the District of Nevada, the enforcement of which has not been stayed on appeal, certified by the clerk of the court where the judgment or decree was rendered, may be recorded in the office of the county recorder in any county, and when so recorded it becomes a lien upon all the real property of the judgment debtor not exempt from execution in that county, owned by the judgment debtor at the time, or which the judgment debtor may afterward acquire, until the lien expires. (emphasis added).

 

In other words, the creditor that recorded the judgment created a lien against any real estate owned by the former client that was not exempt (i.e., protected by law). The former client had no real estate or land holdings to speak of besides the trailer, which itself sat upon land that he rented from a mobile home park. By reviewing another Nevada statute, I was able to show this client that the trailer itself was exempt property. NRS 21.090(m) states that the following property is exempt:

The dwelling of the judgment debtor occupied as a home for himself or herself and family, where the amount of equity held by the judgment debtor in the home does not exceed $550,000 in value and the dwelling is situated upon lands not owned by the judgment debtor.
 

How to apply the NRS with respect to the bankruptcy lien

Because this individual was living in the trailer and using it as his home, and he was renting the space where he parked the trailer, the trailer was exempt from the judgment that was recorded with the county recorder and no lien attached to the property. Moreover, after the bankruptcy was successfully completed, a discharge order was entered by the bankruptcy court creating an injunction against any type of collections on debts that were in existence at the time that the bankruptcy case was filed. In other words, even though the creditor had recorded its judgment prior to the filing of the bankruptcy case, no lien was created at the recording because there was no property owned by the former client at the time of the recorder and the debt was subsequently “wiped out” with the filing and successful completion of a chapter 7 bankruptcy case.

Bankruptcy / Nevada Law - 05/28/2015
casino false imprisonment

False Imprisonment in Casinos

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

 

Casino False Imprisonment

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

 

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

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

      (a) On account of any such questioning; or

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

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

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

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

 

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

 

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

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

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

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

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

 

The Distinction from a Shopkeeper’s Right to Detain

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

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

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

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

Nevada Law / Personal Injury - 05/28/2015
false imprisonment, nevada, merchant, tort

False Imprisonment by a Merchant

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

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

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

Each of these will be addressed in turn.

 

False Imprisonment and Unlawful Restraint

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

 

False Imprisonment, Against the Will

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

 

False Imprisonment and No Legal Justification

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

 

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

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

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

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

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

 

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

Footnotes

Footnotes
↑1 talking to you Jean Valjean
↑2 this is a discussion of the tort only, not the crime
Nevada Law / Personal Injury - 05/27/2015
Term of lease

Constructive Eviction of Commercial Tenants

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

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

 

New case law regarding constructive eviction

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

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

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

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

 

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

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

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

Corporations / Nevada Law - 05/27/2015
Employer liability

Employer Liability for Intentional Tortious Acts

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

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

 

Is There Employer Liability?

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

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

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

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

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

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

 

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

 

Independent Venture

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

 

Course of Employment

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

 

Reasonable Foreseeability

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

Nevada Law / Personal Injury - 05/26/2015
no contest, will provision, estate planning

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

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

 

What is a No Contest Provision?

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

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

 

How to Raise Concerns

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

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

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

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

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

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

 

Do not be Intimidated

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

Estate Planning / Nevada Law / Probate - 05/26/2015
security guard liability, Las Vegas, Nevada

Bouncer and Security Guard Liability

 

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

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

 

How a Negligent Act Could Incur Security Guard Liability

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

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

 

Whoa Big Fella

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

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

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

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

 

How an Intentional Tort Could Incur Security Guard Liability

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

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

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

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

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

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

Nevada Law / Personal Injury - 05/22/2015
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