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Steven J. Klearman
Steven J. Klearman
Attorney • (800) 880-5297

Proving a Negligence Claim in Nevada – Part I

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Last blog, I listed an excerpt from my new book that included many fact situations that give rise to negligence claims in Nevada.

This blog I will concentrate on those cases that discuss proving negligence claims in Nevada and next blog I will finish this discussion of proof.

The following case selections are listed in chronological order starting with some of the most recent cases to touch upon proving negligence:

In determining whether an agent acts in a managerial capacity, the key is to look to what the individual is authorized to do by the principal and to whether the agent has discretion as to what is done and how it is done. Job titles should be of little importance. Smith’s Food & Drug Centers, Inc. v. Bellegarde, 114 Nev. 602, 958 P.2d 1208 (1998); Cerminara v. California Hotel and Casino, 104 Nev. 372, 760 P.2d 108 (1988).

Evidence of subsequent, similar accidents involving the same condition may be relevant to issues of causation and whether there is a defective or dangerous condition. Reingold v. Wet ‘N Wild, 113 Nev. 967, 944 P.2d 800 (1997).

Under the traditional res ipsa loquitur doctrine, the presumption of negligence only arises after plaintiff has established that the event in question is one that ordinarily does not occur in the absence of negligence. Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).

Just as technical distinctions between trespasser, invitee, and licensee do not determine an owner’s or occupier’s duty of reasonable care, distinctions between common areas and leased premises or between control and noncontrol of area do not determine the duty of lessors and lessees to act reasonably towards third persons. Coblentz v. Hotel Employees & Restaurant Employees Union Welfare Fund, 112 Nev. 1161, 925 P.2d 496 (1996).

Whether defendant owes plaintiff a duty of care is a question of law. Scialabba v. Brandise Construction Co., 112 Nev. 965, 921 P.2d 928 (1996).

A landowner’s duty to protect from injury caused by third persons is circumscribed by reasonable foreseeability of third person’s actions and injuries resulting from condition or circumstances which facilitated harm. Scialabba v. Brandise Construction Co., 112 Nev. 965, 921 P.2d 928 (1996).

As a general rule, a private person does not have a duty to protect another from a criminal attack by third person; however, courts have imposed liability where a “special relationship” exists between the parties, including landowner-invitee, businessman-patron, employer-employee, school district-pupil, hospital-patient, and carrier-passenger. Scialabba v. Brandise Construction Co., 112 Nev. 965, 921 P.2d 928 (1996).

A landowner or occupier owes a duty to the people on the land to act reasonably under the circumstances. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996).

Landowner or occupier has duty to take affirmative action to control wrongful acts of third persons only where owner or occupier has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996).

A landowner must exercise ordinary care and prudence to render premises reasonably safe for visit of a person invited on the premises for business purposes. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996).

An actionable claim on a theory of respondeat superior requires proof that the actor at issue was an employee, and the action complained of occurred within the scope of the actor’s employment. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996); Molino v. Asher, 96 Nev. 814, 618 P.2d 878 (1980).

An employer can be vicariously responsible only for acts of his employees, not someone else, and one way of establishing an employment relationship is to determine when the employee is under the control of the employer. This element of control requires the employer to have control and direction not only of the employment to which the contract relates but also of its details and the method of performing the work. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996); National Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 584 P.2d 689 (1978).
Landlords, as other persons, must exercise reasonable care not to subject others to unreasonable risk of harm, and must act as reasonable persons under all of the circumstances, including likelihood of injury to others, probable seriousness of such injuries, and burden of reducing or avoiding risk. Riley v. OPP IX, L.P., 112 Nev. 826, 919 P.2d 1071 (1996).

While criminal or tortious third-party activity typically severs the chain of proximate causation between the plaintiff and defendant, the chain remains unbroken when the third party’s intervening intentional act is reasonably foreseeable. Price v. Blaine Kern Artista, Inc., 111 Nev. 515, 893 P.2d 367 (1995).

The question of foreseeability is generally one for the jury. Dakis for Dakis v. Scheffer, 111 Nev. 817, 898 P.2d 116 (1995).

The term “duty” is not sacrosanct, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Wiley v. Redd, 110 Nev. 1310, 885 P.2d 592 (1994).

In failure to warn cases, defendant’s duty to warn exists only where there is a special relationship between the parties, and the danger is foreseeable. Wiley v. Redd, 110 Nev. 1310, 885 P.2d 592 (1994).

A proprietor’s duty to protect a patron is conditional when harm is caused by a third person; the proprietor only has the duty to take affirmative action to control the acts of the third person when the proprietor has reasonable cause to anticipate the third person’s acts and the probability of injury. Basile v. Union Plaza Hotel and Casino, 110 Nev. 1382, 887 P.2d 273 (1994).

A proprietor has a duty to exercise reasonable and ordinary care in keeping its premises safe for its patrons. Basile v. Union Plaza Hotel and Casino, 110 Nev. 1382, 887 P.2d 273 (1994).

Issues of negligence and proximate cause are usually factual issues to be determined by the trier of fact. Frances v. Plaza Pacific Equities, 109 Nev. 91, 847 P.2d 722 (1993).

Generally, an employee who is traveling to or from work is outside the scope of his or her employment unless the employee is performing an errand for the employer or otherwise conferring a benefit upon the employer. Evans v. Southwest Gas Corp., 108 Nev. 1002, 842 P.2d 719 (1992).