Recent Changes in Nevada Law Part 1

Evidence of Traffic Citations Not Admissible In Court

The following case law stands for the proposition that traffic citations are not admissible in Court proceedings in Nevada. The Court reasoned “Because the evidence is so ambivalent, we conclude that it is not admissible against the forfeiting party as an admission that he or she committed the traffic offense charged in the citation…Because it is not a “party admission,” the fact that Brinkerhoff forfeited bail is relevant only as proof that she received a traffic citation. Evidence showing only that a party received a traffic citation is inadmissible in a civil action.” Frias v. Valle, 101 Nev. 219, 221, 698 P.2d 875, 876 (1985). Mendez v. Brinkerhoff, 105 Nev. 157, 159, 771 P.2d 163 (1989)

Medical Malpractice Laws Allow for Actual Medical Expenses Paid vs. What Was Billed

McCrosky v. Carson Tahoe Reg ’l Med. Ctr., 133 Nev. Adv. Op. 115 (Dec. 28, 2017). Vicarious liability against employer may stand even if one settles with a doctor as such damages are several. In McCrosky, the Court reasoned that collateral source rule applies to medical malpractice cases, and thus prevents evidence of actual paid medical expenses (Medicare or health insurance), but eliminates the Plaintiff victim from recovering actual billed amounts. Thus, in practice most judges will allow the full bill to be presented to the jury and then the judgment is reduced such that the amount of the actual paid expenses are awarded. The theory here is to prevent overpayment of medical expenses similar to California law, but allow the full presentation of the bills such that a jury can consider such for pain and suffering awards.

Worker’s Compensation Liens Can’t Include Reimbursement for Pain & Suffering

In Poremba v. Southern Nevada Paving, the Nevada Supreme Court outlined the point that Plaintiffs should not get the benefit of double compensation from worker’s compensation and from a 3rd party; hence, the requirement a Plaintiff repay the worker’s compensation carrier back from proceeds gained by the 3rd party, less a deduction for attorney fees following Nevada long standing Breen Formula, but in its clarification of the law, the Court suggested Plaintiffs always outline the amount of the pain and suffering award in the settlement such that when a Plaintiff re-opens his worker’s compensation claim to seek further Medical benefits, worker’s compensation will know the funds allocated to medical and wage loss in the 3rd party settlement so he or she can show those specific funds were exhausted. Exhaustion of the funds is a requirement to seek future benefits from worker’s compensation.

Nevada Law Changes Government Liability Cap from $150,000 to $200,000

Effective July 1, 2022, those suing the State of Nevada or its subsidiaries have increased coverage up to $50,000. The origins of the law, emanating from the “King could do no harm” old English law, protects the coffers of Nevada from major lawsuits and judgments. In the context of personal injury, car accidents involving police, fire and county officials are all capped at a maximum of $200,000. This also protects doctors and nurses from medical malpractice who may work at UMC, UNR or UNLV’s medical facilities. Nevada continues to raise the recovery for claims against the State of Nevada and its associated entities. This would include accident cases against the police, fire departments, State run Hospitals (UMC, UNR, and UNLV), the Department of transportation, the Department of corrections, all Counties and municipalities under the umbrella of governmental protection in the State of Nevada. Effective July 1, 2022, Nevada raised the cap from $150,000 to $200,000 for such cases. Thus, victims of accidents are limited in their recovery even in the event of death. The only way around such cap is if a claim can be made under a USC section 1983 Federal Civil Rights Violation that may preempt State Law circumventing the State Cap. Such a case however, must fit the criteria for a 1983 claim-Deprivation of Constitutional rights which would most likely fall under an unreasonable use of force in the context of policing, or officers acting under color of law.

Arizona Follows Nevada Lead in Changing Policy Limits for Automobile Accidents to $25,000 Minimum Limits Per Accident, $50,000 Per Occurance. See Ariz. Rev. Stat.

Ann. § 28-4009. Effective July 1, 2020, Arizona will raise its minimum insurance limits to $25,000, up from $15,000. Nevada raised their limits in July 2018.

Nevada District Court Rules Lyft Arbitration Agreement Unenforceable, and Right to Jury Trial is Allowed

August 6, 2020- Judge Tim Williams in Case A-20-810843 Ruled that Lyft’s arbitration provision was unenforceable to force a victim of a Lyft Driver’s negligence to forgo their constitutional right to a jury trial. The judge reasoned because the language was not “clearly and unmistakably provide that the parties have agreed to submit a motor vehicle accident to arbitration” the provision was unenforceable.

Landlords are Immune from Liability Regarding Tenant’s Ownership of Biting Dogs

“Under Nevada law, a landlord only has a duty to protect third parties from a tenant’s dogs if the landlord assumes such a duty through his or her actions. Wright v. Schum, 105 Nev. 611, 618, 781 P.2d 1142, 1146 (1989) (discussing a landlord’s liability for his or her tenant’s pets). Here, Schaffer’s inclusion of pet restrictions in the lease agreement was not an affirmative act assuming a duty of care under Wright, and Newkirk did not present any other evidence to demonstrate that Schaffer had acted in such a way as to assume a duty.Newkirk v. U.S. Realty & Prop. Mgmt., No. 69832, 2017 WL 514526, at *1 (Nev. App. Jan. 31, 2017). Thus, a landlord merely renting to a person who owns a dog that has a biting incident, does not automatically bind the landlord to liability. There must be something more to create liability, such as actual knowledge the tenant was harboring an aggressive animal.

Garden Variety Emotional Distress Does Not Allow Defense Attorneys to Dig Deeper Into Previous Psychological Medical Records In Course of Litigation According to Nevada Federal Court.

One must affirmatively place them at issue by making a claim damages for psychological injury. (See Roberts v Clark County School District D. Nev 2016.) A party who simply makes a case for damages that may involve emotional distress without actually claiming their mental state was severely impacted from the accident prevents the at fault party from inquiring into the history of the victim as the Court viewed it as an unnecessary fishing expedition and outside the scope of the investigation.

Attorneys Have Rights to Attend Defense Medical Examinations Under NRCP Rule 35

In litigation of personal injury matters, defense attorney often use hired guns to discredit the injuries of injury victims by having them examined by their favorite doctor who is popular for advocating against the notion the injuries that were in fact caused by the accident, but argued to instead be either pre-existing, degenerative in nature (caused by old age), not that severe, and often even stating that he patient victim was/is making it all up and malingering with false symptoms. The law was finally changed to allow Plaintiff’s attorneys and their representative to attend the overreaching defense medical examinations that were often designed to intimidate victims; pursuant to NRS 52.380 which allows the victim’s team to observe these medical examinations. Before the law, defense medical experts would often make victims wait long periods of time before the exam, and then do tricks with examinations on range of motion with often very rudimentary examinations, and then using such tactics to base an erroneous report of fiction to persuade a jury the medical treatment in the particular case was not justified. Such exams were classically called “independent medical exams” despite the expert being paid thousands of dollars and having a clear bias in the process. NRCP 35 allows for such examinations in the context of litigation discovery. A prudent attorney will not label such an exam to be independent when it clearly is not—it is a defense examination. Furthermore, a prudent lawyer will also make sure the guidelines of any stipulation to perform an exam are limited and that observers are present or the exam is recorded such that evidence is preserved of what was done, so that an effective trial cross examination can be performed.

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