08202017Headline:

Reno, Nevada

HomeNevadaReno

Email Steven J. Klearman Steven J. Klearman on Twitter Steven J. Klearman on Facebook Steven J. Klearman on Avvo
Steven J. Klearman
Steven J. Klearman
Attorney • (800) 880-5297

Proving a Negligence Claim in Nevada – Part II

Comments Off

This blog I will finish Nevada Supreme Court case selections that pertain to proving negligence claims in Nevada.

As always when I list holdings from multiple cases, selections are listed in chronological order starting with more recent cases:

To satisfy actual causation element in a negligence action, plaintiff must show that but for defendant’s negligence, plaintiff’s injuries would not have occurred. The legal causation requirement means that defendant must be able to foresee that his negligent actions may result in harm of particular variety to certain type of plaintiff. 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).

In determining foreseeability, a defendant need not foresee the extent of the harm, or the manner in which it occurred. He need only foresee that his negligent conduct could have caused a particular variety of harm to a certain type of plaintiff. 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).

Duty to act affirmatively to aid others in peril is generally imposed where special relationship exists between parties, such as innkeeper-guest, teacher-pupil, or employer-employee. 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).

NRS 48.095 excludes evidence of subsequent remedial measures to prove negligence or culpable conduct, unless such evidence is offered to prove another purpose such as feasibility of precautionary measures. Robinson v. G.G.C., Inc., 107 Nev. 135, 808 P.2d 522 (1991); Jacobson v. Manfredi by Manfredi, 100 Nev. 226, 679 P.2d 251 (1984).

A res ipsa inference of negligence is permitted when: 1) Plaintiff has shown that defendant was in exclusive control of the instrumentality causing harm; 2) The accident was one that does not ordinarily occur in the absence of negligence; and, 3) Defendant is in a better position to explain the cause of the accident. Landmark Hotel & Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297, 757 P.2d 361 (1988); Otis Elevator Co. v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985).

Res ipsa loquitur is balancing doctrine, and while plaintiff need not show exact cause of injury, he must at least show that it is more probable than not that the injury resulted from the defendant’s breach of duty. If that is shown, an inference of negligence on the part of the defendant arises and it is then incumbent on the defendant to come forward with rebuttal evidence. Otis Elevator Company v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985); American Elevator Company, v. Briscoe, 93 Nev. 665, 572 P.2d 534 (1977).

For an act to be the “proximate cause” of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220 (1981).

The policy rationale for the doctrine of respondeat superior is grounded on the theory of control rather than on an entrepreneur theory; once a master-servant relationship is established, the principal inquiry is whether the tortious conduct occurred within scope of employment. Natl. Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 584 P.2d 689 (1978).

The improvement of safety devices is not indicative of negligence but merely of a desire to prevent future injury to person or property. Bomar v. United Resort Hotels, Inc., 88 Nev. 344, 497 P.2d 898 (1972); Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962).