Child Negligence: When a Hug Can Go Terribly Wrong

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

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

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

 

3 Child Negligence Scenarios

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

Homeowner’s Insurance and Child Negligence

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

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

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

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

What is an Appropriate Amount of Car Insurance to Carry?

 

How Much Car Insurance Coverage Would You Recommend?

Transcript:

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

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

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

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

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

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

What to do if You are in a Car Accident with a Person that has No Insurance

You have been in a car accident with a person that does not have insurance; now what?

Transcript:

Hi. I’m Jared Richards. I’m one of the attorneys here at Clear Counsel Law Group. One of our readers has asked what to do if they have been in a car accident and it turns out that it’s not their fault. It’s the other side’s fault. The other side has no insurance and there is no underinsured motorist coverage. I’m not sure there’s much to do. You may be in trouble.

A couple of things we want to make sure is that the other side, the person who hit you, doesn’t have assets sufficient to cover your claim. Most people don’t, unfortunately. Nevada has certain laws, I think of them as the bankruptcy laws. It’s really laws against enforcing a judgement and what that means is let’s say we are taken to court. We’re to go all the way to get a court to issue a judgement saying that the person who hit you owes you $20, 30, 40, 50,000. Insert your number. It doesn’t really matter. Nevada has laws that say we can only collect against certain property of the defendant. Usually, as a general basis, that means that we can only collect 25% of their take home income after deducting minimum wage.

That might not be a lot of money. People get to protect $15,000 in equity in their car, up to $500,000 in equity in their house, about the same amount in an IRA, unlimited amount in a life insurance policy or an annuity. For most people, it’s very difficult to collect and so there may not be much to do. Most of the time in that situation, it’s not worth suing.

That leads to another interesting question and an important question and that is what kind of insurance should you have. First of all, you need to have health insurance. If you were injured in that accident, you need to have that health insurance to get the treatment that you need. Unfortunately, health insurance is not going to cover certain things. It is not going to cover your pain and suffering. It’s not going to cover your lost income. That’s where we get into two other very, very, very important types of insurance.

The first is life insurance. Heaven forbid, you were to die in an accident and your family is relying on you as a bread winner. This is where having your own life insurance policy makes a whole lot of sense. They’re generally not very expensive if you get term and if you are responsible for a family, then you really need to consider having it.

The second is underinsured motorist coverage. This is also extremely important. I would encourage everybody and I understand there are budgetary issues that some people just cannot find room in their budget. Sometimes it’s not their fault. Sometimes it’s because of bad budgeting and sometimes it’s really not there fault. There’s just no room. One, I would encourage everybody to have more than the state minimum insurance levels. Really, I would like to see everybody at a least $100,000 of coverage or more. I’d prefer more but at least $100,000.

Second, I would encourage everybody, everybody, to purchase underinsured motorist coverage. Underinsured and uninsured motorist coverage is so very important. The point is that if you’re driving around you cannot rely on the person that hit you to do the right thing because we have so many who are uninsured and so many that are insured at minimums, at state minimums. $50,000 when we are dealing with medical bills does not go a very long ways and so I would encourage everybody to have at least $100,000, I’d prefer $250,000, of coverage both on liability and on underinsured motorist coverage.

In case I didn’t talk about it before, underinsured motorist coverage is that coverage that’s going to kick in once the other side’s policy has paid out. Uninsured motorist coverage, it’s the same thing. It’s just that the other side has no coverage. Your own coverage is going to come in to cover your injuries, your pain and suffering, your lost income. Please don’t drive around assuming everybody else is doing the right thing and you should protect yourself. Thanks for watching and as LeVar Burton would say, we’ll see you next time.

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

Will You Recover Damages if You Are Not Wearing a Helmet in a Motorcycle Accident?

 

What if You Are Not Wearing a Helmet in Your Motorcycle Accident?

Transcript:

Hi. I’m Jared Richards. I’m one of the partners here at Clear Counsel Law Group. One of our readers has recently asked what happens if you get into a motorcycle accident and you’re not wearing a helmet. Well, other than your head might splatter against the ground, there’s a question as to how it affects any settlement you might get.

Really, when we’re doing settlement posturing, we always have an eye to what would happen if this went to a jury. The question is, what would a jury do if they know that you don’t have a helmet on?

Well, this is kind of an area of undiscovered country. Now, this hails back to what we call the seat belt defense. Now, the seat belt defense is something that a defendant would want to try to bring to say that the injuries wouldn’t have happened, or they would not have been as bad if the victim had been wearing a seat belt, and they weren’t.

Well, in Nevada, we have a statute that specifically says that defendants cannot bring that as evidence, that a jury doesn’t get to see whether or not there is a seat belt in use.

Thanks to our 2015 legislature, thanks, guys, for listening to lobbyists, that rule has been repealed specifically against cab companies.

That’s right, because clearly cab companies are the people that we need to defend, because it’s not like we put our lives and bodies in their control and protection. I hope the sarcasm came through on this video.

But anyway, generally, the jury will not see whether or not there is seat belt use. Now, there are a few limited exceptions that we won’t go into here. But the question is, is that fair? Before I answer the motorcycle helmet question, the question is, is the seat belt rule fair?

Well, one of the answers, it doesn’t really matter if it’s fair. It is the law. As long as it’s the law, we follow it. But I think it is fair. There is a reason for it being far. Follow me through.

 

The Seat Belt Question Is More Difficult Than You May Think

Most people when they first hear that, they think, “Well, if he wasn’t wearing a seat belt, it’s his own darn fault.” Is that true? The question I have is, is not wearing a seat belt an invitation for somebody to hit you?

Not wearing a seat belt did not cause the accident.

Not wearing a seat belt did not cause somebody to run a red light or run a stop sign or drive drunk and hit you.

Wearing a seat belt is simply not wearing a seat belt. It’s not an invitation or consent to get hurt.

Now, yes, if you’d worn a seat belt, it would have prevented more damage. Now, that is a specific legal theory that the defense will try to bring up. The defense will try to bring up a term called “mitigation of damages.” The term “mitigate” means to lessen, to soften.

The rule is that if you’re a plaintiff and you’re an injured victim, you have the obligation to lessen your damages any way that you can.

Now the question is, does mitigation of damages apply in a seat belt situation? The answer is, the courts go both ways.

But the majority of courts seem to say that the answer is no. You don’t have a duty. Because mitigation of damages, that duty only starts after the injury is imminent.

Either it’s happened or it’s imminent. Most people don’t have cat-like reflexes that they see the accident coming and they can throw their seat belt on real fast. Now, my 7-year-old thinks he has those reflexes. But in reality, none of us do.

There’s not enough time between the accident and the injury to put on a seat belt, so that duty does not actually start. The obligation to mitigate damages doesn’t exist, or at least you are incapable of doing it in time, and thus it shouldn’t apply.

Now courts go both ways on that issue.

If you’re not in Nevada, and you don’t have a seat belt rule statute protecting you, then I don’t know which way the judge is going to go. But it makes sense that mitigation of damages only starts after the injury is imminent, then it wouldn’t apply.

Now, some would say, well, you should put your seat belt on every time. Look, you should, of course. Of course, we advocate, everybody should wear their seat belt. But the question is, for mitigation of damages purposes, when you get into your car in the morning and you drive away, is it reasonably likely that you’re going to get into an accident?

No, it’s not. Now it is possible.

It happens. But reasonably likely, do you think there’s a 50% chance every time you get in your car you’re going to get into an accident? A 20, a 10, a 5, a 1% chance? Not even a 1% chance that you are going to get into a accident that day when you get into your car.

So it’s not reasonably likely that you’re going to be injured. So while everybody should wear a seat belt, a jury should not know about it, about whether or not they were wearing a seat belt, in an effort for a defendant to try to decrease the amount of damages, decrease the jury award.

 

How All of This Applies to Your Motorcycle Accident

Now let’s move that over into the motorcycle accident arena. Well, I think you can see pretty clearly that wearing a helmet and wearing a seat belt, the analogy holds true between the two of them.

If duty to mitigate damages doesn’t exist in a car accident with a seat belt, it shouldn’t exist in a motorcycle without a helmet. The difference is, we do not have a law, a specific statute in the state of Nevada that says that use of a helmet does not come into evidence.

Really, you’d have to talk to your attorney and he is going to have to argue that how we deal with seat belts should bleed over to how we deal with helmets, that the law should be consistent across the two arenas. Even though we don’t have a statute, the principles that I just spoke about, that failure to wear a helmet is not an invitation to hit you.

Failure to wear a helmet is not a failure to mitigate damages, because you didn’t know you were going to be hit right then.

That being said, although it should not in theory, and I think in all ethics, should not affect the settlement amount, or the amount you get from a jury, please wear a helmet. Let’s just avoid the situation by having you wear the helmet.

If you have trouble after a motorcycle accident, please call me (702) 476-5900.

Well, that’s this video, and I hope to see you in another one.

 

What if I do not Accept a Settlement Offer before Trial?

 

The risks of rejecting a settlement offer before trial

Transcript:

Hi, I’m Jared Richards. I’m one of the attorneys here at Clear Counsel Law Group. One of our readers has asked: What are the risks if I don’t accept a settlement offer before trial? I don’t know who this reader is. It’s anonymous, but I would tell you talk to your attorney. This is a very case sensitive question and it completely depends on your case, but as a general matter, I would say this: it depends on the case.

There are certain risks that are inherent in every case. That has to do with the jury. Juries can be erratic. They can be unpredictable. A jury is generally made up of just general citizens. Some of them have a better understanding of the law. Some of them have less understanding of the law. Some of them have a worldview that is going to line up with your worldview, and some of them are going to have a worldview that in no way lines up with your worldview.

Any time that we take a case, even if it’s a very strong case, and we present it before a jury, there is a risk, sometimes a significant risk, that a jury is not going to see it the way that we see it. One advantage of accepting a settlement before trial, or at least specifically before you have a jury return a verdict, is at least you know what you’re getting. It’s the old phrase “A bird in the hand is worth two in the bush.” Settlements are good because we know what we’re getting.

Now sometimes the parties, the defendant and the plaintiff, just cannot see eye to eye and are nowhere near settlement. The plaintiff thinks that the potential value of the case far exceeds any settlement offers on the table. At that point, yeah, maybe you need to proceed to trial. There are two other risks that you should look at when you’re rejecting a settlement offer that’s going to force you into trial.

Risk number one is cost, your costs. Going to trial can be very expensive. Depending on the case, it can mean spending sometimes tens of thousands of dollars, sometimes more, on expert witnesses, bringing them in, having them testify. Experts can be terribly expensive. Let’s say that you do get more than you were to get in a settlement. Again, this is where we get very case specific. Depending on what the judgment is from the jury, you may find yourself actually putting less into your pocket than if you had accepted the settlement, because you have the cost of a trial.

Now let’s talk about the cost of losing. The cost of losing means that you might be subject to the other side’s costs. Heaven forbid, you might even be subject to their attorneys’ fees. You can talk to your attorney about offers of judgment, and we’ll have those in another video. Again, this is where it’s very case specific, but if you reject an offer and you lose at trial, it is possible that you could end up paying the costs and maybe even the fees of the other side.

Now you need to sit down with your attorney and you need to go over all of the risks, the costs, the benefits, and see if settling now makes sense, or see if really the offer is too low and your chances at trial are too good. That it’s really worth presenting this to a jury to see what they’re going to say even if you run the risk of losing. Again, final advice is it’s case by case and you need to talk to your lawyer. That’s the answer to that. We’ll see you in another video.

 

How to Find out Insurance Policy Limits from a Car Accident

After a car accident, how do I learn the policy limits of the driver who hit me?

Transcript:

Hi. I’m Jared Richards, I’m one of the attorneys here at Clear Council Law Group. One of our readers has recently asked us how to find out policy limits in a car accident situation. For those of you that are unfamiliar, it becomes important to know what the defendant’s car insurance limits are, in order to negotiate a settlement, which I think makes sense. Prior to 2015, it was a fairly simple procedure in Nevada. We used to have law that was, unfortunately, repealed a few months ago. The insurance companies were rather aggressive during this legislative session. As of a few months ago, we had a law that required insurance companies to disclose the limits, the amount of the insurance policy, if we sent a medical record, or if we sent authorization for them to go gather their own medical records. Unfortunately, that is no longer the law. What is left is a big gaping hole, there is no legal requirement, or at least no statutory requirement, for insurance companies to disclose that information.

Since that law has been repealed, we’ve had conversations with a number of adjusters trying to get that information, and here are the results of some of those conversations. In some conversations, the adjusters reluctantly tell us, or sometimes whisper it so that we know. In some of those conversations, they outright tell us that the law has changed, and now it’s illegal for them to tell us the insurance limits. That, of course, is a bunch of baloney, and yes, I used the word baloney. It is absolutely not illegal for them to tell us. It may be against their company’s internal policy, but there is no statute that prevents them from telling us. What they’re trying to do is just simply keep people negotiating, trying to negotiate in good faith, in the dark, which, in my opinion, and in the opinion of certain courts, is not good faith negotiation.

I want to talk about that for a second, of why disclosure of policy limits is important. It is difficult to negotiate a case, often impossible to negotiate a case, unless you know what you’re actually dealing with. We disclose to the other side the size of our claim, they should disclose to us the size of the funds available to settle that claim. In support of that idea, if you file suit, one of the very first things that the defendant is required, by law, to disclose in the state of Nevada, is the insurance policy. All available information about the insurance policy, including policy limits. There’s a reason the courts force it, because the courts understand that you have to have that information to negotiate in good faith. Unfortunately, now that are statutes have changed, pre-litigation before you file a lawsuit, more and more insurance companies are refusing.

Sometimes, they’re third party sources that might have the size of the information, the size of the policy information. One tactic that we’ve tried, sometimes it’s worked, sometimes it had simply led to a lawsuit, which, I guess, is life, is the threat that if they don’t disclose to us, then we have no option other than filing a lawsuit. There is some case law in that. There is some case law that tells insurance companies that if they don’t disclose the policy limits, there’s no way for the plaintiff, the claimant, you, to negotiate in good faith, so it requires a lawsuit. Certain courts have held that that, in fact, is bad faith on the part of insurance companies. You can watch our other videos about the ramifications of bad faith, it’s a pretty big deal.

To review, simply asking, sometimes third party sources, threatening a lawsuit, and then the last is finally, filing the lawsuit. Sometimes we find that necessary that you have to file the lawsuit. Unfortunately, the Nevada legislature has let us all down a bit, they’ve increased the number of lawsuits that have to be filed because insurance companies no longer feel like they have to disclose. Unfortunately, that also means that, for the average person, it’s more difficult to settle the case without the use of an attorney, because now it’s becoming even more necessary to have an attorney to even find out the basic information about the policy. Anyway, there’s the answer to that. If you have more questions, keep on watching our videos.

Who to Sue in a Car Accident

 

Knowing who to sue in a car accident

Transcript:

Hi, I’m Jared Richards, I’m one of the attorneys here at Clear Counsel Law Group. One of our readers has asked, “If I’ve been in a car accident, who do I sue? The driver or the owner of the vehicle who’s on the insurance policy?”

The answer is: Well, it depends. Instead of talking about suing, I want to talk about who is responsible for a wrongful act, which we call a “tort.” Now, the driver is almost always responsible, so assuming that car is at fault, then the driver who is driving it is almost certainly also at fault. There may be a few exceptions, that we won’t go into here. The answer is one, you would have a claim against the driver. Now the question is, do you have a claim against the owner or the insured?

Now, those are actually two different distinctions. The owner of the vehicle may own an insurance policy. Most of the time, does. The insured may be the owner, but most of the time, almost every time, the insurance policy will cover the driver, and so it doesn’t really matter … in a normal situation, it usually doesn’t matter if you have a claim against the owner. The insurance company is going to cover the driver.

There are certain circumstances where you do have a claim against the owner, and the question here is, is the owner responsible at all for the accident? There are usually two main theories of liability that indicate that the owner is, in fact, liable. The first one is that of, we’re going to throw a nice attorney Latin phrase in for you, a term called “respondeat superior.”

“Respondeat superior” simply means that the superior is going to be responsible. For example, the employer. If an owner of a business sends his employee to go pick up supplies, and the employee, while doing what the business owner has told him to do, gets into an accident, then the business is responsible for the actions of its employee. The question here, the thing that we have to look for, is, was the employee acting within the scope of his employment?

I’m sorry if I’m getting into legalese terms. Sometimes you get too buried in the law, and it’s tough to pull yourself out, but essentially, if you are running an errand for your boss or for your employer, and you get into an accident, the employer is on the hook. You are on the hook too, but the employer is also on the hook. He is responsible for the actions of his employees. Now, we can talk, and we probably will in another video, about the exceptions to that rule, and there’s a lot of case law on this, a lot of rules involved in that. In general, the employer, if the person who gets into a car accident is acting as part of his employment, the business is going to be on the hook.

Outside of that, because that’s a special rule of law, that just simply says the master is responsible for the actions of his agent. Now the question is, let’s say that it is simply you lend a car to a friend, and the friend gets into an accident, are you responsible? The answer is, most of the time, no. You have really no responsible for the actions of other people with one principle exception, and that is what we call “negligent entrustment.” If you know that your friend is a drunk, specifically if you know that your friend is currently drunk, or you know that your friend is an unsafe driver, you know you really shouldn’t hand over those keys, if you hand over the keys, you are responsible.

There’s a plethora of cases that talked about that as well. That certainly doesn’t apply in every case or even the majority of cases, but it absolutely can apply. Now, the final … I think I said there were two ways, I’m going to talk about a third, and that is what we call about the “family responsibility act.” In Nevada, we have a statute that says that if you’re in the household, and you lend your keys to somebody in the household, and they get into an accident, you are going to be responsible, regardless of “negligent entrustment,” regardless of employment, you’re going to be on the hook.

Here in Nevada, those are the three main things that we look for to see if somebody else, if the owner of the vehicle might be responsible and not just the driver. Now the question that he asked is whether he should sue. We always try not to sue if we can, but we always are ready to sue if we cannot resolve the claim without litigation. Anyway, there’s the answer to that, and I hope to see you in another video.

What is a Personal Injury Loan?

What you need to know about a Personal Injury Loan

Transcript:

Hi, I’m Jared Richards. I’m one of the partners at Clear Counsel Law Group, and one of our readers has asked “What is a personal injury loan and should I get one?” The short answer is, I would say 90 to 99 percent of the time personal injury loans are the devil. They’re not good. Let me explain some of the basis here.

When you get into an accident and you’re hurt, and it sounds weird to a lot of people, but it is the way the law works, is that you have a property right. You have a property right in your injury, and there are some people out there that are willing to lend money in exchange for a lien on that property right. Sometimes when somebody gets hurt there are companies out there that will offer them a loan in exchange. Let’s talk about what the nature of this loan is.

It has some good things and it has some horrible things, usually. The good thing that is in most of these loans, every loan is different so you have to look at the fine print, but most of these loans are what we call non-recourse loans, meaning that so long as you don’t otherwise run in default of a loan which, you have to look at the fine print, we’d see what that means.

If you lose the case generally you do not have to pay back the loan. That’s what non-course means. The only recourse the lender has, the only recovery he has, is against the lien that he gets put on your case. He doesn’t have one against you directly. Now, that is good in general for borrowers because if, for whatever reason, the jury comes back with a low settlement or a low award that doesn’t pay off the loan, or heaven forbid you actually lose the case, you don’t have to pay back the lender, so that’s good.

The bad is this, that essentially these are hard money loans and the lenders charge outrageous interest rates. The most reasonable interest rate that I’ve seen is about 38 percent. The more common I’ve seen is 10 percent a month. Don’t be fooled. If you see somebody offering you 10 percent it’s probably 10 percent a month, which means 120 percent a year.

The worst that I’ve seen, and I don’t want to name names, but I really want to name this name, but I won’t, is 240 percent, 20 percent interest a year. Other things we have to look at are the underwriting fees. Some charge underwriting fees. I find that most that offer 10 percent don’t charge an underwriting fee. The one that was charging 20 percent a month charged a 50 percent underwriting fee.

I’ve seen other underwriting fees from fairly reasonable, I think, of 100 bucks, or a couple hundred bucks to thousands of dollars. The next question is, “Should you get a loan?” I would say 95 percent of the time the answer is “No.” These loans are so expensive and the frustrating part that people find is yes, it is using your asset that you have, and I hate to call it an asset but under the law that’s technically what it is.

Your injury claim, you’re using money that you will eventually get, but you’re using it now, and you’re using it now at a very expensive rate, so that by the time that you get to actually settlement and you’re looking to what you get in your pocket, well, you’ve already gotten some of it in pocket, and you’ve already spent it.

In order to get that into your pocket, you have purchased a loan that is so very expensive, sometimes doubling, tripling, quadrupling, the amount that you borrowed to begin with. What are situations where you might need it? I’ve only found two where I think it might make sense.

The first situation is, I’m thinking of a specific case, where the father was the sole breadwinner and he was injured to the extent that he could not work. His family would be out on the streets because he wasn’t able to work, and we helped find him a loan that was the best interest rate that I could find, and it supported his family for a few months, not many, but a few months, while we were trying to settle the case.

There may be an occasion where you need certain treatment, or let’s say you need to go to another state to get treatment, and the only way that you can have your room and board is borrowing against your case. I can see that may be justifiable, and remember, this is not in every situation, this is in case-specific situations.

I would tend to advise everybody else “Don’t touch them.” They’re not good. They’re very expensive. They’re going to leave you dissatisfied, and they make settling the case at the end sometimes problematic. I won’t go into all of that, maybe in another video, but in general I think that hard money loans on your case are problematic.

People should avoid them, but there are a few situations where it might be justifiable. I would talk to your attorney if you’re thinking about doing that. I certainly would not rush in, and I would really act with caution and try to avoid them. Thanks for watching and we’ll see you in another video.

 

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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