The costs associated with an injury can easily pile up long before a lawsuit brings the injured person significant financial relief. A personal injury lien can be a useful tool to help victims get the care they need and pay other bills while the legal process plays out. In a personal injury lien, the injured person enters into an agreement that gives creditors a legal claim over the anticipated proceeds from a future settlement or court judgment. In exchange, the injured person gets at least a degree of relief from the short-term financial pressures of dealing with a serious injury.
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Personal injury lawsuits in Nevada typically focus on the negligence of the person who is allegedly responsible for the injury. In a negligence case, a plaintiff must show that the defendant owed the plaintiff (or the injured person, if the plaintiff is suing on their behalf) a duty of care that the defendant breached, leading to the injury and ultimately to the plaintiff’s damages. But what is a duty of care, and when does it arise?
Sources of the duty of care in NevadaAt the most abstract, the duty of care is an obligation to take reasonable actions to prevent others from being injured. In Nevada, a duty of care only exists if it has been defined in a statute or by the courts. In other words, a personal injury plaintiff needs to find an existing legal basis for claiming that the defendant owed the plaintiff a duty of care. Nevada law imposes the duty of care on people in many different circumstances. Here are a few examples:
- People in the responsible role in certain well-defined special relationships owe a duty of care to their more vulnerable counterparts, such as innkeeper-guest, teacher-student, employer-employee, or hospital-patient. See Sparks v. Alpha Tau Omega Fraternity, Inc., 127 Nev. 287, 289 (2011).
- Drivers have an obligation to obey traffic laws.
- Manufacturers have a duty to not make or sell defective products.
- Homeowners, landlords, and property managers have a duty of care to keep their properties reasonably safe for lawful visitors.
What are the limits of the duty of care?In many personal injury cases, defendants argue that the circumstances surrounding the accident released them from their duty of care. For example, there may have been justification for the actions of a defendant who hurt someone while avoiding a worse injury. This argument often arises in car accidents, where a driver swerves to avoid hitting something and ends up hitting something else. The injured person can also eliminate a defendant’s duty of care in various ways. Waivers of liability are a familiar example. Businesses that often put visitors into risky situations, like bungee jumping or sky diving, invariably require their clients to release the business from its duty of care. Likewise, the plaintiff can assume the responsibility for her own safety by deliberately putting herself into a dangerous situation. The assumption of risk is why we don’t see many personal injury cases arising from football injuries: the players accept the danger by playing the game. The law also limits a defendant’s duty of care if the plaintiff was breaking the law at the time of the injury. A common example is a plaintiff who was injured while trespassing on the defendant’s property. But there are a few important exceptions that landowners need to keep in mind. Creating what’s called an “attractive nuisance” on a property gives landowners a duty of care toward children who trespass to explore it. Back yard pools and hot tubs are textbook examples of dangerous things that might attract a child onto a property; the property owner has a duty to ensure that the pool or tub is properly secured. Traps are another exception. Setting a harmful trap for trespassers is not only a violation of a landowner’s duty of care, it is also a crime.
We are Las Vegas personal injury attorneysFor more than 45 years Greenman Goldberg Raby Martinez has helped clients recover compensation for personal injuries. If you or a loved one has been injured and you have questions about your legal rights, our attorneys are available to discuss your options. Call us today at 702-388-4476. We can also be reached through our contact page.
Plaintiffs in personal injury lawsuits typically sue to get compensated for all the consequences of their injuries, like medical expenses, lost wages, or pain and suffering. The law calls these consequences “damages.” Nevada law requires injured people to take reasonable steps to limit their damages, and protects otherwise at-fault defendants from having to compensate plaintiffs who fail to do so. Understanding the duty to mitigate damages is important for anyone who has been injured and is considering legal action.
Mitigation means taking actionA plaintiff in a Nevada personal injury lawsuit can’t recover for damages that he or she could have avoided by exercising reasonable care. Southern Pacific Transportation Co. v. Fitzgerald, 94 Nev. 241 (1978). This duty to mitigate damages comes in two flavors. On the one hand, a plaintiff needs to take reasonable steps to address the damages associated with the injury. For example, a plaintiff who refuses necessary medical treatment can’t expect to get compensated for the resulting further complications. Although the plaintiff may have had personal reasons for refusing the surgery, the defendant isn’t required to pay for the plaintiff’s objectively unreasonable choice. On the other hand, a plaintiff also can’t expect to recover for actions that make the damages worse. For example, Nevada law won’t compensate an injured person for disregarding a doctor’s instructions for recovery after a surgery. The plaintiff will have to bear the costs of going dancing on a healing foot that was broken by the defendant’s negligence.
The importance of the reasonable care standardThe duty to mitigate damages is not absolute. The plaintiff is only required to have taken reasonable care to reduce the defendant’s liability. Exactly what meets the definition of “reasonable” is an objective standard that largely depends on the facts of the case. For example, the Nevada Supreme Court has held that refusing an elective surgical procedure can be reasonable under the right circumstances. Automatic Merchandisers v. Ward, 98 Nev. 282, 284 (1982). Such arguments can be close, depending on how the attorneys involved organize facts, use expert testimony, and respond to counterarguments.
How the duty to mitigate damages can affect compensationThe duty to mitigate damages protects defendants from having to compensate plaintiffs for the consequences of an injury that might have otherwise been avoided but for the plaintiff’s choice or neglect. It comes up at the damages phase of a trial, when the defendant asks the court to reduce the plaintiff’s award to the extent the plaintiff didn’t satisfy his or her duty to mitigate damages. Courts calculate the value of a plaintiff’s failure to mitigate damages by examining the facts of the case. Sometimes a particular chunk of damages is easily attributable to the plaintiff’s behavior. For example, a plaintiff who refuses to look for work might be denied compensation for lost wages. But in other cases, the plaintiff’s actions may have contributed to only part of the damages, in which case the court may reduce the defendant’s liability by a percentage.
In personal injury cases, experience mattersFor over 45 years, the attorneys at GGRM have taken a personal approach to every client’s personal injury case. Part of our obligation to clients is helping them avoid making choices that could reduce their final compensation. If you have been injured and would like to talk to an attorney about your next steps, please reach out to us today for a free consultation. We’re reachable at 702-388-4476, or through our contact page.
Being bitten by a dog is a scary experience that can have long-lasting consequences, in terms of both physical injury emotional distress. In many situations, the victim of a dog bite ends up with significant costs, and has to sue the person responsible for the dog. Because Nevada does not have clearly defined legal parameters around dog bite cases, it can be confusing for bite victims to come to grips with the law.
Dog bites and negligenceNevada doesn’t have a statute that specifically addresses dog bites. Instead, lawsuits arising from dog bites in Nevada usually fall under the state’s negligence law. Negligence is a common cause of action in a wide range of civil tort lawsuits. A textbook negligence claim argues (1) that the defendant (that is, the person being sued) owed the injured person a reasonable duty of care, (2) that the defendant’s lack of care caused the person’s injury, and (3) that the injury caused the injured person’s claimed damages, such as medical expenses. Dog bite cases can hinge on the question of what duty of care the defendant owed to the injured person. In many cases, a defendant’s failure to comply with local laws requiring leashes, enclosures, or signage can be used to establish that the defendant had a duty of care (for example, to keep a dog leashed or contained) and didn’t follow through. In Las Vegas, dogs are required to be leashed unless they’re on the owner’s property or in certain designated places. Even if there isn’t a clearly applicable local ordinance, if a dog owner knows that his dog is aggressive and prone to biting people, there’s a good argument to be made that the owner has a duty to ensure that the dog is properly restrained where it can’t hurt anyone.
Comparative fault and dog bitesIf an unrestrained dog comes running out of the blue and without provocation bites someone, the defendant’s negligence may be relatively easy to prove. But quite often, dogs bite people only after being provoked in some way. If the injured person contributed to his or her injury by doing something wrongful, the defendant might argue that the injured person bears some degree of responsibility. This is called comparative fault. In Nevada, the victim of a dog attack may not be able to recover for her injuries at all if the defendant shows that the victim was at least half at fault. Just like negligence itself, comparative fault depends on the specific facts of the case. The question to ask is: would the victim have been bitten if she hadn’t acted the way she did? Taunting a dog, ignoring warnings like growling and bared teeth, or disregarding a “Beware of Dog” sign could serve as facts supporting an argument for comparative fault.
Dog bite lawsuits must be filed within two yearsTo avoid losing the right to sue, it’s important to consult with an attorney as soon as possible after a dog attack. Dog bite victims in Nevada have two years from the attack to file a lawsuit. Filing a lawsuit after this statute of limitations has expired almost always causes the court throw out the case.
GGRM gets dog bite victims their just compensationDog bite lawsuits are highly fact-specific, and getting adequately compensated for injuries can often come down to how well a legal case is framed and argued. At Greenman Goldberg Raby Martinez we have helped numerous dog bite victims in Las Vegas recover compensation for their injuries. If you are trying to understand your legal options after a dog bite, our experienced team of attorneys is here to help. For a free consultation reach out to us today at 702-388-4476, or contact us through our website.
In Nevada, someone who is at fault for an auto accident is responsible for compensating the other people involved in the accident for their personal injuries and property damage (usually through the at-fault driver’s insurance). Determining whether someone is at fault in a car accident is a legal question requiring a careful examination of the facts of the accident, the drivers involved, and the surrounding circumstances. In Nevada the rule applied to most car accidents is modified comparative negligence. To understand this rule it helps to break it down into its constituent parts.
Basic negligence in car accidentsMost car accident cases in Nevada rest on the initial question of whether the at-fault driver acted negligently. Negligence is a common legal standard in many kinds of civil lawsuits. In a negligence case, the plaintiff (that is, the injured party) tries to prove that the at-fault driver (the defendant) was not driving with a reasonable level of care in light of the circumstances, and as a consequence injured the plaintiff. Quite often the facts of the accident determine what a “reasonable level of care” means. A cell phone distraction looks different depending on whether it took place on a sunny day at normal speeds or on a rainy night at speeds well in excess of the limit.
Comparative negligence can offset some liabilityBut basic negligence doesn’t account for an important feature of car accidents: it’s relatively rare for one driver to be exclusively at fault. In response, Nevada applies the rule of comparative negligence, which offsets the at-fault driver’s responsibility by the extent to which the other driver (or drivers) contributed to the accident. For example, say the defendant swerved into the plaintiff’s lane and caused the plaintiff to smash into a guard rail. If the plaintiff was distracted by a cell phone at the time of the accident, the defendant could argue that the distraction impeded the defendant’s reactions and therefore contributed to the accident by, say, 20%.
The modified rule protects victimsNevada applies a modified comparative negligence rule to car accident cases, in the sense that if the fault analysis concludes that the plaintiff was more than 50% at fault, the defendant doesn’t owe any damages at all. The modified comparative negligence rule discourages lawsuits that seem to flip accidents on their heads, putting the accidents’ victims in the role of defendants while the truly at-fault driver seeks recovery. Of course, in practice even a seemingly clear case can grow uncertain if the factual analysis begins to edge the defendant’s contribution to the accident toward the 51% cutoff point.
It’s important to talk to an attorney after a serious car accidentAlthough the facts of a car accident may at first seem straightforward, they can undergo complex interpretations in the hands of attorneys who are working to protect the interests of their clients. In a lawsuit, understanding how to handle bad facts and take advantage of good ones requires the expert guidance of an experienced lawyer. Greenman Goldberg Raby Martinez has represented victims of car accidents in Las Vegas for over 45 years. If you have been in an accident and you have questions about your legal options, our experienced team of attorneys is here to help. Reach out to us today at 702-388-4476, or send us a request through our site.
Someone who has been injured in Nevada needs to keep in mind that they have only a limited window of opportunity to seek compensation through litigation. With a few limited exceptions, someone who is injured or killed by another person must file a lawsuit within two years from the date the injury is discovered. Lawyers call a time limit like this a statute of limitations, or a limitations period. The purpose of a statute of limitations is to ensure that potential defendants aren’t put at a substantial disadvantage. Plaintiffs who don’t diligently pursue their rights can make defending a case more difficult, by letting memories fade and evidence go stale or disappear. If the statute of limitations has run, a court will refuse to hear the case.
When the statute of limitation begins to accrueIn personal injury cases, the statute of limitations period doesn’t necessarily begin at the time of the accident itself. The limitations period is paused—in legal terms, it “tolls”—until the injured person either discovers the injury, or should have discovered it by exercising reasonable prudence. Once the injury is discovered, or should have been discovered, the statute of limitations begins to accrue. If an injury is immediately apparent at the time of the accident, such as a broken bone resulting from a fall caused by someone’s negligence, the period may begin to accrue immediately. But many kinds of injury only become apparent long after the event that caused them. Injuries like whiplash can be slow to develop following a car accident. Asbestos poisoning (mesothelioma) or cancer may appear years or even decades after the source exposure. the limitations period may be tolled for a long time after the events that caused the injury.
Exceptions to the two-year ruleNevada law provides different statutes of limitations for certain specific kinds of injuries. For example, a lawsuit in connection with an injury that is caused by deficient construction needs to be filed within six years of the completion of construction (NRS 11.202). Note that in the case of construction defects the focus is not on the discovery of an injury, but on the construction itself. Other examples of different statutes of limitations include claims related to product liability (four years) (NRS 11.220), and medical malpractice claims (within three years of the cause of the injury, or one year from the discovery of the injury, whichever is earlier) (NRS 41A.097(2)). The law also protects certain kinds of plaintiffs who might otherwise not be able to protect their rights. For example, the law gives additional time to people who are hurt while they are children. The normal two-year statute of limitations is tolled for injured minors until they turn 18, meaning they can file a lawsuit until they turn 20. Individuals who are sexually abused as a minor must file suit within the later of 10 years after turning 18 or discovering that the abuse caused the injury (NRS 11.215).
If the statute has run, what then?Once an injury is discovered the injured person should seek the advice of an experienced attorney to ensure that technicalities like the statute of limitations don’t erode chances for recovery. As the above examples show, the applicable statute of limitations may be longer, but it also may be shorter. Even if the statute of limitations has run, an attorney quite often can find another theory for bringing suit. For over 45 years, Greenman Goldberg Raby Martinez has helped clients in Las Vegas work through the legal challenges associated with recovering from personal injury. If you or a loved one has been injured and you have questions about your legal options, please give us a call today at 702-388-4476. We can also be reached through our contacts page.
Firefighters are often exposed to toxic substances during the course of their careers. A fire can release an incredible amount of potentially cancer-causing materials into the air and environment, adding a pervasive and challenging danger to an already dangerous job. Unfortunately, cancer claims many firefighters’ lives. For that reason, Nevada’s workers’ compensation law provides specific protection for firefighters who develop cancer as a consequence of their work.
Nevada defines cancer as an occupational disease of firefightersNRS 617.453 specifically defines as an occupational disease a cancer that is caused by exposure to toxins during a firefighter’s duties and results in the firefighter’s temporary or permanent disability, or death. The statute provides benefits for firefighters who either have been in full-time service in Nevada or worked as volunteer firefighters (as defined in NRS 616A.145) for five years or more. To qualify for coverage, the firefighter must have been exposed to a known carcinogen in the course of his or her employment, and the carcinogen must be “reasonably associated with the disabling cancer.” The statute provides a nonexclusive list of known carcinogens and their related cancers; if a firefighter’s cancer is not on the list, the firefighter can offer evidence to show that the cancer was caused by a particular carcinogen. A firefighter’s cancer is presumed to be related to the job, however an employer can seek to overcome this presumption by showing that the cancer has another source. The statute also protects recently retired firefighters who develop cancer after leaving the service. A formula determines how much time a retiree will be covered by the law from retirement to diagnosis: 3 months for every year of service up to a maximum of 60 months. For qualified cancers, the statute provides for full reimbursement for expenses related to the firefighter’s medical treatment as well as the standard slate of benefits available for death or disability under Nevada’s industrial insurance law.
GGRM serves our first responder communityGreenman Goldberg Raby Martinez has proudly served Las Vegas first responders for more than 45 years. If you or a loved one is a firefighter who is battling cancer and you would like to speak to an attorney about how Nevada workers’ compensation law works, our attorneys are here to help. Call us today at 702-388-4476, or send us a request through our contact page.
In the era of social media, workers are increasingly discovering that the things they post online can come back to haunt them in various ways. Losing a job over a tweet can seem unfair, but the fact is that employers have a lot of leeway when it comes to firing employees for what they post. However, there are limited exceptions.
Social media and at-will employmentIn an at-will employment state like Nevada, both the employee and employer are free to end their relationship with or without cause. That means that an employer can choose to terminate an employee for no reason at all. A post on Facebook that reveals an employer’s confidential information, reveals an employee’s dishonesty, or calls into doubt the employee’s qualifications for the job, may simply give the employer cause.
But isn’t social media private?Under Nevada law, an employer cannot require employees to disclose their user names and passwords for personal accounts on social media, and cannot take adverse actions against an employee for refusing to provide such information. NRS 613.135. Some read the statute to mean that an employer also cannot require employees to accept managers as social media connections—that is, as a friend on Facebook, or as a follower on Twitter. However, an employer can view public posts on social media just like anyone else. And if an employee voluntarily authorizes a manager to access posts, without prompting from the employer, it could be interpreted as a waiver of the employee’s expectation of privacy. Employees should be especially careful when posting on social media using company equipment. Employers have the right to monitor use of equipment they own. Especially if an employee is posting on social media during working hours, the employer may have a good argument that the posts form evidence of disciplinary problem, even if it ignores the content of the posts themselves. Employers are increasingly adopting specific written policies that address employee use of social media. If your employer has such a policy, be sure to read it. Although Nevada employers cannot regulate many aspects of an employee’s private activities, they can take steps to protect their legitimate business interests, which can include watching out for online behaviors that harm the company. For example, if a job involves working with a company’s clients, the employee should not post things that clients might find offensive, even if the clients aren’t likely to see them.
There are some limits on what employers can do with social mediaAn employer that bases a firing decision on an employee’s social media posts can violate the employee’s rights in a number of ways. Here are two examples:
- The federal National Labor Relations Act (NLRA) protects employees from retaliation for posting on social media in connection with collective bargaining or other matters related to working conditions. The NLRA has been interpreted to prohibit employers from taking adverse actions against employees who post negative comments about the company or managers on private social media accounts. Although an employee should not assume that posting public complaints about a boss is a form of protected speech, the NLRA does give leeway for using social media to organize and address problems at work.
- Social media posts often reveal information about a person’s age, race, ethnicity, national origin, disability, religion, or other personal traits that are protected against unlawful employment discrimination under federal or state laws. In Nevada, an employer cannot fire an employee on the basis of actual or perceived sexual orientation. See this site for a complete list of things protected against discrimination in the state.
GGRM is here to help employees who are wrongfully terminated in Las VegasIf you have lost a job because of a post on social media and you’re trying to figure out your legal options, it can be helpful to talk to an attorney. At GGRM we have a long history of helping workers defend their rights. For a free consultation, call us today at 702-388-4476, or send us a request through our contact page.
Severance agreements are a way for employers to manage labor risk during staffing changes. They typically include terms to protect the employer, such as noncompetition clauses and waivers of legal liability, and in exchange give departing employees a compensation package. For the employee, a severance agreement can be a helpful way to ease the financial strain of a job transition. But before signing one, it’s important to understand how it may affect your rights. Here we discuss three major concerns in severance agreements: non-competition clauses, confidentiality obligations, and waivers of liability.
Restrictions on future work can limit your career optionsNon-competition clauses are a common feature of severance agreements. Because they can limit your professional options in significant ways, it’s important to take care before agreeing to them. A typical non-compete clause will restrict the kinds of work an employee can do for a period of time after the job ends, so the employee cannot immediately go to work for a competitor or steal clients from the company. A non-compete could prevent you from taking a job you really want, or it could get both you and a future employer into a dispute with your old company. Recent changes to Nevada law limit the permitted scope of non-compete clauses. Among other things, an employer must compensate employees for agreeing to them, and the compensation must be appropriate for the kinds of sacrifices the employee is expected to make. The scope of the non-compete also needs to be limited to what is necessary to protect the employer, and it cannot impose an undue burden on the employee.
Confidentiality is sometimes more complicated than it first appearsMany employers require their employees to sign confidentiality agreements when they’re first hired. These agreements typically require the employee to keep certain information confidential for a period of time after leaving the company. A severance agreement could extend the term of an employee’s confidentiality obligations or, if a confidentiality agreement isn’t already in place, impose new obligations. Complying with confidentiality requirements can mean more than just keeping secrets. It can also mean taking certain actions, like destroying records, and can extend to limiting who you talk to or work for. In the latter case, what looks like a confidentiality clause could actually be a form of non-compete.
Waivers of liability can undermine your legal rightsPerhaps the most common reason a company will ask departing employees to sign severance agreements is to get the employees to waive all legal claims against the employer. Especially where the employer has engaged in practices that are potentially unlawful, such as racial or disability discrimination, denial of overtime pay, or unwarranted denial of insurance, an employee should think carefully about whether signing a waiver is a good idea. Signing a waiver, especially when it’s accompanied by the sort of compensation that comes with a severance package, can eliminate an employee’s ability to pursue legal action in the future.
Before signing a severance agreement, get help from an attorneyAt GGRM we are committed to helping workers in Las Vegas understand and protect their rights. If you have been asked to sign a severance agreement and you have questions about how it might affect your rights, our attorneys would be happy to help. For a free consultation with an attorney call us today at 702-388-4476, or send us a request through our site.
A criminal record can have long-lasting consequences, especially when it comes to applying for jobs. Nevada workers who face this situation should take the time to understand the kind of information Nevada employers can get, and how employers can and can’t use criminal records to make hiring decisions.