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Negligent Entrustment

Negligent Entrustment

Elements

Under this doctrine [of negligent entrustment], a person who:

  1. knowingly entrusts
  2. a vehicle
  3. to an inexperienced or incompetent person, such as a minor child unlicensed to drive a motor vehicle,

may be found liable for damages resulting thereby
Zugel by Zugel v. Miller, 100 Nev. 525, 527, 688 P.2d 310, 313 (Nev. 1984).

Example Cases

Proof

Damages

Defenses

  • Negligence entrustment does not apply to a bailee/bailor relationship

The negligent entrustment theory of tort liability does not apply to the normal bailor-bailee relationship since the bailee is duty bound to surrender control of the car to the bailor upon demand or suffer a possible penalty for conversion. Indeed, if the bailee refuses to return the car at the end of the bailment it is presumed that the car was converted by him. Donlan v. Clark, 23 Nev. 203, 45 P. 1 (1896); Manhattan Fire & Marine Ins. Co. v. Grand Central Garage, 54 Nev. 147, 9 P.2d 682 (1932), quoting the Donlan case with approval. Here, the bailment ended when Lewis appeared at the parking lot to reclaim possession of his car and paid for the parking services. At that moment the bailee lost his right to control the car. Although the negligent entrustment theory may apply where one who has the right to control the car permits another to use it in circumstances where he knows or should know that such use may create an unreasonable risk of harm to others, it does not apply when the right to control is absent.
Mills v. Continental Parking Corp., 86 Nev. 724, 725-26, 475 P.2d 673, 674 (Nev. 1970).

  • Existence of past accidents does not necessarily render the driver incompetent or negligent

Even if American had actual knowledge of Mary Ann’s alleged driving infractions, and if all the allegations were accurate, they would, as a matter of law, be insufficient to evoke against American the theory of negligent entrustment of the vehicle to Mary Ann. Curley v. General Valet Service, Inc., 270 Md. 248, 311 A.2d 231 (1973). SeeFambro v. Sparks, 86 Ga.App. 726, 72 S.E.2d 473, 480 (1954) (evidence that driver had had two accidents prior to being entrusted with the automobile could not authorize a conclusion that the driver was incompetent); Parrish v. Yeiser, 41 Tenn.App. 690, 298 S.W.2d 556, 560 (1955) (“The mere statement that a person has been involved in an automobile wreck is proof of neither negligence nor incompetence as a driver.”); cf. Mayer v. Johnson, 148 S.W.2d 454, 457 (Tex.Civ.App.1941) (one incident of violating traffic regulation insufficient to raise issue for jury).
Cooke v. American Sav. & Loan Ass’n, 97 Nev. 294, 296, 630 P.2d 253, 254 (Nev. 1981).

Misc

  • Elements; Parents may be liable even if they limit their consent

A second possible theory of liability in this case is that of “negligent entrustment” of a motor vehicle. Under this doctrine, a person who knowingly entrusts a vehicle to an inexperienced or incompetent person, such as a minor child unlicensed to drive a motor vehicle, may be found liable for damages resulting thereby.FN2 See, e.g., McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982); Sedlacek v. Ahrens, 165 Mont. 479, 530 P.2d 424 (1974); see also Connell v. Carl’s Air Conditioning, 97 Nev. 436, 634 P.2d 673 (1981) (doctrine of negligent entrustment held not to apply under particular facts of case). See generally 7A Am.Jur.2d Automobiles and Highway Traffic §§ 643- 45 (1980). Under this theory of liability, the entrusting person need not have known that the motor vehicle was going to be driven on a public roadway. See, e.g., Sedlacek v. Ahrens, supra. In fact, a parent who entrusts his child with a motor vehicle may be found liable under a theory of negligent entrustment even when the parent expressly instructs the child not to use the vehicle on a public roadway. Id. The key elements are whether an entrustment actually occurred, and whether the entrustment was negligent.FN3 See McCart v. Muir, supra 641 P.2d at 389.
Zugel by Zugel v. Miller, 100 Nev. 525, 527, 688 P.2d 310, 313 (Nev. 1984).

  • Motorcycles are subject to the tort of negligent entrustment

Contrary to respondents’ contention, entrustment of a motorcycle may come within the purview of the doctrine of negligent entrustment of a motor vehicle. See, e.g., Sedlacek v. Ahrens, infra; see also NRS 483.090 (defines “motor vehicle” as including “every vehicle which is self-propelled”).
Zugel by Zugel v. Miller, 100 Nev. 525, 527, 688 P.2d 310, 313 (Nev. 1984).

In the present case, Tilley had no control of the plane. The keys were in Carter’s possession at all times. Tilley merely admitted Carter and his friends to the terminal and fueled the plane. Regrettably, the tragic crash occurred 45 minutes later near Ash Meadows, Nevada. However, to impose civil liability on Hughes Tool Company, on the theory that Tilley had a duty to prevent Carter’s takeoff and that Tilley’s failure to do so was the proximate cause of Wiggins’s death is incomprehensible. Therefore, the order granting summary judgment is affirmed.
Wiggins v. Hughes Tool Co., 87 Nev. 190, 193-94 484 P.2d 566, 568-69 (Nev. 1971).

Higgins, the employee, purchased the vehicle before accepting employment with Carl’s and title was held in Higgins’ name. There was no showing that Carl’s had any control over the vehicle or did any more than facilitate its financing. The doctrine of negligent entrustment does not extend to one who neither entrusts nor places a vehicle with another, see Drake v. Morris Plan Company of California, 53 Cal.App.3d 208, 125 Cal.Rptr. 667 (1975) (no liability on part of one who financed sale of automobile to allegedly incompetent driver), or to one who has no right to control the vehicle. Mills v. Continental Parking Corp., 86 Nev. 724, 475 P.2d 673 (1970).
Connell v. Carl’s Air Conditioning, 97 Nev. 436, 440, 634 P.2d 673, 675 (Nev. 1981).

Absent an independent ground for liability, i.e., agency liability, negligent entrustment, or some statutorily created liability, a Nevada motor vehicle owner is not per se vicariously liable in tort for the negligence of a permissive user.

Hall v. Enterprise Leasing Company-West, 122 Nev. 685, 137 P.3d 1104 (Nev. 2006).

Borgerson also argues that Patricia is vicariously liable for David’s acts because of her duty under the parent-child relationship. This court has only recognized the vicarious liability of a parent for a child’s acts in cases of motor vehicle ownership FN14 or negligent entrustment of motor vehicles FN15 when the child is a minor. Furthermore, there is no evidence that Patricia had any modicum of control over her twenty-nine-year-old son.

Borgerson v. Scanlon, 117 Nev. 216, 221, 19 P.3d 236, 239 (Nev. 2001).

Likewise, in negligent entrustment cases, the majority’s reasoning would eliminate the cause of action on grounds that it is the action of the party to whom the instrumentality of harm is negligently entrusted who causes the harm rather than the one who negligently entrusts the instrumentality to someone unsuited to the trust.
Snyder v. Viani, 110 Nev. 1339, 1346, 885 P.2d 610, 615 (Nev. 1994)(dissent).

Appellant bases his argument for recovery on three grounds: negligent entrustment, entrustment of an unsafe and dangerous instrumentality in the form of a motor vehicle, and providing unsafe equipment in conjunction with negligent entrustment. We find none of these theories persuasive. Appellant suggests that his three stated causes of action are separate and unrelated to the ownership, maintenance, operation or use of the motor vehicle. However, we conclude that in each instance there is a sufficient nexus between the acts of Charles W. Gregory and the ownership, maintenance, operation and use of the motorcycle to fall within the exclusion of respondent’s homeowner’s policy.

. [2] Appellant first contends that the homeowner’s policy must apply because of the insured’s negligent entrustment of the motorcycle to his son. However, this act relates to the ownership of the motorcycle and the contractual right of the owner to permit others to use the vehicle under the protection of the vehicle liability policy. It is expressly excluded from coverage of the homeowner’s policy.
Senteney by Senteney v. Fire Ins. Exchange 101 Nev. 654, 707 P.2d 1149 Nev.,1985.

 

Negligence Per Se

Negligence Per Se

“Negligence per se, however, is not a distinct cause of action; it is a negligence claim based on violation of a standard of care set out by statute or rule.”

Gattman v. Favro, 306 Or. 11, 15 n. 3, 757 P.2d 402 (1988).

Elements

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

  • to protect a class of persons which includes the one whose interest is invaded, and
  • to protect the particular interest which is invaded, and
  • to protect that interest against the kind of harm which has resulted, and
  • to protect that interest against the particular hazard from which the harm results.

Sagebrush Ltd. v. Carson City, 99 Nev. 204, 207, 660 P.2d 1013, 1015 (Nev.,1983)(quoting Restatement (Second) of Torts § 286).

Example Cases

  • The plain and unambiguous language of NRS 455.010 is intended to protect members of the public from falling into excavations. In this case, Atkinson entered a construction site and fell into an excavation pit. Atkinson is within the class of persons that the statute was designed to protect, and her injury is of the type the statute was intended to prevent.
    Atkinson v. MGM Grand Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004)

Proof

Damages

Defenses

Misc

Money Had and Recieved

Money Had and Recieved

Elements

“An action for money had and received can be maintained whenever one man has received or obtained the possession of the money of another, which he ought in equity and good conscience to pay over. This proposition is elementary. There need be no privity between the parties, or any promise to pay, other than that which results or is implied from one man’s having another’s money, which he has no right conscientiously to retain. In such case the equitable principle upon which the action is founded implies the contract and the promise. When the fact is proved that he has the money, if he cannot show a legal or equitable ground for retaining it the law creates the privity and the promise. 2 Chitty, Cont. 899 (11th Am. Ed.); Mason v. Waite, 17 Mass. 560; Hall v. Marston (17 Mass. 575) Id. 574; Knapp v. Hobbs, 50 N. H. 476; Eagle Bank v. Smith, 5 Conn. 71 (13 Am. Dec. 37). It is not necessary that the defendant should have accepted the money under an agreement to hold it for the benefit of the plaintiff, or that the party from whom he received it intended it for the plaintiff’s benefit. Neither is it necessary that the money received by the defendant should have been an exact and specific sum, belonging exclusively to plaintiff, and entirely separate and distinct from any other moneys. We have found no case which lays down any such narrow rule. Allanson v. Atkinson, 1 M. & S. 583; Heartt v. Chipman, 2 Aiken [Vt.] 162.”
Kondas v. Washoe County Bank, 51 Nev. 134, 271 P.2 465, 466 (Nev. 1928).

Example Cases

Proof

Damages

Defenses

Misc

  • Tax Refund

Actions to recover taxes paid are equitable in nature, and the burden of proof is on the taxpayer to show that the taxing body holds money that in equity and good conscience it has no right to retain. El Tejon Cattle Co. v. County of San Diego, 252 Cal.App.2d 449, 60 Cal.Rptr. 586, 595 (Ct.App.1967); Hawes v. Smith, 120 Ga.App. 158, 169 S.E.2d 823, 824 (Ga.App.1969). “Such would be accomplished by establishing the plaintiff’s right to the money and the defendant’s possession.” 169 S.E.2d at 824 (emphasis in original). See Estate of Kasishke v. Oklahoma Tax Comm’n, 541 P.2d 848, 852 (Okl.1975) (a claim for refund is one for money had and received, and taxpayer must establish that he has in fact overpaid his tax to recover).
[ State v. Obexer & Son, Inc., 99 Nev. 233, 237, 660 P.2d 981, 984 (Nev. 1983).]

  • Over-payment of debt

As to the application of such principles in an appropriate case no doubt exists. While certain equity principles are involved, this is not an equity case, but a suit at law for money had and received.
[1] It is a well-established rule of law, subject to certain qualifications not material here, that money paid in excess of the amount due through a mutual mistake of fact may be recovered. 30 Cyc. 1316.
The general rule was stated by this court at a very early date in Travis v. Epstein et al., 1 Nev. 116.
Mr. Williston in his excellent work on Contracts at volume 3, § 1574, states the rule in the following language:
“One who by error in computation, or by mistake of any fact, pays a real or supposed creditor more than is his due, or pays a debt previously discharged, may recover the overpayment; and generally speaking, money paid over under a mutual mistake of an essential fact, or under a unilateral mistake as to such a fact where the defendant has parted with nothing and the plaintiff has not received an expected return, may be recovered.”
Smart v. Valencia, 50 Nev. 359, 261 P. 655 (Nev. 1927).

 

Misappropriation of Trade Secrets

Misappropriation of Trade Secrets

Elements

A plaintiff must prove

  1. a valuable trade secret;
  2. misappropriation of the trade secret through use, disclosure, or nondisclosure of use of the trade secret; and
  3. the misappropriation is wrongful because it was made in breach of an express or implied contract or by a party with a duty not to disclose.

Frantz v. Johnson, 116 Nev. 455, 466, 999 P.2d 351, 358 (2000).

Kaldi v. Farmers Ins. Exchange, 117 Nev. 273, 283-84, 21 P.3d 16, 23 (2001).

See also Trade Secrets Uniform Act, which includes relevant definitions as well as criminal penalties and other relief. NRS 600A.

Example Cases

Factors to be considered in determining whether a corporate information is a trade secret include the following:

  1. the extent to which the information is known outside of the business and the ease or difficulty with which the acquired information could be properly acquired by others;
  2. whether the information was confidential or secret;
  3. the extent and manner in which the employer guarded the secrecy of the information; and
  4. the former employee’s knowledge of customer’s buying habits and other customer data and whether this information is known by the employer’s competitors.

Frantz v. Johnson, 116 Nev. 455, 467, 999 P.2d 351, 358-59 (2000).

Not every customer and pricing list will be protected as a trade secret.

Frantz v. Johnson, 116 Nev. 455, 467, 999 P.2d 351, 358-59 (2000) (citing Neal v. Griepentrog, 108 Nev. 660, 666, 837 P.2d 432, 435 (1992)).

Direct evidence of harm by competitors through unfair and illegal business tactics is not necessary; indirect circumstantial evidence is enough.

Frantz v. Johnson, 116 Nev. 455, 467, 999 P.2d 351, 358-59 (2000). Whitehead v. Nev. Com’n on Judicial Discipline, 110 Nev. 874, 904 n. 6, 878 P.2d 913, 932 (1994).

The plain language of NRS 600A.090 precludes a plaintiff from bringing a tort or restitutionary action “based upon” misappropriation of a trade secret beyond that provided by the UTSA. In interpreting NRS 600A.090, a federal district court has held that a plaintiff’s claims for unjust enrichment and unfair competition were precluded by the UTSA since these two claims were duplicative of plaintiff’s claim for misappropriation of trade secrets. A former employee’s use of confidential information or trade secrets of his employer in violation of a contractual or fiduciary duty is not protected by the First Amendment.

Frantz v. Johnson, 116 Nev. 455, 467, 999 P.2d 351, 358-59 (2000).

Misc.

 

 

Right of Publicity

Right of Publicity

Elements

See generall NRS 597.770 – NRS 597.810

NRS 597.770(1)

“Commercial use” includes the use of the name, voice, signature, photograph or likeness of a person on or in any product, merchandise or goods or for the purposes of advertising, selling or soliciting the purchase of any product, merchandise, goods or service.

NRS 597.810 Remedies for unauthorized commercial use; liability of owner or employee of medium used for advertising.

1. Any commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use is subject to:

(a) Injunctive relief to prevent or restrain the unauthorized use; and
(b) An action at law for any injuries sustained by reason of the unauthorized use. In such a suit, the plaintiff may recover:
(1) Actual damages, but not less than $750; and
(2) Exemplary or punitive damages, if the trier of fact finds that the defendant knowingly made use of the name, voice, signature, photograph or likeness of another person without the consent required by NRS 597.790.

2. No owner or employee of any medium used for advertising is liable pursuant to this section for any unauthorized commercial use of a person’s name, voice, signature, photograph or likeness unless it is established that the owner or employee had actual knowledge of the unauthorized use.

Example Cases

Proof

Damages

  • $750 minimum damages for entire tort, not for each third party that views the misappropriation

The Nevada statute has not limited the cause of action to celebrities, but the damages recoverable under NRS 597.810 are: “(1) Actual damages, but not less than $ 750; and (2) Exemplary or punitive damages, . . .” Sanchez argues that she needs the patient list because she is entitled to $ 750 for each of Hetter’s patients who saw her picture. There is nothing in the statute or legislative history to suggest that this is a correct interpretation. It seems clear that what the legislature intended was to allow plaintiffs a minimum of $ 750 in damages even if no actual damages could be proven in order to discourage such appropriation. This statute provides a complete and exclusive remedy for the right of publicity tort. PETA, 110 Nev. at , P.2d at . Restitution is not available under this statute as Sanchez’s damages would be limited to the commercial value of the use of her likeness, or what she could have received for sale of her before-and-after pictures. Thus, Hetter’s patient information and tax return are irrelevant to the issue of compensatory damages in this action.

Hetter v. District Court, 110 Nev. 513, 519 (Nev. 1994)

Defenses

Misc

Gowen’s tenth cause of action alleges that the Tiltware Defendants violated her right of publicity under NRS 597.810. NRS 597.810 prohibits “[a]ny commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use . . . .” NRS 597.810 (emphasis added). In her First Amended Complaint, however, Gowen admits that she authorized the Tiltware Defendants to use her likeness. (# 56 at P 74(c) (“Plaintiff permitted Defendants to use her likeness [*35] . . . .”). Based upon this admission, Gowen cannot plead a right of publicity claim because that claim requires that the Tiltware Defendants used her likeness without Gowen’s consent. See American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (“Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them.”).

Gowen v. Tiltware LLC, Case No. 2:08-cv-01581-RCJ-RJJ, 2009 U.S. Dist. LEXIS 43970 (D. Nev. 2009)

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