personal injury lawyer, attorney, nevada

Should I Hire a Personal Injury Lawyer? 

 

If you have been in an automobile accident that was not your fault, some people and lawyers may tell you to hire a personal injury lawyer immediately no matter what. In fact, there are some circumstances you may be better off not hiring an attorney.

 

Reasons to hire a personal injury lawyer

  • You are injured, and;
  • You would like guidance and representation in dealing with the insurance carrier,
  • You lack experience and knowledge of how to make and pursue an insurance claim,
  • An insurance adjuster is aggressive or overly persistent about getting you to sign a document and you are unsure or uncomfortable,
  • An insurance company or adjuster is asking for your recorded or written statement,
  • You are not confident or satisfied that you have or will get a fair offer from an insurance carrier,
  • You are concerned that you may not be able to get the medical treatment you may need,
  • The medical providers through your health insurance plan are not quickly getting you the treatment or referrals you need,1)anything over a week during the first three months is concerning
  • The injuries are significant, such as extended hospital stays, required surgeries, or similar,
  • The accident involves a death, or it likely led to someone’s death.
  • You feel that you are being treated unfairly by the insurance company. Insurance companies exist to make money for its owners and shareholders, not to make you happy. They may aggressively obtain all information and try to settle out of a claim before you realize what is happening, or they may ignore you in hopes that you give up. An attorney can often help you by ameliorating these bad behaviors, and occasionally, you might be able to seek compensation from the insurance company for bad treatment of you above and beyond the underlying damages from the car accident.

If you are injured after an accident, one of the most important steps is to make sure that you quickly get evaluated and immediately follow the recommendations of your medical providers and doctors. Delays or gaps in treatment create suspicion that your complaints of pain are not related to the accident, or pain is not as bad as you claim. A personal injury attorney can make sure that you get the medical treatment you need, represent you in correspondence with the insurance company, seek a settlement, and file a lawsuit when needed.

 

Other reasons to hire an attorney

  • You appreciate what a good attorney can do for you and feel representation will increase the value of your claim.
  • You dislike the idea that the executives of insurance companies and the companies themselves will profit if you do not aggressively pursue your claim. The less they pay you, the more the companies can afford to give their executives large bonuses.

 

Reasons not to hire an attorney

  • You are not injured.
  • It was clearly and without question your fault.

Of course, your case may be different and you may wish to consult with an attorney with regards to whether you should retain an attorney. This is not legal advice.

At Clear Counsel Law Group, we are experienced in handling personal injury and car accident cases, please contact us for a free consultation.

 

Footnotes   [ + ]

1. anything over a week during the first three months is concerning
service animals, ADA, service dog

Air Travel and Service Animals: What You Need to Know Before You Travel

Welcome to Part IV of our series on service animals.  In the first three installments, we discussed what service animals are, the rules governing service animals in public accommodations, and how the Fair Housing Act determines if service animals must be accommodated in housing.

Today, we will examine the rules for service animals and airline travel.

The pertinent law we will be looking at is the Air Carrier Access Act (ACAA) of 19861)the act dictates that the Department of Transportation [DOT] must promulgate rules for the airlines to following regarding disabled customers. The DOT published these regulations in 1990.

 

The Rules for Service Animals as Determined by the Department of Transportation

Subsection 382.55 of Title 14 of the Code of Federal Regulations (CFR) dictate the rules for service animals during air travel. Unlike the Americans with Disabilities Act (ADA), the ACAA permits both service animals and emotional support animals to fly with their owners; yet, the airlines are permitted to require documentation for emotional support animals.

Also, as opposed to the ADA that requires service animals to be dogs in most cases, many different types of animals may qualify as emotional support or service animals2)the DOT explicitly cites cats and monkeys as permissible, and snakes, spiders and ferrets as non-permissible.

The law states in pertinent part:

(a) Carriers shall permit dogs and other service animals used by persons with a disability to accompany the persons on a flight.

(1) Carriers shall accept as evidence that an animal is a service animal identification cards, other written documentation, presence of harnesses or markings on harnesses, tags, or the credible verbal assurances of the qualified individual with a disability using the animal.

(2) Carriers shall permit a service animal to accompany a qualified individual with a disability in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation.

 

Note in subpart 1 the conjunction “or”; as in, the airline’s employees shall accept written documentation or credible verbal assurances.

The DOT provides guidance on what the rule means by “or”3)as written by Samuel Podberesky, Assistant General Counsel for Aviation Enforcement and Proceedings, 15 July 2005.

Here are the relevant paragraphs:

 

Request documentation for service animals other than emotional support animals: The law allows airline personnel to ask for documentation as a means of verifying that the animal is a service animal, but DOT urges carriers not to require documentation as a condition for permitting an individual to travel with his or her service animal in the cabin unless a passenger’s verbal assurance is not credible.  In that case, the airline may require documentation as a condition for allowing the animal to travel in the cabin.  The purpose of documentation is to substantiate the passenger’s disability-related need for the animal’s accompaniment, which the airline may require as a condition to permit the animal to travel in the cabin.  Examples of documentation include a letter from a licensed professional treating the passenger’s condition (e.g., physician, mental health professional, vocational case manager, etc.)

Require documentation for emotional support animals:  With respect to an animal used for emotional support (which need not have specific training for that function), airline personnel may require current documentation (i.e., not more than one year old) on letterhead from a mental health professional stating

 (1) that the passenger has a mental health-related disability;

(2) that having the animal accompany the passenger is necessary to the passenger’s mental health or treatment or to assist the passenger (with his or her disability); and

(3) that the individual providing the assessment of the passenger is a licensed mental health professional and the passenger is under his or her professional care.

 Airline personnel may require this documentation as a condition of permitting the animal to accompany the passenger in the cabin.  The purpose of this provision is to prevent abuse by passengers that do not have a medical need for an emotional support animal and to ensure that passengers who have a legitimate need for emotional support animals are permitted to travel with their service animals on the aircraft.  Airlines are not permitted to require the documentation to specify the type of mental health disability, e.g., panic attacks.

 

For service animals, the DOT “urges” airline employees not to require documentation, but they still “may require” documentation if the verbal assurances from the passenger are not credible.4)Additionally, the DOT requires that the evaluation of the verbal assurances be done in “good faith”.

For emotional support animals the DOT requires written documentation from a mental health provider to “prevent abuse.”  For either type of animal companion, having written documentation with you will likely make the trip smoother for all of the parties involved.

 

When an Airplane is Permitted to Reject Service Animals

Similar to the ADA and the Fair Housing Act, airlines are not required to make accommodations that would create an “undue burden” or “fundamentally alter” the character of their business.  The DOT provides examples of what an “undue burden” might be:

  • Asking another passenger to give up the space in front of his or her seat to accommodate a service animal;

  • Denying transportation to any individual on a flight in order to provide an accommodation to a passenger with a service animal;

  • Furnishing more than one seat per ticket; and

  • Providing a seat in a class of service other than the one the passenger has purchased.

 

But what happens if an airline denies the right of a disabled person to bring along a service or emotional support animal?

Each airline is required to have a Complaint Resolution Official (CRO) available to assist during all business hours.

If there is a dispute about a service animal, request to speak to the CRO5)either in person or over the phone.  The CRO should have the authority to make the final determination regarding a service animal6)or any other complaint regarding discrimination based on a disability.

If the request is rejected, the CRO has ten days to provide a written explanation why this is so.

For folks traveling with service animals, the DOT recommends requesting a preferred seat 24 hours in advance takeoff and checking-in at least an hour before scheduled departure.

Even if this is not done, the airlines are required to accommodate the request to the best of their ability.

Providing advance notice may reduce the hassle and stress.

Footnotes   [ + ]

1. the act dictates that the Department of Transportation [DOT] must promulgate rules for the airlines to following regarding disabled customers. The DOT published these regulations in 1990
2. the DOT explicitly cites cats and monkeys as permissible, and snakes, spiders and ferrets as non-permissible
3. as written by Samuel Podberesky, Assistant General Counsel for Aviation Enforcement and Proceedings, 15 July 2005
4. Additionally, the DOT requires that the evaluation of the verbal assurances be done in “good faith”
5. either in person or over the phone
6. or any other complaint regarding discrimination based on a disability
motorcycle accident, personal injury, motorcycle accidents

Motorcycle Accident Liability

 

Have you, or do you know someone who has been in a motorcycle accident? If so, you likely desire a bit more information about how liability is assigned under Nevada law.

In a motorcycle accident, liability is determined by a negligence standard.  Both car and motorcycle drivers have a duty to drive with due care.  The Nevada legislature has codified the specific duties for motorcyclists; they are as follows:

    NRS486.331  Rights and duties of drivers.  

A person driving a motorcycle or moped upon a highway is entitled to all the rights and subject to all the duties applicable to the drivers of motor vehicles as provided by law, except those provisions which by their nature can have no application.   (Added to NRS by 1971, 1470; A 1975, 1084)

 

      NRS 486.341  Right to full use of traffic lane.  

Every motorcycle or moped when being driven on the highway is entitled to full use of the traffic lane it is occupying, and a person shall not drive another motor vehicle in a manner which would deprive any such motorcycle or moped of such use.   (Added to NRS by 1971, 1470; A 1975, 1084)

 

      NRS 486.351  Unlawful passing; driving abreast.

      1.  A person, except a police officer in the performance of his or her duty, shall not drive a motorcycle or moped between moving or stationary vehicles occupying adjacent traffic lanes.

      2.  Except as provided in subsection 3, a person shall not drive a motorcycle, moped or trimobile abreast of or overtake or pass another vehicle within the same traffic lane.

      3.  Motorcycles and mopeds may, with the consent of the drivers, be operated no more than two abreast in a single traffic lane.  (Added to NRS by 1971, 1470; A 1975, 1084; 1979, 857)

 

Why do these statutes matter? Because in determining liability in a motorcycle accident (hypothetically between the motorcyclist and an automobile driver), a judge or jury will evaluate if each party exercised the required due care.

 

How the NRS applies to a motorcycle accident

This is even true if automobile caused the accident in our hypothetical example.  Nevada uses what is called a modified comparative negligence standard.  Under this standard, even if the accident is caused by the automobile driver, the liability will be discounted by the percentage fault of the motorcyclist.  For example, a jury determines the automobile driver to be at fault, but the motorcyclist was driving faster than consider safe, they may assign 75% of the liability to the automobile driver and 25% to the motorcyclist.  The damages award will be then discounted accordingly.

Unlike your run-of-the-mill negligence cases where due care is determined based on how a “reasonable person” would act, much of the due care required by motorcyclists is explicit in the law as shown above.  Under the first two statutes listed, motorcycle drivers are said to have the same rights to the road as those driving cars, meaning that motorcycle drivers do not need to yield to drivers under all circumstances, but motorcyclists and automobile drivers are to treat one another as equals on the road.

NRS 486.351 elaborates on the specific duties, and exceptions, for motorcycle drivers.  Lane splitting (driving in between two cars on the white demarcation), is expressly prohibited by subsection one.  Subsection two prohibits motorcyclists from passing a car within the same lane.  Subsection three allows motorcyclists to share a lane as they drive, but only two motorcycles may share any one lane.

These laws are important to keep in mind because, as a motorcyclist, if you are in violation, it may be very difficult to recover for an accident injury.  This, unfortunately, may even be the case if automobile driver caused the accident.

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   [ + ]

1. an employee of the insurance company
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:

 

   NRS486.231  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, 8571985, 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   [ + ]

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
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.”

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 597.850597.860 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   [ + ]

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

      NRS41.745  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.

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.

social host liability

Bar and Social Host Liability

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

 

Social Host Liability is Limited

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

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

 

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

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

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

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

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

 

 

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

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

 

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

 

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

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

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