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

The Elements of a Negligence Claim in Nevada

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The elements of a negligence claim in Nevada are as follows:

1. Defendant owed a duty of care to plaintiff;

2. Defendant breached that duty;

3. The breach was the legal cause of plaintiff’s injuries; and,

4. Plaintiff suffered damages.

Scialabba v. Brandise Construction Co., 112 Nev. 965, 921 P.2d 928 (1996).

The Nevada Supreme Court has dealt with and discussed many fact situations in which negligence was at issue. Here are selections from some of those cases:

Tangible, physical injury must occur during policy period for coverage to be triggered, and insured’s allegedly negligent welding of support structure for sign and modifications of bolts were not “property damage” during policy period. United National Ins. Co. v. Frontier Ins. Co., Inc., 99 P.3d 1153 (2004).

A joint tortfeasor seeking to perfect a contribution claim in the context of a settlement must first extinguish the liabilities of the other joint tortfeasors against whom contribution recovery is sought. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

A tortfeasor seeking to perfect an implied indemnity claim in the context of a settlement is not required to extinguish the liabilities of joint tortfeasors against whom indemnity recovery is sought. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Any joint tortfeasor in a multi-defendant tort action may obtain protection from claims of contribution and implied indemnity by settling with the tort claimant in good faith under NRS 17.245. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

The district court’s discretion in determining the good or bad faith of a particular settlement is not talismanic, but rather, must be exercised based upon a myriad of considerations. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

The remedies of contribution and implied, i.e., noncontractual indemnity allow parties extinguishing tort liabilities by way of settlement or payment of judgments to seek recovery from other potential tortfeasors under equitable principles. Contribution is a creature of statute, while implied indemnity is generally a creation of the common law. Under the Nevada statutory formulation, the remedy of contribution allows one tortfeasor to extinguish joint liabilities through payment to the injured party, and then seek partial reimbursement from a joint tortfeasor for sums paid in excess of the settling or discharging tortfeasor’s equitable share of the common liability. Generally stated, implied indemnity allows a complete shifting of responsibility to an “indemnity obligor” when the party seeking indemnity has extinguished its liabilities incurred as a result of the indemnity obligor’s active fault. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Under NRS 17.265, the provisions of the contribution statutory scheme do not impair rights of indemnity and, more particularly, where one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

A tortfeasor seeking to perfect a contribution claim through a prejudgment settlement process must pay an amount in excess of his equitable share of liability and must explicitly extinguish the liability of the joint tortfeasor from whom contribution is sought as part of the settlement. The substantive right to contribution is governed by a factual determination as to whether the payment has exceeded the settling party’s equitable share of the common liability. A party seeking to perfect contribution as part of a settlement is not required to obtain a formal ruling that his settlement is in good faith. However, a tortfeasor seeking protection against claims of contribution by nonsettling tortfeasors should obtain a formal ruling that its settlement is made in good faith under NRS 17.245. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

A tortfeasor seeking to perfect an implied indemnity claim via settlement is not required to extinguish the liability of the indemnity defendant. This having been said, failure to extinguish the liability of the indemnity defendant leaves the claim in some jeopardy, given the possibility that the district court, as in this case, could approve a separate subsequent settlement between the claimant and the potential indemnity defendant. Accordingly, a settlement that extinguishes the liability of the indemnity plaintiff and the indemnity defendant preempts the statutory protection provided under NRS 17.245 for an indemnity defendant who attempts to settle with the underlying plaintiff at a later time. A tortfeasor seeking to perfect an implied indemnity claim as part of a settlement is not required to obtain a formal ruling that the settlement is in good faith unless he wishes protection from implied indemnity claims against him. And a tortfeasor seeking a unilateral settlement and protection against claims of implied indemnity by nonsettling tortfeasors should obtain a formal ruling that its settlement is made in good faith under NRS 17.245. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Good-faith determinations are governed by a myriad of considerations, including the liability permutations arising from the merits of the contribution and indemnity claims. A settling defendant seeking protection from contribution and implied indemnity claims has the burden of proving that the settlement was in good faith. Relief in contribution and implied indemnity is unavailable to the extent those claims arise from the intentional or punitive liability of the party seeking such relief. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Statute requiring claims against dissolved corporations to be filed within two years after dissolution did not apply to claims arising after the dissolution, and homeowners’ claims did not arise until the alleged defects were, or should have been, discovered. Beazer Homes Nevada, Inc. v. Eighth Judicial Dist. Court ex rel. County of Clark, 97 P.3d 1132 (2004).

Arbitrator did not manifestly disregard the law by failing to apply spoliation presumption in favor of motorcyclist when truck owner and truck driver lost or destroyed accident-scene photographs. Bohlmann v. Byron John Printz and Ash, Inc., 120 Nev. 543, 96 P.3d 1155 (2004).

Under the specific terms of this policy, an insured’s alleged negligent supervision of an adult son who commits statutory sexual seduction is not a covered occurrence, and the intentional-acts and child-molestation exclusionary language is not ambiguous. Fire Ins. Exchange v. Cornell, 120, Nev. 303, 90 P.3d 978 (2004)

A negligence claim can be alleged in a construction defects cause of action initiated under Chapter 40. Olson v. Richard, 120 Nev. 240, 89 P.3d 31 (2004).

An apartment owner was negligent in failing to warn a resident about a drop-off between the landscaping and the parking areas. The statutes of repose do not obviate the duty of owners and occupiers to maintain their property free of hazards. Davenport v. Comstock Hills-Reno, 118 Nev. 389, 46 P.3d 62 (2002).

A restaurant owed a duty towards an intoxicated invitee to act reasonably, but the restaurant had no duty to administer the Heimlich maneuver to invitee. Lee v. GNLV Corp., 22 P.3d 209, 212, 117 Nev. 291 (2001).

Hotel did not have duty to pedestrian who slipped and fell on icy sidewalk to keep sidewalk in reasonably safe condition, as there was no special use of sidewalk by hotel that created hazard beyond normal atmospheric conditions; there was no evidence that use of sidewalk by hotel or its customers caused dangerous condition, that hotel did anything itself to increase pedestrian’s risk of harm, or that condition that caused fall was consequence of unnatural accumulation of ice or snow caused by traffic pattern of other guests between hotel and curb. Wiseman v. Hallahan, 113 Nev. 1266, 945 P.2d 945 (1997).

In the situation where a property owner hires security personnel to protect his premises and patrons, that property owner has a personal and nondelegable duty to provide responsible security personnel. Therefore, for purposes of respondeat superiority liability, security personnel are the employees of the property owner as a matter of law, even if the property owner engaged a third party to hire the security personnel. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996).

NRS 651.010, which limits liability of innkeepers for damage to their guests’ personal property, does not extend to the valet parking area of the innkeeper. NRS 651.010; Tienda v. Holiday Casino, Inc., 109 Nev. 507, 853 P.2d 106 (1993).

The Good Samaritan statute does not cover emergency situations involving uninjured, healthy persons. NRS 41.500; Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).

In view of the comparative negligence statute, a social “drinking club” and its members could be liable for the death of an initiate during his initiation to the club even though the doctrine of “last clear chance” was rendered inappropriate by such statute. Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979).