The risk of injury is an unavoidable part of playing club sports. Tearing a ligament or breaking a bone while playing a game of amateur league basketball can be frustrating, but it can also be expensive for someone who doesn’t have insurance. When a sports injury has long-term consequences, like lost work time or extremely high medical costs, a lawsuit might be justified. In this blog we look at who might bear responsibility for sports-related injuries, and a few of the legal theories that might apply in such a case.
- Does Bad Weather Excuse Bad Driving?
- Liability for Fires Caused by Household Chemicals
- Who Is Responsible for Injuries Caused by Fireworks?
- Contracting Hepatitis A in Public Venues
- Falls from Ladders: Who Is Liable?
- Does Workers’ Comp Cover Opioid Addiction Recovery?
- Pursuing a Wrongful Death Case After a Child’s Death
- Exposure to Dangerous Chemicals at Work
- Pushing Back Against Aggressive Insurance Claims Adjusters
- How Social Media Use Can Endanger a Workers’ Comp Claim
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Rainy or freezing weather can make ordinarily safe conditions treacherous. Too often, slippery ground isn’t obvious until one’s feet are sliding away. A simple fall can cause serious injuries, involving substantial medical expenses and lost work time. People injured by falls in wet or icy weather may have the option to sue for compensation under Nevada’s premises liability laws.
Premises liability and landowner negligencePremises liability is a variation of the general theory of negligence. In a negligence lawsuit, the injured plaintiff must establish that the defendant owed the plaintiff a duty of care, breached that duty, and the breach caused the plaintiff’s injury. In the case of premises liability, Nevada law imposes a duty upon landowners (or other responsible occupants, like lessees) to take reasonable care that visitors on their properties are not injured by risks on the premises. Foster v. Costco Wholesale Corp., 128 Nev. 773, 777 (2012). The general duty of reasonable care extends to risks created by both natural and artificial conditions on the land. Id. at 780. In the Costco case, the Nevada Supreme Court extended landowner liability to “open and obvious” risks that the landowner has not properly addressed. Id. at 778-79.
Businesses are held to a high standardThe law distinguishes between different types of landowners. Businesses owe visitors a duty to keep their premises in reasonably safe condition for use. Sprague v. Lucky Stores, 109 Nev. 247, 250 (1993). A business can have liability for injuries caused by dangerous conditions on its property if its employees create the problem (for example, by spilling something on the floor) or if the business has actual or constructive notice of the condition (for example, if a visitor to a store spills a bottle of oil and tells an employee about it) and fails to correct the problem. Id. A homeowner who invites friends over for a visit owes visitors a lower duty of care than a business. If dangerous conditions exist, and the homeowner knows about them, he or she has a duty to warn visitors about the conditions and take steps to fix them. But a homeowner doesn’t have a business’s obligation to actively inspect for risks. A homeowner who doesn’t know about a hidden patch of ice on her front walkway might not be liable for a fall there. Someone who is injured in a fall can have their ability to recover compensation reduced if their own negligence contributed to their injuries.
Premises liability for wet and icy conditionsA landowner’s legal liability for a slip and fall heavily depends upon the specific facts of the situation. For businesses, a strong case can be made for liability if proper care hasn’t been taken to watch for and address a wet or icy condition. Bad facts for a defendant might include a failure to promptly post signs like “wet floor” warnings, not shoveling snow or salting ice, or failing to put down an anti-slip mat in a location where rain water is known to create a slippery condition. A business needs to actively ensure that wet or icy weather isn’t creating dangerous conditions. A homeowner can also wind up with liability if a known condition isn’t addressed. For example, pipes and sprinkler systems often freeze and break during cold weather, leading to leaks that can create ice across walkways. If the homeowner knows (or should know) about the dangerous condition, he or she needs to take steps to get rid of the ice or at least post a warning.
Don’t hesitate to talk to a personal injury lawyer about slip and fall accidentsThe GGRM law firm has represented injured Las Vegas residents for over 45 years. If you have been injured in a slip and fall accident and would like to speak to a lawyer about your legal options, call us today for a free consultation at 702-388-4476, or reach us through our contact page.
Children get bumps and scrapes all the time. It’s part of growing up. But sometimes a toy is badly designed or poorly made and causes a more serious injury. Especially when a child is hospitalized for injuries caused by a defective toy, parents will have questions about how the law can help them get compensation for medical bills and other expenses associated with caring for their child.
Nevada imposes substantial liability for defective productsNevada allows consumers to sue toy manufacturers for a wide range of damages from a product. Plaintiffs can sue for economic damages like medical bills and the lost wages of a parent who must take time off work to care for a child. They can also sue for noneconomic damages like emotional distress. A product’s manufacturer and distributor can be liable for defects arising at every stage of a product’s life, from its design and manufacture to the way it is packaged and labeled. NRS 695E.090.
The elements of strict products liabilityStrict products liability is the most important legal theory for plaintiffs who are injured by defective products in Nevada. Strict liability shifts responsibility for defective products to manufacturers and marketers if all of its elements are met. Ginnis v. Mapes Hotel Corp., 86 Nev. 408 (1970). In Nevada a plaintiff must show the following elements to recover under a strict liability theory:
- The defendant was the manufacturer or marketer of the product.
- The product was defective.
- The product’s defect existed when it left the defendant’s possession (for example, when it left the factory or warehouse, and not after an intervening event damaged it).
- The defendant used the product in a way that was reasonably foreseeable by the defendant.
- The defect caused the plaintiff’s damages.
According to a study completed in 2015 by the Nevada Legislature, over 85 percent of Nevada is owned by the federal government, including 4,532,961 of the 5,178,240 acres here in Clark County. The Bureau of Land Management (BLM) is by far the largest landowner in the state, but large chunks of real estate are owned by the Forest Service, the National Park Service, the Bureau of Reclamation, the Fish and Wildlife Service, and other agencies. In many places, public agencies have developed recreational trails for use by hikers, equestrians, and mountain bikers. When the user of a trail is injured by a condition that exists because of negligent trail maintenance, does the user have recourse against the public agency that owns and maintains the trail?
Nevada’s recreational use statuteGenerally speaking, a person who makes recreational use of public land does so at his or her own risk. Under Nevada’s recreational use statute, NRS 41.510, the owner or lessee of land “owes no duty to keep the premises safe for entry or use by others for participating in any recreational activity,” including hiking, camping, riding horses, or mountain biking. This is true even if the owner gives the user express permission to use the land for recreational purposes, unless the user paid for entry. NRS 41.510(3)(a)(2). Nevada’s recreational use statute protects private landowners as well as federal agencies. Ducey v. United States, 713 F.2d 504 (9th Cir. 1983).
Willful or malicious acts can still lead to liabilityThe recreational use statute does not limit liability for willful or malicious acts. This might include things like failing to provide adequate warning about a particularly dangerous condition. An example of this might be a tree deliberately felled across a mountain biking trail where bikers might not see it in time to react. But it might not include a tree that falls naturally across a trail and simply hasn’t been cleaned up. The legal test used to determine if an action was “willful or malicious” comes from Frasure v. United States, 256 F. Sup 2d 1180 (D. Nev. 2003). In Frasure the court used a three-part test to determine if a landowner willfully failed to warn against a dangerous condition. The test asks whether the landowner had (1) actual or constructive knowledge of the danger, (2) actual or constructive knowledge that injury is a probable, not merely possible, result of the danger, and (3) consciously failed to act to avoid the danger. Id. at 1193.
Talk to an attorney to explore your optionsIf you have been injured as a result of conditions on public lands, you may have legal options to recover compensation. GGRM has represented personal injury plaintiffs in the Las Vegas area for over 45 years. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.
The rise of the gig economy has changed the nature of work for many people. Thanks to websites that connect freelancers and clients, doing odd jobs can be a consistent source of income or even become a full-time career. A gig might involve walking someone’s dog, helping to move a piece of furniture, or doing some yard work. Like any other physical work, these kinds of tasks involve an element of injury risk. This risk raises important legal questions for people who work in the gig economy, and the people who hire them.
Workers in the gig economy are independent contractorsSomeone who does odd jobs on a freelance basis is most likely an independent contractor. This means that the client who hires them is not responsible to them as an employer. In an employer-employee relationship, the employer is responsible for providing the employee with workers’ compensation insurance coverage, among other things. Independent contractors often don’t get these protections. For workers’ compensation purposes, Nevada law excludes people from the definition of “employee” if their work “is both casual and not in the course of the trade . . . of his or her employer.” NRS 616A.110(1). The law also excludes people who perform household domestic services, NRS 616A.110(4), which has been interpreted to include contractors like insect exterminators. See Seput v. Lacayo, 122 Nev. 499 (2006). Freelancers should bear in mind that they are independent contractors even if they get work through a facilitating website like TaskRabbit.com. Such websites require users to agree to terms of service that invariably provide that freelancers who use the sites are independent contractors, not employees of the companies running the sites. Therefore the website owners aren’t obligated to provide insurance coverage to freelancers, either. Bear in mind that this discussion is about odd-jobs completed for non-business clients. Businesses have different obligations toward those they hire, even for short-term work. The Nevada Division of Industrial Relations provides a useful reference for independent contractors who work for businesses.
Personal liability of freelancers and their clientsFor a freelancer who is injured doing a job, the only recourse may be to sue the person who hired them, or another person who created the conditions that led to the injury. Freelancers should bear in mind that they also can face liability for damaging a client’s property or hurting clients themselves. For most types of personal injury, the question of liability will rest on whether the responsible party was negligent, and whether the injured person’s negligence contributed to the injury. Here are a couple examples. Example 1: Joe the Dog Walker
Joe works as a freelance dog walker to earn supplemental income, advertising his services on Craigslist. One day Joe accepts a job walking a neighborhood pit bull named Gus. Although Gus is ordinarily friendly and mild, Joe discovers too late that he becomes aggressive around small dogs. On their first walk together they encounter another pedestrian walking a Pomeranian. Joe doesn’t avoid the encounter and Gus ends up biting the Pomeranian, and Joe gets bitten trying to intervene. Here the owner of the Pomeranian may sue Joe as well as Gus’s owner. Joe might sue Gus’s owner as well, for failing to warn him about Gus’s aggressive tendencies.Example 2: Mary the Mover
Mary takes odd jobs through TaskRabbit as a furniture mover. Relying on her physical fitness, she takes no special precautions to protect her back or joints. While moving a heavy sofa bed for an individual client she suffers a herniated disk that makes it impossible for her to keep going to her day job. Mary sues the client to recover from the client’s homeowner policy, but she can expect the insurance company to use her failure to use a back brace as a significant contributing factor in her injury.Perhaps the overarching lesson in these two fact patterns is that freelancers need to take steps to protect themselves. One way to do that might be through the use of contracts that limit the freelancer’s liability or give the client specific obligations. For example, Joe the dog walker might ask each client to sign a simple document that puts the client on the hook for any injuries the dog causes.
Freelancers who are injured on the job need to consult with an attorneyGenerally speaking, jobs found in the gig economy don’t pay well enough to compensate freelancers for serious injuries. In any personal injury situation it’s important to talk to an attorney to preserve every potential recourse. The personal injury lawyers at GGRM are happy to help freelancers in the Las Vegas area think through their legal options. For a free consultation call us today at 702-388-4476, or send us a request through our site.
Nevada law requires employers in the state to carry workers’ compensation insurance. But workers’ compensation insurance isn’t cheap, and some employers try to skirt the law to save money. Failure to carry insurance can expose an employer to criminal penalties and fines. NRS 616D.200. For an injured worker, the employer’s failure to maintain workers’ compensation insurance can lead to significant financial hardships. Nevada provides a process for workers in this situation.
The steps involved when an employer is uninsuredA worker who is injured on the job might not know at the time of the injury that his or her employer is uninsured. At the first visit with a healthcare provider, the provider will provide the worker with Form C-4, the document that formally begins the workers’ compensation claim process. This form, which the healthcare provider uses to get paid for the services it provides, gets completed whether or not the employer has insurance. Because the form calls for the name of the employer’s insurer, many workers discover their employer has no insurance as part of this process. The healthcare provider typically will try to identify the employer’s insurer. The Nevada Division of Industrial Relations maintains a public database of employers’ workers’ compensation insurance coverage. If the healthcare provider determines that the employer is uninsured it will notify the Workers’ Compensation Section (WCS) of the Nevada Division of Industrial Relations. The WCS investigates uninsured worker claims and may take administrative action against employers who have failed to maintain required insurance. The WCS will examine the facts of the injury and will need to confirm that the worker was in fact an employee of the employer at the time the injury occurred. The injured worker must be prepared with adequate evidence to show the employment relationship, which in some cases can be difficult.
Rules for receiving benefits under the UECAThe injured employee will be given the option of taking benefits from the Nevada Uninsured Employers’ Claim Account (UECA) or pursuing a private lawsuit against the employer. The employee cannot choose both. In essence, the UECA functions just like an employer’s workers’ compensation coverage. A third party administrator evaluates the claim and decides whether to accept or deny the claim. NRS 616C.220 sets out the detailed rules governing UECA claims. To receive UECA benefits, a worker must meet each of these criteria:
- The worker was hired in Nevada or is regularly employed in Nevada.
- The worker suffered an accident or injury arising out of and in the course of employment in the state, or while temporarily outside of the state on assignment.
- The worker must file a Form C-4 claim for compensation.
- The worker assigns to the DIR his or her rights to receive compensation from the employer for medical expenses and other costs that the UECA pays—a concept called subrogation.
Consult with an attorney if your employer is uninsuredWorkers who are injured on the job sometimes feel like they have few options. Those options can feel even slimmer when the employer turns out to not be properly insured. An experienced workers’ compensation attorney can offer guidance not only in dealing with the uninsured employer, but also the WCS and UECA claims. The personal injury attorneys at GGRM have served the Las Vegas community for over 45 years. For a free attorney consultation call us today at 702-388-4476, or send us a request on our contact page.
A workers’ compensation claim can involve complex legal controversies. Insurers will often deny claims or seek reimbursement for their expenses, sometimes taking benefits away from injured workers who are struggling to get back on their feet. In 2017 the Nevada Supreme Court took on one such case in Poremba v. Southern Nevada Paving, 388 P.3d 232 (2017), which limited the power of insurers to limit benefits for workers who have received compensation through other means.
The facts of PorembaThe workers’ compensation claim in Poremba arose from injuries Mr. Poremba suffered when the truck he was driving was hit by a backhoe operated by another employee. The insurer accepted Mr. Poremba’s original claim. At the same time, Mr. Poremba also sued the backhoe operator and his employer, which resulted in a settlement. Importantly, the settlement didn’t specify what it was compensating Mr. Poremba for. That is, it didn’t require him to allocate his settlement award to medical expenses, his lost earnings potential, or his pain. He used the money from the settlement to pay for his outstanding healthcare debts, additional treatment, and personal expenses, such as mortgage payments and food. Id. at 234-35. After Mr. Poremba’s injuries made it impossible for him to go back to work, he tried to reopen his workers’ compensation claim. This time the insurer denied the claim, arguing that his use of his settlement funds to pay for things other than medical bills foreclosed further recovery for his injuries. Id.
What is insurance subrogation?A workers’ compensation insurer is sometimes entitled to be reimbursed for expenses it pays on behalf of an injured worker. As happened in Poremba, an injured worker can in certain circumstances pursue a personal injury claim against an employer or other responsible person. When the worker recovers damages from a personal injury claim, the insurer can ask a court for reimbursement from the personal injury award for costs the insurer has borne on behalf of the worker. This process is called insurance subrogation. From a policy standpoint, the idea is that the insurer is recovering for costs that were the responsibility of someone else. The insurer in Poremba had denied the worker’s request to reopen his claim on grounds that he had not exhausted his third-party damages award to pay for his medical expenses. Id. at 234. The lower court had also provided that the insurer would be entitled to subrogation for the full amount of Mr. Poremba’s third-party settlement. Id. But the Supreme Court disagreed.
How Poremba helps injured Nevada workersIn Poremba, the Supreme Court clarified how injured workers’ damages awards work in two important ways. First, the injured worker needn’t spend all of a third-party award before reopening a workers’ compensation claim. Second, an insurer is only entitled to reimbursement (that is, subrogation) for damages that are ordinarily covered by workers’ compensation. Importantly, this does not include pain and suffering, or personal expenses like mortgage payments. Id. at 238. The ruling in Poremba has been criticized for not fully accounting for the legal rules governing insurance subrogation. As such, it may be subject to further argument in future cases. Injured workers who are considering reopening their claims should consult with an attorney to understand how these issues may affect their ability to receive additional benefits. For over 45 years, the experienced workers’ compensation attorneys at the law firm of Greenman Goldberg Raby Martinez have given personalized, caring advice to clients in the Las Vegas area. If you are fighting with an insurer and would like to speak to an attorney about your legal options, call us today at 702-388-4476, or ask us to call you by leaving a note on our contact page.
Nevada requires most employers to carry workers’ compensation insurance. To receive workers’ compensation benefits, an injured employee must show that his or her injuries “arose out of and in the course of his or her employment.” NRS 616C.150(1). Insurers closely examine the facts of an injury to determine if it meets this standard. As a practical matter, it can be difficult to define the borders between an employee’s job and personal life. Injuries suffered during breaks often fall into this grey area.
The Rio case offers an exampleIn Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346 (2010), a poker and blackjack dealer was on a 20-minute break when she fell walking down stairs to her employer’s break room. Id. at 348. The casino’s third-party workers’ compensation administrator denied Ms. Phillips’s claim, arguing that her injury did not arise out of the course of her employment. Id. The case made its way through the workers’ compensation appeals process and eventually ended up at the Nevada Supreme Court. To determine if an injury “arises from” employment, the Court in Rio looked at whether the employee showed “a causal connection between the injury and the employee’s work in which the origin of the injury is related to some risk involved within the scope of employment.” Id. at 350-51, citing Mitchell v. Clark County School District, 121 Nev. 179, 182 (2005) (internal quotation marks omitted). The Court went on to distinguish between three types of risk an employee can face at work: employment-related risk, personal risk, and neutral risk. Id. at 351, citing K-Mart Corp. v. Herring, 188 P.3d 140, 146 (Okla. 2008). Injuries suffered as a result of employment-related risk generally are covered by workers’ compensation benefits. Injuries from dangerous equipment, uneven ground at a work site, or other clearly work-related dangers are clearly within the scope of employment-related risk. But injuries arising from personal risks, even if they happen at work, are not covered. Personal risks are those that “could not possibly be attributed to the employment,” such as injuries arising from an employee’s personal health condition, like a fall caused by a bad knee or epilepsy. Id.
“Neutral” risk and the increased-risk testThe Court’s third category of risk, so-called “neutral” risk, encompasses dangers that aren’t readily assigned to either of the other two types of risk. Neutral risks include a fall like the one Ms. Phillips suffered, which happened without a clear work-related explanation (such as a badly maintained staircase) or a clear personal cause (such as an illness). To determine if an employee is entitled to benefits in a neutral risk situation, the Court in Rio adopted the so-called “increased-risk test.” Under this test, benefits should be given to an employee who is exposed “to a risk greater than that to which the general public is exposed.” Id. at 353, citing Herring, 188 P.3d at 146. An employee can face greater risk than the public simply by being exposed to a dangerous situation more often than a member of the general public—that is, the quantity of the risk may matter more than its inherent quality. Id. The Court ultimately held that Ms. Phillips was entitled to workers’ compensation benefits for her injury because she had to go up and down the stairs leading to the employee break room more often than the public, and therefore the risk of climbing the stairs was quantitatively greater for her than for the general public. Id. In its analysis, the court focused on two important facts about Ms. Phillips’s situation: she was required to take periodic breaks, and had to use the stairs to access to the employee break room. Id. at 354.
An experienced attorney can sort through the confusionApplying the rules of the Rio case to situations involving significantly different facts can be difficult. That is why break-time injuries can be difficult to evaluate without the help of an experienced personal injury lawyer. If you have been injured while on break and you’re having trouble getting workers’ compensation coverage, be sure to talk to an attorney right away. The attorneys at the law firm of Greenman Goldberg Raby Martinez have deep experience with challenging cases. For a free attorney consultation, reach out to us today at 702-388-4476, or send us a request through our site.
As the American workforce ages, employment discrimination against older workers likely will become an increasingly important issue. The U.S. Equal Employment Opportunity Commission (EEOC) receives more than 20,000 complaints of age-based discrimination each year. Presumably this reflects only a small portion of wrongful discrimination cases, many of which probably go unreported. With rare exceptions, a Nevada employer cannot discriminate against job applicants and employees on the basis of age.
Nevada and federal law prohibits most types of age-based employment discriminationThe federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq., protects workers over the age of 40. Under the ADEA, employers may not adopt policies that negatively affect applicants or employees age 40 or older unless the policy is based on a reasonable factor other than age (RFOA). In its rules the EEOC specifies that an employer is responsible for showing that its policies are objectively reasonable, designed to achieve a legitimate business purpose, and reasonably achieve that purpose. Whether a policy is based on a lawful RFOA is determined by considerations including how the factor relates to the employer’s business purpose, how accurately the employer has defined the factor, and how the employer handles employee assessments, especially if the assessments will focus on traits that are closely linked to age. 29 C.F.R. 1625.7 (2012). Nevada law protects workers from age discrimination in the same way as other protected categories, such as race, religion, and sex. NRS 613.330 prohibits employers from discriminating against applicants or employees on the basis of age unless age is “a bona fide occupational qualification reasonably necessary to the normal operation” of the employer’s business.
Can an employer ask about an applicant’s age?Employers are not prohibited from collecting information that reveals age information about a job applicant or employee. An employer might be able to deduce an employee’s approximate age based on information like graduation dates, employment history, or other routine resume details. And the law does not prohibit an employer from asking for a date of birth. But an employer needs to have a business-related reason for asking for such information, and must not be asking for it solely to make an employment decision based upon it. Workers should note that employers are allowed to ask applicants and employees to waive their state and federal age discrimination rights. Per the Nevada Equal Rights Commission, such waivers must meet a strict set of criteria. These include that the employee is compensated for the waiver.
Consult with an attorney about age-based discriminationIf an employer has unlawfully discriminated against you or a loved one on the basis of age, it’s important to speak to an attorney right away. Don’t let your legal rights slip away. The attorneys at GGRM are happy to help workers in Las Vegas evaluate their legal options. To speak to an attorney, please give us a call today at 702-388-4476. We can also be reached through our contacts page.
For many working people, the most dangerous part of their day is not the time they spend at work, but rather the time they spend commuting. Being injured in an accident while commuting raises questions about whether an employer’s workers’ compensation insurance policy will compensate the employee.