Victims of violent crime are entitled to seek damages from their attackers in civil court. The American legal system imposes high standards for a criminal conviction, making the conviction itself a powerful tool for establishing civil liability. Hate crimes are no different.
- 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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Nevada has adopted a range of laws and regulations designed to prevent cyberbullying. The term covers a wide range of wrongful activities directed at a victim by electronic means (see NRS 388.122 for the complete definition of bullying). The law prohibits cyberbullying in schools and authorizes school authorities to take disciplinary actions against violators. For adults cyberbullying is also a crime, punishable as a misdemeanor or, in more serious cases, a gross misdemeanor. NRS 392.915. Even though cyberbullies are not physically attacking their victims, they can cause real harm. Victims of cyberbullying can end up hurting themselves or needing expensive psychiatric care. In those situations, parents sometimes wonder if the websites that host the forum where cyberbullying occurs can be held legally liable for damages. To encourage the robust development of the Internet, federal law provides blanket protection for websites and other “interactive computer services” against liability for content that they do not create themselves. Under Section 230 of the federal Communications Decency Act, a provider of website services cannot be treated as a publisher or speaker of any content provided by others. 47 U.S.C. §230(c)(1). This means that the host of an online discussion forum, social media companies like Facebook or Twitter, and owners of chat rooms are all protected from being vicariously liable for the content on their sites. The law preempts state law, meaning that state courts cannot skirt around it to impose liability that would not stick in federal court. Like a lot of legal topics involving new technologies, there are sometimes arguments that attorneys can use to show that Section 230 doesn’t apply to a specific website. Even if the owner’s agent, such as a site moderator, gets involved in a thread in which cyberbullying takes place, the immunity of Section 230 may still apply unless the moderator adds harmful language to the discussion that would itself be a form of cyberbullying. In legal terms, by assuming responsibility for creating harmful content the website ceases to be a “publisher” and becomes an “information content provider.” A website also could lose immunity if it encourages users to cyberbully others. A court has held that a website that “elicits allegedly illegal content and makes aggressive use of it in conducting its business” would not be immune under Section 230. Fair Hous. Council v. Rommates.com, LLC, 521 F.3d 1157, 1172 (2007). The attorneys at Greenman Goldberg Raby Martinez are keeping a close eye on the evolving borders between technology and the law. We have represented personal injury clients in the Las Vegas area for over 45 years and would be happy to talk to you about your cyberbullying case. Call us today for a free attorney consultation at 702-388-4476, or reach us through our contact page.
Mobile gaming has become a big phenomenon in recent years. Games, like other content on a cell phone, can be distracting. But some games are especially so. Pokémon Go and other “augmented reality” games of its type work by overlaying game elements on the real world. Players advance in the game by exploring for virtual objects to interact with using their phones. The potential for “distracted walking” accidents is brought to players’ attention when starting up the game app. Pokémon Go’s loading screen warns players to “Remember to be alert at all times. Stay aware of your surroundings.” And before playing, players are required to click-through warnings like, “Do not enter dangerous areas while playing Pokemon Go,” and, “Do not play Pokémon Go while driving.”
Developers protect themselves against liabilityThese games also require players to agree to terms of service that provide that players play at their own risk and disclaim liability for personal injuries that occur while playing. Because a user must affirmatively agree to the terms of service before being allowed to play, chances are good that this type of “click-through” contract will be enforceable in court. This most likely means that the developers of games like Pokémon Go aren’t likely to be held liable for the personal injuries of players. They have two strong arguments in their favor: first, that the player entered into a valid contract that waived the developer’s liability, and second, that the player assumed the risk of injury by playing in a dangerous manner. One can draw parallels between augmented reality games and virtual racing apps. Someone who stares at a phone while walking risks all kinds of injury, from simple trip-and-fall accidents to walking in front of an oncoming car. Like riding a bike, there are risks inherent in not paying attention to your surroundings. A careful developer will make sure to avoid placing game elements in places that are inherently dangerous, because doing so could expose them to claims that they deliberately encouraged players to take risks. Pokémon Go players are unlikely to find important game elements located on an airport’s runway. However, a developer could face liability if it knows that an existing game feature is located in a place that has become dangerous, for example by being turned into a construction site.
Playing games could reduce potential compensationSomeone who is injured while distracted by a game can expect their distraction to play a role in any lawsuit they bring against the person who caused the injury. Nevada’s modified comparative negligence rule provides that an injured plaintiff’s final award will be reduced by the percentage of fault that a jury or judge concludes was due to the plaintiff’s own negligence. NRS 41.141. For example, if a Pokémon Go player ignores a red light and steps directly in front of an oncoming car it’s likely that at least a portion of the fault for the resulting accident will rest with the player, even though the driver may have fault for not swerving or stopping. Bear in mind that the mere fact that someone was playing an augmented reality game when an accident occurred isn’t conclusive by itself. An experienced personal injury lawyer can review the specifics of an accident to determine the best path forward for an injured client. The law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area for over 45 years. Our attorneys are available to answer your personal injury questions. For a free consultation reach out to us today at 702-388-4476 or contact us through our website.
Working in an environment that is not ergonomically designed can lead to long-term health problems. Issues like carpal tunnel syndrome, bursitis, and strained muscles can take years to resolve and can require surgery. Nevada employers are not specifically mandated to provide ergonomic workplaces, but a combination of safety regulations and financial incentives gives them good reason to take ergonomics seriously.
OSHA and ergonomics in NevadaThe “general duty clause” of the federal Occupational Safety and Health Act (OSHA) and the equivalent state law requires employers to provide a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm” to employees. 29 U.S.C. §654, NRS 618.375. The Occupational Safety and Health Review Commission, which adjudicates disputes arising from enforcement of federal OSHA standards, has held that ergonomics problems can be a “recognized hazard.” Pepperidge Farm, Inc., 1997 OSHARC LEXIS 40 (No. 89-265, 1997). Because bad ergonomics can lead to enforcement actions by state and federal OSHA agencies, employers have good reason to adopt policies to encourage healthy practices, provide ergonomics evaluations, and upgrade work spaces to reduce the risk of repetitive motion injuries. The state has adopted an instructive set of guidelines to improve workplace ergonomics for its own employees.
The cost of ergonomics-related injuriesBesides concerns about OSHA compliance, employers also have good financial reasons to improve the ergonomics of their workplaces. In addition to potentially losing productivity due to injuries, an employer may also face other kinds of costs, including:
- Higher workers’ compensation premiums. An employee who suffers an on-the-job injury that requires medical care is entitled to workers’ compensation benefits. When workers make claims an employer’s insurance costs can go up.
- Disability law compliance. When an employee’s work-related injuries lead to temporary or total disability, an employer becomes responsible for providing the employee with reasonable accommodations that account for the disability. This might include offering the employee light duty, or moving the employee to another role. In addition to being expensive, these changes can be disruptive to the workplace.
The scourge of opioid addiction has become a nationwide problem. Although prescription opioids are effective treatments for pain, the Centers for Disease Control reports that as many as one in four patients who use opioids as part of a long-term strategy to manage pain become addicted. Addiction can lead to serious problems, including the risk of overdose and death. For people dealing with addiction to prescription opioids questions can arise about the possibility of filing civil lawsuits to recover compensation for expenses related to addiction, and in the worst cases, the wrongful death of a family member.
A prescribing doctor may be committing professional negligenceThe “controlled but legal” nature of prescription opioids distinguishes them from banned opioids like heroin. Even an addict can continue to have a legitimate, legal prescription. But there can come a turning point when continued drug use poses a threat to a patient’s health and wellbeing. There are several potential defendants that might bear civil liability for an addict’s injury or death. The first potential defendant who comes to mind is the prescribing doctor. A doctor may reasonably conclude that opioids are the best solution or a patient with a legitimate need for pain management. Under regulations of the Federal Drug Enforcement Administration (DEA), a prescription for a controlled substance like opioids must be for a “legitimate medical purpose” and the doctor must give the prescription in the ordinary course of professional practice. 21 C.F.R. §1306.04. A doctor who prescribes opioids solely to support an addiction not only breaks the law, but also may be subject to civil liability. But a doctor can also commit professional negligence by failing to use reasonable care, skill, or knowledge in treating the patient. NRS 41A.015. If a physician fails to follow professional standards for monitoring a patient’s treatment but continues to prescribe opioids, the lack of care may be a legal cause of the patient’s resulting addiction-related injuries.
Pharmacies may also bear responsibilityThe DEA requires pharmacists to evaluate whether a prescription for controlled substances is for a legitimate medical purpose. A pharmacist who knowingly fills an invalid prescription commits a crime. Like doctors, pharmacists also have a professional obligation to pay attention to the state of patients. Pharmacists are instructed to watch for “red flags” that can be signs of drug abuse: forged or altered prescriptions, cash payments, and early fills are just a few examples. Pharmacies that fail to follow proper procedures for handling controlled substances can be sued for negligence. The law firm of Greenman Goldberg Raby Martinez has served personal injury clients in the Las Vegas area for over 45 years. We pride ourselves on providing clients with personalized, compassionate service. If you or a loved one is suffering from opioid addiction and you have questions about your rights to pursue legal actions, please reach out to us today for a free, confidential attorney consultation. Call us at 702-388-4476, or send us a request through our site.
People who drive as part of their work duties sometimes get into accidents. For the employee who is injured in an accident, the primary concern will be whether the employer’s workers’ compensation insurance will cover expenses. When a working driver is responsible for an accident, people who are injured may have a legal claim against the driver’s employer under a theory of vicarious liability.
Employees injured while driving for work are entitled to workers’ compensation coverageNevada’s industrial insurance law provides that all employees are insured for injuries arising in the course and scope of their employment. An accident that occurs while someone is working—for example, while driving a delivery truck—clearly falls within this rule. The rule also covers driving in some other, “off the clock” situations. An employee will be covered while driving in circumstances where he or she would not otherwise have been driving but for a work obligation, like a special errand, off-site business meeting, or client visit. Bob Allyn Masonry v. Murphy, 124 Nev. 279 (2008). The question is not whether the driving time is paid, but rather whether it is to fulfill an obligation to the employer. A workers’ comp insurer will undoubtedly examine the facts of an accident to verify that the driver was actually working at the time, or otherwise entitled to coverage. Ordinary commuting is not covered by workers’ comp. Employees can venture into a grey area by taking side trips or attending to personal matters. For example, if after running a special errand for an employer the employee then drives to the mall to see a movie, there comes a point in the trip where the employer connection ceases.
Injured third parties can sue the employer in many circumstancesNevada law provides that an employer bears legal liability for the tortious behavior of its employees provided that certain basic elements are met. The employee must have been under the employer’s control and acting in the scope of the employee’s job at the time of the accident. NRS 41.130. This issue looks at similar facts to those considered by the workers’ comp question. For example, an employee who isn’t acting within the scope of employment, such as on an ordinary commute, can’t ordinarily create liability for the employer. Kornton v. Conrad, Inc., 119 Nev. 123 (2003). There need to be sufficient facts to show that the employee was driving while doing something on behalf of the employer. Intentional acts are an important exception to the employer liability rule. Employers are not responsible for independent, intentional conduct of employees that was not committed in the course of a task the employer assigned to the employee and was not reasonably foreseeable under the circumstances. NRS 41.745. This rule probably doesn’t free an employer from liability for an employee’s act of road rage. But if an employee used an employer’s car to commit a hate crime, the statute might apply. See Wood v. Safeway, Inc., 121 Nev. 724 (2005).
Talk to a personal injury lawyer after an accidentAfter any accident involving personal injury it’s important to talk to an experienced attorney as soon as possible. For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in the Las Vegas area in car crash cases. If you have questions about your legal options after being injured by someone who was driving for work, call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.
A recent case in Florida has raised a novel question for emergency medical personnel. In December an unaccompanied, unconscious man was brought into a Florida emergency room. He had no identification with him. Tattooed on his chest in bold, clear letters were the words “Do Not Resuscitate” together with a signature. At first the doctors decided to disregard the tattoo, but an ethics committee later advised them to honor it, concluding “that it was most reasonable to infer that the tattoo expressed an authentic preference.” A formal DNR form that complied with Florida law was later found to confirm that the tattoo indeed reflected the man’s legal intent. What lessons can Nevada EMS professionals draw from the Florida case?
Florida and Nevada have similar DNR rulesA key issue raised by the Florida man’s tattoo is whether a tattoo can create a legally binding DNR order. Like Nevada, Florida’s DNR rules impose specific technical requirements that must be met for a DNR order to be legally binding upon medical staff. A Florida DNR order must be printed on yellow paper and signed by both the patient and the patient’s physician. Medical professionals are only obligated to comply with a DNR order if the original is presented, or if the patient is wearing a DNR identification device, which under Florida law is a miniature version of the larger form and also gets signed by a physician. FAC 64J-2.018. Nevada’s rules are fairly similar to Florida’s, though they add an extra step for someone to obtain a binding DNR order. Once an application form is signed by the patient and physician, the form is submitted to the Nevada Division of Public and Behavioral Health. The Division issues a special identification card that alerts medical personnel to the patient’s binding preference.
A tattoo may not be legally binding, but it creates an ethical questionA narrow reading of Nevada’s DNR rules leaves little room for interpreting a tattoo like the one encountered in Florida as a binding order. The tattoo lacked the elements of a formal DNR application, including a physician signature. An EMS professional who encounters a similar tattoo therefore may not have a legal obligation to follow it. At the same time, such a tattoo does appear to give notice to medical personnel that the patient has a preference against resuscitation. If circumstances permit, EMS professionals should take the time to inspect the patient’s home or personal belongings for a valid DNR order. Questions should be asked of anyone else present who might know about the provenance of the tattoo, in case they can help uncover a more binding document. Perhaps the most important lesson of the Florida case for EMS professionals is that the decision of whether to honor a DNR tattoo ideally should rest with individuals with the authority to make formal decisions on behalf of the employer. Although a decision in the field to honor a do-not-resuscitate tattoo might seem like the ethical choice, it is not supported by the law.
GGRM is proud of its work with the Las Vegas EMS communityThe attorneys at Greenman Goldberg Raby Martinez have a long track record of supporting clients in the Las Vegas first responder community. We are happy to answer your questions about Nevada’s laws regarding DNR orders. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.
Innocent bystanders are sometimes the unwitting victims of high-speed chases on Nevada roads. Fleeing suspects can drive well above the speed limit, often recklessly moving in and out of lanes, sometimes even moving in front of oncoming traffic. Police officers who give chase are faced with a difficult choice: end the pursuit and allow the dangerous suspect to escape or continue the chase even if it creates risk for the public. Bystanders who are injured during a high-speed chase can sue the suspect for damages, but can they also sue the police department?
Suing the suspectA suspect in a high-speed chase bears responsibility for the property damage and personal injuries caused during the course of a pursuit. In the context of a civil trial, the reckless nature of a high-speed chase, in which the suspect drives with complete disregard for the safety of other people on the road, will often support a claim of gross negligence against the suspect. In the criminal proceeding that follows a high-speed chase a court may order the suspect to pay restitution to injured bystanders. The restitution that forms part of a criminal sentence is limited to damages that are relatively easy to account for: medical expenses, lost wages, property damage, and estimated costs of future treatment. A criminal court can’t order restitution for subjective kinds of damages, like pain and suffering or psychological trauma associated with an accident. A civil lawsuit needs to be filed against the suspect to recover for these types of injuries. The problem with lawsuits against a criminal suspect (or a convict) is that an individual often lacks the financial resources to compensate an injured plaintiff for the full scope of his or her injuries. The defendant’s auto insurance policy probably disclaims liability for intentionally tortious acts, leaving only the defendant’s personal assets available for plaintiffs to collect against.
Sovereign immunity limits suits against police departmentsThe relatively deep pockets of a police department may tempt injured victims to consider a lawsuit against the officers involved in the chase, as well as their employer. But Nevada law limits the liability of the state and its subdivisions, including the police departments of counties and cities. Under NRS 41.032, officers and their employing departments are immune from civil lawsuits for damages arising from an officer’s “exercise or performance or the failure to exercise or perform a discretionary function or duty.” The Nevada Supreme Court has defined a “discretionary act” as an action that “requires personal deliberation, decision, and judgment.” Maturi v. Las Vegas Metro. Police Dep’t, 110 Nev. 307, 309 (1994). The decision to pursue a fleeing suspect, being at the discretion of the pursuing officer, will often fall into this definition. An exception for sovereign immunity can apply where an officer deliberately causes an injury, or where the officer behaves in a completely reckless manner. Sovereign immunity probably wouldn’t apply if an officer plowed through a crowd of bystanders to get to a fleeing suspect. Fortunately, such cases are rare. Note that even in such circumstances punitive damages are not available in civil suits against state or local agencies. NRS 41.032.
Consult with a personal injury lawyerThe attorneys at the law firm of Greenman Goldberg Raby Martinez have broad experience with personal injury cases in the Las Vegas area. We work with both citizens and first responders to resolve legal problems with professionalism and care. For a free attorney consultation, call us at 702-388-4476 or send us a request through our site.
People suffering from mental illness sometimes injure others. From the standpoint of criminal prosecution, a defendant’s mental illness can be a defense against conviction or alter sentencing. But when a mentally ill individual causes personal injury, the injured person may wish to pursue a civil lawsuit to seek compensation for the costs of recovery.
Mental health and negligenceA personal injury case usually focuses on whether the defendant acted negligently. For negligence to apply, the defendant must have owed the plaintiff a legal duty of care, and breached that duty by acting, or failing to act, as a reasonable person would under the circumstances. Generally speaking, a mentally ill person is not freed from legal obligations solely because of mental illness. The standard for civil responsibility is lower than the standard for criminal liability. For example, a driver has a legal duty to drive in compliance with traffic laws. If mental illness causes a driver to run a red light or swerve into oncoming traffic, the question may be whether the person should have been driving at all. One reason for the reasonable person standard in negligence cases is to free civil trials from the complicated task of evaluating the specific defendant’s capacity to act, or not act, in compliance with his or her legal duty. Because it is an objective standard, the reasonable person rule may offer little help to a mentally ill defendant whose illness caused negligent behavior. Unlike a criminal trial, the defendant’s intent or lack of intent to behave a certain way usually doesn’t factor into the question of negligence.
Health professionals have no “duty to warn” in NevadaWhen a potentially dangerous person causes injuries, questions may come up about whether other people who knew about the danger may bear some responsibility. Many states have laws governing the duty of health professionals to warn others about risks posed by a potentially violent, mentally ill patient. In some states, like California, psychotherapists are obligated to warn people who may be threatened by a patient. But Nevada has no such rule. Absent a rule requiring such disclosures, medical professionals are bound by strict confidentiality rules that prohibit them from disclosing a patient’s mental health condition. Without a patient’s consent, a health care provider in Nevada can only disclose records to a patient’s next-of-kin, or to state investigators in limited circumstances. NRS 629.061. Significantly, a plaintiff in a civil lawsuit can’t demand health records unless the patient (or the patient’s representative) first raises the issue of mental health. The federal Health Insurance Portability and Accountability Act, or HIPAA, also restricts when a healthcare provider can breach a patient’s confidentiality rights.
Consult with a personal injury lawyerFor over 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in the Las Vegas area in cases involving personal injury. If you have been injured by someone who suffers from mental illness, our attorneys can answer your legal questions. To speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.
Injuring or killing someone in an act of self-defense can lead to concerns about civil and criminal liability. Nevada law provides protections for people who act in self-defense, but Nevadans should take a moment to understand what those protections are and how they work.
Justifiable homicide under Nevada lawNevada’s “justifiable homicide” laws provide that it is not a crime to kill someone while acting in self-defense in certain situations. The killing must have been for one’s own self-defense, or in defense of an occupied home or vehicle. The person who was killed must have been “manifestly” intending or endeavoring to commit a crime of violence, or to enter the home or vehicle for the purpose of assaulting someone inside. NRS 200.120(1). Justifiable homicide extends to acts in defense of other people who are in imminent danger, or in cases where the homicide occurs while resisting an attempted felony. NRS 200.160, NRS 200.190. Under the state’s “stand your ground” law, a person is not required to retreat before using deadly force provided that the following things are true:
- The person is not the original aggressor;
- The person has a right to be present at the location where deadly force is used (i.e., the person is not trespassing); and
- The person is not actively engaged in criminal activity at the time the deadly force is used.
Nevada limits civil liability for injuries caused in the course of self-defenseNevada law expressly provides that someone who hurts or kills someone in an act of self-defense cannot be held civilly liable for the personal injuries or wrongful death of the attacker. NRS 41.095 shelters acts of self-defense described above, and also protects people who act in self-defense under the following circumstances:
- The person used force to defend the person’s residence or other place of transient lodging, or vehicle;
- The person had a reasonable fear of imminent death or bodily injury to himself or herself, or another person;
- The person who is injured or killed is committing burglary, home invasion, or grand larceny of the vehicle using a deadly weapon; and
- The person who used force knew or had reason to believe that burglary, home invasion, or auto theft was being committed.