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Steven J. Klearman
Steven J. Klearman
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Damages in Nevada Negligence Cases – Part II

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Here is the second part of our continuing discussion of Nevada negligence law.

Set forth below are case citations and holdings that deal with damage issues in such cases.

The statutes of repose bar only those actions arising out of design and construction-related negligence, but not negligent maintenance. Davenport v. Comstock Hills-Reno, 118 Nev. 389, 46 P.3d 62 (2002).

Under NRS 41.141, a plaintiff who is fifty percent at fault is not barred from recovery, but his damages are reduced by his own percentage of negligence. NRS 41.141(1); State Farm Auto Ins. Co. v. Commissioner of Insurance, 114 Nev. 535, 958 P.2d 733 (1998).

In Nevada, an abutting property owner or occupant does not have a duty to keep a sidewalk in front of his/her property in a reasonable safe condition, and liability will not lie unless owner created defect in manner independent of and apart from ordinary and accustomed use for which sidewalks are designated. Wiseman v. Hallahan, 113 Nev. 1266, 945 P.2d 945 (1997).

Recovery is barred when the danger is obvious, not because the negligence of the plaintiff is greater than that of the defendant, but because the defendant is not negligent at all. The defendant has no duty to warn against an obvious danger and cannot, therefore, be negligent in failing to give such a warning. Harrington v. Syufy Enterprises, 113 Nev. 246, 931 P.2d 1378 (1997).

The obvious danger rule survives the adoption of comparative negligence statutes. Harrington v. Syufy Enterprises, 113 Nev. 246, 931 P.2d 1378 (1997).

The obvious danger rule does not apply to situations where liability is predicated upon acts other than a failure to provide adequate warning of a dangerous condition. Thus, even where the danger is obvious, a defendant may be negligent in having created the peril or in subjecting the plaintiff to peril. Harrington v. Syufy Enterprises., 113 Nev. 246, 931 P.2d 178 (1997).

Where an unforeseeable supervening cause intervenes between defendant’s negligence and plaintiff’s injury, defendant is relieved of liability. Dakis v. Scheffer, 111 Nev. 817, 898 P.2d 116 (1995); El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 691 P.2d 436 (1984).

Express assumption of risk is essentially a contract where the plaintiff signs a document and openly agrees to hold the defendant harmless for known and inherent dangers of a particular activity. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994).

With the single exception of an express assumption of risk, the assumption of risk doctrine has been subsumed by our comparative negligence statute and is no longer a bar to recovery for negligence. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994); Mizushima v. Sunset Ranch, 103 Nev. 259, 737 P.2d 1158 (1987).

Where a foreign substance causing a patron to slip and fall results from actions of persons other than the business or its employees, the business is liable only if it had actual or constructive notice of the condition and failed to remedy it. Chastain v. Clark County School Dist., 109 Nev. 1172, 866 P.2d 286 (1993); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 849 P.2d 320 (1993).

The contributing fault on the plaintiff’s part could reduce the plaintiff’s recovery under the doctrine of comparative negligence, but it does not negate a finding that the defendants’ negligence was the proximate cause of the plaintiff’s injuries. Joynt v. California Hotel & Casino, 108 Nev. 539, 835 P.2d 799 (1992); Taylor v. Silva, 96 Nev. 738, 615 P.2d 970 (1980).

NRS 41.500, the Good Samaritan statute, provides that any person who renders emergency aid, gratuitously and in good faith, is not liable for acts of ordinary negligence. The phrase “gratuitously and in good faith,” limits the protection of this statute to those situations in which the rescuer was not already under a duty to act. NRS 41.500; Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).

Critical ingredients of “emergency” situation within meaning of Good Samaritan statute are as follows: suddenness, unexpected necessity for immediate action, lack of time for measured evaluation of alternative courses of action, and respective efficacy and priority of alternatives. NRS 41.500; Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).

The vitality of express assumption stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk. Mizushima v. Sunset Ranch, 103 Nev. 259, 737 P.2d 1158 (1987).

To relieve a defendant from liability under an “act of God” theory, the act must be such a providential occurrence or extraordinary manifestation of the forces of nature that it could not reasonably have been foreseen, and the effect thereof avoided by reasonable care or by the use of those means which the situation renders reasonable to employ. Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962).